Colonialism, Slavery, Reparations and Trade: Remedying the “Past”?

Conference held on 1O November 2008 at the Brunei Gallery, School of Oriental and African Studies, London

organised by Essex University School of Law; Human Rights Centre University of Essex; Centre for the Study of Colonialism, Empire and International Law, SOAS; Centre for Commercial Law Studies, Queen Mary University of London.

www.essex.ac.uk/reparations

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Participating Institutions

S

CHOOL OF LAW

, E

SSEX

U

NIVERSITY The School of Law at Essex University was established in 1980 and quickly developed into the internationally recognised centre of excellence for teaching and research it is today, attracting large numbers of international students at undergraduate and postgraduate level. Academics in the Department are at the cutting edge of scholarship. The Department has nurtured research across many fields of law and in particular: public law international law, human rights law, European law, and commercial law. The Human Rights Centre at Essex University had its beginning in the vision of the Department’s founding Professor of Law.

T

HE

H

UMAN

R

IGHTS

C

ENTRE The Human Rights Centre at the University of Essex was established in 1982 and co- ordinates the University’s inter-disciplinary human rights teaching programme, as well as a programme of research, training, external consultancy and publication on international, comparative and national aspects of human rights. The Centre is staffed by what is undoubtedly the strongest team of academic human rights lawyers in the UK, together with philosophers, political theorists and sociologists and others engaged in a variety of human rights-related research, including work on reparations and corporate social responsibility, as well as teaching and practice. The Centre celebrates its 25th anniversary this year with some 1,200 alumni working around the world.

SOAS

C

ENTRE FOR THE

S

TUDY OF

C

OLONIALISM

, E

MPIRE AND

I

NTERNATIONAL

L

AW The School of Oriental and African Studies (SOAS) is a college of the University of London and the only Higher Education institution in the UK specialising in the study of Asia, Africa and the Near and Middle East. SOAS uniquely combines language scholarship, disciplinary expertise and regional focus, it has the largest concentration in Europe of academic staff concerned with Africa, Asia and the Middle East. The newly established Centre for the study of Colonialism, Empire and International Law aims to provide a forum for inter-disciplinary research on public international law and its historical and contemporary relationship to Colonialism and Empire.

T

HE

C

ENTRE FOR

C

OMMERCIAL

L

AW

S

TUDIES The Centre for Commercial Law Studies at Queen Mary University of London aims to promote the systematic study and research of national and international commercial law and its social and economic implications. It also works to develop a body of knowledge, information and skills that can be placed at the service of government, public bodies, overseas institutions, the legal profession, industry and commerce. The Centre is international in composition and outlook and in its research and teaching focuses strongly on the global development of international commercial law.

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CONFERENCE ON “COLONIALISM, SLAVERY, REPARATIONS AND

TRADE REMEDYING THE PAST”

Brunei Gallery, University of London

10 November 2008

“The Value of Experience: What Post World War 2 Settlements Teach us About Reparations” – Address by Clemens N Nathan

I am deeply honoured to have been invited to such a distinguished academic Conference.

Let me at the outset say that I have been on the Board of Human Rights organisations for

over thirty years, dealing with the making of policy decisions. I am not a Professor,

researcher or academic as many of you here are. You have played an important role in

drafting legislation at a national and international level. My function, on the other hand,

has been to see what can be done to try and implement much of your work and to create

new legislation through lawyers where necessary for holocaust survivors and others.

To start with, I have tried to distil 8 general controversial points from our experiences

with the remnants of the holocaust survivors since 1945 which worry me personally and

for which I am not sure there are any straightforward solutions:-

1. Can compensation really be meaningful? What are the main practicalities versus

the idealism which many of us have for it?

2. Is it not extremely dangerous to raise the emotional high hopes of survivors which

can never be fulfilled? Modest lifetime pensions are a limited measure of justice.

3. Should we consider compensation for descendants of survivors for personal

suffering or injury?

