Restitution or Repetition? How the Justice for Uncompensated Survivors Today (JUST) Act Is Inevitably Another Ineffective Restoration Attempt.

• Author: McKie, Rachel E.

"Chronological analysis reveals that none of the adopted instruments of public international law imposed any enforceable legal duty on the government of the signatory states, let alone any additional legal right for the victims of Nazi era spoliation." (1)

1. INTRODUCTION

   The Holocaust, one of, if not the most, devastating genocides in world history, resulted in the mass murder of millions of Jewish people across Europe. (2) In addition to these atrocities, the Nazi regime stole countless possessions from Jewish families including art, jewelry, and other property. (3) The rationales behind Nazi looting vary. (4) Some stole because of underlying racial ideologies, whereas others focused more on the Nazis' personal benefits. (5) Regardless of the reasoning behind Nazi looting, these "incalculable" losses still haunt Holocaust victims and their heirs as they seek justice through the restoration and return of their stolen property. (6)

   Nazi confiscation of Jewish-owned property, one of the "greatest dislocation[s] of cultural property in history[,]" remains a problem Holocaust victims and their heirs face today. (7) One mechanism to restore losses from the Holocaust is restitution of stolen assets. (8) Restitution is an extremely important process in transitional justice because it acknowledges historical wrongs and also encourages education and discussions of history. (9) Recognizing the desperate need for restoration of stolen property was not a priority for the United States or many other countries at the end of the World War II. (10) Recently, however, more efforts have been made to return Nazi-looted property to Holocaust victims and their heirs. (11)

   Congress enacted the Justice for Uncompensated Survivors Today (JUST) Act in 2018 as another effort to promote restoration of Nazi-looted property. (12) The JUST Act requires the U.S. Secretary of State to report the nature and extent of laws and policies created by various countries regarding restitution of Nazi- looted assets. (13) By assessing and describing the extent of restitution efforts created in different countries, the JUST Act seeks to support returning wrongfully-seized property, or, in the case of heirless property, compensating Holocaust survivors in need and encouraging Holocaust education. (14) This recent effort thus demonstrates the recognition of the continued need to promote restitution in order to help provide justice to victims and their heirs. (15)

   Although Congress's intent behind the JUST Act is to promote tremendously important restitution goals, the desired outcome of this Act will likely not transpire. (16) The JUST Act is too similar to other nonbinding efforts established to encourage restitution, and thus will not result in the "justice" it intends to promote. (17) This Note will examine the JUST Act as an effort made by the United States to encourage other countries to increase their restitution efforts. (18) Part II will examine the progression of restitution efforts made from the end of World War II through today and the outcomes of such efforts. (19) Part III will then compare the JUST Act to prior efforts and argue that it is too similar to other failed efforts to encourage restitution, and that its enactment will not achieve its intended objectives. (20) Finally, Part IV will suggest solutions for the United States and other countries to implement in order to better advance restitution efforts. (21)

2. HISTORY

   1. Holocaust Background and History of Nazi Looting

      Between 1933 and 1945, the German Nazi regime systematically killed approximately six million European Jews and members of other persecuted groups. (22) Adolf Hitler, a man obsessed with the concept of a "pure" German race, led the mass murder. (23) Hitler initially proposed the idea of racial ideology in his autobiography, Mein Kampf, which called for eliminating "inferior" races. (24)

      The proposition to eliminate the Jewish population spread, and as a result the Nazis began gradually stripping Jews of their possessions. (25) They started by passing a law requiring Jews with more than five thousand Reichmarks in property to periodically declare and inventory their assets. (26) Eventually, Jews were prohibited from selling their property without Nazi approval. (27) Nazis "threatened, coerced, and murdered to amass what Hitler hoped would be the greatest collection of art" before ultimately arranging to extinguish Jewish culture altogether by eliminating anyone not of "pure" Germanic race. (28)

      In order to further this goal of eliminating the "inferior" races, the Nazis opened a network of Jewish ghettos and concentration camps to enslave and exterminate their targets. (29) The Nazis forced countless Jewish families out of their homes and made them forfeit most of their possessions, including valuable cultural property. (30) At the same time, Hitler expanded the German army to grow his empire throughout Europe, but was defeated by the end of World War II and ultimately committed suicide in April of 1945. (31)

