The term ‘Wiedergutmachung’ refers to the measures taken in and by Germany after 1945 in favour of the victims of National Socialism. It covers entitlement to compensation for personal losses, for example damage to health or to occupational or professional advancement or the loss of relatives, as well as the restitution of looted property. In addition to German legislation, the measures introduced by the Allies, bilateral agreements between the Federal Republic of Germany and other states and the various supplementary programmes since the 1980s must be considered in connection with ‘Wiedergutmachung’. Sinti and Roma victims were often faced with resistance to their claims and in some aspects their claims were only acknowledged relatively late.
The term ‘Wiedergutmachung’ itself has often been criticised. Opponents of the concept, who understand it in the literal sense, point to the impossibility of ‘making amends’ in the sense of a final cancellation of guilt. The basically untranslatable German term has therefore never caught on in Israel, where the term ‘shilumim’ is used instead, which has the more pedestrian sense of ‘payments’, emphasising their purely material character. Even among German Sinti and Roma, the term is not universally accepted and is often used with inverted commas. The Sintiza and early activist Melanie Spitta (1946–2005) expressed her discomfort with it as early as 1987 in the title of her film: ‘The Wrong Word’.1Das falsche Wort, director: Katrin Seybold, screenplay: Melanie Spitta, D 1987. Nevertheless, the term ‘Wiedergutmachung’ (compensation) has become firmly established in academia, politics and public discourse for pragmatic reasons, because despite all the dissatisfaction, it has never been possible to coin an equally versatile generic term that could cover the different facets of the practice in a similar way.2Moreover, Goschler, Wiedergutmachung, 25, points out that there is no evidence in the historical usage of the verb ‘wiedergutmachen’ as a synonym for ‘replace, pay, atone’ that it ever implied a relativisation of the crimes.
Intellectual, Political and Legal Contexts
The idea of what would become institutionalised as ‘Wiedergutmachung’ for victims was a reaction to the shock of the crimes against humanity committed by National Socialist Germany. In this respect, ‘Wiedergutmachung’ aimed to restore justice and morality after ‘Auschwitz’. At the same time, it was a practical answer to the question of how to continue living together in a society that had looked into the abyss of what the historian Dan Diner (born 1946) described as a ‘rupture in civilisation’.3Diner, Zivilisationsbruch. The way ‘Wiedergutmachung’ was conceived also reflected the different political and material interests of groups of actors who had begun thinking about it even as World War II was still going on: German opposition activists, Jewish individuals and international organisations as well as—to varying degrees—the Allies. Finally, a significant part of the (West) German political elite recognised ‘Wiedergutmachung’ policy as a means of accelerating the reintegration of the Federal Republic into international alliance systems.
When the ideas that had emerged during the war were moulded into the first legal norms, ‘Wiedergutmachung’ did not stand alone, but was an integral part of a much wider set of German policies for dealing with the consequences of the war. The War Victims Support Act, the Equalisation of Burdens Act and the General War Consequences Act were primarily intended to address the German majority population, who largely saw themselves as victims. Conversely, ‘Wiedergutmachung’ legislation, together with denazification, the punishment of Nazi crimes and the rehabilitation of opponents of the regime convicted by Nazi courts, was part of the bundle of measures that can be characterised as ‘transitional justice’.
‘Wiedergutmachung’ in this sense was historically unprecedented. Civil law provisions for compensation for loss have existed in the legal systems of various cultures since ancient times. However, it was barely conceivable that the state or the issuer of the law itself could be the perpetrator of an injustice that subsequently required compensation. War reparations, which fall within the scope of international law, were also structurally different, because although in this case, too, a militarily defeated state was held liable, the beneficiaries were themselves (victorious) states that wanted indemnification for their material losses. In the case of ‘Wiedergutmachung’, individual victims of state persecution were the beneficiaries, and they received benefits from the hands of a state that—through the construct of legal succession—was compensating its own citizens. As a result, German ‘Wiedergutmachung’ for the consequences of Nazi crimes became a model and has since served as a benchmark for the drafting of similar legislation in countries that were also coming to terms with historical state injustice in democratic transition processes.
