April 23, 2018
To: The Honorable Members of the U.S. Senate
Tammy Baldwin (D-WI), Marco Rubio (R-FL), Senators Charles Schumer (D-NY), Ted Cruz (R-TX), Benjamin L. Cardin (D-MD), John Cornyn (R-TX), Jack Reed (D-RI), John McCain (R-AZ), Bill Nelson (D-FL), Tom Cotton (R-AR), Michael Rounds (R-SD), Cory A. Booker (D-NJ), Cory Gardner (R-CO), Richard Blumenthal (D-CT), Chuck Grassley (R-IA), Christopher A. Coons (D-DE), John Hoeven (R-ND), Edward J. Markey (D-MA), Rob Portman (R-OH), Ron Wyden (D-OR), John Boozman (R-AR), Kirsten Gillibrand (D-NY), Steve Daines (R-MT), Dianne Feinstein (D-CA), Pat Roberts (R-KS), Catherine Cortez Masto (D-NV), David A. Perdue (R-GA), Maria Cantwell (D-WA), Thom Tillis (R-NC), Gary Peters (D-MI), Jerry Moran (R-KS), Elizabeth Warren (D-MA), Roger F. Wicker (R-MS), Joe Manchin III (D-WV), Susan M. Collins (R-ME), Chris Van Hollen (D-MD), Todd Young (R-IN), Amy Klobuchar (D-MN), Tim Scott (R-SC), Margaret Wood Hassan (D-NH), Ben Sasse (R-NE), Thomas R. Carper (D-DE), Johnny Isakson (R-GA), Robert P. Casey (D-PA), Mike Lee (R-UT), Sheldon Whitehouse (D-RI), James Lankford (R-OK), Doug Jones (D-AL), James M. Inhofe (R-OK), Michael F. Bennet (D-CO), John Kennedy (R-LA), Tina Smith (D-MN), Dean Heller (R-NV), Debbie Stabenow (D-MI), Lindsey Graham (R-SC), Mark R. Warner (D-VA), Heidi Heitkamp (D-ND) and Bob Menendez (D-NJ).
The Honorable Members of the U.S. Senate,
As Polish American voters we write to you to express our concern over your open letter to the Polish Prime Minister Mateusz Morawiecki dated March 26, 2018.
First, we would like to thank you for your congratulations to the Polish people on the 100th anniversary of Poland regaining its independence. In 1918, following World War I, with the support of U.S. President Woodrow Wilson, Poland was restored to the map of Europe. We are grateful for the expression of your continued commitment to the development of mutually beneficial Polish-American relationships.
As your constituents, we are, however, saddened and alarmed by the fact that your letter to the Polish Prime Minister advocates only on behalf of the Jewish Holocaust victims but ignores the millions of Polish victims of World War II. Let us remind you, that millions of properties in partitioned, German and Soviet occupied Poland were first expropriated, then despoiled, dismantled or destroyed by Germany and the Soviet Union, and then finally nationalized by the postwar Communist government of Poland. We feel that your letter not only oversimplifies a very complex issue of the so-called property restitution, but it also surprisingly and unknowingly seems to blend nationalized properties with an extralegal issue of the so-called “restitution of heirless property”, a concept which carries a clear contradiction in terms, as heirless property refers to properties of the Polish citizens that legally and orderly escheated to the Polish state. The organizations making such extralegal claims on heirless property have absolutely no legal standing.
While nationalized properties claims are a subject of a big restitution bill proposed by the Polish Ministry of Justice, the “restitution of heirless properties” should not be a subject of your concern at all, as there is no legal or moral basis for that concept. It would be unconscionable to claim expropriation from the rightful present owners of their property, which they legally and properly acquired after the war. We would like to emphasize that Jewish property claims have been handled and settled by numerous post-war compensation schemes, most notably by the Luxemburg Agreement between Israel and Germany. On the basis of this Agreement the State of Israel, Jewish claims organizations and individuals obtained a compensation from Germany amounting to100 billion 2018 US dollars. The compensation served as settlement for all the human and material losses suffered by European Jews as the result of genocidal German policies and destruction of Jewish property. We must underline that based on the international law; the Republic of Poland is not a party to any agreements or treaties that would require Poland to make changes to its inheritance law which would mandate Poland to favor any special groups of people.
The American diplomat and lead negotiator at the Claims Conference Stuart E. Eizenstat once stated regarding post-Communist Eastern Europeans: “I found a seething bitterness that their citizens, also Hitler’s victims, had never received compensation from the Germans comparable to the billions paid to Jewish Holocaust victims.”(1) Today we feel the same bitterness while reading your letter.
