European politics and public affairs are once again preoccupied by Poland’s rekindled claims of reparation of wartime damage against Germany. The issue is contested fiercely by politicians backed by an army of expert jurists and historians. The gist of the matter is the question of whether Poland had effectively waived its claims against the German state for compensation in 1953, and if it did, whether this “bona fide” act was addressed to the GDR alone, or it should be regarded as being applicable to unified Germany as well. Moreover, if Poland cannot be considered to have waived these claims once and for all, what is the appropriate legal method, if any, of reviving these claims?

The Second World War broke out in Europe on account of Germany. Actual combat commenced on 1 September 1939, on the first day of the German offensive against Poland, the country that was the first to actively resist the German war machine. Only 17 days later, the Soviet Union – the other state to have established a totalitarian régime in Europe in the 20th century – stabbed Poland in the back. The aggressors joined forces to occupy and divide Polish territories between them. Yet Poland refused to surrender despite the defeat, and remained fully engaged in the fight for the ensuing five and a half years of war. Not only did its forces carry on in all fronts far removed from its own borders, but the Poles also deployed formidable partisan activity in the occupied territories as well. Of course, Germany remained enemy number one, especially as Poland’s relations with the Soviet Union underwent a radical change in the wake of the German invasion of Russian territories in 1941. Indeed, the joint fight against Germany transformed the eastern occupiers into an apparent ally of Poland. Meanwhile, Europe became engulfed in the flames of all-out war. Starting in 1943, the scales of the frenzied antagonism began to tip toward favouring the anti-German coalition, defined both politically and militarily by the Soviet Union, Great Britain and, also since 1941, the United States.

As the defeat of Germany under Hitler drew within sight, the leaders of the great powers met on three occasions – in Tehran (November 1943), Yalta (February 1945), and Potsdam (July-August 1945) – to make arrangements for the course the world would take after the war. At the last two of these three conferences, they agreed on Germany’s liability for damages caused to the countries of the anti- Nazi alliance. At the time, the total amount was set at 20 billion dollars (currently valued at 345 billion dollars according to the Federal Reserve’s 2014 estimation). Half of this sum was supposed to be put up for the benefit of the Soviet Union and Poland by the eastern territories of the German state occupied by the Soviets. Under the peremptory demands of the Soviet Union, the negotiations, which took place without the Polish party attending, resulted in establishing Poland’s share at 15%, or USD 1.5 billion (valued at 26 billion today). The western half of Germany was ordered to pay reparations to the United States, Great Britain, France, and the other western coalition members. Three years after the victors created the two German states, the FRG and the GDR, as history had entered the phase of the Cold War, the western states signed the London Debt Agreement in 1953, to the effect of waiving all further claims for reparation. In turn, the Soviet Union – as well as Poland, no longer a sovereign state, and under Soviet pressure – also waived all further claims against the GDR.

The issues of reparation had to wait until the beginning of the 21st century to be addressed once again, this time by a newly independent Poland. The first major debate in the Sejm erupted in 2004–2005, on account of German claims for indemnification “against material damage caused to German deportees by the state of Poland”. According to arguments voiced at the time – among others, by legal authorities such as Professor J. Sanderski or M. Muszyński, who currently serves as Vice President for Poland’s Constitutional Court – no final and binding document of any kind was adopted in 1953 that would have effectively amounted to Poland’s waiver of its reparation claims.