      Lives were not the only thing lost during the Holocaust. (32) The atrocities of the Nazi regime and the war left many survivors homeless and robbed of valuable property. (33) Nazis often destroyed or sold valuable artwork they had stolen from Jews, leaving owners with no record of their possessions, and thus little ability to recover this stolen property after the war. (34) Assets that Jews deposited into bank accounts throughout Europe were also irretrievable after the war. (35) In particular, Swiss banks mishandled Jewish accounts by wrongfully retaining dormant accounts and mistreating heirs of deceased Holocaust victims. (36)

      The mass theft of artwork and other assets during the Holocaust is immeasurable. (37) The scale of Nazi looting was unprecedented in history, and even after the Holocaust, "Holocaust survivors--witnesses to brutal murders, torture, and heartless thievery of the Nazis and their accomplices--continue to be cheated and defrauded, inexplicably as they fight for the rightful return of their stolen property." (38) As a result, victims, and eventually the international community, called for international restitution efforts that would have to be equally as immense to provide justice and adequate compensation for those the Nazis wronged. (39)

   2. Post-World War II Early Restoration Efforts

      1. Initial Restitution Efforts by Germany

         Following World War II, efforts to restore these stolen assets to their lawful owners and their families were inadequate. (40) Smaller initiatives were taken; for example, in 1953, the German government made payments to Jewish people who had assets stolen as a form of restitution. (41) This was the government's way of recognizing the German people's role in the crimes that were committed, but Germans themselves were still hesitant to acknowledge their own complicity in Nazi war crimes, and therefore did not favor reparations. (42)

      2. Allies' Early Restitution

         One of the first restitution initiatives began in 1943 when the Allies became aware of the scale of Nazi theft, resulting in the announcement of the Inter- Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control (Inter-Allied Declaration). (43) The Inter-Allied Declaration was a nonbinding announcement reserving all rights to declare invalid any transfers or dealings of any property rights and interests that occurred in Axis-controlled areas. (44) The Inter-Allied Declaration also applied to open looting, plunder, and sham transactions, allowing the Allies to strip the stolen property of its Nazi-fabricated legality. (45) It created a general restitution initiative, but was nonbinding and most countries were hesitant in enforcing the policies. (46)

         After the war, the Allies further undertook to aid in the return of stolen property to its lawful owners. (47) They established the Monuments, Fine Arts, and Archives (MFA&A) section of the Office of Military Government for Germany, United States to locate and document stolen art, and to ensure the pieces were not damaged or stolen again. (48) In order to do this, the U.S. Army established "collecting points" to gather and record the stolen assets. (49) But the volume of assets in Germany overwhelmed the MFA&A staff, resulting in artwork becoming damaged or stolen yet again. (50) This was just the beginning of the United States' many attempted, yet failed restitution efforts. (51)

         Western European nations also set up special claims commissions for victims of the war to reclaim their stolen property from the state. (52) Occasionally, their property was returned to them, or even more rarely, they were compensated for the stolen property. (53) Nevertheless, these commissions were ineffective because the window of opportunity for victims to claim their property was extremely short, and those who did try to bring their claim usually did not have any evidence of their property. (54)

   3. Modern Approaches to Restitution

      1. Switzerland

         Restitution in Switzerland predominantly involved restoring money that was placed in Swiss banks during World War II. (55) In 1996, a class action suit was filed against the three largest banks in Switzerland for not returning money deposited by Jewish people. (56) Specifically, plaintiffs alleged their money was never returned from dormant bank accounts, and thus sought return of these assets, compensatory and punitive damages, and an imposition of a constructive trust upon the money. (57) The banks and the Swiss government were hardly cooperative and hesitated to take the claims seriously until the U.S. government issued a report actually confirming the legitimacy of these claims. (58) The United States' report effectively pressured Switzerland into settling for $1.25 billion, which at the time was the largest settlement of a human rights case in U.S. history. (59)

      2. Austria

         After World War II, Austria passed seven laws to restore...