Although the committee therefore declared the petition inadmissible rather than delivering a verdict on the facts of the case, its ruling in Malik was nonetheless problematical in two ways. The first was that its assertion that the Covenant did not oblige the Czech Republic to return property to persons not covered by the restitution law ran dramatically counter to verdicts it had already rendered in the case of Czechoslovak citizens who were similarly situated. In Adam v. Czech Republic (1996), for example, the Committee asserted that the law’s exclusion of Joseph Adam and other ethnic Czechs and Slovaks who had not maintained their citizenship continuously between 1948 and 1989 was an arbitrary act that violated Article 26—the antidiscrimination provision—of the Covenant. The Czech Republic may not have been under any obligation to return confiscated property to anyone. Once it had decided to do so, however, it could not discriminate between one class of expropriated persons and another without breaching the Covenant’s guarantee of equal treatment. Yet the Committee had maintained elsewhere that differential treatment, as in the Malik case, was not discriminatory if “the criteria for such differentiation are reasonable and objective and the aim is to achieve a purpose which is legitimate under the Covenant.”40 István Pogány of the University of Warwick School of Law notes that in its references to the specific facts of this case the committee “offered no basis, in either logic or law, for its conclusion that some differences in treatment amount to unlawful discrimination while others do not.”41 Nevertheless, the implication of the Malik finding was that his disqualification from restitution was indeed justified by “reasonable and objective” criteria intended to achieve a “legitimate” purpose. In other words, like the Czech Constitutional Court in March 1995, the committee implicitly suggested that the twelve-year-old Malik, by virtue of his share of responsibility for the Nazis’ conduct, was, in contrast to Joseph Adam, “reasonably” and “legitimately” dispossessed by the Czechoslovak state.42
The second dubious aspect of the Malik finding was the contention that the petitioner had not exhausted the domestic remedies available to him because he had not tested in the Czech courts the constitutionality of the Beneš decree (No. 33/1945) by which he was denationalized. In this context it is relevant to note that whereas a petitioner must have exhausted all possible domestic remedies before taking his or her case before an international tribunal, those remedies must be effective. In other words, it is not necessary to pursue a claim through every conceivable domestic venue if it is clear that there is no reasonable expectation that the petitioner may thus obtain the redress he or she seeks. In light of the fact that the Constitutional Court had already declared that the expropriation decree was valid because of the collective responsibility of the Sudetendeutsche for Nazi atrocities—an argument with which the committee apparently concurred—it hardly seemed logical to propose to Malik that the same court applying the same analysis to the denationalization decree might very well yield a different result.
That expellees and their descendants ought not to expect effective remedies through the Czech courts was confirmed in a later case heard by the committee in 2005. Eugen Czernin, a Sudetendeutsch who had been denationalized, expropriated, and put out to forced labor, petitioned the District National Committee of Jindříchův Hradec in November 1945 for the restoration of his Czechoslovak citizenship under the terms of Decree No. 33/1945. He succeeded in proving his antifascist credentials to the satisfaction of the District National Committee, but his application was still pending at the Ministry of the Interior when he fled to Austria in 1947 to escape the attentions of the NKVD. In 1995, though Czernin had died in exile, his son submitted a claim for the return of his father’s property, a necessary condition of which was the final determination of Eugen Czernin’s still-pending application for the restoration of his Czechoslovak citizenship. Although the minister of the interior promised to convene a hearing into the matter in 1996, none was ever held. An order of the Constitutional Court in 1997 instructed the Ministry of the Interior to decide the application speedily. This too was ignored. Instead, the Interior Ministry and the Jindříchův Hradec District Office continued to stall the investigation of Czernin’s claim in spite of several orders from Czech courts requiring them to do so over the following years. Ultimately the case came before the Human Rights Committee, which found the Czech Republic was continuing to deny the Czernin family an effective remedy and thus was in breach of its international obligations.43 Welcome as this decision was to the Czernins, it did not affect the progress of the case any more than previous rulings had done. As of 2011, sixty-six years after his application was first submitted, Eugen Czernin’s claim to the restoration of his citizenship still remained unresolved.
