12
THE LAW
Václav Klaus, the Czech president, startled and angered his fellow European leaders in October 2009 when he unexpectedly demanded that they endorse a statement affirming the legality of Edvard Beneš’s 1945 decrees authorizing the denationalization, expropriation, and expulsion of Czechoslovakia’s German population. The dispute arose as the ratification process of the Lisbon Treaty on centralization of the European Union was drawing to a close. For the treaty to enter into force, the assent of all twenty-seven members of the EU was required. By the time it reached Klaus’s desk, the other twenty-six had already ratified it; both houses of the Czech parliament had approved the treaty by large majorities; and the Constitutional Court had reported positively on its compatibility with fundamental Czech law. Only the president’s signature was needed for the treaty to take effect. Klaus, however, objected to the Charter of Fundamental Rights incorporated in the Lisbon pact, two of whose provisions, he argued, would expose the Czech Republic to legal claims by German expellees and their descendants. Article 17 of the charter upheld the right to own property, and declared that takings by the state were “subject to fair compensation being paid in good time …” Article 19(1) stated unambiguously: “Collective expulsions are prohibited.”1 To ensure that “the Lisbon Treaty will not lead to the breach of the so-called Beneš Decrees,” the president announced in a press conference at the Prague Castle, it was necessary to obtain an “exemption” guaranteeing that European courts could not challenge Czech law on the validity of the decrees.2 If this opt-out was not granted, he threatened to withhold his signature indefinitely, causing the treaty to collapse.
To many observers, Klaus’s action in playing the “expulsion card” was no more than a last-ditch maneuver on the part of the famously Euroskeptic president to derail an accord of which he vociferously disapproved. Regardless of whether this was the case, he was by no means the only Czech politician to be deeply concerned about the possible impact of EU legislation on the Beneš decrees. In April 2002, two years before the Czech Republic became a member of the EU, both houses of Parliament in Prague unanimously passed a joint resolution insisting that the “legal and property relations arising from [the decrees] are unquestionable, inviolable, and unchangeable.” Tony Blair, the British prime minister; President Vladimir Putin of Russia; and the U.S. under secretary of state, Marc Grossman, each publicly expressed support for the Czech position after Prime Minister Miloš Zeman reminded them that it was “in the interests” of the Potsdam Agreement signatories as well as the Czech Republic to do so.3 Whether Klaus’s objection to the Lisbon Treaty seven years later was tactical or sincere, however, the result was the same. The following month, the leaders of the other EU states provided the requested “opt-out” in the form of a protocol asserting that the charter conferred no new rights on citizens that were not already recognized by the Czech courts. The president thereupon signed the treaty, which took effect in December 2009.
This controversy over the continuing validity of the Beneš decrees drew fresh attention to the applicability of international law to the postwar expulsions. At a moment when the newly established International Criminal Court at the Hague was formulating charges against defendants from the former Yugoslavia based on a statute that defined “deportation or forcible transfer of population” as a “crime against humanity,” the notion that decrees authorizing such actions remain legally valid in Europe seemed especially counterintuitive. Viewed from the perspective of international law, though, the expulsions give rise to three separate questions: whether they were lawful at the time; whether they remain lawful today; and whether a similar population transfer elsewhere might be lawful in the future. The answer to each of these questions is far more ambiguous than might be thought at first sight.
The concept of international human rights is a recent development in the world’s history. Until the late nineteenth century, the idea of “rights” applied only to those claims that an individual might have against his or her own government. During the Renaissance era, some authorities had suggested the possibility of establishing a regime of individual protection that would in certain circumstances extend across borders. The seventeenth-century Dutch legal scholar Hugo Grotius, for example, described what is nowadays known as the doctrine of “universal jurisdiction” when he argued that monarchs could legitimately bring offenders to justice “not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any person whatsoever.”4 Ideas of this type, though, died stillborn. During Grotius’s own lifetime, the trend of international relations proceeded decisively in the opposite direction. The Peace of Westphalia, which brought to an end the immensely destructive Thirty Years’ War, laid down as a fundamental norm of international law that there was no power or entity superior to the individual state.
This doctrine of state sovereignty, the cornerstone of what to the present day is known as the Westphalian system, remained unchallenged until the Hague Conference of 1899. Ironically, the conference was convened by Tsar Nicholas II of Russia, a man whose name was a byword for autocracy and ruthlessness, as a means of diverting the world’s attention from the unenviable human rights record of his own government. Reinventing himself, however unpersuasively, as an apostle of peace, the tsar invited delegations from twenty-six countries to draw up agreements to prevent armed conflict between states and, in the event of these failing in their purpose, to ensure that any resulting wars were conducted as humanely as possible. Accordingly, a series of Hague Conventions was concluded that laid down rules concerning legitimate and illegitimate methods of warfare and established the first court of international arbitration, the Hague Tribunal, since the papacy abandoned its functions in this regard in the fifteenth century. A second conference, with its accompanying conventions, extended these norms in 1907. The Hague Conventions were by no means perfect. They bound only those countries that were signatories. They contained few protections for civilians—a crucial omission that in the future would hamstring the work of humanitarian agencies like the Red Cross. They were silent in circumstances in which a government maltreated its own citizens, rather than the inhabitants of foreign lands its armies were occupying. They applied only to conflicts in which a state of formal war existed, rather than in “undeclared wars” or in peacetime. They provided no means of individual redress, nor any mechanism for enforcement. Nonetheless, they marked a step forward in international law of immense significance. For the first time, they asserted that at least in principle, states and their leaders were answerable to the international community for abusing human rights. It was largely on the basis of the Hague Conventions, which had been ratified by nearly all states by 1914, that the “Nuremberg principle” invalidating the defense of “obeying superior orders” would be codified.
