The legal questions behind Poland’s claim for war reparations from Germany

On 1 September – the anniversary of Nazi Germany’s 1939 invasion of Poland – the Polish ruling party announced that it would be seeking reparations from Germany and published a report calculating its losses to be $1.3 trillion.

Berlin, however, has always maintained that the issue was legally settled long ago and Poland therefore has no valid claim – a position reiterated by Chancellor Olaf Scholz this week. Polish officials reject this argument, saying that the matter remains legally open.

Mateusz Piątkowski, an assistant professor of international law at Łódź University, examines the arguments of both sides, explains the background and legal context of the case, and looks at what could come next.

What is this about?

A state that violates international law has an obligation to restore or compensate the losses resulting from the breach of its legal duty. War reparations are associated with the outcomes of armed conflict and usually relate to interstate demands, but more recently also often to individual claims.

The German invasion of Poland in 1939 and subsequent occupation until 1945 had a catastrophic effect on Poland as a state and nation.

Physical property was destroyed and looted, with major cities laid to waste. The population was subject to a genocidal policy that compromised mass killing, deportations, expulsions and slave labour. The German occupiers wrecked the lives of a generation and hampered Poland’s development for decades.

Warsaw’s Old Town in 1945 (Wikimedia Commons, under public domain)

Many of those actions were contrary to international law, such as the wanton and unjustified destruction of Warsaw in 1944 after the fall of the Warsaw Uprising. This naturally highlights the question of German financial liability, as there is a sense of injustice among Poles. Post-war reconstruction was conducted solely by the efforts of Poland and its society, and not every victim of German actions was compensated.

What has already happened?

Reparations are usually contained in peace treaties. The issue here lies in the complexity of the German peace process, which started in 1945 with the Potsdam Agreement and was finished decades later by the reunification of Germany and the 1990s Two Plus Four Agreement (between the West and East Germany and the four Allied Powers of the USSR, USA, United Kingdom and France).

According to the Potsdam Agreement, Polish reparations claims were to be satisfied by the USSR, under whose effective control Poland had fallen after the war. Due to the obvious political dependence of communist Poland on the Soviets, reparations were not fully transferred.

In fact, Poland as a state never received significant financial compensation for the destruction caused by Germany during World War Two. Only individuals, such as victims of forced labour and pseudo-medical experiments and prisoners of camps, were awarded symbolic sums by Polish-German foundations.

Is it true that, as Germany says, Poland renounced its claim to reparations in 1953?

In 1953, the communist leader of Poland, Bolesław Bierut, issued a statement announcing that from 1 January 1954 Poland would renounce all unsettled demands regarding war reparations. The waiver was not published or promulgated but only printed in the press.

The German government considers it as a valid renunciation, as it was done publicly, and Poland later twice confirmed the legal significance of the renunciation. According to the position of current Polish government, however, Poland did not renounce its right to reparations.

The renunciation of the claim by Poland in 1953 should be analysed in light of one of the sources of international law, namely unilateral acts of state. To be binding, the unilateral act of state need to be: 1) submitted publicly, 2) by a competent authority (representing the state in external relationship), 3) create a legal undertaking (political statements are excluded), and 4) free of any coercion, fraud and mistakes.

There are arguments that both support and deny the validity and binding character of the renunciation. The statement was issued by the communist-controlled, Soviet-influenced government of Poland in 1953. Although politically dependent, Poland was considered a sovereign state in terms of international law.

Moreover, with regard to the idea of coercion by the USSR, only the most extreme forms of external influence are accepted as a basis of invalidating an international legal statement: namely, the threat or use of armed force, but not political and economic pressure.

Aside from the legal arguments, however, there are also reasons for fairness (equity). Undoubtedly, Poland was in a highly volatile position during the communist era.

Some commentators also claim that the waiver was made in violation of the Polish internal legal order binding at that time. But this argument is also countered by the principle of international law that the state cannot invoke its legal order as a justification to not perform its international legal obligations.

Moreover, the Polish government confirmed the validity of the renouncement in 1970 (when still under communist rule) and in 2004 (15 years after the fall of communism).