In both the domestic and the international spheres, the fate of claims by expellees from the Recovered Territories have followed a similar pattern. In 2001 the Polish parliament adopted a law on “reprivatization” of confiscated property that, like its Czech counterpart, would have excluded expellees from its provisions. The question became moot, however, when the then president, Aleksander Kwaśniewski, vetoed the measure. The European Court of Human Rights ruled in 2008 that “individual acts of violence, expulsion, dispossession and seizure or confiscation of property” carried out by the Polish authorities were “instantaneous acts” that did not produce “a continuing situation of ‘deprivation of a right.’” The European Convention on Human Rights did not have retrospective effect, and hence could not be held to apply to any violation committed before Poland’s ratification of the Convention in 1991.44
Nor, despite Václav Klaus’s anxieties, has the accession of most of the expelling states to the European Union materially influenced the legal situation. In 2002 the European Parliament, seeking to anticipate any difficulties that might arise from the Czech Republic’s application to join the EU, commissioned a legal opinion from three distinguished scholars on the possible incompatibility of the Beneš decrees with European Union law. Though this study, which was principally the work of the former vice chairman of the European Commission on Human Rights, Dr. Jochen Frowein, had no official status, it was plainly intended to set out the line the EU proposed to take. The Frowein opinion concluded that the Beneš decrees posed few serious problems from the standpoint of EU law. While such practices as depriving entire classes of people of nationality and stripping them of their possessions without due process would clearly be unlawful if carried out in 2002, nothing in EU law required member states to provide redress for wrongful acts committed prior to their accession to the Union. The opinion agreed with the UN’s Human Rights Committee’s finding in the Malik case that the collective expropriation of Germans and Hungarians was a “reasonable” punishment for their disloyalty to the Czechoslovak state; in any case, the fact that the Czech Republic’s restitution program would terminate before the country joined the EU meant that its operations could not be challenged by any European agency. Frowein and his colleagues found only two aspects of the Beneš decrees potentially troubling. The first was a provision that had authorized the Czechoslovak state to try “traitors” and “collaborators” in absentia. Any attempt by the present-day Czech Republic to detain persons convicted in 1945 and 1946 through such proceedings would, the opinion warned, “run counter to the fundamental rights and rule of law guarantees which must be applicable as from the date of accession.” The second problematic element—Decree No. 115/1946, which provided immunity from prosecution for Czechoslovak citizens who killed or otherwise mistreated Germans in the course of “just reprisals” during the first six months of peacetime—if taken at face value seemed to suggest that even crimes against humanity were beyond the reach of the law, so long as they were perpetrated against Germans before October 1945. The Frowein opinion concluded, however, that because the German government had not insisted that this decree be repealed, it had in effect waived its right to do so under the doctrine of estoppel. Indeed, in a joint declaration of 1997 with the Czech government, it had declared t
hat it did not propose to “burden their relations with political and legal issues which stem from the past.” Moreover, it was unjust that Czechoslovak citizens who had been given legal grounds for believing themselves to be immune from prosecution for more than half a century should suddenly find themselves exposed to the possibility of criminal proceedings.45
While fresh restitution cases continue to be brought by expellees and their heirs, sufficient experience has now been gained to suggest that none is likely to succeed. Dieter Blumenwitz of the University of Würzburg was almost certainly right to conclude that “there is nothing to be expected … from the Czech courts which would suggest that the expropriation decrees of 1945 will be repealed.”46 To judge from the Slovak Parliament’s resolution in September 2007 that the Beneš decrees were “unalterable,” the same will probably prove true of Slovakia’s judicial system as well.47 Tribunals like the UN Human Rights Committee and the European Court of Human Rights continue to deny the admissibility of petitions brought by individuals, even if they have to rely upon strained and arguably inconsistent legal analyses to do so. In particular, as István Pogány notes, the Human Rights Committee’s staunch refusal to specify the criteria it applies in finding discriminatory treatment in the case of German expellees to be legally justified “suggests that we must simply await its decisions in individual cases and assume them to be correct.”48 Likewise, if deliberations by the European Court of Justice, the EU’s highest court, are to be guided by the Frowein opinion and the Czech opt-out of 2009, there will be no means by which a case brought by an expellee can surmount the threshold of admissibility and obtain a hearing on its merits.
