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Analysis: Will Polish anti-restitution law permanently harm ties with Israel, Jewish community?

Israeli over-reaction to Poland may cost the Jewish state a bigger ally than it realizes.

By Dmitriy Shapiro, JNS.org

Despite international pressure to veto the bill, Polish President Andrzej Duda signed a bill passed by the Polish legislature on Aug. 14 that would prevent individuals with property seized by either the Nazis during World War II or the post-War Communist government from having it returned.

The bill effectively ends the chances that Poland’s Holocaust survivors and their descendants from receiving restitution by filing claims to reinstate their confiscated property, including those who are currently in court seeking restitution.

The action, the president wrote in a statement after signing the bill, would end decades of uncertainty for Polish people over whether the property individuals occupied have to be returned to its pre-Communist or even pre-war owners.

“In my opinion, this is the end of the state of uncertainty, when the bona fide flats and real estate could be taken away by an ordinary administrative decision, when their owner from over 70 years ago was found,” wrote Duda.

“Practice has shown that these owners were often fictitious, and that criminal groups became rich at the cost of tens of thousands of people thrown onto the pavement. Anyone born at the wrong time and place could be the victim, and re-privatization to restore justice became almost synonymous with injustice and human harm,” Duda added.

While the law does not mention Jews, the Holocaust or World War II, it ensures that an administrative decision rendered more than 30 years ago could no longer be challenged.

For months, the bill was condemned by the international community, which saw it as another attempt by Poland to wipe out its responsibility to restore the property confiscated from its Jewish community during the years of World War II and the Holocaust. Before the war, that community was the largest in the world with some 3 million Jews living in the country, mainly in the centers of Warsaw and Krakow.

Duda’s signing of the law, especially coming on the Jewish Sabbath, was seen as an affront by Jewish organizations and leaders worldwide.

“We deeply regret the adoption of these amendments. Further, we urge the Polish government to consult with representatives of affected parties and to develop a clear, efficient and effective legal procedure to resolve confiscated property claims and provide some measure of justice for victims,” U.S. Secretary of State Antony Blinken said in a statement on Monday.

“In the absence of such a procedure, this legislation will harm all Polish citizens whose property was unjustly taken, including that of Polish Jews who were victims of the Holocaust.”

‘Justice for what happened in the past’

The American Jewish Committee called the approval of the bill deplorable, writing on Twitter that it would make it virtually impossible for Holocaust survivors and claimants to seek restitution and urged the governments to return to a constructive dialogue.

“Shameful that Poland has passed a law that punishes families of Polish Jewry mass murdered by the Nazis in ghettos and death camps established by Nazi Germany on Polish soil during Shoah. No respect even in death,” said Rabbi Abraham Cooper, associate dean and director of Global Social Action Agenda at the Simon Wiesenthal Center.

The World Jewish Restitution Organization (WJRO)—the world’s leading advocate for property restitution in central and eastern Europe, which has been fighting the law since it was first introduced—said it was a sad day for justice and rule of law.

“With this law, Poland is attempting to say to the world if you delay justice long enough, you can shut the door to history without taking responsibility and benefit in the present from the Communist actions of the past. They are wrong,” WJRO chair of operations Gideon Taylor said in a statement.

“This issue will not go away. Holocaust survivors, their descendants and other Polish citizens have been struggling for decades to reclaim their rightful property nationalized by the Polish Communists will not give up. Without justice for what happened in the past, there will not be legal certainty for those who trade in this stolen property in the future,” Taylor said.

In his statement, Duda took offense that the law had anything to do with the Holocaust and that Communist nationalization of property applied to all citizens regardless of religion.

‘Israel and the Jewish people will not remain silent’

The new Israeli government took an even stronger line in condemning the new law.

“Israel views with utmost gravity approval of the law that prevents Jews from receiving compensation for property that was stolen from them during the Holocaust and regrets the fact that Poland has chosen to continue harming those who have lost everything,” Israeli Prime Minister Naftali Bennett said in an Aug. 14 statement.

“This is a shameful decision and disgraceful contempt for the memory of the Holocaust. This is a grave step that Israel cannot remain indifferent to,” the Prime Minister added.

Israeli Foreign Minister Yair Lapid called the law unethical and anti-Semitic, and recalled the charge d’affaires of the Israeli Embassy in Warsaw to return to Israel immediately for indefinite consultations. He also said that the new Israeli ambassador to Poland has been instructed to stay in Israel and recommended that the Polish ambassador to Israeli remain in Poland where he was on a vacation.

“This time should be used to explain to the people of Poland the meaning of the Holocaust to the citizens of Israel, and the extent to which we will refuse to tolerate any contempt for the memory of Holocaust and its victims,” Lapid said in the statement the day the law was signed.

“It will not end here,” Lapid continued. We are holding discussions with the Americans to coordinate our future response. Tonight, Poland has become an anti-democratic and illiberal country that does not honor the greatest tragedy in human history,” he continued. “We must never remain silent. Israel and the Jewish people will certainly not remain silent.”

The law was drafted and supported by Poland’s ruling right-wing Law and Justice Party which previously was on friendly terms with the government of Israeli Prime Minister Benjamin Netanyahu.

‘Strong supporters of the Jewish state’

Eugene Kontorovich, professor of law and director of the Center for Middle East and International Law at the Antonin Scalia Law School at George Mason University, said that whatever problems Poland has had with anti-Semitism in the past, he did not see this law as inherently anti-Semitic and that the Israeli leaders are picking a needless fight.

“Poland has had over the past century, very many transitions of liens. There were Nazis, Soviets, post-Soviet. And there’s nothing inherently wrong with them wanting to have a settlement of property rights so that property rights are not constantly in question,” he explained. “And you know, the cut-off period of 30 years makes it seem that it’s really primarily about Communist nationalization and transition from communism.”

“Given that the Holocaust in Poland now was close to 80 years ago, it’s weird to think that this is primarily or significantly about Jews or about the Holocaust, when pretty much anything or all the claims that could have been made about Holocaust-era issues would have been made by now,” Kontorovich said.

Poland, he added, on numerous occasions has stood up and threatened to veto anti-Semitic actions in the European Union, becoming a vital Israeli ally—at great cost to itself—and that the outrage over the bill may be sacrificing this support.

“On numerous occasions, they have vetoed European initiatives against Israel in a way that has … generated anger from Brussels [the seat of the European Commission], and they’ve been willing to take the heat,” said Kontorovich. “I think the Polish government have proven themselves to be strong supporters of the Jewish state.”

Kontorovich believes that the pushback to the law is a vast overreaction that will likely hurt Israel’s relationship with Poland.

“Next time the Europeans are considering some kind of sanctions measure or a restriction on trade or settlements … or some condemnation of Israel, is Poland going to not veto it because of this?” posed Kontorovich.

Meanwhile, WJRO vows that it will continue fighting for the restitution of Polish property.

“Many Holocaust survivors and their families have been waiting for justice for too long,” said Taylor in a statement. “Those who deal in what is in reality stolen Jewish property should understand that we will not stop seeking justice for Holocaust survivors and others.”