The Contemporary Right to Property Restitution in the Context of Transitional Justice. for the full article: see
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Written by Rhodri C. Williams for the International Center for Transitional Justice
OCCASIONAL PAPER SERIES
The Contemporary Right to Property Restitution in the Context of Transitional Justice
I. Introduction 1
II. Evolving Understandings of Property Restitution in International Law1
A.Human Rights and the Obligation to Provide Remedies to Individuals3
B. Property Restitution as a Remedy for Displacement5
III. Contemporary Restitution Practice 11
A. The Czech Republic11
B. South Africa23
A. Relationship of Restitution to Transitional Reparations and Land Reform47
B. Rationalizing Restitution—Remedies and Durable Solutions49
C. Procedural Considerations51
D. Substantive Considerations52
III.CONTEMPORARY RESTITUTION PRACTICE
A. The Czech Republic (case study)
Czechoslovakia was one of a number of states in the former Soviet Bloc that chose property restitutionprogramsasintegralcomponentsoftheirtransitionfromsocialismandplanned economies to liberal democracy and market capitalism. While the process began prior to the peaceful dissolution of the Czech and Slovak Federal Republic (CSFR) in 1992, its two successorstates—theCzechRepublicandSlovakia—both arried on with restitutionprograms. Restitution in the Czech Republic has been greatly complicated by a number of factors, including a high number of potential claimant groups, the passage of time since the bulk of the impugned confiscations, and the sensitive political considerations that have, far more than any concept of individual rights, dictated which groups have benefited and which groups have been excluded. Restitution in the Czech Republic has been largely successful in terms of its domestic political symbolism, as a redistribution of societal goods concretizing rejection of the communist past through the partial reconstitution of the property relations that preceded it. However, the selective nature of this process dictated that actual remedies were not provided on an equal basis to all similarly situated victims of displacement. Phrased in the language of justice (if not rights) and deeply ideological at heart, Czech restitution represents a transition between old concepts of restitution as a discretionary option of sovereign states and the new concept of restitution as an individual remedy.
At the time of the collapse of communism in 1989, at least three significant groups of victims existed with cognizable restitution claims derived from different periods of the Czech Republic’s prior history. The earliest claims in time belong to the Jewish victims of persecution under Nazi Germany’s 1939–1945 occupation of theCzech lands. During this period, Czech Jewswere placed under German jurisdiction, and their homes, businesses, and communal property were confiscated and turned over to ethnic Germans. As a result, Jewish properties would later be lumped in with the bulk of German properties confiscated by the Czechoslovak state in the course ofitsexpulsionofGermanminority communitiesattheendofWorldWarII. Withthe communisttakeoverofCzechoslovakiainFebruary1948,thetrendtowardsnationalization increased and the confiscation of Jewish properties became effectively permanent.
The second set of restitution claims against the Czech Republic stem from its post-war expulsion of long-settled German minority communities, collectively referred to as the Sudeten Germans. During a three-year period in the wake of World War II, nearly three million Sudeten Germans weresystematicallyexpelledfromCzechoslovakia,losingtheirlandandpropertywithout compensation. The Sudeten German territories had been involuntarily incorporated in the new state of Czechoslovakia after World War I. Resulting grievances were exploited by Adolf Hitler insecuringthe1938MunichAgreement,whichshiftedCzechoslovakia’sborderstoplace Sudeten German areas within the German Reich and set the stage for Hitler’s 1939 occupation of the remaining Czech lands. Although the Sudeten Germans by no means uniformly supported HitlerorunionwithNaziGermany,theywereperceivedasafifthcolumnbytheCzech government-in-exile, which successfully lobbied during the war for revocation of the Munich Agreement and the eventual expulsion of the Sudeten Germans.