Reimbursement, Compensation, Global Compensation
Wiedergutmachung is a generic term that covers the separate and distinct legal fields of reimbursement (or restitution) and compensation (Entschädigung). While restitution was concerned with material losses, i.e. identifiable goods and assets—such as real estate, bank deposits or jewellery—that had been looted or otherwise confiscated during the Nazi era, compensation was intended to cover non-material or personal losses resulting, for example, from periods of imprisonment, illnesses suffered, occupational or professional disadvantage or the death of relatives. The basic idea behind restitution was that a specific item that had been unlawfully confiscated was returned and thus an original legal relationship was restored or—in less legal terms—the owner was made the owner again. Where this was no longer possible after several years due to the impossibility of recovering the seized property, monetary damages had to be assessed.
In the case of compensation focusing on immaterial damages, the conversion of ideal values (e.g. a human life, two years of internment in a concentration camp, lifelong childlessness due to forced sterilisation, etc.) into monetary amounts was the rule—although this often seemed arbitrary in practice. For each month spent in prison, for example, the Federal Compensation Act set the amount at DM 150. A further difference between restitution and compensation lies in the question of who is liable to pay: In the case of restitution, it was always the receiver or purchaser of the looted property that was liable—in most cases, private individuals who had profited from the Nazi policy of looting or ‘Aryanisation’. In these cases, the state normally acted only as guarantor of the proceedings, which is why the responsible administrative body was sometimes referred to neutrally as the ‘mediator for Wiedergutmachung’. Claims for compensation, on the other hand, directly affected the German state as the legal successor to the German Reich.
The distinction between individual and global compensation is also important. The latter covers payments made by the Federal Republic of Germany to foreign states under international treaties. In this respect, it is related to the reparations mentioned above, but it refers not to the general consequences of war, but to the explicitly National Socialist persecution measures and crimes committed by the Nazi occupying regime against civilian victims in those countries. Those foreign victims of persecution, who were generally excluded from German individual compensation by the built-in ‘territoriality principle’—which linked eligibility to a residence in West Germany or West Berlin or a relationship to the German Reich within the borders of 1937—were then to receive the payments from their own national governments. It is largely unknown how far Sinti and Roma were even regarded as citizens of these countries.
The model for these global agreements was the Luxembourg Agreement of 10 September 1952 with Israel and the Conference on Jewish Material Claims Against Germany (Claims Conference) totalling DM 3.5 billion. Between 1959 and 1964, further bilateral agreements on a smaller scale followed with the twelve Western European states Austria, Belgium, Denmark, France, Greece, Great Britain, Italy, Luxembourg, the Netherlands, Norway, Sweden and Switzerland, totalling DM 971 million. Against the background of the ‘Cold War’, no such agreements were concluded with Central and Eastern European states, even though the majority of all victims of National Socialism lived there. The German Democratic Republic (GDR) did not accept any obligation to pay such external compensation. Based on its anti-fascist self-image, it saw itself as the antithesis of the Nazi regime and denied any responsibility for its crimes. Furthermore, it argued that it had already made sufficient amends with the reparations paid to the Soviet Union and the dismantling of industrial plant that had taken place on its territory—the Soviet Occupied Zone (SBZ)—before the GDR was founded.
Sinti and Roma Victims: Early Post-War Years
Initially, the Allies were the driving force behind the provision of care and support for the victims, with the American military government in particular being the ‘pacesetter’4Goschler, Wiedergutmachung, 310. of developments.5But cf. Hudemann, “Anfänge der Wiedergutmachung”, who particularly emphasises the commitment of the French. Restitution in particular was put into effect relatively quickly in the US zone with Military Government Act No. 59 of 10 November 1947. A political solution to the compensation issue was more complicated, not least because the public sector was the debtor and the question of financial viability required thorough discussion. In the occupation zones, all that happened initially was that instructions were issued to set up regional or local ‘support centres’ or ‘special aid committees’. In terms of personnel and institutions, these were closely interlinked with the associations of persecuted persons established after 1945 and carried out the main work of compensation in the early years, shaping its image as a predominantly welfare institution that provided needy persecuted persons with preferential access to everyday necessities in the context of managing the early post-war economy of shortage.