A divergence of opinion has thus appeared between scholars in the academy, many of whom regard the expulsions and their ongoing consequences as self-evident violations of international law, and the courts, which have taken a consistently minimalist stance on the question. James Wolfe of the University of Southern Mississippi, for example, considers that they were in violation of the Hague Conventions as well as the Nuremberg Principles, inasmuch as the decision to expel was made during wartime and “intent to commit acts contravening the law of war is a punishable delict.”49 Alfred-Maurice de Zayas of the Geneva School of Diplomacy is likewise unpersuaded by the argument frequently put forward by the expelling states that the operation was lawful because it had been ratified by the Big Three at Potsdam. For the Allies to be able “to confer legal authority upon Poland, Czechoslovakia and Hungary to expel German civilians, the Allied Powers themselves necessarily must have had this far-reaching and extraordinary authority.” Germany, he points out, clearly did not, inasmuch as “deportations … committed against any civilian population” constituted one of the “crimes against humanity” of which its leaders were convicted at Nuremberg. Yet the Allies never identified the legal basis that permitted them to carry out similar acts with impunity.50
Whether the postwar expulsions were lawful at the time of their occurrence remains a question on which no international tribunal has rendered a definitive verdict. The evident reluctance of these bodies even to indicate whether they or their ongoing effects are consistent with the law as it stands today, but instead to sidestep the substantive issue on grounds of admissibility, has relegated the entire question to a legal limbo from which it is unlikely soon to emerge. Most authorities, though, consider that it is at all events certain that no such expulsions could lawfully be carried out in the future. In the aftermath of the dreadful scenes that attended the collapse of Yugoslavia in the 1990s, a number of international instruments—in particular the Rome Statute of the International Criminal Court—have laid down unambiguously that forced transfer of populations, except for the purpose of temporarily relocating them from a war zone for their own safety, is an offense in international law.51
Recently, however, Timothy Waters of Indiana University has raised the possibility that a “Sudeten corollary” now exists in customary international law—that is, the legal precedents created by the pattern of states’ everyday practices. The fact that court decisions have narrowed to the vanishing point the possibility of victims of the expulsions obtaining redress of any kind is itself a factor in the evolution of international law—which, in the absence of a global lawmaking body such as a world government, is based to a far greater degree on precedent than on statutes. Likewise, the suggestion by the UN Human Rights Committee in the Malik case, and more explicitly by the Frowein opinion, that the Sudetendeutsche were justly and reasonably punished with denationalization and expropriation for what Edvard Beneš in 1942 termed their “passive war crimes,” indicates that so far as weighty legal authorities are concerned there exists at least one set of circumstances in which ordinary civilians may legitimately be treated in this fashion.52 To be sure, this does not mean that the proscriptions of forced population transfers in documents like the Rome Statute are likely to be set aside routinely. But neither are those proscriptions as absolute as they appear.
On the contrary, the statements and actions of states and European institutions reveal a complex but clear conditionality: such measures are unacceptable in the absence of exigent challenges to the European order. Europe and its legal order have not rejected resort to ethnic cleansing under all circumstances; they have reserved this right—and an immunity from restitution after invoking it—in response to grave threats to that order. That is the true shape of the law.53
Because, however, mass expulsions are nearly always, at least in the perception of those who carry them out, expedients of last resort in the face of extraordinary circumstances, the general acceptance of even one such episode as a legitimate—or at any rate readily excusable—precedent may, as Waters points out, transpire in the future to be one too many. Human beings under great stress are all too prone to make decisions based on poor historical analogies, and it takes no great feat of the imagination to conceive of circumstances in which the case for displacing a seemingly dangerous ethnic, religious, or racial group which the world already regards unsympathetically may appear as compelling as did the transfer of the ethnic Germans in the 1940s. Without equating practices like waterboarding with the means of obtaining information used by the Gestapo, we have already seen how the taboo against torture in the Western world began to erode in the aftermath of the September 11, 2001 attacks to an extent that would have seemed unimaginable only a few years previously.54 If the presence of an unwanted minority population should once again be seen as giving rise to a perceived international emergency, the case for invoking the “Sudeten corollary” and exploiting the ambiguities and loopholes that continue to exist in the laws regarding forced population transfers will no doubt seem more persuasive still.
13
MEANING AND MEMORY
Robin Hankey, the Foreign Office Poland specialist and onetime diplomat at the Warsaw embassy, was one of a number of influential Britons to receive an unsolicited letter in the summer of 1947 from his friend and former Foreign Office colleague, Michael Vyvyan. Enclosed with the letter was a report written by a twenty-six-year-old woman who had arrived in Germany six months previously after spending more than eighteen months at the Potulice internment camp in Poland. Detailed, specific, and unemotional, though sometimes wryly humorous (the author noted that the quality of the food perceptibly improved after the camp cook was dispensed with at the end of 1946), the report described the systematic abuse, torture, and malnutrition to which inmates at Potulice and one of its nearby subcamps, Nakło nad Notecią—where she had also briefly been detained—were being subjected. The account carried the ring of truth, and was consistent with many other such testimonies the Western Allies had been receiving about Potulice and similar establishments. In his response to Vyvyan, Hankey did not contest the accuracy of anything he had been told. But neither did he think it especially worthy of notice.
Orderly and Humane: The Expulsion of the Germans After the Second World War Page 51