4. Where do we draw the lines between relief, welfare and compensation? If one

looks at the major concentration camps all over the world which were liberated

after the Second World War, thousands of people died in the first few days in

each one, because of the inappropriate food, or no food at all. How should this be

dealt with? Are funds from Relief Organisations really sufficient and well-

organised?

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5. How can a political priority be given nationally and internationally to fund

reparations between States for economic damages and property restitution, and

compensation for the individual for personal suffering or injury? How does one

promote this concept to different countries? Is it not a low priority compared, for

example, to climate change or armaments? Is it possible to change attitudes and

therefore ultimately governments to help with this on a large scale in addition to

the various UN Resolutions already in place which have been accepted also into

their domestic law? All NGOs like Human Rights Watch need to continue to

promote this internationally and nationally.

6. What is the impact of an invasion for liberalising a genocidal regime? How can

it become accountable and responsible, if at all, in dealing with victims? Can this

be done on an international basis?

7. Who should be responsible for transferring victims to new countries where they

can settle peacefully with the support of other people who are already there,

perhaps of the same ethnic or religious background? The High Commissioner for

Human Rights and The International Organisation for Migration play an

important role here but are not yet acknowledged by everyone for some reason as

an integral part of a liberating force. Stateless refugees remain a problem.

8. Legal agreements can only function if they can be implemented. To what extent

have we failed to implement our legal skills in those countries where genocide

takes place? Is there any way in which the world community can strengthen

these? Economic sanctions do not seem to work but often make life worse for the

victims. War is usually a catastrophe. What else can be done? Brutal, cruel

fanatics destroy or maim innocent people. The UN protocols on the prevention

and punishment of the crimes of genocide and reparations have not stopped them.

The right to remedy and reparation for victims of gross violations of international human

rights law and serious violations of international humanitarian law was only established

as a principle in October 2005. It seems to me an absolute scandal that it has taken so

long for this recommendation to be able to come to the Third Committee of the UN on its 60th Session for approval. This Declaration is slightly ambiguous but at least it is an

attempt to underpin what many have been fighting for generations. René Cassin would

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have been horrified if he had known how long this would take to be adopted by the UN.

He was a French Jew who drafted the declaration of human rights in 1948.

If the World Jewish community had, for example, not taken it into its own hands to care

for the victims left alive after The Holocaust, they would have continued to rot in the

stench-invested Displaced Persons Camps and have found no haven elsewhere to survive,

grow and develop. No-one else was there to help.

How did they manage alone, without the UN, to achieve negotiations? Property

restitution was a concept which the Western Allies already agreed to in 1947. This

helped the later arguments of the World Jewish community, especially through four

major international Jewish organisations based in the United States. The military

government of the Soviet Union was, however, never interested in this or in any other

concepts for help. You will perhaps recall that until 1949 there was a vacuum in the

former Third Reich which was then controlled by the four Allies. The Western Allies

supported the concepts which the Jewish community presented to them based on their

own views of the previous agreements. The Jewish community then set up a Conference

on Jewish Material Claims Against Germany, with a leading personality of that time,

Nahum Goldman, Chairman of the Jewish Agency, an organisation which represented

Jews worldwide, who had been educated at Heidelberg. He understood Konrad Adenaeur

who had befriended him when he was Mayor of Cologne and before he became

Chancellor of the Federal Republic of Germany. They both agreed that the new Germany

could never possibly be accepted by other nations as an equal partner unless it did

something for the monstrous, horrific bestialities deliberately perpetrated by the Third

Reich. Adenaeur was a deeply sincere Catholic who strongly felt that it had to be dealt

with from a moral point of view first and foremost but, of course, he was mindful of the

agreement of the Western Allies to this with whom he had to negotiate on many other

matters. He persuaded the newly-formed Federal Republic of Germany that there was an

obligation and it must be dealt with. The voluntary agreements for compensation for the

three parties in Luxemburg culminated from these discussions in 1952 between the

Claims Conference, the Federal Republic of Germany, and the newly-formed State of

Israel in 1948. It was a remarkable achievement. We should remember that neither of

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the countries, nor the Claims Conference, who were all there sitting round the table, had

existed during the Third Reich period. The legislation which was enacted covers many

volumes.

