Holocaust

The Holocaust – the Nazi (national socialism) genocide of six million Jews in Europe during World War II is not only historically the most extreme episode of anti-semitism in terms of numbers, but also in terms of the viciousness of techniques utilized in pursuit of mass murder – gas chambers, crematoria, mass shootings, medical experimentation, force labor, death marches, starvation.  Moreover, Nazi propaganda developed in the war against the Jews has been the source of much of the anti-semitic material in circulation today.  An example of the tropes used in propaganda which is still in vogue is found in Joseph Goebbels’ 1941 essay “The Jews are Guilty!”

The horror of the Holocaust was exposed in great detail during the Nuremberg Trials and the trial of Adolf Eichmann on which documentation can be found below.  Further suggestions for exploration are at the bottom of this page, which is otherwise focused on matters of a legal character arising from the ashes of the Holocaust.

The Reparations Agreement Between Germany and Israel

After WWII, the Allied Powers set as a condition for the return of full sovereignty to Germany, the payment of reparations to Holocaust victims.  Negotiations did not begin until 1952, creating political turmoil and controversy in both Israel and Germany, but nevertheless resulting in two related agreements signed by Israel and Germany on 10 Sep 1952, and entered into force on 27 Mar 1953.

UN Treaty Series, Vol. 162, No. 2137 [English and French translation] Bundesgesetzblatt, 21 Mar 1953 [German and English]

Under the agreement, Germany committed to pay Israel a sum of 3 billion German marks (app. US $715 million) over a period of years.  The reparations payments were to be made to the State of Israel as the heir to those victims who had no surviving family. The money was to be used for investment in the country’s infrastructure, paid directly from the German government to the headquarters of the Israeli purchase delegation in Cologne in annual installments. The delegation would then buy goods and have them shipped them to Israel, receiving orders from a Tel Aviv-based company set up to decide what to purchase and for whom. A great part of the reparations money went into purchasing equipment and raw materials for companies that were owned by the government, the Jewish Agency, and the Histadrut labor union.

In addition, Germany agreed to provide to the Conference on Jewish Material Claims Against Germany 450 million German marks for the relief, rehabilitation and resettlement of Jewish victims of Nazi persecution.

The agreement included two protocols: 

Protocol No. 1 [English and German, with French translation] called for the enactment of laws that would compensate Nazi victims directly for indemnification and restitution claims arising from Nazi persecution.

Protocol No. 2 [English and German, with French translation] provided for payment by the West German government of 450 million German marks to the State of Israel for the benefit of the Conference on Jewish
Material Claims against Germany, on behalf of Jewish victims of Nazi persecution.

UN Treaty Series, Vol. 345, No. 4961 [English and French]

This supplemental agreement concerned German property in Israel which, during World War II, had been vested by the British administration in the Office of Custodian of Enemy Property.  The Israeli “German Property Law, 5710-1950” transferred these German assets to a Custodian of German Property, to be held as security against German claims by Israeli citizens.  The agreement created a negotiating mechanism to handle the disposition of the German property. 

Additional Resources:

Germany and other countries have subsequently agreed to additional reparation payments.  Some sources of information:  

Nuremberg Tribunals – 1945–1949

Eichmann Trial in Jerusalem – 1961

Jacob Robinson, The Crooked Shall be Made Straight: The Eichmann Trial, the Jewish Catastrophe, and Hannah Arendt’s Narrative (1965). A critique of Hannah Arendt’s views on the Eichmann trial.

Holocaust Denial and Distortion

The United Nations General Assembly, on 20 Jan 2022, adopted, by consensus, resolution A/RES/76/250 condemning Holocaust denial.  UN News, 20 Jan 2022;  Times of Israel, 20 Jan 2022

Other than the few references below, the treatment of this subject. which is large, is beyond the parameters of this project.  More can be learned from the following:

Web Resources:

Resources in Print:

Litigation [noted here are two significant cases among the many litigated]

Irving v. Penguin Books Limited, Deborah E. Lipstadt, [2000] EWHC QB 115 (Gray, J.), appeal rejected, [2001] EWCA Civ 1197 (Pill, J.).  British author David Irving sued the defendants in the British courts in 1996, asserting that Lipstadt had libeled him in her book Denying the Holocaust. The court ruled that Irving’s claim of libel relating to English defamation law and Holocaust denial was not valid because Lipstadt’s claim that he had deliberately distorted evidence had been shown to be substantially true. The case was conducted as a bench trial before Mr. Justice Gray, who produced a massive written judgment in favor of the defendants, detailing Irving’s systematic distortion of the historical record of the Holocaust and Hitler’s role therein.  [comprehensive collection of litigation documents on-line]

Pastörs v. Germany, Eur. Ct. of Hum. Rts. (application no. 55225/14), 3 Oct 2019.  The case concerned the conviction of a parliamentary deputy for denying the Holocaust during a speech in the regional Parliament.  The Court found that the applicant had intentionally stated untruths to defame Jews, and that such statements were not protected by the right of freedom of speech offered by the European Convention on Human Rights, as they ran counter to the values of the Convention itself.  Court’s Press Release      Judgment

Holocaust Restitution

As with Holocaust denial and distortion, treatment of Holocaust restitution, both legislation and litigation, is beyond the scope of this project. 