During this phase of spontaneous and decentralised, semi-governmental, charitable and legally non-binding compensation, Sinti and Roma had a good chance of being recognised as victims of National Socialism. The measures taken by the Nazi state against ‘Gypsies’ were clearly well known, so that a reference to belonging to the minority was often enough to obtain a persecution card from the support centres.6Von dem Knesebeck, The Roma Struggle for Compensation, 73, 96; Reuss, Kontinuitäten der Stigmatisierung, 104, 118.
Narrowing the Circle of Beneficiaries
From the end of the 1940s, Sinti and Roma generally had less positive experiences. This second phase, which reached into the mid-1960s, was characterised by the passing of laws that transformed the care offered to victims of persecution into a legal right to compensation. This process of legal standardisation, which was initially positive for the victims of persecution, first took place at state level and was later standardised nationwide. The US Compensation Act (US-Entschädigungsgesetz, US-EG) passed by the South German Council of States on 26 April 1949 set new standards and became the frame of reference for further discussions. However, it irreversibly established a central principle of compensation: the inclusion of certain persecuted groups at the cost of excluding others. The legislators deliberately did not want to compensate all those who had suffered between 1933 and 1945, but instead carried on an intensive debate about the boundary between ‘specifically National Socialist’ persecution and the general adversity of war, as well as between worthy and supposedly unworthy victims.
In the end, the circle of those entitled to compensation was drawn quite narrowly and only persecution on the grounds of political conviction, ‘race’, faith or ideology could justify claims for compensation. Accordingly, only the recognition of Jews, politically persecuted persons and Jehovah’s Witnesses was undisputed. A different hierarchy of victims existed in the GDR. Here, the main topic of discussion was the extent to which active resistance against the Nazi regime should be honoured, and the outcome was that from 1965 onwards ‘fighters against fascism’ were given a higher status than mere ‘victims of fascism’. On the other hand, ‘German-German commonalities’7Goschler, “Zwei Wege der Wiedergutmachung?,” 128. either side of the Iron Curtain included the extensive exclusion of socially marginalised groups such as sterilisation victims, ‘euthanasia victims’, criminals, ‘asocials’ and, in some cases, Sinti and Roma.
One of the biggest hurdles to achieving ‘Wiedergutmachung’ for Sinti and Roma in East and West was the narrow concept of ‘racial persecution’ that prevailed after 1945. Only if the reason for a persecution measure was clearly found in the form of racism that targeted the collective of Sinti and Roma as carriers of an ‘alien blood’ was the existence of ‘racial’ persecution assumed. In contrast, those measures that had been committed against socially disadvantaged and marginalised groups in Germany’s ‘own’ population in the name of ‘racial hygiene’ were not considered ‘typically National Socialist’. In practice, however, it was hardly possible to make a clear distinction between ‘racial hygiene’ and the Nazi notion of ‘alien blood’ as motives for persecution, especially as Sinti and Roma were generally stigmatised as ‘asocial’ or ‘work-shy’ during National Socialism, drawing on antigypsyist topoi, and were often sent to concentration camps under these categories.
Debates about the Beginning of ‘Racial’ Persecution
There soon emerged a practice of making eligibility for compensation dependent on the point in time at which a persecution measure had occurred. For several years, the compensation courts debated when the persecution of individuals on the grounds of social deviance and delinquency turned into the collective persecution of all ‘Gypsies’. Rejecting other interpretations that were more favourable to the Sinti and Roma, the prevailing doctrine was that collective ‘racial’ persecution had only begun with the mass deportations carried out on the basis of the Auschwitz Decree in the spring of 1943. This legal opinion was cemented in a ruling by the Federal Court of Justice (BGH) on 7 January 1956. According to this judgement, Sinti and Roma could not receive compensation for the years 1933 to 1943, with the exception of a few individual cases. This juridical error had serious consequences, especially for the thousands of victims who had been forced to live in detention camps since 1935, who had been interned in 1938 as part of the ‘Aktion Arbeitsscheu Reich’(‘Operation Workshy’) or who had been sent to the General Government in 1940 during the May deportations. On the other hand, the Karlsruhe judgement also confirmed what had previously been widely recognised by the authorities and courts: Auschwitz survivors were granted compensation in almost all cases.
