​War Reparations? Calling Everything into Question Is Not the Way

Cyclically the question of the damage caused by Nazi Germany to the occupied countries is reopened. In 2015 it was Greece in the midst of the sovereign debt crisis that made claims against Germany and now it is Poland's turn. Polish Foreign Minister Zbigniew Rau in an official note on 3 October formalized the request for some EUR 1.300 billion for war damage suffered during the German occupation. To understand how well founded the claim may be legally, it is necessary to look at the definition of the question.

Unlike what happened with the end of the First World War, which saw the Treaty of Versailles of 1919 as a single overall solution to the problem of war damage caused by Germany, reparations after the Second World War followed more articulated paths. The division of the world into spheres of influence, sanctioned by the Yalta conference and the fact that the victorious powers had militarily occupied Germany and taken full control of its resources, conditioned the modalities of reparation. In addition, for the first time, the repair of damage suffered by individuals began to be considered.

The Potsdam Conference of 1945, in fact, developed a reparation regime based on the division of German territory into occupation zones under the control of the Allied powers (United States, United Kingdom and Soviet Union) to which France was added. The agreement stipulated that claims for damages by the Soviet Union and Poland would have to be met on the resources present in the Soviet occupation zone and on German assets present in Bulgaria, Finland, Hungary, Romania and in the eastern part of Austria, as well as on 25% of resources present in the western occupation zones. . The Paris Peace Treaty of 1947, which Germany could not sign as it no longer existed as a state, but which was signed by Poland, sanctioned the commitment of the contracting parties not to raise unilateral claims for further damages until a peace agreement was concluded that also included a united Germany.

Subsequently, at the Potsdam Conference, Poland concluded an agreement with the Soviet Union on the restoration of the damage caused by the German occupation, under which it was awarded 15% of the reparations received by the Soviet Union in addition to the German goods present on its territory. In 1953, the USSR solemnly declared that it would renounce to seek reparations from the German Democratic Republic. Poland did the same, but extended the renunciation to the Federal Republic of Germany, as stipulated in the agreement of Warsaw in 1970 between the two states on the normalization of their relations.

In 1990, at the time of the reunification of the two Germanies, the parties involved in the Second World War did not sign a peace treaty with Germany. The only similar act was the treaty on the final status of Germany of 1990 (also called "four plus two" because it was signed by the original occupying powers and the two German states) which, however, makes no mention of war reparations. Germany has stated on several occasions that with that agreement all claims for damages arising from the Second World War have been extinguished (see for example German Federal Constitutional Court, [13 May 1996] 94 BVerfGE 315)).

Poland today disputes not only that the consent expressed when it was under the sphere of influence of the Soviet Union was flawed, but also that what it received is completely insufficient to compensate it for the damage suffered. However, Poland not only needs to prove that the agreements concluded by its communist-era governments are not binding, but would like to place the effects of the defect of consent not on the State that allegedly exerted the undue pressure (there are no demands on Russia, which succeeded the USSR), but on a third state, which did not yet exist in its current territorial conformation. Moreover, since Germany considers that the question of reparations resulting from the Second World War is now closed, a specific agreement concerning that aspect would be required in order to refer the dispute to an international court.

To call into question today what had already been defined at the level of States over half a century ago is to take the risk of calling into question the whole process of reconciliation, which is still under way. Germany, after 1990, focused its reparatory efforts on individual victims of the Holocaust, interacting mainly with Israel and Jewish associations around the world. But in Poland, war victims not of Jewish origin received no form of compensation from the German state. If, until now, Germany has not supported claims for compensation from German citizens forced to flee or expelled from the territories to the east annexed by Poland at the end of the war, a request for recalculation of damages can only involve reparations to individuals.

Finally, we cannot fail to emphasize the political inappropriateness of this request in the current dramatic historical moment we are experiencing in Europe. Relations between Germany and Poland cannot be separated from the fact that they are two Member States of the European Union, which is laboriously creating a common front against Russian aggression and military occupation of Ukraine. Solidarity between European states at this time is crucial and Poland itself has received or is receiving the support of the European Union and the Member States to deal with the serious crisis that is taking place as a result of the war on its borders. As the gas crisis shows, finding an agreement between Member States that have different national interests is in itself difficult. Certainly, calling into question the arrangements achieved since the end of the Cold War cannot contribute to stability and peace in Europe.