While the Great War seemed to reverse the progress made by international law, it would paradoxically lead to an even more rapid extension of the legal protection of human rights. At first sight, the war was a disaster for the Hague process. Under the pressure of total war, the leading belligerents—led, in nearly all cases, by Germany—systematically violated the undertakings they had given in the Hague Conventions. Hostage taking, the deliberate destruction of historical sites, the use of chemical weapons and of unrestricted submarine warfare, indiscriminate aerial bombing of cities, and compulsory labor all became routine methods of warfare. If the Hague prohibitions against poisoning wells or charging for postage on food parcels sent to prisoners of war were never breached, it was only because these tactics were not at the time considered militarily useful.
The sheer scale of the atrocities committed during the Great War, however, called into being what had never existed until that time: a widespread recognition among the peoples of all countries that modern war had become so destructive that the international protection of civilians, and
especially of vulnerable national, ethnic, or religious minorities, had become an urgent necessity. The first step in this process was taken by the Allied governments in May 1915 when, in response to initial reports of the Armenian genocide, they issued a declaration condemning the actions of the Constantinople regime as “crimes against humanity and civilisation for which all members of the Turkish Government will be held responsible together with its agents implicated in the massacres.”5 This was an act of revolutionary significance, the first time that any substantial section of the international community had attempted to hold states responsible for crimes committed against their own citizens. In the same vein, the Treaty of Versailles compelled the German government to recognize “the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.”6 To be sure, the immediate impact of both provisions was minimal. As in the 1990s, when the Clinton administration emerged as the principal opponent of the creation of an international criminal court,7 Woodrow Wilson and his secretary of state, Robert Lansing, efficiently torpedoed efforts at Versailles to establish a tribunal to prosecute the perpetrators of wartime atrocities—an idea first advanced by Gustave Moynier, vice president of the CICR, in 1872.8 In both the Turkish and German cases, consequently, the Allies left to their defeated foes the responsibility of trying war criminals. The results were predictable. Only a few lower-ranking functionaries among those responsible for the Armenian genocide were made to stand trial before the tribunal in Constantinople collapsed; in 1923 the regime of Kemal Atatürk granted a blanket amnesty to all involved. The German process was even more farcical. The Reichsgericht in Leipzig between 1921 and 1931 initiated 907 prosecutions of persons named by the Allies as guilty of atrocities. Only seven resulted in convictions, the court either accepting what was later to become notorious as the “Nuremberg defense” or, in the vast majority of instances, finding that there was no case to answer. Gerd Hankel has persuasively argued that in Germany itself the widespread belief that war crimes trials were no more than a form of ritual humiliation imposed upon the defeated countries would have tragic consequences in the Second World War, in which the Germans demonstrated their contempt for any kind of legal restraint.9 But for all that these prosecutions smacked of “victors’ justice”—a perception that was only partially counterbalanced by the virtually automatic acquittal or dismissal of charges against the accused—the implication that individuals had a legitimate claim to protection even in the midst of the most destructive war in history did much in other countries to advance the status and prestige of international human rights law.
For much the same reasons, the establishment of an international system to safeguard minority populations became a fundamental part of the postwar reconstitution of Europe. Having discovered at the peace conference the impossibility of redrawing the borders of central and eastern Europe so as to provide “national self-determination” to the hopelessly intermingled peoples of the region, the authors of the Treaty of Versailles fell back on the idea of charging the League of Nations—an immense dustbin into which all the peace settlement’s innumerable unresolved problems were unceremoniously dumped—with the protection of national minorities from the very governments the Allies proceeded to set over them. The need for something of the sort was made clear by the fact that despite strenuous efforts to redraw political boundaries, tens of millions of Europeans had been left on the “wrong” side of the new frontiers. More than a third of Romania’s population were members of one or another national minority; nearly half of Poland’s were not ethnic Poles. Jewish groups also lobbied hard for League protection, fearing all too correctly that in its absence Jews would receive short shrift from the governments of the succession states. In June 1919, then, the Allies prevailed upon the Polish government to conclude a treaty guaranteeing the rights of linguistic and religious minorities and providing for a nebulously defined League oversight system. Similar arrangements for Austria, Bulgaria, Czechoslovakia, Greece, Hungary, Romania, and Yugoslavia soon followed, and by the mid-1920s no fewer than fourteen states had agreed to League supervision of their minority populations.