At the end of the war, the Allied powers requested the Czechoslovak authorities to allow the “orderlyandhumane”transferofethnicGermanstoGermany. Initially,however,tensof thousandsof“wildexpulsions”ofGermanstookplaceinconditionsofchaosandfrequent brutality. By 1946,“orderlyresettlement” procedures were instituted, withGerman communities forced to leave all but a small allowance of personal baggage behind and transported by freight train to Germany. The Sudeten expulsions appeared to violate the international law prohibitions against deportations that were contemporaneously enforced against Nazi officials during the Nuremburg Trials. Nevertheless, they were undertaken with the blessing of the Allies and in accordance with a series of decrees issued by post-war President Edvard Beneš. With the communist takeover of Czechoslovakia in 1948, all hope of redress for the Sudeten Germans would recede for four decades, until the “Velvet Revolution” of 1989 created a new opportunity for the assertion of their historical claims.
Athird category ofrestitution claimsderivesfromextensiveexpropriationsofproperty undertaken by the communist authorities after their takeover of Czechoslovakia in 1948. The first and most familiar group of claims in this category involves property transferred from individual to state ownership as part of post-war nationalization policies. Czechoslovakia was generally seen as going farthest among the Soviet bloc states in terms of nationalizing property and restricting private ownership. As a result, by 1989, the state owned or controlled nearly all real property. In practice, nationalization tended to be undertaken against inadequate compensation or none at all, and with little recourse available to those affected. In many cases, property was expropriated in violation of existing law at the time. However, even under these circumstances, such acts of nationalization were not necessarily prohibited by international law. As discussed above, the traditionalruleson expropriationfocusedon theprotectionofnon-nationals, allowingstates broaddiscretiontotaketheirowncitizens’propertyastheysawfit.Evenfromamoral perspective, absent persecutory intent, nationalization was not a categorical wrong:
For such great historical wrongs as slavery and genocide, the normative premises are clear—these acts were profound violations of the dignity of persons—and the appropriate response a generation later…must include a dose of moral horror. The same is true for someparticularexpropriations, thosepunishing theexercise ofbasicrights that any legitimate regime must respect.Butrespondingtothesystematicexpropriations undertaken as part of the socialist project has to involve a different tone and set of premises,seeingthemasfailedandhumanlycostlypoliticalmistakes,butnotas crimes.
A second category of property takings carried out by the communist authorities did have a more obviously persecutory or at least punitive intent. These involved the confiscation of the homes andpossessionsofexpatriates.Priorto1989,defectorsfromtheCSFRfacedinabsentia prosecution, with penalties including jail terms and the confiscation and sale of their properties. Nevertheless,between1948and1989,some500,000peopleillegallyleftCzechoslovakia. Unlike nationalization programs, the bulk of which were implemented in the decades after World War II, punitive confiscations of property continued to be exacted against expatriates through the end of the communist period.
Althoughthereareimportantdistinctionsbetweentheabovefourcategoriesofrestitution claimants—JewishvictimsoftheNazis,expelledSudetenGermans,Czechsimpactedby nationalization and expatriates—acommon thread uniting most of their claims hasbeenthe passage of time. By 1989, the bulk of claims for property taken through nationalizations and punitive confiscations related to events that had occurred as long as twenty years ago. Meanwhile, the Sudeten German claims were over forty years old and most Jewish claims up to fifty years old. In other words, most property claims were related to consequences of actions that either predated forty years of communism or that had occurred during the first half of the communist period, a generation prior to the Velvet Revolution. In this sense, restitution claims on the post-communist Czech regime represented a demand for “intergenerational” redress, as distinguished by Steinberg from conventional transitional justice in the immediate aftermath of human rights violations.
As a result of the passage of time, the assertion of intergenerational restitution claims presents particularchallenges.First,partiesandwitnessestosuchproceedingsmayhavediedand evidence been lost or obscured. Second, giving effect to such claims inherently gives rise to legal uncertainty by revisiting long-settled acts. In the case of restitution, even where the original expropriation may have been unjust, the fact that others have used or even owned the property for decades gives rise to legal interests on their part that must be taken into account. Finally, in the Czech Republic, the specific time period when many of the impugned property takings occurred was prior to the general acceptance of international human rights law. As a result, such takings did not clearly breach Czechoslovakia’s international obligations at the time and do not clearly obligereparationnow.Theonlyareaofintergenerationalrestitutionclearlygovernedby contemporaryhumanrightslawistherequirementoffairnessandequaltreatmentinany contemporary restitution procedures that governments voluntarily provide.