The transfer of legislative competence to the federal government was completed with the passage of the Federal Supplementary Act (Bundesergänzungsgesetz, BErG) on 18 September 1953 after difficult negotiations between the Bundestag’s ‘Wiedergutmachung’ Committee, the Bundesrat and the over-cautious Federal Ministry of Finance. It had little impact on the debate over when the Nazi ‘Gypsy’ policy showed signs of a collective intention to exterminate – a debate that was of fundamental importance to Sinti and Roma. The nationwide standardisation of the existing regulations at the minimum standard of the US-EG, which was considered the most comprehensive and most favourable law for the persecutees up to that point, had become necessary because two international treaties signed by the Federal Government had formulated this expectation: the Transition Treaty between the Western Allies and the Federal Government signed on 26 May 1952 and the Luxembourg Agreement, whose Hague Protocols contained the promise of nationwide individual compensation.
Nevertheless, agreement on the BErG was only reached just before the end of the first legislative period of the Bundestag, and there was a general consensus that this legislative stalemate could only be a temporary measure. The Federal Compensation Act (Bundesentschädigungsgesetz, BEG) of 29 June 1956 was more carefully designed. The adoption of the Federal Restitution Act (Bundesrückerstattungsgesetz, BRüG) on 29 July 1957 marked the end of the legal harmonisation phase in West Germany.
Discrimination against Sinti and Roma
In addition to official doubts about ‘racial’ persecution, other factors made compensation for Sinti and Roma more difficult. These were often structural features of compensation that affected all applicants equally, but had a particularly aggravating impact on Sinti and Roma. Antigypsyist stereotypes, traditions of socio-economic marginalisation and criminalisation and the after-effects of such persecution measures as exclusion from school, denial of employment opportunities and marriage bans, played a role here. The principle of prioritising economic losses over personal injury could be to the disadvantage of Sinti and Roma if they had already lived in modest economic circumstances before 1933 or if their material losses—increasingly movables such as jewellery, caravans and valuable instruments—could not be proven. If Sinti and Roma did claim benefits on the grounds of damage to their occupational advancement or education, it was often claimed that they had never sought a career and were incapable of achieving economic success in the first place, and it took those affected some effort to prove that it was not a genetic or cultural tendency towards idleness, but rather the state’s policy of persecution that was responsible for their material losses.
Other Sinti and Roma were affected by the fact that there was generally little recognition of forced sterilisation as a Nazi injustice. Above all, proving a ‘reduction in earning capacity’ (‘Minderung der Erwerbsfähigkeit’, MdE) of at least 25% (30% until 1956) caused difficulties, especially as for many years only physical complaints that could be established beyond doubt were considered to have a negative impact on earning capacity. In general, the meticulous medical examinations, which were mandatory when claiming so-called ‘health impairments’, were an immense burden for many Sinti and Roma because they were perceived as invading their privacy and often had a retraumatising effect by evoking painful memories of medical experiments or other crimes committed by doctors during the Nazi era.
The restriction of inheritability of compensation claims to widows was a further problem, because some Sinti and Roma families were not based on legally valid civil marriages—either of their own choosing for cultural reasons or as a consequence of the ‘Nuremberg Laws’.
Even minor entries in the criminal record could lead to the denial of compensation in the process of sifting out ‘unworthy’ victims dictated by the law. Sinti and Roma were disadvantaged in this respect in a number of ways: Even before 1933 and also after 1945, they were relentlessly monitored and criminalised by the police. Offences against Nazi decrees which had been issued only against Sinti and Roma remained on record as ‘previous convictions’ after 1945. This reinforced the antigypsyist perception of an alleged ‘criminal disposition’ and led the authorities to conclude that the motivation for the measures against them was crime prevention—and this nullified legal claims.
The ‘territoriality principle’ of compensation law was also used in some regions to reject applications from Sinti and Roma by casting doubt on their German citizenship. It was often impossible for those affected to provide proof of their citizenship—as a result of being deprived of it during the Nazi era and/or the loss of papers through persecution and war. To make matters worse, the competent authorities were particularly restrictive in their handling of applications for German citizenship from Sinti and Roma, since they often shared the widespread belief that ‘Gypsies’ could not be Germans.8Fings and Sparing, Rassismus, Lager, Völkermord, 361–367.
Finally, illiteracy and a lack of education resulting from the persecution had a detrimental effect. Not only was it tedious to have to organise years of scribal support to deal with correspondence with the authorities. It was also a particular challenge for those who were illiterate to understand communications from the authorities, which were written in official German and referred to a complex system of paragraphs and regulations, and to know how to respond.
