Must a New Nation Return Property Seized by a Prior Regime?
By: Savannah Priebe
This past month, World War II wounds have once again resurfaced in the form of legal action, this time against the country of Croatia. Descendants of WWII victims including Croatian Serbs, Jews and Roma, filed suit against Croatia, in the United States Illinois Norther District Court.[1] The lawsuit is seeking repayment of 3.2 billion euros for seized property, and suffering of their relatives during the war.[2] At the time Croatia was “the Independent State of Croatia, NDH, which was led by the fascist Ustasa movement.”[3] This movement attacked Serbs, Jews and Roma, killed them, sent them to “Croatia-based and Nazi German camps and confiscat[ed] their property and belongings.”[4] This terrorizing even had a name, it was called “Aryanisation of property” and was actually made permissible under racial laws that were based on Nazi ideas and legislation.[5] Currently, it is not possible to receive restitution from the time of NDH rule, however laws have been passed in Croatia that do permit returning of property taken during the time of Yugoslav rule.
Many are wondering, is this lawsuit even possible? Do these plaintiffs have a chance at winning billions of dollars from the Croatian government? These are but a few questions surrounding this controversy. There are also some concerns that the plaintiffs in this lawsuit did not give consent to file the claim.[6] Additionally, it has been speculated that the law suit itself has no basis because the Republic of Croatia is not a “legal successor” of the NDH and therefore could not be responsible for damages caused by the NDH government.[7]
Regardless of the controversy surrounding this particular lawsuit, what is the likelihood that claims like this one could prevail? Can Croatia simply make a law that says they do not have to return property seized when it was ruled by NDH but that it must return property seized when it was under Yugoslav rule? In the past, this issue was addressed on a larger scale with the idea that “cultural property taken by a stronger power or nation . . . should . . . be returned to the place where it was created.”[8] Several International agreements have been created in order to protect from just that.[9] However, these protections were mostly aimed at keeping and returning artifacts to their rightful country, or place of origin, not to the rightful individual owner.[10] Most relevant in this situation is the 1970 UNESCO Convention, which addressed the movement of cultural artifacts and attempted to protect property from being pillaged from archaeological sites.[11] Once adopted by a nation, the UNESCO Convention recognizes States’ control over the export of cultural materials.[12] Nonetheless, this only applied to countries that ratified the convention and who also passed their own legislation on the subject.[13] In the 1980s, it became clear that UNESCO principles “failed to respond sufficiently to private law issues” and a formal body of private laws for international trade were requested.[14] “The 1995 UNIDROIT Convention attempt[ed] to deal with the [previous] problems . . . [and] allows private individuals to bring claims for the return of stolen cultural property that has ended up in a foreign country.”[15] Furthermore, this convention only applies to States that have ratified it.[16] Croatia ratified the UNIDROIT Convention on June 24, 1995.[17] If the property sought to be returned was taken from outside of Croatia, then these individuals may be able to regain the property, the issue of finding the property and assigning ownership notwithstanding.
Unfortunately, this issue is not as cut and dry as a ratified convention. Croatia ratified the UNIDROIT convention, however NDH did not, and that is the governing body that is charged with having initially seized the property.[18] An individual Country is not bound by any outside influence when creating their own legislation.[19] Croatian law suggests that the Croatian government does not intend on the return of property during the power of the NDH.[20] Furthermore, the Constitution of the Republic of Croatia specifically distinguishes the new Republic from previous regimes and periods in history. Overall, this specific claim’s future is unclear, due to controversy, and the potential lack of any plaintiffs it is not likely the lawsuit will result in a 3.2 billion euro outcome, yet it does give Croatia the opportunity to re-evaluate the way in which they should handle situations similar to these, adhere to the intent of the UNIDROIT convention and repatriate any property they may have from World War II.
[1] Sven Milekic, WWII Compensation Lawsuit Against Croatia ‘Likely to Fail’, BIRN, (Mar. 13, 2017) http://www.balkaninsight.com/en/article/us-private-suit-reveals-croatia-s-wwii-property-restitutions-problems-03-13-2017 (last visited Apr. 2, 2017).
[2] Id.
[3] Iva Boban Valecic, From Croatian Seeking 3.5 billion dollars in compensation for the Serbs, Roma and Jews, Victims of the NDH, Vecernji List (Mar. 13, 2017, 8:50 AM), http://www.vecernji.hr/hrvatska/od-hrvatske-traze-35-milijardi-dolara-odstete-za-srbe-rome-i-zidove-zrtve-ndh-1155625
[4] Milekic, Supra note 1.
[5] Id.
[6] Boban Valecic, supra note 3.
[7] See Id.; Milekic, supra note 1.
[8] Carol A. Roehrenbeck, Repatriation of Cultural Property-Who Owns the Past? An Introduction to Approaches and to Selected Statutory Instruments, 38 Int’l J. of Legal Info. 185, 185 (2010).
[9] Id. at 193-197.
[10] Id.
[11] Id. at 195-96.
[12] Id. at 196.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, UNIDROIT, http://www.unidroit.org/status-cp (last updated Mar. 5, 2017, 10:22 PM).
[18] See Id.
[19] See Lori Fisler Damrosch & Sean D. Murphy, International Law (6th ed. 2014).
[20] See id.