In the case of the Czech Republic, this dynamic is illustrated by the approach taken by the pre-eminent regional adjudicator of human rights, the European Court of Human Rights, to restitution complaints. One of the fundamental jurisdictional rules of the Court is that it may only consider complaints regarding acts or omissions of a respondent state that took place or continued after the date upon which that state acceded to the ECHR. This rule of jurisdiction “rationae temporis” reflectstheCourt’sobligationnotto apply theECHRretroactively.AstheCzechRepublic accededtotheECHRin1992,directchallengestoanypropertytakingsbefore1989are presumptively inadmissible. The Czech Republic is, of course, bound by broader provisions of international law than the ECHR alone. However, most questionable confiscations in the Czech Republic also predated jurisdiction of bodies such as the UN Human Rights Committee, which hearsindividualcomplaintsundertheICCPR. Asaresult,theCommitteedoesnothave jurisdiction to examine past confiscations of property, but has issued a number of “views,” or decisions, finding that the exclusion of certain classes of claimants from restitution programs violates the right to equal protection of the law under Article 26 of the ICCPR. However, because Czech constitutional law only recognizes the European Court of Human Rights as an “international court” whose decisions must be given effect, Czech courts have considered the Committee’s views but often rejected its findings.
The uncertain applicability of contemporary human rights standards to intergenerational property takings left the Czech authorities with a great deal of discretion to define restitution according to political criteria. The choices ultimately made reflect the shift in power relations and ideology brought about by the 1989 Velvet Revolution. This transitional moment began with the sudden collapse of a widely reviled communist regime.
As in the rest of the region at the time, the absolute rejection of communism created a chance for a prospective redefinition of the Czech political community in the guise of a “return” to bourgeois nationalism, democracy, and market capitalism:
The similar political developments…in the region pointed to a regional historical revival aimed at recovering Communist expropriations in the name of the “people” rather than at rectifyinghumanrightsabuses….[Resultingrestitutionpolicies]privilegedaspecific ethnic group or rewrote the “traditional” national composition of the region so as to reflect the current middle class as liberating the “people” and “returning” the country to its historical pre-Communist status quo ante, its idealized past.
The redistributive aspect of restitution in this context is significant. As Barkan points out, the process involved taking property from many people who felt they had acquired it legitimately and restoring it to the pre-communist elite, rather than distributing it evenly for the good of all. On the other hand, restitution did promise to keep property out of the hands of discredited former communistsandmistrusteddiasporagroupsabroad. Inasimilarvein,EasternEuropean restitutionalsotendedtobeimplementedinamannerthatconsolidatedethnicidentityby excluding minorities. Finally, restitution was often cast as “re-privatization” and treated as a componentoftheliberaleconomicreformsespousedbymostEastEuropeancountries. However,credible economic arguments againstrestitution existedaswell,reinforcingthe primacy of politics in the decisions ultimately taken in many EasternEuropeancountries to restitute.
Againstthisbackground, restitutionproceeded in the Czech Republic on an extensivescale relative to other Eastern European states. The most important restitution laws were passed prior to the dissolution of the CSFR, beginning with the October 1990 “Small Restitution Law,” a limited intervention that reversed a particularly lawless wave of early nationalizations. The substance of the Czech restitution program came with the “Large Restitution Law” and the “Federal Land Law,”bothpassedin1991. TheLargeRestitutionLawpermittedclaimstorealproperty appropriated by the communists, amounting to as much as ten percent of overall state property. The Land Law created a similar cause of action for rights in agricultural and forest land alienated by the communists, affecting as many as 3.5 million titleholders. Both laws swept widely, allowing restitution in cases of both formal nationalizations in accordance with then-valid law and less formal confiscations.