As Polish Americans, we strongly object to your letter for the following additional reasons.
1. INEQUITABLE TREATMENT. The letter of 59 Senators to Polish Prime Minister (“Letter”) states that “members of the U.S. Senate on both sides of the aisle stand united in seeking justice for victims of the Holocaust and their descendants,” while in fact the Letter is concerned only with justice for Jewish victims of the Holocaust and their descendants at the expense of Polish (and numerous other) victims of the Holocaust and their descendants. By doing so, the Letter confirms and supports the recent attempts to limit the definition of the Holocaust only to Jewish victims; hence it disregards millions of Polish victims of German genocide and disrespects millions of Americans of Polish descent. Millions of Polish WWII victims and Polish Holocaust survivors and their descendants never received any compensation from the occupiers for or the return of their properties, in particular, those located in the Eastern part of Poland, which was annexed by the Soviet Union.
2. INACCURACY. The Letter grossly underestimates the number of victims of Polish ethnicity during the Holocaust by stating: “murder of almost 2 million non-Jews and 3 million of Jewish Poles.” Such a statement contradicts the data presented by the California Model Curriculum for Human Rights and Genocide that provides the losses of ethnic Poles in WWII at 3 million people.(2) It also ignores the findings of the Polish Institute of National Remembrance (IPN) that estimates the losses for ethnic Poles at a minimum of 2.7 million people without counting the millions of Polish victims of the genocide conducted by the Soviet Union.(3) Therefore; the Letter uses inaccurate data and mimics a widespread anti-Polish bias in Holocaust scholarship and education.
3. INJUSTICE. Although the Letter calls on the Polish government to pass national legislation that facilitates restitution in “a fair, comprehensive and nondiscriminatory manner,” it instead results in advocating for a privileged treatment of the Jewish victims over the Polish victims of German persecution.
a) The Letter supports full-value property compensation against all prevailing practices. For instance, according to State Department records, the 1960 compensation agreement between the United States and Poland, administration of which was handled by the United States, resulted according to the Special Envoy for Holocaust Issues in payments equal to 30 percent of actual value of the property. The above agreement compensated the U.S. citizens who had been legal owners of properties located in Poland at the time of nationalization.(4)
b) The Letter calls on Poland to compensate Jewish victims for industrial assets destroyed by Germany. It would be a gross travesty of justice and falsification of history if the US Senate attempted to oblige and coerce Poland to provide restitution for property that was taken and destroyed by the willful and criminal actions of German and Soviet occupiers of Poland.
c) The Letter calls for another round of payments on American citizens’ claims in direct violation of the Indemnification Clause of the 1960 Bilateral Agreement between Poland and the USA.(5)
4. DISCRIMINATION UNDER TEREZIN DECLARATION.(6) The Letter bases its demands on the text of the Terezin Declaration, a legally non-binding document that openly discriminates against non-Jewish victims of the Holocaust, in particular it discriminates against the ethnic Polish Holocaust survivors.
a) EXCLUSION. The Terezin Declaration deals with the wellbeing of Jewish victims defined as “Holocaust (Shoah)” and non-Jewish victims defined as “other victims of Nazi persecution.” However, when it comes to the most important compensation claims to immovable (real) property, it limits such claims to Jewish victims only. The section entitled “Immovable (Real) Property “excludes “non-Jewish victims of Nazi persecution.” This key section of the entire declaration refers only to the Jewish victims defined as “Holocaust (Shoah)” victims, and unreasonably and in a biased way excludes millions of Polish victims defined as “other victims of Nazi persecution.” Polish victims’ rights to property compensation are disregarded. As evidenced, the Terezin Declaration visibly sanctions the unwarranted and biased discrimination against the Polish Holocaust survivors as well as other victims of Nazi persecution, and their heirs, with respect to real property compensation claims.a) EXCLUSION. The Terezin Declaration deals with the wellbeing of Jewish victims defined as “Holocaust (Shoah)” and non-Jewish victims defined as “other victims of Nazi persecution.” However, when it comes to the most important compensation claims to immovable (real) property, it limits such claims to Jewish victims only. The section entitled “Immovable (Real) Property “excludes “non-Jewish victims of Nazi persecution.” This key section of the entire declaration refers only to the Jewish victims defined as “Holocaust (Shoah)” victims, and unreasonably and in a biased way excludes millions of Polish victims defined as “other victims of Nazi persecution.” Polish victims’ rights to property compensation are disregarded. As evidenced, the Terezin Declaration visibly sanctions the unwarranted and biased discrimination against the Polish Holocaust survivors as well as other victims of Nazi persecution, and their heirs, with respect to real property compensation claims.
