A Brief Historical Primer

Mid-twentieth-century Czechoslovak-German relations cast a long shadow. The Third Reich partitioned Czechoslovakia in September 1938 with the consent of the governments of Italy, Great Britain, and France, the latter two nations having initially favored appeasement in the face of Hitler's “dynamic expansion.”Footnote ³⁰ In mid-September 1938, Hitler met with British prime minister Neville Chamberlain and demanded the Third Reich's annexation of the Sudetenland under threat of war, and the foreign ministries of Great Britain and France immediately attempted to negotiate a multilateral agreement that would justify their non-intervention.Footnote ³¹ On September 28 and 29, Italian dictator Benito Mussolini proposed a four-power conference, and the resultant Munich Agreement was brokered without Czechoslovak involvement.Footnote ³² The German administration immediately reconstituted the territory as a new province of the Third Reich—the Reichsgau Sudetenland—and on October 1, 1938, absorbed a territory of approximately 30,000 square kilometers, constituting one-fifth of Czechoslovakia's entire territory and a populace of approximately 3.5 million Germans and between 820,000 and 860,000 Czechs.Footnote ³³ On March 15, 1939, Nazi Germany violated the Munich Agreement by launching an invasion of the balance of Czechoslovakia, establishing a pro-Nazi, semi-autonomous state in Slovakia and transforming the remaining Czech lands into the “Protectorate of Bohemia and Moravia.”Footnote ³⁴ Six months later, the governments of Great Britain and France declared war on Nazi Germany upon the Wehrmacht's invasion of Poland.

The Nazis attempted to exploit the Protectorate's human and material resources without engaging in methods that would provoke extensive acts of sabotage or guerrilla warfare on the part of the Czech populace.Footnote ³⁵ The occupation of the Protectorate did not, however, follow the Western European model either. The Nazis brutally suppressed the Czech intelligentsia and engaged thousands of Czechs in forced labor.Footnote ³⁶ In June 1942, SS security chief and “Reich protector” Reinhard Heydrich died of wounds incurred during an assassination attempt coordinated by the Czech resistance and the British Special Operations Executive. In reprisal, the village of Lidice, twenty-two kilometers northwest of Prague and suspected of having links to the perpetrators, was destroyed. Every male between the ages of sixteen and sixty was executed; the women were deported to the Ravensbrück concentration camp; young children considered suitable for “Aryanization” were put up for adoption across the Third Reich, and the remainder were murdered. Lidice's buildings were leveled, the ground salted, and house pets slaughtered.Footnote ³⁷ Had Nazi Germany won the war, a memorandum of August 1940 proposed deporting half of the Czech population eastward as a labor force and “Germanizing” the rest: “The goal of Reich policy in Bohemia and Moravia must be the complete Germanization of the space and people.”Footnote ³⁸ It is estimated that between 36,000 and 55,000 ethnic Czechs died directly or indirectly and the hands of the Nazi occupation forces.Footnote ³⁹

Nazi persecution of Jews residing in the Czech lands from October 1938 onward followed a pattern implemented elsewhere in German-occupied territories. Between October 1938 and the end of July 1939, 20,000 Jews fled Czechoslovakia and the Protectorate, and in April 1940, those remaining in the Protectorate were expelled from their positions in government administration, law, education, pharmacies, the press, and medicine.Footnote ⁴⁰ From November 1941 on, thousands of Jews were deported from their places of residence to the newly established ghetto in the fortress-town of Terezín (Theresienstadt), and in May 1942 the Reich Main Security Office declared “the complete evacuation of the Jews from the Old Reich, the Ostmark, and the Protectorate.”Footnote ⁴¹ Scholarship estimates that approximately 80,000 Jews from the Protectorate of Bohemia and Moravia lost their lives.Footnote ⁴² In total, approximately 265,000 Jews from all former Czechoslovak territories perished, accounting for more than three-quarters of all Czechoslovak victims of the German occupation.Footnote ⁴³ The experiences of Czech Jews during the Holocaust is an area of rich scholarship to which numerous monographs have been dedicated; this article provides only a superficial overview.Footnote ⁴⁴

The Nazi occupation rapidly diminished moderate positions on the “Sudeten German issue” within the Czechoslovak political elite-in-exile in London, not to mention the underground organizations active in the Protectorate.Footnote ⁴⁵ Heydrich's terror and the destruction of the village of Lidice in June 1942 also drove British political opinion, with successive backing from the Soviet and American governments, to develop in a more radical direction.Footnote ⁴⁶ By 1943, earlier models of projected postwar state reconstitution had yielded to a resolution in the form of the national homogenization of Czechoslovakia.Footnote ⁴⁷

The expulsion of the Sudeten German population had its legal basis in the Potsdam Conference of July–August 1945 and the resolutions of the Allied Control Council dated November 20, 1945.Footnote ⁴⁸ The Allied leaders issued the Potsdam Communique on August 2, 1945, and Article XII sanctioned measures for the transfer of German populations from Poland, Czechoslovakia, and Hungary.Footnote ⁴⁹ On the same day, Czechoslovak president-in-exile Edvard Beneš signed Presidential Decree No. 33/1945, proclaiming that those individuals of German and Hungarian nationality who had ostensibly obtained citizenship of the Third Reich or the Hungarian Kingdom would lose their Czechoslovak citizenship. Only those individuals who had demonstrated “loyalty” to the Czechoslovak state would be exempt: their citizenship status would revert to, or as the case may be remain, Czechoslovak.Footnote ⁵⁰ A series of further presidential decrees over the months prior and subsequent to the Potsdam Agreement—cumulatively known as the Beneš Decrees—dispossessed all German landowners of their properties and confiscated German assets.Footnote ⁵¹ Decrees No. 2/1945 and 5/1945 of February 1 and June 3, 1945, respectively, held that any kind of property transfers or dealings concerned with property rights were null and void if they had taken place after September 29, 1938, under pressure from the German occupation authorities, and Decree No. 5/1945 imposed national administration on the property of persons of German or Hungarian nationality on account of their being “unreliable in relation to the state.”Footnote ⁵² Decree No. 108/1945 of October 25, 1945, converted the sequestration of property into outright confiscation, with the proviso that any individual who could prove that he or she “had remained loyal to the Czechoslovak Republic, had never committed any offense against the Czech and Slovak nations and either actively participated in the struggle for its liberation or suffered under Nazi or fascist terror” would be exempt.Footnote ⁵³