In defining the scope of Czech restitution, these two laws set two important parameters. First, both laws included a “cut-off date” of February 25, 1948, the date the communists formally took power. As a result, all claims related to confiscations before this date were excluded, including those of the expelled Sudeten Germans and Jewish victims of Nazi persecution. A second important limitation was the requirement that claimants be both citizens and permanent residents of the Czech Republic, a provision that excluded virtually all expatriate victims of communist confiscations. In the context of their time, these laws were notable both for their generosity to the many eligible claimants they admitted, and for their harshness to the large classes of potential claimants they excluded. However, the CSFR Parliament left little in the way of reasoning for the choices it had made, noting blandly that the laws represented their “attempt to redress the results of certain property and other injustices arising in the period from 1948 to 1989, aware that these injustices cannot ever be fully compensated for….”
Thelawsbalancedtherelationshipbetweenformerandsubsequentowners,withclaimants entitled to either restitution or compensation depending on the nature of subsequent use of the property. Subsequentpurchaserswereprotectedfromlossofclaimedpropertyunless demonstrated to have acquired the property illegally or through personal involvement in the persecution of the former owners. Other properties exempt from in-kind restitution include those substantially altered or destroyed, those owned by foreign states or companies, and those used for public purposes. In addition, tenants living in restituted apartment buildings were protected from eviction or rent increases.
The procedures for Czech restitution were highly decentralized and informal, with claims initially made in writing to the current occupants of claimed properties and referred to local courts if terms could not be agreed. As a result, lack of accurate aggregate information about the process was a problem from the beginning. Nevertheless, restitution was deemed largely completed by 1993, havingaffected“roughly10percentofthedwellingstock,mainlyinthecentralpartsof towns.” However, severalhundreddisputedcasesenduredtenyearslater, withtheCzech authoritiesstillunabletoprovidereliablestatisticsregardingtheoveralloutcomeofthe process. Asaresult,publicperceptionsofCzechrestitutionhaveoftenbeenformedby controversies related to the groups excluded from restitution, rather than the progress of those entitled to claim. Themost rancorous of these debates has been that over the claims of the Sudeten Germans.
A distinctive feature of the Sudeten German claims is their explicit articulation of restitution as a means of facilitating their own intended mass return. Their claim is explicitly to “restore the pre-war situation.” On the other hand, Sudeten German organizations have shown insensitivity toCzechgrievancesarisingfromthecomplicityofmanySudetenGermansintheNazi occupation.
These missteps have aggravated a Czech tendency to view the proposed return of Sudeten Germans as a re-imposition of the dangerously unstable conditions of ethno-political conflict that resulted in World War II. These arguments invert the corrective justice rationale typically given in favor of mass return by implying that the pre-expulsion status quo (of what we wouldtodaycallmulti-ethnicity)wastoodangeroustoriskreinstating. Thisviewpointwas perhaps best expressed in a 1995 speech by then-Czech President Vaclav Havel. While Havel acknowledged the expulsions as a historical wrong, the Sudeten Germans who supported union with Nazi Germany are described as having “turned not only against their fellow citizens, against Czechoslovakia as a state…they turned against humanity itself.” Having established the threat to the past Czechoslovak state from nationalist minorities, Havel goes on to rule out any form of redress by the modern Czech state on the basis that it would risk opening itself up to the same dangers again:
If we were to transplant ourselves into our past history forever and existentially identify ourselves with it, we would lose the ability to look at it from a distance, to judge it with the due sense of responsibility and to learn from it. In the end, such a complete self-transplantationintothepastwouldamounttoaspecificwayofrestoringthetribal concept of nation….We know full well what the ultimate product of this concept is: the principleofanever-endingcircleofbloodfeudswhichagainandagaindrives generationsofgrandchildrentopunishothergrandchildrenforwrongsdonebythe grandfathers of the latter to the grandfathers of the former.