Observers repeatedly pointed to the scandalous fact that the offices for ‘Wiedergutmachung’ cooperated with the criminal police in handling applications from Sinti and Roma. Police officers, the very professional group that had been operationally responsible for the genocide of the German Sinti and Roma, were sometimes asked to act as expert witnesses to help decide on the legality of the compensation claims of their former victims. In Württemberg-Baden, the practice of consulting the police was even mandatory between 1950 and 1952 because—according to a circular decree issued by the Württemberg-Baden Ministry of Justice on 22 February 1950—‘Gypsies and Gypsy Mischlinge […] were predominantly persecuted and imprisoned not on racial grounds, but because of [their] asocial and criminal behaviour’.9State Archive of Baden-Württemberg, Main State Archive Stuttgart (Landesarchiv Baden-Württemberg, Hauptstaatsarchiv Stuttgart), EA 4/202 Bü 11/11, circular decree of the Württemberg-Baden Ministry of Justice, Dept. VI, concerning applications for restitution by Gypsies, 22 February 1950, p. 1330.
In terms of restitution, however, the position of the Sinti and Roma seems to have been better. Although research results are still scarce, it has been shown for the districts of Arnsberg and Braunschweig that—contrary to the antigypsyist preconception that they had hardly owned any property worth confiscating anyway—Sinti and Roma continuously filed restitution applications both in the early post-war period and after the passage of the BRüG and that their real estate or other property was actually returned to them in most cases.10Von dem Knesebeck, The Roma Struggle for Compensation, 195–220.
The BEG Final Act
The amendment of the BEG by the BEG Final Act (BEG-Schlussgesetz, BEG-SG) on 14 November 1965 ushered in a third phase in the compensation of Sinti and Roma. Made possible by increasingly liquid state budgets and favoured by the general trend to liberalisation, this was characterised by greater generosity and responsiveness to victims’ claims. On 18 December 1963, the BGH had revised its previous legal opinion and announced that ‘racial’ grounds for the persecution of the Sinti and Roma could have been a contributing factor even before 1943. This was partly in response to public agitation and lobbying, notably driven by Jewish compensation experts acting in solidarity with Sinti and Roma victims. Particularly influential was the critical article by the President of the Senate at the Higher Regional Court in Frankfurt am Main, Franz Calvelli-Adorno (1897–1984), which appeared in 1961 in a legal journal specialising in ‘Wiedergutmachung’ legislation.11Calvelli-Adorno, “Die rassische Verfolgung der Zigeuner.”
When the BEG-SG was due to be amended shortly afterwards, the supreme court’s revision was translated into policy: ‘Gypsies’, who were explicitly mentioned for the first time ever in a legal text on ‘Wiedergutmachung’, were allowed to have a new decision made on claims that had already been legally rejected, provided that compensation for the period before 1 March 1943 had been denied with reference to the now revised BGH ruling of 1956.12See Second Act Amending the Federal Compensation Act (BEG Final Act), 14 September 1965, BGBl. 1965 I, pp. 1315–1340, here p. 1335, Art. IV, para. 1 (2).
The right to reapply was subsequently used extensively, although the late ‘learning process’13Frei, Brunner and Goschler, “Komplizierte Lernprozesse.” could not reverse the double injustice of persecution and denial of compensation suffered by many Sinti and Roma, as some of those affected had died in the meantime or were unable or unwilling to continue their proceedings for other reasons. In the same period, a change of opinion in medicine led to a breakthrough towards enhanced justice for Sinti and Roma who had been forcibly sterilised. It was only now that mental illnesses were recognised as a typical late consequence of Nazi persecution and their potential to impair patients’ ability to work was discovered, so that most of the forcibly sterilised Sinti and Roma were belatedly granted their rights at the end of the 1960s.
‘Forgotten Victims of Persecution’: Hardship Fund and Compensation for Forced Labour
The discourse on the so-called ‘forgotten victims’ that began in the early 1980s once again generated new dynamics. At the beginning of a fourth phase in the development of ‘Wiedergutmachung’, groups of Nazi victims whose status as victims of persecution on ‘racial’, political, religious or ideological grounds had previously been denied or challenged were able to speak out publicly about their precarious position in the compensation system. As a result of these public debates, various hardship funds were created to enable one-off payments to victims of Nazi persecution who had previously fallen through the cracks: in 1980 for Jewish victims of persecution, in December of the same year for forced sterilisation victims and on 26 August 1981 for non-Jewish victims of persecution.