The case was once again rekindled in 2014, this time with more insistent overtones, after the Warsaw-based political scientist Grzegorz Kostrzewa-Zorbas published his report on his research at the UN Headquarters in New York. He found no trace of any document from 1953 that would have substantiated Poland’s waiver of its claim, whereas the existence of such a record would have formed – and would still form today – a vital condition for enforcing any international agreement. Since no such document is on file at the UN, it follows that Poland’s waiver can be regarded as void. Resumed negotiations concerning reparations from Germany were termed essential by Jarosław Kaczyński, President of the presently governing Law and Justice Party, at a recent meeting of party delegates in the central Polish town of Przysucha, on 1 July 2017, among other venues. The German state has not made official statements on the matter recently, although in February 2016, Der Spiegel, one of the leading weeklies, in an article entitled “Empty Threat”, quoted a letter written by the SPD-member Minister for Foreign Affairs Frank-Walter Steinmeier to Johannes Singhammer, a Vice President of the Bundestag. “The issue of war-time reparation [to Poland] is a case closed, legally and politically”; “On 24 August 1953, Poland sided with the Soviet decision, effectively waiving any claim for damages against the whole of Germany”. The stress was obviously on the “whole of Germany”. Following Kaczyński’s pronouncement in Przysucha this year, Deputy Government Spokeswoman Ulrike Demmer, at a press conference held on 2 August, affirmed that “Even though the government in Berlin continues to feel politically, morally, and economically responsible for the Second World War, it now considers the case of reparations to Poland closed once and for all. Germany has paid significant sums to several countries, including Poland, in war- related damages, and continues to offer recompense for Nazi crimes… In 1953, Poland made a final commitment, in respect of all of Germany, to waive claims for wartime liabilities, and has reaffirmed this commitment several times since then.” This language makes clear the cornerstone of German government tactics, which is replacing “the GDR” with the more opportune phrase “the whole of Germany”. Demmer’s comment on ongoing compensation for Nazi crimes alludes to the fact that, 55 years after the end of the Second World War, yielding to international public opinion and pressure to mushrooming court verdicts in suits brought by former forced labourers that had begun to meddle with the interests of German companies operating on US soil, a newly reunified Germany had agreed, within certain limitations, to pay damages to Polish forced labourers still alive as well as those deported from other Eastern European countries. But this kind of compensation, so the argument goes, should not be conflated with any reparation payable to the state of Poland, because the former is not part of the latter. At the same time, the deputy spokeswoman’s assertion that Poland’s waiver has been reaffirmed by various subsequent Polish governments, is hardly more than an attempt to hammer through the German point of view. Realising this, and acting on behalf of the Law and Justice Party, Arkadiusz Mularczyk, entrusted with the preparation of a new report for the Sejm on the options still available in the matter of reparations, addressed a written question to Ulrike Demmer, asking whether the German government was in possession of any document that would make explicit Poland’s waiver of its claims against Germany.

It is inevitably necessary to compare the reparation recognised and actually awarded to Poland in 1945 (26 billion dollars at current value) to the magnitude of actual damage inflicted on Poland as a consequence of the German invasion of 1939 and during the subsequent occupation that would last five and a half years. It is imperative, even if those damages cannot be appraised with ultimate accuracy. This is partly because the deal achieved at Yalta and Potsdam shifted Poland’s national borders westward – the eastern one by 200 to 351 km, the western one by 100 to 200 km – reducing the country’s territory from 388 to 312 km2. Moreover, this redrawing of the borders went hand in hand with a massive resettlement of some of the population.

The damages inflicted upon Poland by the Third Reich were first tallied by the Polish Reparations Office. The regained independence of Poland triggered a new wave of inquiry into the magnitude of these damages, particularly in the 2000s. Since 2006, the research efforts and results have been coordinated and consolidated by the Institute of National Remembrance (INSPECTION) and the Department of Wartime Damages under the auspices of the Ministry of Culture and National Heritage.