b) “OTHER”. The Terezin Declaration diminishes the Polish suffering and discriminates against the Polish victims of the Holocaust by treating millions of Poles murdered by Germans merely as “other victims.” A US citizen Bozenna Urbanowicz-Gilbride addresses this insult as follows: “Today we are merely the ‘other victims.’ We have no face, no name, we are nobody. That is how the Polish Catholic Holocaust survivors are treated. Is that the way we, human beings, should treat each other?”(7)
c) NAZIS. The Terezin Declaration diminishes and attempts to eliminate the guilt of Germany for the crimes committed in Poland by, inter alia, replacing the word “Germany” with “Nazi perpetrators.” Your Letter includes the historically and linguistically incorrect term “Nazi”. “Nazi” is a stateless concept. By using such terminology, it shifts the blame for the Holocaust from Germany to some undefined “Nazi perpetrators.” Polish Americans consider such manipulation of language as a willful and immoral attempt to hide the exclusive responsibility of Germany for its genocidal policies conducted on the territory of occupied Poland. Use of the term “Nazi perpetrators” is a clear attempt to shift the blame for the German genocidal policies to the victims, the Polish Holocaust survivors, who are arbitrarily excluded in your Letter from the proposed immovable property compensation scheme. We believe that such manipulations of language constitute a clear form of Holocaust Denial (see Article 5 of the definition of Holocaust Denial adopted by the International Holocaust Remembrance Alliance(8) in that the language used does not uphold historical justice. The nationality of the real perpetrators of the Holocaust, Germans, should not be hidden behind the curtain of twisted, politically motivated revisions to language. It is exactly this flawed language that leads to the use of historically false and offensive terms like “Polish death camps” by the global media. It is this linguistic relativity and the demands of historic justice which led the Polish parliament to pass the so-called “Holocaust bill” in January 2018, which met with so many unjustified reactions among the American politicians, including the U.S. Congress and the media.
5. POLISH SUFFERING. An example of the widespread and long-lasting suppression of the reporting of the suffering of ethnic Poles in World War II in the United States has been documented in the letter to the U.S. Congress by the Polish Catholic Holocaust survivor Bozenna Urbanowicz-Gilbride dated March 12, 20187. For speaking up about the Polish suffering under German occupation, she has been systematically attacked as anti-Semite, bullied, abused and even physically confronted.5. POLISH SUFFERING. An example of the widespread and long-lasting suppression of the reporting of the suffering of ethnic Poles in World War II in the United States has been documented in the letter to the U.S. Congress by the Polish Catholic Holocaust survivor Bozenna Urbanowicz-Gilbride dated March 12, 2018. For speaking up about the Polish suffering under German occupation, she has been systematically attacked as anti-Semite, bullied, abused and even physically confronted.
6. BIAS IN HOLOCAUST EDUCATION. We call on the U.S. Congress to stop supporting and condoning the anti-Polish bias in Holocaust scholarship and education, and we call on the U.S. Congress to mandate the establishment of the Polish Department of the Holocaust Memorial Museum that shall be managed and operated by Polish Americans capable of telling the story of the Holocaust from the perspective of the millions of Polish victims. The current suppression of the voice of Polish victims and the near-monopoly of the Jewish perspective in the Holocaust study curriculum has had the harmful effect of distorting the history of the World War II and of the Holocaust and results in anti-Polonism.
7. VIOLATION OF THE CONTINUOUS NATIONALITY RULE. The statement in your Letter: “We are deeply concerned that the bill, in its current form, would discriminate against virtually all American survivors and heirs on the basis that they are not currently citizens of Poland and that they were not residents of Poland when their property was nationalized.” collides with and contradicts the legal continuous nationality principle. This principle implies that a State may only exercise protection on behalf of a person, natural or legal, who was a national at both the time of the injury in respect of which the claim is brought and at the time of the presentation of the claim.(9) The Terezin Declaration, a legally non-binding document characterized by a very high level of abstraction and generality, should not repress the public international law.