Like the Hague Conventions, the Minority Protection Treaties had many deficiencies. In most cases, they asserted that national, linguistic, racial, and religious minorities should enjoy the same rights in law as the majority population, and that they should be allowed to educate their children through the language of their choice. But they nowhere defined the criteria for membership of a minority group, leaving it unclear to whom the League’s protection applied. With the exception of the Germans of Polish Silesia, the minorities themselves had no right of appeal to the Council of the League, which could investigate only if a complaint was backed by a member state. Inevitably, this meant that the grievances of the largest and most vocal minorities, supported by the most activist governments whose ethnicity they shared, obtained the most attention, while the rights of smaller and less articulate groups, like the Ukrainians of Poland, the Macedonian Slavs of Greece, or the Austrians of Italy, were violated with impunity. The treaties were bitterly resented by many members of the majority populations: as late as 1984 a Polish scholar alleged (inaccurately) that they were “intended to allow the Great Powers to interfere in the affairs of new states-parties to minority treaties, under the pretext of acting in the interest of minorities residing in those states.”10 Lastly, the protection offered by the minorities treaties was not universal, but extended only to the succession states and some others, like Turkey, that had been pressured to sign them. The British stood firmly against any possible extension that might see their treatment of Catholics in Northern Ireland exposed to international scrutiny; the United States, though not a member of the League, was no more anxious to invite world attention to the condition of black Americans. An even more crucial shortcoming was the failure of the Allies at Versailles to require Germany to submit to the League system. As a result, the League Council found it had no basis for intervention when the Nazis commenced their legal assault upon German Jews with the introduction of the Nuremberg Laws in 1935.
The principal weakness of the minority protection regime between the wars, though, was that in 1919 no less than in 1945, ethnic Germans constituted by far the largest single minority population in central and eastern Europe. The League protection system, therefore, consisted to a considerable degree of the victors in the Great War adjudicating upon the complaints of certain members of the vanquished nation about the personal consequences they were experiencing as a result of that defeat. Already suspicious, with some justification, that many of these protests were aimed at revising the postwar settlement rather than redressing immediate grievances, the “League of Victors” proved reluctant to take them seriously. As Mark Mazower notes,
the League’s foray into minority rights pleased no one. The Great Powers increasingly disliked being required to pass judgment on how Poles, Romanians, or Czechs—their client states—were behaving towards their minorities. As Germany and the USSR regained strength, the British and French lost their appetite for anything which might weaken the east European states they had brought into existence. The latter for their part felt humiliated by the international obligations they alone had been forced to sign, and blamed their minorities for publicizing their grievances abroad and failing to assimilate. And the minorities themselves, as a result of these factors, gradually lost faith in the protection provided by international law, and their complaints to Geneva dried up.11
Even before the Nazis made the condition of the Volksdeutsche the occasion of their—interminably repeated—“last territorial demand in Europe,” therefore, the minority protection system had all but broken down. A deadly blow was dealt to it by the Polish government, which unilaterally announced in September 1934 that it would no longer tolerate League oversight of its treatment of minorities. This was an immensely short-sighted move on Warsaw’s part, for “if the German minority
were not allowed to appeal to the [League] Council, it would inevitably appeal to Berlin.”12 By the end of the 1930s, “the influence of the Council in this field diminished and almost disappeared.”13
The virtually unanimous view that the League’s experiment with protecting the human rights of vulnerable people was an unmitigated failure—or, in Edvard Beneš’s pungent assessment, “ridiculous nonsense”—is nonetheless due for reexamination.14 Whatever its deficiencies, it was incomparably more humane in conception than the alternative of mass expulsion. It is a measure of the moral retrogression that marked the twentieth century that the authors of the minority rights regime, in contrast to their successors a quarter-century later, “would have considered it barbarous to uproot whole communities in this way simply to suit their own interests.”15 Nor was it always unsuccessful. One indication that it had come closer to its objectives than generally recognized was the determination of the expelling governments that nothing like it should be reestablished after the war, lest it stand in the way of the removal of the Germans. Outlining the Czechoslovak government in exile’s plans for the Sudetendeutsche, Hubert Ripka insisted that “we cannot allow these matters to form the object of decisions or joint decisions by any international bodies.”16 In making this demand, of course, the expelling states were pushing at an open door. The Allies were no less anxious that no minority protection regime be reconstituted. “The prospect of such protection,” the Foreign Office’s Inter-Departmental Committee warned in 1944, would “make the operation of transfer harder to carry out.”17 United States Secretary of State Ed Stettinius also agreed at the San Francisco Conference that established the United Nations in the summer of 1945 that the UN Charter should not include “an enumeration of individual and collective human rights and fundamental freedoms.”18 Instead, with the enthusiastic agreement of the other great powers, President Truman successfully proposed that the drawing up of a “Bill of Human Rights” be deferred until some convenient time in the future. Even this, when it finally materialized in the shape of the Universal Declaration of Human Rights, would be no more than a statement of well-meaning aspirations on the part of signatory states rather than a binding commitment.
Orderly and Humane: The Expulsion of the Germans After the Second World War Page 49