The historical literature on the expulsion of the Sudeten Germans is contentious; even the terminology is controversial.Footnote ⁵⁴ This article contains both the terms transfer and expulsion, but readers should note the important political and moral implications of either usage. As Tampke and others have described, the term transfer (Abschub, Odsun) is usually used within Czechoslovakia and by émigré Czech historians, whereas German historians generally insist on the term expulsion (Vertreibung, vyhnaní).Footnote ⁵⁵ The Czech-German Joint Historians’ Commission, inaugurated in 1992, agreed upon the German terms Vertreibung und Aussiedlung. Expulsion translates to either Vertreibung or Ausweisung in German, with the latter not quite as severe as the former. Aussiedlung can be translated into resettlement, which is also denoted by Umsiedlung.Footnote ⁵⁶ Additional terms sometimes used to describe the event include repatriation, resettlement, displacement, and ethnic cleansing.Footnote ⁵⁷

Postwar, Czechoslovak-German relations were quickly characterized by the Cold War East-West dichotomy. In February 1948, the Communist Party of Czechoslovakia seized power, albeit with the support of a large proportion of the population and in the absence of a Soviet military presence.Footnote ⁵⁸ In May 1948, President Beneš refused to sign the new Czechoslovak constitution, resigned from his office in June, and died in September of the same year.Footnote ⁵⁹ From 1948 to 1989, an absence of liberal democracy characterized Czechoslovak politics, punctuated by a process of liberalization culminating in the Prague Spring of 1968 and followed by a period of regression.Footnote ⁶⁰ In 1973, West German Sozialdemokratische (Social Democrat, SPD) chancellor Willy Brandt's policy of Ostpolitik facilitated a treaty between Czechoslovakia and West Germany in which the two states recognized each other diplomatically, acknowledged the inviolability of their common border, and declared the Munich Agreement of 1938 to be null and void.Footnote ⁶¹ However, this declaration of nullity embodied a symbolic gesture only. In reality, the treaty enabled two interpretations of the Munich Agreement's legal status, a matter of no small significance two decades later when questions of Sudeten German property restitution reemerged in response to Czech compensation claims for victims of Nazism.

From Amity to Legal Conflict

The Czech-German relationship underwent profound change in 1989. A phase of dynamic bilateral rapprochement followed the collapse of communism, with sincere and recurring efforts by state representatives expressing a spirit of conciliation. In a personal letter to German president Richard von Weizsäcker in November 1989, Václav Havel confronted the ultrasensitive Czech taboo: “the guilt of our country over three million of its own citizens of German nationality who were expelled from their homes.”Footnote ⁶² Havel wrote, “I personally, like many of my friends, condemn the postwar expulsion of Germans, which has always struck me as a deeply immoral act.”Footnote ⁶³ Havel had yet to be elected president of Czechoslovakia at the time, but given the letter's close proximity to his election, the media construed the gesture as an official declaration.Footnote ⁶⁴ In any case, Havel would later express very similar sentiments in his capacity as president.

For Havel, a former dissident and playwright, rapprochement with Germany represented a crucial step on the road to joining the “community of European nations.”Footnote ⁶⁵ An unorthodox approach to the “German question” had evolved within the Czech intellectual opposition during the two decades of “normalization” following the Prague Spring of 1968, and the dissident group “Charter 77,” to which many new foreign policy makers belonged, had declared its unequivocal support for German reunification in its Prague Appeal of 1985.Footnote ⁶⁶ These unorthodox thinkers, not least Havel himself, inherited the reins of state power in 1989 and launched the new Czechoslovak state on wholly new geopolitical principles.Footnote ⁶⁷

Reconciliation initiatives reached their high watermark on the occasion of Weizsäcker's visit to Prague on March 15, 1990, the fifty-first anniversary of the Nazi invasion. In the Vladislav Hall of Prague Castle, Havel began his speech with a series of juxtapositions. With respect to the German invasion of March 1939, Havel declared:

In Weizsäcker, Havel extolled a different kind of guest:

Weizsäcker, in turn, declared that he was overwhelmed by the “trust that you, ladies and gentlemen, have granted us Germans with this reception.” He assured his audience that “countless of my compatriots share my joy” and that “everyone at home understands the deep symbolism of this peace step.”Footnote ⁶⁹ Weizsäcker, on behalf of the German nation, took it “with conviction.”Footnote ⁷⁰ Weizsäcker recalled the “occupying army” that marched into Czechoslovakia fifty-one years prior, marking the “beginning of a six year period of occupation and oppression. Heavy injustice was inflicted by Germans on your country and its people.”Footnote ⁷¹ Similar German acknowledgments and commitments would follow.

Havel's and Weizsäcker's reconciliatory initiatives were soon overshadowed by the contentious political reality. As of 1989, Czech victims of forced labor under Nazism had yet to receive any monetary compensation from the West German government, and the newly democratic Czechoslovak government raised the issue afresh in 1990.Footnote ⁷² Three consecutive German schemes since 1945, totaling approximately 100 billion DM, had provided compensation to more than 500,000 Western victims; victims from Eastern Europe, however, had largely been excluded from these programs due to factors related to the Cold War.Footnote ⁷³ Furthermore, despite Weizsäcker's 1985 appeal to the Sudeten German expellees that “the dictate of understanding” be placed “above conflicting legal claims,” property claims were brought by the Sudentendeutsche Landsmannschaft (SdL) in response to the Czechoslovak Assembly passing the Law on Extrajudicial Rehabilitation in February 1991, intended to remedy politically motivated injustices under communist rule.Footnote ⁷⁴ The statute strictly bracketed admissible claims to expropriations that took place between February 25, 1948 (the date of the communist takeover), and January 1, 1990, thus excluding the restitution of property taken from Jews by the Nazis during the war and Sudeten German property seized by the Czechoslovak government between 1945 and 1948.Footnote ⁷⁵ The vast majority of post-1989 Czechoslovak politicians supported the return of confiscated Jewish property, and a number of amendments were introduced to facilitate such a return.Footnote ⁷⁶ The Chamber of Deputies vacillated on the details, however, protracting amendment debates to the point of a political crisis in the spring of 1994.Footnote ⁷⁷ Eventually, Czech prime minister Václav Klaus declared the return of Jewish property by government decree, but additional amendments were not passed until 1994.Footnote ⁷⁸ By comparison, the Sudeten German issue was relatively uncontroversial within Czechoslovakia: all major Czech parties rejected the return of Sudeten German property.Footnote ⁷⁹