8. VIOLATION OF THE POLISH CIVIL CODE. Your Letter states: “As a result of the Nazi attempt to exterminate world Jewry, most European Jewish families were completely destroyed, including 90% of Poland’s Jewish community. Therefore, the remaining Jewish heirs are often non-linear — such as nieces, nephews, and cousins.” This statement contradicts the Polish Civil Code, especially Articles 932 – 936, which disallows a non-linear inheritance.(10) In addition, Poland should not be held responsible for the genocidal policies of the German Third Reich, which resulted in extermination of the majority of European Jews. The proper address for such claims continues to be Berlin.We cannot repeat it enough: It was Poland and only Poland, which asked Allies in 1942 to stop the extermination of Jews by Germany. To no avail, the Allies DID NOTHING to halt the German slaughter!(11)
9. APPLICATION PROCESS. The Letter criticizes “the one-year window for filing claims” as too short. It must be stressed that legal and administrative venues presently exist in Poland and other European Union countries to adjudicate claims in a court of law by those individuals and organizations that have legal standing for each particular claim. The potential foreign claimants will have enough time to prepare all the documents and to submit them to the Polish courts. Your criticism is unjustified. The proposed restitution bill will not impede but will facilitate the claims handling process.
Last, but not least, we must stress that Act S. 447 (Justice for Uncompensated survivors Today (JUST) Act of 2017) was passed by the Senate on December 12, 2017 by acclamation. The Senate proceeded with the Bill without affording their Polish American constituents to be heard on the issue. Act S. 447 includes fundamentally anti-Polish extralegal elements, lacking any real legal and moral basis. If enacted and implemented, the Act would threaten Poland’s economic and political viability, if not its very ability to exist. We are deeply concerned about the possible impact and long term ramifications, which the Act S. 447 would have on Poland, and that the Polish-American voice in the process was strangely and in an unacceptable way excluded.
Let us conclude with a fragment from the speech of Rep. Marcy Kaptur, the longest-serving woman in history of the House of Representatives, dated March 6, 2018:
Now is a time for unity, not division. Now is a time for restraint, not antagonism. Now is the time for reasoned dialogue, not media taunts. And let me commend the Polish-Israeli Reconciliation Commission for its reasoned progress and recent statement. Now is the time for diplomatic excellence and military readiness, not provocative gestures, legislative or otherwise. Now is the time for robust archival restoration so the full truth of millions who perished can be known and recorded forever. Now is the time to strengthen freedom’s umbrella, not weaken it. May I extend all congratulations and blessings to Poland on its 100th anniversary of reborn nationhood.(12)
The Polish American Voters
(1) Stuart E. Eizenstat, Doctor of Jurisprudence (Harvard Law School in 1967), American diplomat, attorney and lead negotiator on the Claims Conference, “Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II”, 2004.
(2) The California Model Curriculum for Human Rights and Genocide approved by the State Board of Education is available here: http://www.cde.ca.gov/ci/hs/im/documents/modelcurrichrgenoc.pdf
(3) IPN: Polska poniosła największe straty osobowe w II wojnie światowej, https://wiadomosci.onet.pl/kraj/ipn-polska-poniosla-najwieksze-straty-osobowe-w-ii-wojnie-swiatowej/n3193
(4) U.S. Special Envoy for Holocaust Issues Ambassador Edward O’Donnell during his May 4-7, 2005 visit to Poland.
(5) The Agreement between the Government of the United States of America and the Government of the Polish People’s Republic regarding claims of nationals of the United States of July 16, 1960; https://treaties.un.org/Pages/showDetails.aspx?objid=08000002801386e9
(6) 2009 Terezin Declaration, SEE: http://www.eu2009.cz/en/news-and-documents/news/terezin-declaration-26304/
(7) A message to US Congress from a Polish Catholic Holocaust survivor; http://www.currenteventspoland.com/news/gilbright_auswitz.html
(8) IHRA’s 31 member countries adopted the “Working Definition of Holocaust Denial and Distortion” at IHRA’s Plenary Meeting in Toronto on 10 October 2013. See: https://www.holocaustremembrance.com/working-definition-holocaust-denial-and-distortion
(9) Oxford Public International Law, Chapter “Continuous Nationality” http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e767
(11) POLES ASK ALLIES TO HALT SLAUGHTER; Report Germans Have Slain One-Third of 3,130,000 Jewish Population END OF NATION IS FEARED Note Charges Extermination of Entire Polish People Is Nazis’ Objective, Wireless to THE NEW YORK TIMES.DEC. 11, 1942, https://www.nytimes.com/1942/12/11/archives/poles-ask-allies-to-halt-slaughter-report-germans-have-slain.html