The complex agreements were divided into two groups – those with the State of Israel

newly-created by the UN and those outside Israel to help with the reconstruction of the

Jewish community which had nearly entirely been destroyed. The agreements with the

State of Israel were more complex. Funds were given over 12 years for infrastructure

building and goods, all to come from Germany, to help Israel absorb the refugees from

the policies of the Third Reich. The plea for this from Israel in 1951 was ignored by the

Soviet Union. The Americans, the UK and France supported it. Since then, there have

been many additional agreements with the FRG. The highly complex individual

agreements cover healthcare, compensation for slave workers, compensation for loss of

assets including art, insurance and many other items which gradually evolved from the

initial agreements and restitution of property. These were later extended to Austria.

I cannot possibly highlight all the work which covered the difficult, complex negotiations

but I thought four of the principal categories might give you some idea.

Firstly, there were the international bilateral treaties and agreements and subsequently,

there were specially-funded German programmes for people who had suffered living in

the West. Later, an agreement was signed which dealt with the former German

Democratic Republic after its collapse. It was a remarkable agreement, supported by the

Federal Republic of Germany. There were various pacts with the Austrian Government

as well as with other countries and the Claims Conference.

The second category covered multilateral agreements between Governments, industry

and various parties, representing victims and heirs. Among the Governments were the

German, Polish, and Russian. “The German Foundation” in 2000 was created to

compensate former slave and forced labourers, not only from Germany but also from all

parts of Europe occupied by the Third Reich on a 50/50 basis between industry and

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government. Both had been responsible for collecting and using these labourers. Many

of these came from Eastern Europe.

Thirdly, there were the 1998 Collective Bank Settlements with Switzerland. These were

extremely complex agreements which have been settled.

The fourth category covered other specialist parties dealing with insurance and similar

matters. Many victims had life insurances in different European countries and it was felt

strongly that the insurance companies needed to honour their liabilities for both the

insured and their descendants, mostly the children and grandchildren of those

exterminated. The five major insurance companies of Europe were deeply involved with

these Agreements.

Complexity of Settlements

Over its many years, $60 Billion has ultimately been paid out for personal injury and

suffering and personal pensions for all requests received by 1969 when these agreements

were closed with the FRG. Payments for individuals who had lived, or were living, in

the German Democratic Republic, were negotiated after its collapse. These included

communal and private property belonging to Jewish families which was then restituted

or, where heirless, was given to the Claims Conference for its welfare and educational

work worldwide. Many descendants were found in nearly 40 countries. The endless

Court cases and lawyers appointed to work with these problems alone belie imagination.

In the 1970s, after the Helsinki Agreements, the Soviets finally allowed Jews to emigrate.

Among them were those who had been in concentration camps in the USSR, or had gone

Eastwards at the end of the War. The Federal Republic finally in 1980 agreed to create a

new Hardship Fund for these refugees but this time the funds were to be administered as

one-time payments by the Claims Conference for the first time. The Nazis persecuted

people in all countries which they occupied, including North Africa. There are still

ongoing discussions about some of these.

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The Slave and Forced Labour Funds Compensation Agreements comes into my second

category of multilateral agreements. These included many more non-Jews. The amounts

received were extremely small but nevertheless were appreciated as an acknowledgement

of suffering. The German Government Foundation, for example, was especially created

for some of these and was one of these. The difference between a slave worker and a

forced labourer was defined by the Third Reich. A slave worker was to be worked to

death within six months whereas a forced labourer was able to continue to work where he

had been sent to during the period of the Third Reich. Forced labourers came from all

the countries occupied by Germany. The Agreements covered the slave workers like

Roma and Sinti as well. Payments were higher for the former slave workers than forced

labourers.

Processing of Claims

I could go on at length about many of the other compensation funds but I thought you

would be interested to hear something about the complexity of running and administering

these funds. Conversations with victims are monitored. They often enquire if they are

entitled to claim in one way or another. All this information is fed into computers and

very often relatives for the first time since the War suddenly appear in other countries and

movingly the Claims Conference can link these people together again. They had hitherto

been lost to one another. Claims have to be co-ordinated with all potential recipients,

especially for property. There are many groups of young people who carry out this

wonderful work in the United States, Israel and Germany, telephoning with the victims in

different languages. It is very complicated. Many of the victims speak unclearly and

sometimes, for example, the spelling of the name of a concentration camp is made in

completely different ways. The word “Auschwitz”, surprisingly enough, has been spelt

in 700 different ways. Today, the computer can recognise these and the different

spellings are automatically dealt with. The database of victims is extremely valuable and

the analysis of this has helped enormously in negotiating new claims for many. It also

helps the German and Austrian Governments to analyse what they need to do. The New

York computers recently processed in one year 280,000 claims in 8 languages. An

average of 8,500 telephone calls, 1,200 letters and 1,000 e-mails from survivors and

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families were sent and received every week for a year. The Claims Conference has 500

Holocaust-related archives today, scattered in 29 countries around the world, which had

to be documented for settlements.

All these funds created needed to be negotiated in great detail to show the specific

requirements, for victims to be eligible. The criteria for the settlements were often

narrow and restrictive. The Claims Conference was not in a position to deviate from the

agreements made with Germany or other countries. They needed desperately to agree to

settle claims whilst beneficiaries were still alive, even if they were not ideal. In some

cases, the Germans have changed agreements after many years of negotiation to make

them fairer. For example, no person who had not been six months in a concentration

camp was eligible for compensation. The majority were already dead after six months. It

was a miracle that any survived. Other funds were later created for those in ghettos and

for several other categories of suffering.

I think you can see from my description how important it is to have a government or a

public agency able to create and organise settlements for genocides.

How did the Claims Conference cope? Four areas probably give a simplified

explanation:-

a) They had to identify eligible survivors.

b) They had to mail applications to those who have received previous compensation

and who might be eligible for additional funds in respect of, for example, slave

labour.

c) Under massive international media advertising campaigns, they drew attention

when a new Fund was available.

d) 350 social service agencies, as well as survivor organisations around the world

assisted claimants with these complicated applications.

Every new application from a survivor is digitally scanned with linkages with offices in

New York, Tel Aviv, Frankfurt and Budapest. The database from these permitted

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unlimited information input, storage and retrieval whilst allowing staff to trace the

progress of claims. They were further electronically sorted and analysed to identify and

group them for streamline procedures. This sophisticated computerisation system was

the key to this most pressing and imperative challenge faced by the Claims Conference.

It revealed much of the history of persecution which was previously unknown. It led not

only to the restitution of a little money for each victim but also the restitution of history.

Importance of Historical Information: Medical Experiments

In the case of medical experiments on women, it was found that there were 195

procedures in the 32 different camps dealing with medical experiments. Only after

painful efforts by elderly survivors reluctantly submitting applications was this really

known. Nothing can express the torments endured by these victims when, in filling in

these forms, they were reminded of their previous horrific experiences. The experiments

are beyond human imagination. The poor people endured the most terrible traumas

again. This was one of the many complex conflicts dealt with by the Claims Conference.

Implications of the Work of the Claims Conference Elsewhere

In March last year we held a Conference at the International Criminal Court in the Peace

Palace in The Hague, with over 80 genocide victim organisations from different countries

participating. The objective of this conference was to highlight what had been done by

the Claims Conference and how their experiences could be of benefit to victims

elsewhere. It was a deeply moving conference and many of the genocide-victim

countries’ leaders were encouraged that people outside their territories deeply cared about

their problems. It was also very moving for us to see that some of our experiences could

be applied elsewhere. I could go into many details about this conference but what it

highlighted firstly above all was the urgent need to create a database in each area of

conflict, which could be used later for negotiations. Secondly, each country should study

who were their most important neighbours or trading partners who could be induced to

help and support them. It was also essential to avoid any form of corruption.

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