By the late-1940s, Sudeten German expellees had formed a cohesive and highly influential interest group in Germany. Based primarily in Bavaria and Würtemberg, the SdL formed to fulfill the role of a government-in-exile.Footnote ⁸⁰ In 1954, the governing Christlich-Soziale Union in Bayern (Christian Social Union, CSU), sister party to the federal Christlich Demokratische Union Deutschlands (Christian Democratic Union, CDU), proclaimed patronage over the Sudeten Germans, and a short time later declared the Sudeten Germans to be Bavaria's “fourth tribe” (Bayerns Vierter Stamm).Footnote ⁸¹ A grateful Sudeten German electorate lent its support to the CSU, and as of 1990 remained a stronghold of the conservative coalition.Footnote ⁸²

The Czechoslovak ambassador to Germany attended the annual Sudeten German Whitsuntide meeting in Munich in January 1990, where SdL chairman Franz Neubauer, also president of Bavaria's state bank, thanked Havel for his rejection of the thesis of collective guilt and his condemnation of the expulsions.Footnote ⁸³ Nonetheless, Neubauer reiterated the SdL's demands for restitution and the right of resettlement.Footnote ⁸⁴ In May 1991, Neubauer again insisted that the Czechoslovak government compensate the Sudeten Germans for their loss of property, repeal the Beneš Decrees, allow Sudeten Germans to return to Czechoslovakia should they wish, and additionally permit them to hold dual Czech and German citizenship.Footnote ⁸⁵

With a direct link via the CSU into the ruling coalition in Bonn, the SdL was instrumental in framing a federal government policy toward Czechoslovakia after 1989 that associated the question of monetary compensation for Czech victims of Nazism with similar claims for Czech concessions in relation to Sudeten German property restitution.Footnote ⁸⁶ Third-party estimates of the value of confiscated Sudeten German property do not exist, but as of 1978 the SdL claimed that the “current replacement cost standard” of the confiscated Sudeten German assets amounted to 53.3 billion US dollars or 130 billion DM.Footnote ⁸⁷ Despite reference in its preamble to the “many victims of tyranny, war and persecution and the heavy suffering inflicted on many innocent people,” the 1992 Czech-German Treaty on Good Neighbourly Relations and Friendly Cooperation explicitly left open the issues of compensation and property restitution in two adjoining letters signed by Foreign Ministers Jiří Dienstbier and Hans-Dietrich Genscher, reflecting the parties’ inability to reach agreement.Footnote ⁸⁸

In the face of the Czechoslovak government's refusal to consider Sudeten German restitution, German representatives accused their Czech counterparts of perpetuating a cycle of “injustice and counter-injustice.”Footnote ⁸⁹ Czech officials countered the allegation by qualifying that the Czech claim for individual compensation for forced laborers invoked a legal obligation long since accepted by the German government and did not extend to “billing” Germany for the myriad injustices and deprivations suffered by the Czechs under Nazi occupation. Czech prime minister Petr Pithart emphasized the distinction in 1991:

Czech representatives argued that their claim for compensation merely represented equality of treatment with West European recipients and did not constitute an attempt to monetize the quantum of suffering. Havel later forcefully expanded upon Pithart's theme:

Havel thus distinguished the Czech compensation claim from restitution in the broader sense, reiterating the importance of acknowledging uncomfortable historical truths without attempting to “change the past.”Footnote ⁹²

A number of Czech commentators argue that Havel's letter to Weizsäcker of November 1989 was not met with an equivalent German gesture.Footnote ⁹³ In Václav Houžvička's estimation, this lack of reciprocation confirmed traditional Czech fears that the German government was “playing dishonestly for the time needed to ratchet up demands.”Footnote ⁹⁴ In 1991 Havel proposed that in return for the German government's settlement of Czechoslovak claims in relation to the Nazi occupation, the writing off of Czechoslovak trade debts to the former German Democratic Republic, and a loan of two billion crowns, his government would be willing to negotiate the return of those Sudeten Germans wishing to resettle in Czechoslovakia, including participation in the post-communism coupon privatization scheme.Footnote ⁹⁵ A report surfaced in 1992 alleging that the German government had been informed of Havel's offer too late for it to be adopted.Footnote ⁹⁶ According to Havel, however, the Kohl administration simply refused the proposal. In a 2005 interview Havel recalled:

Ann Phillips described the CDU's linkage of Czech compensation and Sudeten German restitution claims as a perfect example of how “domestic politics could modify a general foreign policy line.”Footnote ⁹⁸ During the latter half of 1991, Chancellor Kohl repeatedly postponed the signing of the Friendship Treaty, further angering Czech negotiators over the German government's refusal to formally discard Sudeten German claims.Footnote ⁹⁹ Despite the Kohl administration's agenda of rapprochement, Czech negotiators found themselves increasingly confronted by the SdL's apparent influence over the CSU, actively supported by the CDU at the federal level.Footnote ¹⁰⁰

The German government's stance was nevertheless ambiguous: motives for linking Czech compensation to Sudeten German property restitution in the early 1990s incorporated tactical political maneuverings in addition to moral indignation on behalf of the Sudeten German expellees. During negotiations for the 1992 treaty, Czechoslovak officials proposed that the German government formally renounce Sudeten German property claims in return for the Czechoslovak government forsaking its claim to outstanding war reparations.Footnote ¹⁰¹ German officials declined, however, ostensibly due to a provision of German domestic law rendering the federal government liable for individual claims against another state that the government had formally relinquished via treaty and the incalculable financial risks that this would entail.Footnote ¹⁰² By declining the offer while continuing to demand Czech consideration of the Sudeten German claim, and blocking Czech compensation until such restitution be considered, the German government effectively signaled its resistance to further war reparations claims, an issue of relevance to a number of central and southeastern European countries.Footnote ¹⁰³ In the interest of strengthening the West German economy, the 1953 London Agreement on External German Debts, imposed by the Western Allied powers, had postponed the question of German war reparations to neighboring European countries indefinitely, declaring, “The question of reparations will be … regulated by the peace treaty.”Footnote ¹⁰⁴ However, the 1990 “2 + 4” Treaty on the Final Settlement with Respect to Germany omitted any reference to reparations and thus tacitly abandoned the issue.Footnote ¹⁰⁵ German officials may well have embraced Sudeten German property claims in an attempt to stave off a precedent-setting agreement that would have encouraged other central and southeastern European claimants. The CDU also maintained the very important appearance, domestically, of defending a core constituency.

