29 Spring 2023 ntroduction This article explores the creation of a Federal German legal order for the restitution of stolen properties and compensation for personal injuries caused by Nazi persecution. It examines the roots of such a legal order in light of the 70th commemoration of the Luxembourg Agreement, signed by the Federal Republic of Germany, the State of Israel, and the Jewish Claims Conference (JCC). This article further delves into the legal disciplines that were utilized to create such arrangements, as well as their following developments. This includes the shift of legal disciplines and manners of solving compensatory needs vis-à-vis financial restrictions imposed by the national budget (such as article 104a or 115 German Federal Basic law).1 We will review the various internal and external factors that influenced the Federal Republic to create individual compensation mechanisms for the first time in modern history, based on international law obligations (some that existed prior to World War II and others that were only created afterwards). The purpose was to take the necessary steps to allow Germany to return to the “family of nations,” and reintegrate the U.S.-backed Western European block. Legal Historical Background for the Federal Republic of Germany’s Creation of Compensation Laws As early as the end of 1942, the Allied forces,2 led by the U.S. and Great Britain, discussed post-war issues. A specific declaration outlining the need to return looted and plundered properties was concluded in 1943 by sixteen countries, all fighting alongside the Allied forces. However, it was only in August 1945 that the London Agreement established an international tribunal for the trial of Nazi war criminals.3 Shortly afterwards, and mostly due to Raphael Lemkin’s strong lobbying, the UN General Assembly agreed to include the term “genocide” in its resolutions, and ensured that Nazi war crimes be declared a gross violation of international law (1946 decision).4 This declaration would soon be known as the Convention on the Prevention of Genocide (December 9, 1948), and adopted alongside the Universal Declaration of Human Rights.5 Simultaneously, two important processes took place in Germany. The first led to the end of the three military occupation zones in Germany, which were controlled by the Western powers, as well as the ensuing establishment of the Federal Republic of Germany (West Germany). This establishment was accompanied by the passing of a new constitution: the Basic Law of 1949, which set forth basic rights and protections. It also denounced key flaws of the German Nazi regime, such as the violation of human liberty and property rights. These concepts became entrenched in the new constitution, so that no Dual State (a term coined in 1941 by German refugee Ernst Fraenkel in his analysis of the Nazi regime: The Dual State: A Contribution to the Theory of Dictatorship) would be able to rise again in Germany. This entrenchment helped prevent the violation or deprivation of minorities’ basic rights. The second development pertained to international relations. In order to be accepted into the international The Federal Republic of Germany’s Creation of Compensation Laws for Nazi Wrongdoing I Avraham Weber 1. Michael J. Thomerson. “German Reunification — The Privatization of Socialist Property on East Germany’s Path to Democracy,” 21 GA. J. INT’L & COMP. L. 123-143 (1991), available at https://digitalcommons.law.uga.edu/cgi/ viewcontent.cgi?article=1541&context=gjicl 2. Secretary of State to the Chargé in the United Kingdom (Matthews),“Inter-allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation of Control; Establishment of Inter-Allied SubCommittee on Acts of Dispossession” (Dec. 31, 1942, 5 pm), available at https://uscbs.org/assets/inter-allieddeclaration.pdf 3. Yale Law School, NUREMBERG TRIAL PROCEEDINGS, Vol. 1, “London Agreement of August 8th 1945,” available at https://avalon.law.yale.edu/imt/imtchart.asp 4. UN General Assembly, THE CRIME OF GENOCIDE, 11 December 1946, A/RES/96, available at https://www.refworld.org/ docid/3b00f09753.html 5. UN, Universal Declaration of Human Rights, available at https://www.un.org/en/about-us/universal-declarationof-human-rights
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