Havelconcludesbywelcomingexpelleestoreturnas“guestswhoesteemthelandswhere generations of their forefathers once lived,” but rejects their restitution claims as “an effort to set the vicious circle of tribal retaliation in motion again.” The terms of President Havel’s political rejection of restitution are mirrored in a Czech Constitutional Court judgment, adopted one month later, which legally dispensed with Sudeten German claims once and for all. In addressing a challengetothepost-war“Benešdecree”onconfiscationofGermanproperty,theCourt attributescollectiveresponsibilitytotheSudetenGermanminorityforhavingbyandlarge supportedunionwithNaziGermanyinthe1930sdespite“itsalreadyoverttotalitarian character.” Referringtotheextraordinarythreatoftotalitarianism,theCourtjustifies “extraordinary legislative measures,” such as the expulsions as a defence of human rights:
[The decree] is a sanction aimed at ensuring the function and purpose of human rights and freedoms, their constructive contribution to society, and the deepening of the sense of responsibility. After the Nazi occupation had ended, it was necessary to restrict the rights of the then Czechoslovak citizens, not due to the fact that they championed a differing position,ratherduetothefactthat…theirpositionwashostiletotheessenceof democracy and its system of values….
In this context, the Court implicitly rules out contemporary restitution for the Sudeten Germans on the same basis as President Havel, namely the Czech Republic’s “interest in doing away with furtherpossiblerecurrencesofanalogoushistoricalsituations…” to those that ledtoNazi occupation. Inthefinalparagraphsofitsjudgment,theCourtreferstotheleastlegally disputable argument in defence of the confiscations, namely that international law at the time of these acts placed few restrictions on the discretion of states to appropriate private property, and thattheconfiscationswereinstantaneousactsratherthancontinuingviolationssubjectto contemporary scrutiny. While this argument is morally debatable but legally well founded, the Court’s more central inference that the return of Sudeten Germans might trigger a recurrence of totalitarianism is less convincing. As such, the Court’s decision does little to dispel accusations that the maintenance ofethnic purity achieved in thewake ofWorldWar II had become a “formative political consideration” for post-communist Eastern European countries such as the CzechRepublic. Perhapsmostdamaging,attempts toexaltthepost-warconfiscationsas morally imperative conduct (instead of simply accomplished legal facts) have perpetuated the demonization of the Sudeten Germans, reducing the political space for reconciliation through symbolic acts such as nominal compensation or prospective repeal of the Beneš Decrees.
The fear of real or imagined threats to the integrity of the Beneš Decrees has cast a shadow over other claimants than the Sudeten Germans. The most obvious example has been with regard to JewishclaimsforrestitutionofpropertyexpropriatedbytheNaziswhich,liketheSudeten German claims, were pre-empted by the 1948 restitution cut-off dates. In this case, returning the relatively small number of claimed Jewish properties promised to yield a high anticipated “moral payoff” in terms of international public opinion. A legal formula was arrived at by April 1994 allowing a limited exception to the cut-off date for “claimants who lost property under the racial laws enacted by Nazi Germany between 1939 and 1945.” The Beneš Decrees have also been invoked with regard to the restitution claims of the traditional Czech nobility. The confiscation of aristocratic estates after World War II often included elements of both nationalization and expulsion, as segments of the aristocracy were accused of having collaborated with the Nazi occupiers. However, in a number of cases, property claims by former nobles have been decried at the highest levels of Czech politics as undermining the Beneš Decrees, when, from a legal perspective, they represented no such threat.
With regard to the restitution claims of the bulk of expatriates from the CSFR, the Beneš Decrees have received less emphasis and the Czech Republic’s interest in investment in and protection of property has been more overt. However, pragmatic reasons to exclude expatriates were reinforced bythefactthattheirabsencerenderedthemunabletoparticipateintheformativepolitical debatesonrestitution, underscoringatendencythroughoutEasternEuropetoviewthem as opportunisticoutsiders. Inthislight,thecitizenshipandresidencyrequirementsofthe restitution laws could implicitly be read as conditioning restitution of property on willingness to return and live there. Return satisfied not only the pragmatic concern that restituted property be properly maintained but also the ideological concern that property not be alienated to outsiders.