Historians have questioned the seriousness of the German government's intent, in fact, to obtain Czech restitution for the Sudeten German expellees. Political theorist Emil Nagengast labeled the CDU's conflicting foreign and domestic policy priorities in the early 1990s as the “real irony” in Czech-German relations: Czech officials had mistakenly assumed that German policy makers would formulate priorities in a “traditional, realist manner.”Footnote ¹⁰⁶ In Nagengast's view, Czech politicians and the populace at large became preoccupied with an issue that was marginal in German politics and overestimated the influence of the SdL, aptly demonstrated by Robert Eggleston's observation in 1998: “about eighty per cent of Czechs recognize the name of the expellee's spokesman, Franz Neubauer, while in Germany it is doubtful whether his name is known to five per cent of the population.”Footnote ¹⁰⁷ Nevertheless, Miroslav Kunštát observed that the “reluctant approach of the relevant German politicians towards questions arising out of the past, which often bordered on opportunistic jostling, did … contribute … to an undeniable worsening of the atmosphere of relations between the two countries.”Footnote ¹⁰⁸ Echoing Nagengast, Pauer asserted that the German government in the early 1990s “neither intended to unilaterally revise the post-war order in Europe, nor aimed to launch an offensive on the compensation issue.”Footnote ¹⁰⁹ Given their prevarications, however, Pauer did observe that the German government's “real intentions were … difficult to decipher.”Footnote ¹¹⁰

Likewise, the Czech government's inconsistent policy regarding direct dialogue with the SdL in the early to mid-1990s exacerbated poor relations and reflected increasing anxiety. In early 1990, Czech officials had yet to rule out direct talks with the SdL but resisted the latter's insistence on direct involvement in bilateral negotiations. Following a meeting between Czechoslovak prime minister Marián Čalfa and SdL chairman Neubauer in Munich in the summer of 1990, Čalfa asserted that his government would no longer deal directly with the SdL.Footnote ¹¹¹ In mid-1993, however, the Czech government again offered to enter into a dialogue following the SdL's traditional Whitsuntide meeting, but three days later retracted the offer, arguing that the speeches of SdL representatives had rendered dialogue impossible.Footnote ¹¹² The German government continued to push for some form of dialogue as a minimum, but as of 1997 Czech representatives had refused to engage in any direct discussion with the SdL, insisting that governments negotiate with other governments, not with groups.Footnote ¹¹³

Ruling of the Czech Constitutional Court, March 1995

Czech-German tensions peaked in March 1995 when the Czech Constitutional Court released a ruling on the constitutionality of Beneš Decree No. 108/1945 of August 2, 1945 (on the Confiscation of Enemy Property and the Funds of National Renewal). The court justified its decision to reaffirm Decree No. 108 by declaring the German people collectively responsible for crimes committed under Nazism, eliciting an unsurprisingly negative German response.

Before continuing with an account of the court's reasoning, a brief diversion into jurisprudential theory will help to explain one of the ruling's more notable features, namely the court's inclusion of a moral assessment of the past and the perceived justice of the Beneš Decrees as an integral component of its judgment. This overlap between morality and procedural legality is understandable when viewed in light of the natural law theory of law (hereafter, natural law theory), an influential strand of continental European, English, and American jurisprudence.Footnote ¹¹⁴

Like its rival jurisprudential theory, legal positivism, natural law theory recognizes the necessity of procedural requirements in defining law; in other words, that law has an official quality and is promulgated in accordance with a recognized procedure.Footnote ¹¹⁵ However, legal positivism traditionally sees these procedural characteristics as sufficiently constitutive of law as such; in the words of John Austin, “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”Footnote ¹¹⁶ Natural law theory, by contrast, suggests that a rule or norm must conform to fundamental notions of justice. Brutal discriminatory laws do not attain the status of law in any real sense, but are acts of mere violence, even if undertaken under the guise of “law” and enacted in accordance with the appropriate procedure.Footnote ¹¹⁷

Legal positivism and natural law theory each encompass an enormous diversity of qualifying and overlapping viewpoints, the complexities of which are beyond the scope of this article. Simple definitions need not be misleading, so long as the reader notes the enormous iceberg of debate and qualification beneath. The Czech and German representatives to which I refer were not jurisprudential theorists, and it is not suggested here that they directly invoked jurisprudential theory. Nevertheless, the basic tenets underlying legal positivism and natural law theory are strikingly apparent in the legal arguments utilized by the parties in the 1990s.

In the Czech Constitutional Court, the petitioner, Sudeten German Rudolf Dreithaler, reflected the natural law perspective by arguing that the Beneš Decrees, among other things, “violated the legal canons of civilized European societies,” and could not be considered acts of law, “but of force, that is to say, … they lack any legal character whatsoever.”Footnote ¹¹⁸ Dreithaler's arguments conformed overwhelmingly to the German government's position on the Beneš Decrees, reflected by Foreign Minister Klaus Kinkel's statement in 1993 that “the Federal Government has never recognized the unjust expulsion and expropriation of German assets after the war.”Footnote ¹¹⁹ German state representatives considered the Beneš Decrees to be fundamentally undermined by their alleged premise of collective guilt, reasoning that carried strikingly naturalist overtones. In March 1995, Kinkel again declared in relation to the decrees, “Indiscriminate judgements will inevitably fail. There is no collective guilt.”Footnote ¹²⁰ In December of the same year, Weizsäcker asserted that the Beneš Decrees “were based on the collective guilt of an entire national group,” and thus “were no legal acts but were a supplementary act of war.”Footnote ¹²¹ According to Weizsäcker, “guilt, like innocence, is always personal and never collective.”Footnote ¹²² In 1996, German finance minister Theo Waigel declared that the Beneš Decrees were “documents from an epoch marked by hatred, resentment and vengeance. They belong neither in the European legal landscape, nor in our vision of European cooperation among free peoples.”Footnote ¹²³ The lengthy argument developed by the justices of the Czech Constitutional Court in repudiating Dreithaler's normative attack revealed that the court, too, accepted the broader, morally imbued natural law conception of law. As the enormous complexity and diversity of moral judgment allows, however, the Court reached the opposite conclusion with respect to the Decrees’ justice.

