At the time the expulsions were conceived, astonishingly little thought appears to have to been given to the question of their legality. To be sure, few statutes or legal precedents existed that might have stood in their way. They were to be carried out in peacetime, thereby sidestepping the 1899 and 1907 Hague Conventions that applied only in time of war. They affected a civilian population, which was not entitled to any of the provisions of the 1929 Geneva Conventions. The CICR had drawn attention in 1934 to the paradoxical fact that soldiers who were capable of defending themselves enjoyed far greater protection in international law than civilians who were not, and drew up a draft convention at Tokyo to rectify this situation. The draft provided that civilian internees were to enjoy the benefit of conditions that should “in no case be inferior” to those provided to prisoners of war; deportations were specifically prohibited “unless they are evacuations intended, on account of the extension of military operations, to ensure the security of the inhabitants.”19 Unhappily, the diplomatic conference scheduled for 1940 at which it was intended that this document would be ratified was never held, due to the outbreak of the Second World War. Not until 1949, with the adoption of the Fourth Geneva Convention, were civilians for the first time provided with an instrument specifically designed for their protection.
Undoubtedly the postwar expulsions were not compatible with the Minority Treaties of the League of Nations, of which all the expelling states were signatories. These bound the governments in question to guarantee that “members of racial, religious or linguistic minorities” would “enjoy the same treatment and security in law and in fact” as those of the majority population. The minority treaties, though, suffered from the lack of any enforcement mechanism, and there was nothing to prevent countries that accepted their obligations from abrogating them later, as Poland had done. Moreover, the United Nations concluded after the war that the treaties were no longer binding—not because any subsequent legal instrument superseded them or released the signatories from their obligations, but simply because “between 1939 and 1947 circumstances as a whole changed to such an extent that, generally speaking, the [minorities protection] system should be considered as having ceased to exist.”20 So too did the legal rights of national minorities as such. So far as international law is concerned, Patrick Thornberry suggests, “the post-war world started, as it were, with a tabula rasa in the matter of tolerance and encouragement of minorities. States could act as they pleased in relation to their populations if they were not inhibited by a relevant treaty.”21 Moreover, as the British Foreign Office helpfully pointed out, if the Allies cooperated with the Polish and Czechoslovak government in completing the expulsion program, the national minorities problem would for all intents and purposes no longer exist in Europe and the need for a renewed minority protection regime would not arise.22
The only remaining legal obstacles that might have stood in the way of the expulsions were the bills of indictment against Germany composed by the Allies during and immediately after the war. An inter-Allied conference of January 1942 listed “mass expulsions” among the offenses for which German perpetrators would be punished.23 The Polish government in exile eight months later promised the death penalty for those participating in “transfers of population.”24 Most significant of all was the charter of the International Military Tribunal at Nuremberg, drawn up on August 8, 1945 to list the offenses for which the leaders of Nazi Germany were to be tried. At first sight, the charter’s definition of “deportation and other inhumane acts committed against any civilian population” as constituting “crimes against humanity” seemed to apply with equal force to the program the Big Three had endorsed at Potsdam less than a week previously. Anticipating that the charter might be invoked against them, however, the Allies limited its application to “any crime within the jurisdiction of the Tribunal”—that is to say, those committed by the Axis countries between January 30, 1933 and May 8, 1945. When defense counsel for Hans Frank, former head of the Generalgouvernement, attempted to justify his client’s part in the wartime deportation of Poles and Jews by pointing out that the Allies were engaged in a far more massive forced transfer operation less than seventy miles from where the court was sitting, the bench ruled the intervention inadmissible because postwar matters were beyond its jurisdiction. While it might appear contradictory that the charter criminalized deeds by Germany and its allies while leaving identical deeds, if perpetrated by anyone else, untouched, the applicability of the Nuremberg principles has proven far narrower during the past sixty years than is popularly supposed.25 In the words of the international law scholar Egon Schwelb, the crime against humanity as set forth in the charter is not “the corner-stone of a system of international criminal law equally applicable in times of war and of peace, protecting the human rights of inhabitants of all countries, ‘of any civilian population,’ against anybody, including their own states and governments.”26 Rather, it covers only those offenses committed in connection with and as part of the waging of “aggressive war,” itself a category that has been successfully invoked only against the losers of the Second World War.27