Damages are normally calculated along three different values, including national assets or permanent material value, cultural goods, and human resources or population figures. Surveys conducted and fine-tuned in recent years show that some 38% of national material assets were lost in the war, albeit the figures vary widely among the various industries or branches of the economy. For instance, 84% of the railway system was destroyed, compared to 70% of textile industry capabilities, 48% of the steel industry, 28% of forestry, and 20% of agriculture. The destruction ratio of buildings and objects in the cities exceeded that in the provinces by a factor of a magnitude, amounting to 80% in Warsaw alone. According to expert estimates, the total of Polish national assets lost in the Second World War is around 650 to 700 billion US dollars at current value. The destruction of cultural riches is appraised at 43%, or 20 billion dollars, according to the IPN’s report prepared in 2007. Some 2800 works by well-known European painters were misappropriated and spirited out of the country, along with 11,000 paintings by Polish artists and 1400 statues of value. Massive book collections were engulfed in flames throughout Poland, mostly in the bombings and other war-related fire. The 22 million volumes listed as lost in this way amount to about 66% of the total national library stock kept on file before the war. As for human resources, the various statistics speak of 5.47–5.67 million lives lost among Polish citizens, including Jews, obviously representing a value impossible to express in pecuniary numbers for reasons of reverence, if for nothing else. The magnitude of the damage is perhaps best expressed in the manner proposed by IPN President Łukasz Kamiński in an interview in 2016: “During the Second World War, Poland sustained the greatest loss of individual lives and demographic damage. The occupation of Poland entailed some of the most severe, most horrendous brutalities anywhere in Europe. No country lost a greater percentage of its total population than Poland did.”

Taking tally of the enormous losses Poland as a state and a nation suffered from the state of Germany, now estimated at about 700 billion dollars, and comparing these losses to the 26 billion dollars in reparations (which the coalition victors awarded in 1945 but of which Poland only received a small fraction), the discrepancy is immediately striking and the awarded theoretical recompense egregiously undervalued, at a ratio of 1:27. Regardless of this mismatch, even if Poland were willing to consider this very low value as a vantage point for negotiations, just how likely would it be to persuade today’s unified Germany of its position? Truth and justice are certainly on the side of Poland, both historically and morally. But truth of the legal kind is much more complicated than that, and will certainly require the arguments to be substantiated by various documents (or the demonstrated absence thereof), just as Germany on the opposing side will seek to deploy and substantiate counterarguments supporting its own position. As for the claims of reparation and the method of entering into negotiations, virtually all Polish politicians agree that the only way is through diplomatic talks. Whatever happened between the two countries, Poland and Germany are now members of one and the same European Union, and have nourished good neighbourly relations for years. This propitious historical opportunity would be a grave mistake to squander. After so many centuries of bloody wars, this turn must be regarded as a great gift, not only for Poland but for Germany as well.

Nor is Poland unique and alone in turning officially to the German state for having its case of wartime damages settled.

Suffice it to recall the well-known case of Greece, which waived its reparation claims against western states in 1952, yet followed up that waiver by collecting 115 million marks under a bilateral agreement signed with Germany in 1960. That agreement made it clear that this amount represented a complete, reassuring and conclusive compensation of all Greek claims of Second World War damages once and for all. Despite this stipulation, in 2015 Greece presented new claims, arguing that the actual extent of the damages inflicted on Greece by the Third Reich far outweighed the amount of compensation it had been awarded to date, and that Germany still owed the country another 279 billion euros. (This was announced by Deputy Minister of Finance Dimitris Mardas at a session of the competent EU special committee.) At the time, the Germans rejected the idea of reopening talks, but Joachim Gauck took a different angle on the matter in the May issue of Süddeutsche Zeitung, pointing out that “… we are the offspring of those who left Europe, including Greece, devastated during the Second World War. In full awareness of our history, our country should do its best to survey all remaining options of reparation.”

Another example is more interesting still. Pursuant to the peace treaty signed at Versailles, Germany, following its defeat in the First World War, was obliged to pay 123 billion marks in gold to France, Great Britain, Italy and Belgium, over a 50-year period. In light of the vast economic crisis unfolding in Germany after the war, in 1923 this sum was reduced to 112 billion marks, while the term of paying off the entire balance was extended to 59 years. Once he had risen to power in 1933 Hitler froze subsequent payments, but France, Great Britain and Belgium did not forget, and Germany was forced to resume making the payments as of 1952. The very last instalment was settled by unified Germany, in 2010.

These precedents suggest that Poland may have some chance of recouping its damages subsequent to successful negotiations with Germany. It is worth noting that the Republic of Poland suffered under two occupying powers, not one. The other oppressor was of course the Soviet Union, of which today’s Russia is the legal successor. Indeed, Poland has already done the maths in this respect as well, although it is yet to file a formal claim against Russia…

Translation by Péter Balikó Lengyel