Ideally, this discussion should be resolved in an international court, namely the International Court of Justice (ICJ) in The Hague, which is the main United Nations judicial body considering disputes between states.

What are the other legal questions involved?

Although there is clearly a legal basis for reparations claims, the question remains whether they can still be pursued by Poland.

The legal foundation is to be found in Article 3 of the Hague Convention (IV) on War on Land, which stipulates that the party violating the laws of war is liable to pay compensation. However, due to the passage of time, the complexity of the German peace process, the possible waiver of the claim made by Poland in 1953, and the standpoint of the Polish authorities after 1989, it is questionable whether such a claim is still enforceable, despite its fairness and legal foundation.

Poland and Germany were not a party to the Potsdam Agreement. Nevertheless, it is accepted that treaties can create rights and obligations to third-party states. By the decision of the victorious Allied powers, Poland received rights, such as sovereignty over the so-called “Recovered Territories” transferred from Germany to Poland after the war and reparations from Germany.

Incidentally, contrary to arguments made by some commentators, those recovered territories cannot be considered a part of the reparations. They were granted to Poland by the victorious Allied powers as a compensation for territory it ceded to the Soviet Union in the east at the end of the war and as an expression of gratitude for the Polish war effort.

Meanwhile, the Potsdam Agreement also imposed restrictions and duties on Germany, while the Allies assumed powers over this country by the Berlin Declaration of June 1945.

Those considerations are necessary to understand that in post-war West Germany many commentators claimed that, in the case of the future reunification with East Germany, the fact that Germany was not a party to the Potsdam Agreement would allow a resumption of discussion concerning the border with Poland.

This standpoint allows one to understand the priorities of the Polish foreign policy, which was directed at receiving from the German states confirmation of the existing frontier. In 1970, Poland and West Germany normalised their relationship in the Treaty of Warsaw. The Polish government confirmed the renouncement of reparations, while West Germany confirmed the Polish western border.

In 1989, with the collapse of the Iron Curtain, the reunification of German became a possibility. However, in order to settle certain aspects of the postwar German situation (e.g. the occupation of Berlin), the reunification required the agreement of the victorious Allied Powers, leading to the Two Plus Four Treaty (officially called the Treaty on the Final Settlement with Respect to Germany).

There is a suggestion that due to its “final” character, it was the last moment to forward any outstanding reparation claims. Poland was not a party of the treaty; however, due to fears that the united Germany could legally undermine the Polish western border, Poland launched a successful diplomatic campaign which gained support among the Allied Powers.

The Two Plus Four Treaty contained a clause which obliged Germany to confirm the existing border with Poland.

In 2004 the Polish government, as a part of a political deal with Germany, confirmed the renouncement made in 1953. This was done after German Chancellor Gerhard Schroeder stated in Warsaw that Germany would not pursue the claims of private persons whose property was expropriated after 1945 when Poland received former German lands.

How will Poland now pursue its claim?

One of the main characteristics of the international community is the principle of sovereign equality of states. Consequently, there is no mandatory international judiciary in international law. Both parties to the dispute need to consent and accept the jurisdiction of the court.

Under the ICJ Statute there are different forms of accepting the ICJ’s jurisdiction. One of them is the direct agreement of the parties of the dispute. The German position in this regard is firm, as Berlin is rejecting the reparations claims. It seems unlikely that Germany will enter into a legal process with Poland in The Hague.

Another pathway is a declaration recognising compulsory court jurisdiction. Both Poland and Germany submitted such a declaration, but Poland excluded from it all cases relating to situations that occurred before 1990. This creates an obstacle for the ICJ to exercise its jurisdiction.

A court process is only one of the means of resolving disputes in an international relationship, and is usually considered a last resort. The alternative is diplomacy and negotiations, which are separate, open to both parties of dispute regardless of the legal questions, and serve as a gateway to partial compensation for Poland.

The war reparations report has already been sent to the German counterpart. But it remains to be seen how the Polish government will pursue its claim.

Main image credit: Wikimedia Commons (under public domain)

Mateusz  Piątkowski, PhD, is an assistant professor at the Faculty of Law and Administration of the University of Łódź, specialising in international public law.