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Lawyer Olaf Ossmann explores the experience of the last 25 years in his paper here through the following area headings:

• A Refugee’s Freedom of Choice;
• 1998: Evaluating the Restitution Claims Following an Extended Period of Silence;
• The Original Idea of the Allies Concerning Restitution During and After WWII;
• Upholding Contract Formation Principles Amidst Asymmetrical Power Dynamics;
• The Exclusion of Principles of Civil Law and Definitions Used in the Restitution Laws;
• Preventing the Enforcement of the “Special Right” by Prejudiced Parties in Civil Cases;
• An End to the Post-war Efforts and the Enforceability of Claims:
• Accusations that Current Claims to Looted Art Were Motivated by the Increased Value of the Artworks;
• The German Interpretation of the Washington Principles and the Deviation from Principles and Terms Used in the Allied Laws;
• The Swiss Interpretation of the Washington Declaration;
• Court Assumptions of Equal Bargaining Power can Frustrate Claimant Success;
• Appraisals of “Persecution-Related Withdrawal of Assets” Manipulate the Facts to Omit the Effect of Persecution on the Sale and Focus Only on the Concrete Transfer;
• Switzerland Moves Toward a Context-Based Provenance Research and an Independent Commission; Germany’s Advisory Commission Is Criticized for Its Interpretation of the Washington Principles;
• The British Way of Comparing Moral Fortitude with the Strength of a Legal Title

Olaf Ossmann's conclusions are reproduced below:

Conclusions

Although it is a positive outcome when every solved case (apart from direct rejections) is carried out under the designation “fair and just solution,” it must be acknowledged that in many cases, upon closer inspection, the claimants simply give up as they just want the topic to finally end. Moreover, they are realistic enough to realize that they cannot expect assets to be returned if they lack necessary evidence or if there are other legal or factual barriers standing in their way. Therefore, one can hardly claim that every solved case is in fact “just and fair.”

I have often come to realize that a court or commission would not successfully handle a case in the near future and therefore recommended a settlement as a means to achieve something resembling justice in the shorter term.

With every country-specific interpretation and differentiation between case categories, we move farther and farther away from the insights that seemed obvious in 1943. Between 1933 and 1945, every tier of society ranging from the institutions and authorities of Nazi Germany, its collaborating public authorities in the occupied territories, to ordinary citizens both inside and outside of the German sphere of power, greatly profited from the predicament of the Jewish population, which had been stripped of its rights. The consequences of such an unprecedented phenomenon cannot be remedied with instruments of civil law that proceed from the notion that the subjects involved have equal status. This is also true in the case of alternative dispute settlement, where the principles of civil law shine through as an evaluation criterion. In these cases, disenfranchised vendors are treated as if they had the same rights of the other party, rather than as a party that was completely stripped of its rights.

Moving forward, we must develop definitions and standards that consider the context of an asset sale, including both the legal and actual positions of the persons and institutions involved. Falling back on civil law to interpret the facts of transactions with such extreme examples of disproportionate positions is not an option for the above stated reasons.

If we continue utilizing so-called “soft law” as a means of avoiding a special legal regulation that deviates from civil law, then an interpretation is left to the discretion of the Commission’s members. Experience has shown that legal experts among Commission members tend to fall back on instruments of civil law or try to work without any definitions at all.

There is also a risk that individual cases will be wrenched out of their original context, and that decisions will be taken based on criteria such as the vendor’s circumstances upon escaping persecution, their current position in society, or even how closely related today’s applicant is to the original vendor.

All these considerations prevent victims of the Nazi regime from retrieving property that they never would have lost without the regime’s rule. By squabbling about who has the right to interpret family histories, we run the risk of missing this last opportunity to correct this matter. We should do everything in our power to prevent any further delay. 

Olaf S. Ossmann represents claimants as an attorney worldwide. He teaches law and history in Berlin and Amsterdam and is a longterm member of the IJL Board of Governors.

Source

JUSTICE, the journal of The International Association of Jewish Lawyers (IJL)