The court (on behalf of the Czech Parliamentary Chamber of Deputies) framed Decree No. 108/1945 as having imposed a rebuttable presumption of collective responsibility: in 1945, German nationals residing in the Czech lands had been free to “rebut” the presumption (and thus retain their property) by proving that he or she had remained loyal to the Czechoslovak Republic and had opposed Nazism.Footnote ¹²⁴ The court justified the reversal of the presumption of innocence for the Sudeten German population by rhetorically questioning:

The court asserted that the prewar German minority in Czechoslovakia had borne a collective responsibility in the lead-up to the Munich Agreement to reject totalitarianism and exhibit their loyalty to the principles of liberal democracy embodied by the Czechoslovak Republic and ought to have “given to this fidelity the status of a fundamental political principle.”Footnote ¹²⁶ Having failed at this charge, however, and having contributed to immense destruction and suffering thereby, Decree No. 108/1945 merely imposed a sanction commensurate to the damage caused.Footnote ¹²⁷ The court made a distinction between retributive decrees, requiring evidence of individual guilt, and confiscatory decrees, imposing, where natural persons were concerned, the rebuttable presumption of responsibility. Sanction (in the context of responsibility, justifiable in relation to the collective) and punishment (in the context of guilt, pertaining only to the individual) were thus distinguished.

Therefore, the presumption of responsibility for persons of German nationality did not represent a form of nationalistic revenge on the basis of collective guilt, the court claimed:

The court held the category of responsibility to be wider than guilt, possessing “an extensive value, social, historical as well as legal dimension.” Responsibility in this context arose out of a “person's neglect to make a contribution to the structuring of power relations, his failure, during the struggle for power, to act in the service of right.”Footnote ¹²⁹ Passive omission within a group was therefore sufficient, in the court's eyes, to justify the imputation of responsibility.

Despite characterizing the Beneš Decrees as safeguarding the legitimate aims of a democratic, law-based state, the justices qualified that the postwar expropriations could not be judged in the light of international human rights conventions adopted since 1945. The court claimed that although “it is true” that historic legal instruments must “pass muster” with respect to present-day values, this assessment, “with the advantage of hindsight, may not be merely the present passing judgment upon the past.”Footnote ¹³⁰ Having implicitly accepted the validity of a broader natural law conception of law, the court attempted to qualify, somewhat unsatisfactorily, the parameters of its normative defense. The Czech press praised the ruling as a “triumph of justice” and an expression of “democratic values.”Footnote ¹³¹

Considering the ruling, Jan Pauer suggested that there is an “essential moral difference between a state which recognizes that it is prepared, in an extreme situation, to override norms that it otherwise upholds and a state that will not do so. This is precisely the point at which a democratic country must prove its interest in not allowing [itself] to follow the motto ‘my country, right or wrong.’ ”Footnote ¹³² On the other hand, Pauer questioned “whether a realistic alternative to collective punishment existed, given the civilizatory breach caused by the Nazis’ racist war of extermination and their occupation and Umvolkungspolitik.”Footnote ¹³³ Nevertheless, as Pauer put it, “the argumentation laid out by the Czech Constitutional Court is hardly adequate for satisfying one's sense of justice.”Footnote ¹³⁴ Certainly the justices struggled to reconcile their claim that Decree No. 108 had reflected the legitimate aims of a democratic, law-based state with their effective admission that the Beneš Decrees had been a necessary product of their time.

Moreover, the court's ruling produced a situation of inconsistency in the Czech legal position. Strictly speaking, the court's judgment concerned only Decree No. 108 relating to property expropriations, and furthermore concerned only the legality of the decree itself, not the manner of its implementation. The court's rationale transcended the specificity of the ruling, however, and therein lay its political impact. In the context of the broader philosophical debate as to the validity of collective accountability, the court's ruling departed from previous and later official Czech acknowledgments of wrongdoing.

Consider the contrast between the court's judgment and President Havel's claim five years prior, that the expulsions and expropriations had constituted collective “retribution that went beyond the rule of law” and his reference to the Czech “assumption that we were clearing the way for historical justice,” while in fact, “we hurt many innocent people.”Footnote ¹³⁵ When Weizsäcker visited Prague in March 1990, Havel had not only elaborated on Weizsäcker's rejection of collective guilt (Kollektivschuld, kolektivní vina), but explicitly extended his condemnation to any form of collective German responsibility (kollektive Verantwortung, kolektivní odpovědnost). Havel said:

One month prior to the court's ruling, Havel had revised his position insofar as the legality issue was concerned, “we do not have the slightest intention . . . to annul legal acts lawfully approved by our parliament years ago,” but Havel's ongoing moral dissent created inconsistency: “my own critical opinion [of the expulsions] is widely known.”Footnote ¹³⁷ Having warded off calls for the Beneš Decrees’ annulment, Havel nevertheless declared, “As far as the transfer of the German population is concerned, we must … face the uncomfortable truth, regardless of any crazy conclusions anyone might arrive at.”Footnote ¹³⁸

To further complicate matters, Czech representatives deviated from the court's reasoning after the fact. In November 1995, Czech foreign minister Josef Zieleniec asserted:

Zieleniec's admission is hard to reconcile with the court's defense of Beneš Decree No. 108. Where the justices had restricted themselves to the vocabulary of civil, noncriminal proceedings in order to ward off the accusation of applying collective guilt (responsibility, obligation, damage, and sanction), Zieleniec's reference to “retribution” and “injustice” carried connotations of punishment and guilt.