The following two references provide extensive information and background discussion with respect to litigation up to 2006, the first categorizing the litigation into the following areas: banks, slave labor, insurance, and looted art.:

    • Michael Bazyler and Roger P. Alford, Holocaust Restitution: Perspectives on the Litigation and Its Legacy, 2006
    • Michael J. Bazyler, Holocaust Justice: The Battle for Restitution in America’s Courts, 2003

More recent discussions:

With respect to restitution legislation or the lack thereof, a place to start is with the website of the World Jewish Restitution Organization which has legislative and other information by country.

On the matter of restitution, the Terezin Declaration, was issued by 46 countries on 30 Jun 2009 (a 47th, Serbia, later joined the declaration), agreeing on measures to right economic wrongs that accompanied the Holocaust against the Jews and other victims of Nazi persecution in Europe. It is neither a treaty nor legally binding international agreement.  A year later 43 of the signatories (excluding Belarus, Malta, Russia and Poland) endorsed a companion document, the 2010 Guidelines and Best Practices for the Restitution and Compensation of Immovable (Real) Property, which set best practices for immovable property.  According to the guidelines, also not legally binding, restitution of the actual property (in rem) is preferred.  However, when not possible, payment or substitute property that is a “genuinely fair and adequate” substitute would be an alternative.

With respect to Nazi-looted art, the December 1998 Washington Conference on Holocaust Era Assets adopted a statement of non-binding principles to assist in resolving issues relating to Nazi-confiscated art.

The government of the United States has recently expressed its concern with Holocaust restitution through passage of the Justice for Uncompensated Survivors Today Act of 2017, P.L. 115-71, which became law on 9 May 2018.  The act requires the State Department to issue a report to Congress within 18 months “that assesses and describes the nature and extent of national laws and enforceable policies of covered countries regarding the identification and the return of or restitution for wrongfully seized or transferred Holocaust era assets.”

Holocaust Education

Laws mandating education about the Holocaust have been enacted in Austria, France, Germany, Israel, the Netherlands, Poland, Switzerland,  the United Kingdom, and the United States, as well as in several American states.

Europe – [citations needed]

United States

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Other Relevant Material

Nuremberg Anti-Jewish Laws – 15 Sep 1935

Hitler’s Confidential Memorandum on Autarky (Economic Independence) – August 1936

In laying out his economic vision, Hitler made the following statement:  “I consider it necessary for the Reichstag to pass the following two laws:  (1) A law providing the death penalty for economic sabotage, and (2) A law making the whole of Jewry liable for all damage inflicted by individual specimens of this community of criminals upon the German economy, and thus upon the German people.”

Hitler’s Reichstag Speech – 30 Jan 1939

In this speech, delivered only 7 months before Germany ignited World War II, Hitler made very clear his view of the future of European Jewry:  “The world has sufficient space for settlements, but we must once and for all get rid of the opinion that the Jewish race was only created by God for the purpose of being in a certain percentage a parasite living on the body and the productive work of other nations. The Jewish race will have to adapt itself to sound constructive activity as other nations do, or sooner or later it will succumb to a crisis of an inconceivable magnitude… Today I will once more be a prophet: If the international Jewish financiers in and outside Europe should succeed in plunging the nations once more into a world war, then the result will not be the Bolshevization of the earth, and thus the victory of Jewry, but the annihilation of the Jewish race in Europe!”

29 Million Reasons – Speech delivered by Yehuda Bauer during the dinner for the Fifth World Holocaust Forum, 22 Jan 2020

Raphael Lemkin, “The Legal Status of Jews“, Chapter 8 of Axis Rule in Occupied Europe (1944).

The Genocide Convention – 9 Dec 1948; entered into force, 12 Jan 1951.  Resource page.

Israeli Legislation:

Crime of Genocide Law 5710-1950

Israel was among the first countries to enact a national law ratifying the Genocide Convention.  After signing the Convention in 1949, it passed the Law for the Prevention and Punishment of the Crime of Genocide in March 1950. Among significant elements of the law is the fifth clause, which allows the State of Israel to bring to trial those responsible for genocide, even if the crimes did not take place within Israel’s jurisdiction. According to clause 9 of the Criminal Procedure Law (Consolidated Version) 5742-1982, there is no statute of limitations for violations of this law.

Nazi and Nazi Collaborators Law 5710-1950

♦ Michael J. Bazyler and Julia Y. Scheppach, The Strange and Curious History of the Law Used to Prosecute Adolf Eichmann, 34 Loy. L.A. Int’l & Comp. L. Rev. 417 (2012)
♦ Orna Ben-Naftali & Yogev Tuval, Punishing International Crimes Committed by the Persecuted: The Kapo Trials in Israel, 4 J. Int’l Crim. Just. 128 (2006)

Michael Bayzler, Holocaust, Genocide, and the Law: A Quest for Justice in a Post-Holocaust World (2016)

The direct connection between the Holocaust and a great deal of contemporary law is seldom acknowledged in legal texts, and has never been the subject of a full-length scholarly work. Bayzler’s book examines the background of the Holocaust and genocide through the prism of the law; the criminal and civil prosecution of the Nazis and their collaborators for Holocaust-era crimes; and contemporary attempts to criminally prosecute perpetrators for the crime of genocide. It provides the history of the Holocaust as a legal event, and sets out how genocide has become known as the “crime of crimes” under both international law and in popular discourse. It goes on to discuss specific post-Holocaust legal topics, and examines the Holocaust as a catalyst for post-Holocaust international justice.

From the Vast Amount of On-Line Resources about the Holocaust, a Few Suggestions: