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.
CHOOL OF LAW
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.
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.
ENTRE FOR THE
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.
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.
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-
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
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
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
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
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
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.
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
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
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
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
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
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.