Later human rights instruments did little more to fill the gap. The UN Commission on Human Rights, which convened in January 1947 to draw up a statement of universal principles, proved thoroughly hostile to the idea of protecting minorities. Eleanor Roosevelt, its chairwoman, fought strenuously against the efforts of the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities to include such a provision. According to Carol Anderson, Roosevelt was always mindful of the danger that an international body might be empowered to pronounce upon the treatment of black Americans in the southern United States, a region almost entirely controlled by the Democratic Party to which she belonged. She therefore “worked to ensure that neither individuals nor nongovernmental organizations would have any authority to petition the UN for redress of human rights violations.”28 Some of the arguments she deployed to this end were, to say the least, curious—most notably her contention that because not all states possessed ethnic or racial minorities, minority rights by definition were not universal and thus had no place in the commission’s deliberations. But in any event, the Universal Declaration of Human Rights which it formulated was not, in the words of the U.S. delegate to the Third Committee of the UN General Assembly, “a treaty or international agreement and did not impose legal obligations …”29 The Genocide Convention too, which was simultaneously being drafted by the UN’s Economic and Social Committee, assisted by a legal team, was watered down in response to U.S. pressure. Its first draft had defined “forced and systematic exile of individuals representing the culture of a group” as a form of genocide. The U.S. delegate strongly opposed this clause, pointing out that it “might be interpreted as embracing forced transfers of minority groups such as have already been carried out by members of the United Nations.”30 The prohibition on expulsions was accordingly deleted from the draft Genocide Convention by a vote of 25 to 16, with four abstentions.31
In the following decades, numerous legal scholars have attempted to craft theories according to which forced population transfers might be held to contravene international law. The most popular of these is the argument that mass expulsions violate either the principle of jus cogens, or “customary international law.” The first of these declares that there are certain “peremptory norms” of international law, like the prohibition on genocide or slavery, that no written treaty or legal instrument can override. The Vienna Convention on the Law of Treaties defines a jus cogens principle as one “accepted and recognized by the international community of States as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”32 A Working Group on Mass Expulsions at San Remo contended in 1983 that compulsory population transfers, whether sanctioned by treaties or not, by their nature fall under this category and must therefore be considered illegal in all circumstance
s. The group’s concession that “there are many gaps in conventional law and an insufficiently specific coverage of the problem of mass expulsion in both international and domestic law,” however, gravely undermined its contention that a universal consensus on the in-admissibility of these actions already existed.33 One of the difficulties, indeed, in successfully asserting the principle of jus cogens is that it seeks to criminalize only what nobody has ever asserted ought to be lawful.
A less sweeping theory is that a ban on expulsions may be inferred from customary international law. By acting in accordance with certain principles as though they were legally binding, states confer on those principles the status of rules of law by dint of long usage and general acceptance. Thus scholars have contended that the Universal Declaration of Human Rights, the Nuremberg Principles, the European Convention on Human Rights, and other statements of commonly accepted norms, while not peremptory obligations, have nevertheless become expressions of customary international law. According to this interpretation, forced population transfers are indirectly prohibited because in practice they are impossible to carry out without acting arbitrarily or indiscriminately against the minority concerned, thereby contravening the customary norms identified with one of these instruments.34 The difficulty with such a line of reasoning, however, is that the evidence suggesting that the Universal Declaration, the European Convention, and similar statements are indeed customarily followed is far from overwhelming; as Patrick Thornberry says, “Here, as elsewhere, the wish may be father to the thought.”35 One of many counterexamples may be found in the reaction of the international community when Idi Amin expelled the ethnically South Asian population of Uganda—some forty thousand people—in the autumn of 1972. As Alfred-Maurice de Zayas recalls, “The United Nations General Assembly … did not adopt any resolution censuring the expulsions, and a proposal before the Sub-Commission for Prevention of Discrimination and the Protection of Minorities that a telegram be sent to the President of Uganda expressing ‘serious concern’ at the proposed action was defeated by fourteen votes to one, with six members abstaining.”36 Numerous other expulsion operations of a similar kind—for example, the driving out of ethnic Serbs from Kosovo from 1999 onward—have elicited no more vigorous a response.