The latter regulation was primarily intended to benefit Sinti and Roma. However, the hurdles for obtaining the one-off payment of DM 5,000 or, in exceptional cases, regular support payments were high: evidence of persecution on ‘racial’, political, religious or ideological grounds, as stipulated in the BEG, remained a prerequisite. At the same time, the applicant must not have received any compensation payment before. This meant that only those who had previously been rejected on formal grounds had any prospect of receiving hardship funds. Evidence of continuing ill health and economic hardship was also required. There is still no research on the allocation practice. The Sinti and Roma organisations attacked it as harassment.14Rose, Bürgerrechte für Sinti und Roma, 59–67. However, at the instigation of the Central Council of German Sinti and Roma, founded in 1982, many BEG proceedings were reopened during the same period by way of ‘second proceedings’ or so-called ‘aggravation applications’, and in many cases a settlement was achieved on the basis of some goodwill.
The last major turning point, the establishment of the ‘Foundation Remembrance, Responsibility and Future (EVZ)’ in 2000, must be seen in close connection with the global political changes since 1989/91. In this fifth phase, former concentration camp prisoners and forced labourers, whose suffering had not previously given rise to any claim for compensation, were now also given lump-sum one-off payments. Roma from Central, Eastern and South-Eastern Europe were also eligible to apply.
Conclusion
Much has changed since the 1980s, when the political dispute between the Sinti and Roma associations and the German state was fought with passion and hard bargaining. Gross errors in the early ‘Wiedergutmachung’ legislation have been corrected, associated hardships have been mitigated and legal aberrations have been abandoned.15In 2016, the Federal Court of Justice President Bettina Limperg even officially offered the Chairman of the Central Council of German Sinti and Roma, Romani Rose, an apology for the court’s 1956 judgement. See Bundesgerichtshof und Zentralrat Deutscher Sinti und Roma, Doppeltes Unrecht. Nevertheless, while the issue has receded into the background politically, and despite the inevitable imminent death of the last survivors of Nazi terror, disputes over unresolved details and final unanswered questions continue to this day. An example is the problem of recognising the victims of the ‘Immobilisation Decree’.
The topic of ‘Wiedergutmachung’ for Sinti and Roma also sets important tasks for historical research in particular. Because research on antigypsyism found its place in the academic landscape relatively late, our picture is still incomplete. The actual extent of compensation for Sinti and Roma has yet to be conclusively estalished. Nor have there been enough close studies of ‘Wiedergutmachung’ as an official and cultural practice, so that the contours of key actors remain blurred; we need to understand the role of compensation officials, judges, lawyers, police officers and doctors (among others) in terms of their interests, thought patterns and scope for action. Similarly, ‘Wiedergutmachung’ has rarely been explored as a space of asymmetric encounters and interactions between these actors from the majority society and the Sinti and Roma claimants. It should be the task of future research to emphasise the perspectives of the claimants in particular and to trace how the process of ‘Wiedergutmachung’ had a material and immaterial impact on the concrete lives of the victims in the field of tension between satisfaction, gratitude, redress, disappointment and ‘second persecution’.
Another reason why it is impossible to speak of a conclusive overall picture is the lack of in-depth knowledge that regional studies can provide. These could sharpen our view of overarching patterns and regional peculiarities in the administrative implementation of the ‘Wiedergutmachung’ laws. We may hope that these gaps will be increasingly addressed in the future, since the difficulty of accessing sources which has long inhibited research is currently being remedied by the Federal Ministry of Finance’s ‘Transformation of Wiedergutmachung’ project. With the cooperation of the archives of the federal states, the project will create the ‘Online collection Wiedergutmachung’, a digital platform bringing together the whole, globally scattered body of documentation on ‘Wiedergutmachung’.16Online collection Wiedergutmachung for National Socialist Injustice, Archivportal-D, https://www.archivportal-d.de/themenportale/wiedergutmachung [accessed: 19/01/2024].