Certainly, the Czech Constitutional Court's ruling resists a simplistic interpretation. The court's provocative stance on a complex philosophical debate—the extent to which liability may be attributed and a sanction imposed upon members of a collective in the absence of established individual guilt—hardly promoted legal certainty or Czech-German reconciliation. And yet, as Pauer pointed out, the justices faced the unenviable task of providing legal justification for exceptional events that had occurred in the wake of exceptional events and about which numerous legal theorists since 1945 have asserted tacit, singular exceptions.Footnote ¹⁴⁰

Inconsistency in Legal Argumentation

Czech representatives in the 1990s responded to the German government's denunciation of the Beneš Decrees by separating the issue of moral injustice from that of material restitution. Czech officials such as Havel, Dienstbier, and Zieleniec recognized the moral significance of the expulsions and expropriations but defended their legal basis, denying any practical, legal ramifications stemming from such moral recognition. In response, German representatives accused their Czech counterparts of ignoring an intuitively rational link.

Deviating from the Czech Constitutional Court's naturalist defense, Czech state representatives adopted positivist reasoning when they stressed that the Beneš Decrees had been adopted on legitimate democratic grounds and in the framework of a state based on the rule of law.Footnote ¹⁴¹ While acknowledging the questionability of collective liability in principle, they argued that the Beneš Decrees’ abolition would lead to legal chaos: the decrees played an irreplaceable role in maintaining the legal continuity of the Czechoslovak state during the war years and remained an integral component of the Czech legal landscape.Footnote ¹⁴² Havel qualified that his own critical stance toward the Beneš Decrees did “not mean that these old legal documents can today be annulled or revoked,” alluding to the “post-war European order.”Footnote ¹⁴³ One Czech legal interpretation suggested that to rescind the decrees could indirectly lead to a revision of the Potsdam Agreement, with significant consequences for postwar boundaries throughout much of Europe.Footnote ¹⁴⁴ Havel intertwined positivist legal reasoning with his reference to pragmatic realities: “we do not have the slightest intention either to turn back history or to annul legal acts lawfully approved by our parliament years ago—acts on which whole layers of subsequent actions have since been piled up.”Footnote ¹⁴⁵

German representatives denounced the Czech approach as unconscionably inconsistent. Adopting naturalist reasoning, German officials considered the legality of the Beneš Decrees to be fundamentally undermined by injustice: their premise of collective guilt. Furthermore, by challenging the legality of the Beneš Decrees, the German government insisted upon a logical progression: legal rectification ought to follow moral recognition. During the 1992 Friendship Treaty's ratification debate, CDU politicians Helmut Sauer and Bernhard Jagoda, themselves the children of Silesian expellees, asserted:

Sauer and Jagoda implied that, unlike their Czech counterparts in relation to the expulsion of the Sudeten Germans, German representatives acknowledged the injustice and illegality of forced labor under Nazism and were prepared to compensate. Hence, the German government insisted in the early 1990s that any movement on the issue of Czech compensation be met with a reciprocal Czech gesture toward the Sudeten Germans.

However, the German government's defense of the Munich Agreement's legality, spanning administrations over several decades, entailed a similar denial of legal rectification despite moral recognition of its wrongful nature, rendering its approaches to the historic legal instruments fundamentally inconsistent. This may go some way to explaining the Czech Constitutional Court's willingness to take a hardline controversial stance in defense of the Beneš Decrees. Czechoslovak-German negotiations in the lead-up to the 1973 Treaty of Prague reveal that German representatives had seen no necessary contradiction in classifying the Munich Agreement as legally binding (thus precluding any revisionist legal steps), while simultaneously conceding its illegitimacy according to present-day legal and moral principles. Certainly, according to German officials, the Munich Agreement's injustice had no bearing on the matter of its legality.

Moreover, the legal status of the Munich Agreement had a direct bearing on the Sudeten German property claim in the 1990s. West German representatives from the mid-1960s onward claimed that Hitler's invasion of Czechoslovakia proper in March 1939 had nullified the Munich Agreement, but maintained the legitimacy (and persistence) of all legal consequences arising out of its first six months of operation.Footnote ¹⁴⁷ German officials resisted declaring the agreement invalid from the outset due to the theoretical risk of extensive additional Czechoslovak claims for damages inflicted during the years of Nazi occupation and for the impact such a declaration would have on the citizenship of the Sudeten German population.Footnote ¹⁴⁸ If the Munich Agreement had been valid at the time of signature, the November 1938 Reich Citizenship Law effectively granted all German inhabitants of the Reichsgau Sudetenland German citizenship, an enduring legal consequence despite Hitler's later repudiation of the agreement.Footnote ¹⁴⁹ This interpretation granted the Sudeten Germans an international legal claim to compensation from the Czechoslovak government for property expropriation occurring at the war's end and also protected Sudeten Germans from charges of treachery under Czech domestic law.Footnote ¹⁵⁰

The Czechoslovak and later Czech government's legal position, on the other hand, maintained that the Munich Agreement had been null and void from the beginning.Footnote ¹⁵¹ Thus the November 1938 legislation granting Reich citizenship to the Sudeten Germans had no legal effect. The Czechoslovak government claimed the prerogative of stripping the Sudeten Germans of their Czechoslovak citizenship via Beneš Decree No. 33/1945 of August 2, 1945, on account of their “unreliability” (unless the individual could prove otherwise), a legal euphemism for treachery.Footnote ¹⁵² The German interpretation of the Munich Agreement therefore undercut a significant premise of the Beneš Decrees: the Czechoslovak citizenship of the Sudeten Germans as of 1945.

A comparison of Czech and German legal arguments reveals striking reciprocal hypocrisy. Depending on the instrument in question, both governments vacillated between an adoption of natural law reasoning, on the one hand, and disregard of it in favor of positivist and pragmatic arguments, on the other. German representatives defended the Munich Agreement's enactment with positivist arguments, claiming first, that it had not been a pact of detriment to a third party (as the Czechoslovak government maintained) because the actual agreement of cession had been reached via an exchange of notes among Britain, France, and Czechoslovakia between September 19 and 21, 1938.Footnote ¹⁵³ Second, officials asserted that an international pact retains validity regardless of whether it infringes on the domestic constitutional law of a participating party (Czechoslovak officials argued that the Czechoslovak constitution required parliament to legitimize border changes, and such a procedure did not occur).Footnote ¹⁵⁴ And third, German officials questioned whether duress of threatened violence rendered a treaty unlawful in 1938; the Vienna Convention on treaty law, codifying various aspects of customary law and prohibiting duress, only came into force in 1969.Footnote ¹⁵⁵