Nevertheless, with the collapse of the Soviet Union and the disappearance of communism as a governing ideology in Europe during the early 1990s, a second legal avenue bearing upon the expulsions opened up. The spread of democracy to most of the expelling states and their subsequent ratification of documents like the European Convention on Human Rights suggested that surviving expellees, and possibly their descendants, might be able to obtain redress of their denationalization, expropriation, or expulsion through the civil courts. Several test cases were quickly filed, most of them against what since 1993 had become the Czech Republic. Because Czechoslovakia adopted measures to return to its citizens property nationalized by the communist state, the prospects of obtaining a favorable outcome by appealing to the principle of nondiscrimination were greater than in Poland, where relatively little property had been taken into state ownership during the communist era and the need for a comprehensive restitution law thus did not exist. Though none of these expellee challenges was successful, they raised legal questions of great complexity that remain unresolved today and, if left unaddressed, may produce still greater complications in the future.
The stakes involved were high. Although many expellees had, of course, died by the 1990s, a finding that those still alive had wrongfully been deprived of Czechoslovak nationality would have created overnight a proportionately significant cohort of new—or old—citizens in a country with a population of barely 10 million. Even this, though, would pale into insignificance beside the almost unimaginable dilemmas that would arise as a result of a successful claim for the return of confiscated property. In one case, the lands whose restitution an expellee sought were, at the time of his filing claim, in the possession of four state agencies, a municipal corporation, and several commercial companies as well as numerous private individuals. The extent of the liabilities that might arise from demands for compensation for injuries suffered by former inmates of internment camps, or restitution for the forced labor extorted from them, was likewise extremely difficult, if not impossible, to calculate. But above and beyond the question of how much money might be required to satisfy hundreds of thousands if not millions of expellee claims, the entire question had explosive political implications. Alone among Nazi Germany’s victims, the Czech Republic had never received restitution payments of however token a character from the Federal Republic of Germany because of a desire not to prejudice expellees’ counterclaims to the property of which they had been deprived in 1945. The possibility that the Czech state might have to pay compensation to individuals who during the war had been Reich citizens and supporters of the Nazi occupation, while Czech citizens went unrecompensed for the murder, misery, and terror they had experienced at Germany’s hands, was intolerable to Czech public opinion in the 1990s. The likelihood that they would accept and comply with an adverse verdict, or a whole succession of adverse verdicts, on this question even from the weightiest international courts was effectively nil.
For this reason, indeed, Czech laws on the restitution of property seized by the state during the communist era were framed in the early 1990s in such a way as to leave as few opportunities as possible to former expellees to pursue their claims. The restitution statute passed by the Czechoslovak parliament in 1991 authorized the return to their former owners of property nationalized by the state between the coup of February 1948 and the collapse of the regime in 1989. The advantage of choosing a starting date of 1948 was that it excluded at a stroke almost all Sudetendeutsche, who had been expropriated two and a half years earlier, as well as ethnic Hungarians forced out in the abortive population “exchange” between Slovakia and Hungary in 1946–47.37 To achieve the same end, the law specified that only those possessing Czechoslovak citizenship and permanently resident in the country would qualify for restitution. As a result, German civil claims against the Czech state pursued two separate tracks. The first proceeded through the Czech courts and either maintained that the Beneš decrees contravened the country’s new democratic constitution, or accepted the legitimacy of the decrees but asserted that they had been wrongly applied against “antifascists” who ought not to have been expropriated and expelled. The second was conducted through international tribunals like the European Court of Human Rights and the United Nations Human Rights Committee, and held that the decrees, the Czech restitution statute, or both, were incompatible with international laws binding upon the Czech Republic.