In 1994, the Constitutional Court abolished the residency requirement, but left the citizenship requirement intact. One year later, the UN Human Rights Committee issued its “views,” or decision, in the Simunek case, a challenge brought to the citizenship and residency requirements by four Czech expatriates who had fled the country, lost their Czechoslovak citizenship, and been denied restitution on this basis. The Committee found both requirements to be unreasonable in light of the fact that the claimants’ original entitlements to the claimed properties had not been conditioned on citizenship or residency. The Committee also found that the disputed conditions constituted a requirement that claimants return in order to be entitled to benefit from restitution, a condition that was held to be discriminatory in effect (if not intent) with regard to the claimants, given the circumstances under which they had left Czechoslovakia:
Taking into account that the State party itself is responsible for the departure of the authors, it would be incompatible with the Covenant to require them permanently to return to the country as a prerequisite for the restitution of their property or for the payment of appropriatecompensation.
The Committee concluded that the Czech Republic should not only provide effective remedies to the claimants but also review the restitution laws “to ensure that neither the law itself nor its applicationisdiscriminatory.” However, assetout above, theCommittee’sviewsarenot considered binding in the Czech Republic and were not given effect. The European Court of Human Rights’ decisions are deemed binding, however, and in 2002, the Court issued a decision on a claim brought by expatriates who challenged the citizenship requirement under the ECHR in explicit reliance on the Human Rights Committee’s views in Simunek. Although the case was ultimately found inadmissible on technical grounds, it forced the Czech Republic to set out its justificationforthecitizenshiprequirementmoreexplicitly.Initssubmissions,theCzech Republic underscored the financial interest of the state, “which was in danger of running into debt by rectifying mistakes that had occurred in the past.” As a result, the old equitable objective for the laws (“mitigating the effects of certain wrongs”) was supplemented with the new pragmatic goal of “returning property to thosewho could bestlook after it.” The inference that the privilege of restitution should be conditioned on the duty to return and care for restituted property was made even more explicit in the course of a subsequent complaint to the UN Human Rights Committee:
[T]he [Czech Republic] indicates that its restitution laws…were designed to achieve two objectives. The first was to mitigate the consequences of injustices which occurred during thecommunistregime….The other was to enable a rapid implementation of comprehensiveeconomicreform, intheinterestof establishing afunctioning market economy. The citizenship condition was included in the law to incite owners to take good care of the property after the privatisation process.
Although the Committee observed that this argument had not been substantiated and found a further violation of the ICCPR by the Czech Republic, it also noted that its earlier views on the topic remained unimplemented ten years on. Despite conciliatory steps to permit expatriates to regain Czech citizenship, the confiscation of their property has by and large stood. However, the confirmation of return as a background requirement highlights the contradictions in Czech restitution as it has come to be implemented. For instance, while expatriates are excluded for failure to return, Sudeten Germans are excluded despite their stated intent to return and care for their property. Jewish victims of Nazi confiscations are provided restitution by the Czech state while Sudeten German victims of Czech confiscations are not. And among those whose property was expropriated by the communists, victims of generally applicable nationalization policies are entitled to redress, while victims of individualized punitive confiscations generally are not.
The apparent arbitrariness of Czech restitution highlights the challenges posed by intergenerationalrestitution,particularlywheretheunclearlegalstatusoftheunderlying confiscations invites political criteria for the admissibility of claims. One observer has noted that the lack of clear procedures and political consensus around restitution “enable restitutions and denial of claims to be based on truly flexible readings of the laws, or even upon no laws at all.” This perception is supported by a number of European Court of Human Rights decisions finding violations of the ECHR arising from the restitution process. Far from promoting individual rights or restoring all victims as equal citizens, Czech restitution differentiated between similarly placed individuals in pre-empting remedies for some. Meanwhile, the overtly political process of integrationinEuropeappearstopresentamorehopefulengineforreconciliationandeven symbolic redress than the restitution process. For example, Germany’s political renunciation of Sudeten German claims and support for the Czech Republic’s May 1, 2004 accession to the EU have contributed to a new and less defensive atmosphere in which Czechs have taken their first concrete steps toward making symbolic reparation for the unjustified suffering of many Sudeten Germans.