German officials also argued that to declare the Munich Agreement void from its inception would create enormous practical difficulties in relation to civil acts contracted under German law by Sudeten Germans during the war, such as land ownership, marriage, and divorce.Footnote ¹⁵⁶ Representatives frequently referred to the “impossibility” of erasing a complex multilateral agreement through a bilateral treaty.Footnote ¹⁵⁷ The latter argument stemmed from the fact that the Munich Agreement's signatories had included the governments of Great Britain, France, and Italy. Although French and Italian authorities had declared the agreement invalid from the outset as early as the 1940s, British diplomats contacted German officials on a number of occasions throughout 1972 to register their objection to any such declaration.Footnote ¹⁵⁸ The German government's fairly legitimate excuse in this respect terminated in 1992, however, when British prime minister John Major visited Czechoslovakia and initialed a declaration affirming the Czechoslovak interpretation.Footnote ¹⁵⁹ The German government nevertheless maintained its position on the Munich Agreement's initial validity in the 1992 Friendship Treaty. In fact, one condition of Havel's 1991 offer to negotiate the return and resettlement of Sudeten Germans (alongside participation in the coupon privatization scheme), which the German government declined, had been the latter's recognition of the Munich Agreement's invalidity from the outset.Footnote ¹⁶⁰

Successive German representatives from the mid-1960s onward openly conceded the Munich Agreement's moral indefensibility while defending its initial legality. In 1969, Chancellor Brandt acknowledged that the Munich Agreement had been “unjust from the outset,” and in February 1973, Brandt announced to the Bundestag that “It is now well-known that we distance ourselves politically and morally from the policy—from Hitler's policy of aggression—that led to the Munich Agreement.”Footnote ¹⁶¹ The 1973 Treaty of Prague recognized in its preamble that “the Munich Agreement of 29 September 1938 was imposed on the Czechoslovak Republic by the National Socialist regime under the threat of force.”Footnote ¹⁶²

The Kohl government of the 1990s maintained the same critical stance. Weizsäcker condemned the Munich Agreement's coercive nature in 1995—“the capitulation of the democracies against the dictatorship in Munich in 1938”—and although the 1997 Czech-German declaration contained no revision of the Munich Agreement's status, it nevertheless acknowledged “Germany's responsibility for its role in a historical development, which led to the 1938 Munich Agreement, the flight and forcible expulsion of people from the Czech border area and the forcible breakup and occupation of the Czechoslovak Republic.”Footnote ¹⁶³ In a speech to the Czech Chamber of Deputies marking the 1997 declaration's signing, German president Roman Herzog (having succeeded Weizsäcker in 1995) proclaimed: “We have a responsibility to ensure that policies such as the Munich Agreement of 1938 and the forcible breakup and occupation of the Czechoslovak Republic never again occur. It is our responsibility to oppose tyranny and injustice wherever they occur.”Footnote ¹⁶⁴ Herzog's final sentence in particular is a striking moral condemnation considering his government's legal defense of the Munich Agreement.

The Czech legal position in the 1990s strongly resembled German tactics by interpreting the link between injustice and legality differently depending on whether the aim was to repudiate or uphold the legal instrument in question. In early 1995, Havel invoked natural law reasoning to repudiate the Munich Agreement when he maintained that it had not merely been “an unjust solution to a disputable minority issue,” but rather a crucial confrontation between democracy and Nazi dictatorship: a “declaration of war, in no uncertain terms and at an international level, upon human freedom and dignity.”Footnote ¹⁶⁵ As early as 1947, leading Czech experts had maintained that “the Munich Agreement was not an Agreement in the sense of international law, but a plain dictate imposed upon Czechoslovakia.”Footnote ¹⁶⁶ The justices of the Czech Constitutional Court likewise emphasized that the Munich Agreement “had represented a critical clash between democracy and totalitarianism, a final, failed stand against the tyranny of Nazi Germany that might have prevented the Second World War or at least drastically altered its course.Footnote ¹⁶⁷ The aforementioned proclamations indicated a broader, more morally imbued conception of legal validity than the pure proceduralism advocated by legal positivism. According to Czech officials, not only had the Munich Agreement failed to live up to the positive requirements of law, but its aggressive and coercive nature rendered it invalid ab initio.Footnote ¹⁶⁸

Both governments followed a similar pattern in relation to the legal instrument they wished to defend: conceding the instrument's injustice but insisting that its enactment had fulfilled the positive requirements of law, and moreover, to declare the instrument devoid of legal effect would create enormous practical difficulties. The German government alluded to civil uncertainties and claimed its hands were tied due to the multilateral nature of the Munich Agreement. The Czech government argued that the Beneš Decrees had been adopted in accordance with legitimate democratic procedures, and to declare them devoid of legality would create a constitutional crisis, undermining the continuity of the Czechoslovak state and, indeed, the entire postwar European order. On the one hand, an ostensibly apologetic German reference to practical realities; on the other hand, a tacit Czech allusion to the extra-legal implications of World War II's exceptional savagery and the unique means required to reestablish civil society in its wake. In relation to the legal instrument the governments wished to repudiate, however, representatives insisted that a normative assessment of the instrument's content rendered it defunct. In addition to the positive requirements of law, morality and justice had become the law's essential legitimizing qualities.

The German government's inconsistency had a particularly frustrating impact upon Czech-German reconciliation in the 1990s. In 1973, and again in 1992, Czechoslovak representatives had effectively conceded to the German government its interpretation of the Munich Agreement. Remarkably, the 1973 Treaty of Prague permitted both Czechoslovak “invalid from the outset” and German “invalid from March 1939 onward” interpretations, and the 1992 Friendship Treaty affirmed the dual interpretation. While Article One of the 1973 treaty declared the Munich Agreement nichtig in the German version and nulitný in the Czech (invalid, null, or void), Article Two dictated the treaty's practical “invalid from March 1939 onward” effect. The treaty would have no bearing on the “legal effects on natural or legal persons of the law as applied in the period between 30 September 1938 and 9 May 1945,” nor on the “nationality of living or deceased persons.”Footnote ¹⁶⁹ Both parties were protected (and frustrated) by a provision stating the treaty would not “constitute any legal basis for material claims.”Footnote ¹⁷⁰ The treaty did not, however, eliminate the possibility of material claims in future, and neither did the 1992 Friendship Treaty. By calling for the Beneš Decrees’ annulment in the early 1990s and reigniting the question of Sudeten German property claims, the German government effectively refused the Czech government a quid pro quo.