Attempts to gain redress via the first track—the Czech domestic courts—have proven almost completely futile. One of the most important cases was adjudicated by the Czech Constitutional Court in March 1995, when Rudolf Dreit-haler, a Czech citizen of German origin, claimed the return of a house he had inherited from a Sudetendeutsch relative but that had been confiscated before he could take possession. The court’s finding was, to say the least, idiosyncratic. On one hand it reaffirmed that the Beneš expropriation decree had been lawfully issued by the president in 1945 and thus remained valid and dispositive. On the other it maintained that the decree did not contradict international law because it had not been used to expropriate anyone for the previous forty years and there was no possibility of its being so used in the future; hence it had “no constitutive character.” Lastly, the court found that the expropriation of “persons of German nationality … represents no national revenge, but is simply an appropriate response to the aggression of Nazi Germany,” in which the Sudetendeutsche were implicated and for which they might legitimately be sanctioned. The “gas chambers, concentration camps, mass murder, oppression, killing and dehumanisation of millions,” it maintained, were the responsibility not of the Nazis alone, but of those “who quietly profited from this movement, who carried out their orders, and did not offer resistanc
e.”38 Thus the ruling not only relied upon the notion of collective German responsibility for Nazi crimes as an established fact, but left the decree in a constitutional limbo in which it both existed and did not exist according to whether the frame of reference was domestic or international law.
Expellee petitions before international venues, on the other hand, were even less successful. A typical example was the case of Gerhard Malik, who appealed to the UN Committee on Human Rights in the mid-1990s. Twelve years old at the end of the war, Malik was expelled from Nový Jiĉín in Moravia to the U.S. zone of Germany in July 1946; the house in which he had been born was confiscated. By arbitrarily depriving him of his Czechoslovak citizenship and by drawing up the Czech restitution law in such a way as to exclude him and other Sudetendeutsche from its provisions, he alleged, the Czech Republic was in violation of the International Covenant on Human Rights and its Optional Protocol. In its response to the committee, the Czech government argued that at the time of his expulsion Malik had been provided with a six-month window of opportunity to appeal his denationalization and had failed to do so. Moreover, the Czech Constitutional Court decision of March 1995 on the Beneš expropriation decree had declared that this law “no longer operate[d] as a constitutional regulation” and thus could be challenged in the Czech courts. Here too Malik had not exhausted the domestic remedies open to him. Malik responded that the suggestion that he was at fault in failing to petition for restoration of his Czechoslovak nationality in 1945 was unjustified, inasmuch as inhabitants of internment and forced labor camps were in no position to submit such applications and any attempt to do so often resulted in physical maltreatment at the hands of camp staff. If the Czech Republic contended that the petition process Malik had supposedly spurned was an effective remedy that Germans could readily have used to obtain restoration of their citizenship, “it should provide examples of those who did so successfully.” Similarly, to claim that a ruling of the Constitutional Court that explicitly affirmed the validity of the Beneš expropriation decree had somehow made it possible to challenge its constitutionality before the same court was no less unreal. The Human Rights Committee, however, declined to hear the case on two entirely different grounds. The fact that the Czech Constitutional Court had upheld the Beneš expropriation decree (No. 108/1945) in the Dreithaler case did not mean that the denationalization decree (No. 33/1945) to which it was linked had been found to be valid as well. Until Malik, and any other similarly situated petitioner, obtained a ruling from the Czech courts on this matter also, the committee declined to intervene.39 So far as his property claim was concerned, the committee declared that “not every distinction or differentiation in treatment amounts to discrimination.” The fact that the Czech Republic had decided to reimburse Czechoslovak citizens for wrongful takings by the state after 1948 did not impose an obligation upon the state similarly to compensate others for improper confiscations prior to that date.
Orderly and Humane: The Expulsion of the Germans After the Second World War Page 50