Embracing Legal Contradiction

By 1995 the Czech-German dispute had adopted an unmistakably legal framework, though the flexibility and ambiguity of international law dictated that any agreement would have to be reached via political compromise. The material stakes were equivalent: just as the Beneš Decrees’ illegality, if successfully argued, would strengthen the claims of the Sudeten Germans to restitution, so would the Munich Agreement's illegality from the outset entitle the Czech government to bring a new set of claims for damage inflicted during the years of Nazi occupation (a claim quite separate from war reparations and from the Czech compensation claim for victims of Nazism).Footnote ¹⁷¹ Czech representatives in the early 1990s likely expected their German counterparts to make a similar concession to their own in 1973 by relinquishing Sudeten German property claims and accepting a dual interpretation of the Beneš Decrees, and if not via treaty (given a provision of German law rendering the federal government liable for individual claims relinquished in an international agreement), then at least at the level of bilateral negotiations.Footnote ¹⁷²

In 1997, the German government finally acceded. The Declaration on Mutual Relations and Their Future Development enabled the Czech and German governments to retain their own legal interpretations of the Beneš Decrees, in much the same way that the 1973 Treaty of Prague and 1992 Friendship Treaty had enabled a dual interpretation of the Munich Agreement. In 1973, West German state secretary Paul Frank observed that the only method by which the two governments could reach agreement was “to find the kind of wording that allows both sides to retain their own legal conception.”Footnote ¹⁷³ Post-1989, Frank's observation held true. The 1997 declaration's most remarkable aspect, and arguably its most remarkable achievement, is its plain abandonment of the dispute. Article IV reads:

By this provision, both governments expressed an exhausted will to turn over a new leaf, agreeing to orient their relations toward the future.

Neither government achieved its primary aim in the declaration. Czech negotiators did not obtain individual compensation for Czech victims of Nazism, and the declaration established no dialogue between the Czech government and the SdL, let alone any amendment to the Beneš Decrees.Footnote ¹⁷⁵ The declaration did, however, establish a “fund for the future” to finance shared projects intended to ease suffering arising out of the past, and the declaration explicitly stated that Czech victims of Nazism were to be the projects’ primary beneficiaries.Footnote ¹⁷⁶ The German government contributed 140 million DM to the fund, while the Czech government committed itself to 440 million Crowns (around 20 million DM) over a four-year period.Footnote ¹⁷⁷

The declaration gave rise to protest from the Federation of Jewish Communities in the Czech Republic on account of the Holocaust's inadequate reflection in the text.Footnote ¹⁷⁸ Furthermore, Jewish concentration camp survivors protested that because of their advanced age, many would not live long enough to benefit from the Future Fund's time-consuming construction of nursing homes.Footnote ¹⁷⁹ In January 1998, the Jewish Claims Conference and the German government responded by announcing that the Jewish Claims Conference would set up a fund to assist Jewish Holocaust survivors, to which the German government would contribute 200 million DM.Footnote ¹⁸⁰ The German government therefore made an exception to its nonprovision of individual compensation in the case of Jewish Holocaust survivors residing in the Czech Republic.

The disputed status of the Munich Agreement and the Beneš Decrees demonstrates the difficulties involved in reconciling a fluid international legal system with the mandated self-interest marking interstate negotiation. Legal theorists such as Hans Morgenthau and Stephen Hall have observed the ebb and flow of trends in international jurisprudence: Hall, for instance, observed, “in a culture which has largely forgotten the perennial jurisprudence of the natural law and in which Enlightenment naturalism has been discredited, human rights must lead an insecure life as the hostage of positivism in its various manifestations,” while Morgenthau pointed out that “positivism has never been quite able to live up to its legalistic and anti-metaphysical assumptions … [deriving] from positive [law] … something that those rules do not contain.”Footnote ¹⁸¹ Hall's and Morgenthau's skepticism of the ascendency of strict positivism aside, their observations reflect the inconsistency and hypocrisy with which Czech and German representatives selectively drew upon both jurisprudential theories, first in their demands that historical injustice be remedied and second in their declarations of historical irreversibility.

The confined representation of disputed Sudeten German citizenship status by the Munich Agreement, and Sudeten German property expropriations by the Beneš Decrees—two instruments over which the Czech and German governments could claim jurisdiction—uniquely facilitated the hearing of this dispute. Consequently, Czech and German representatives resorted to contesting the legality of historic instruments with indirect reference to jurisprudential theory, debating the essential qualities of legality itself. The capacity here for “intelligent manipulation” was immense.Footnote ¹⁸² Consider, for example, D'Amato's rebuttal of the position held by a number of legal scholars that “one should think of international law as something which a hypothetical court might decide if it were given jurisdiction in an international dispute.”Footnote ¹⁸³ As D'Amato pointed out:

Czech and German representatives may well have structured their opposing contentions with a greater degree of internal consistency had such a judicial body existed. Nevertheless, the nature of international law and the absence of an arbitrator dictate that an objectively “correct” position may be entirely illusive. Where in the course of negotiations a state cannot alter the material facts, for example, by changing “the amount of tonnage of its natural resources,” it might, where facts on the ground are made superfluous by the ambiguity of international law, “restructure international expectations by changing international law,” or, as the case may be, asserting one interpretation over the other.Footnote ¹⁸⁵ Another effect of international law's chameleon-like qualities is that inconsistency may be harder to recognize. This effect is aggravated by the popular conception of law as an abstract body of formulations to which officials might apply an algorithm and find the correct solution.

Both the Czech and German governments in the early 1990s ostensibly committed to a principled approach, jointly seeking a common interpretation of historical events on normative and legal grounds. Neither government, however, sufficiently abided by the intellectual ground rules required by such a process. Both governments claimed the benefit engendered by legality by adopting inconsistent arguments in relation to the disputed legal instruments, and legal argumentation effectively became a proxy for a moral, political debate about the past. As of 1997, the attempt to reconcile differing interpretations of key legal instruments had demonstrably failed, and both governments reverted to the radically pragmatic, tried-and-tested method established by their predecessors in 1973: resolution by embracing legal contradiction.