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Czech Republic: The Benes Decrees -- How Did They Come To Be And What Do They Mandate?

German Chancellor Gerhard Schroeder yesterday canceled a planned trip to the Czech Republic in a bid to avoid becoming drawn into the ongoing dispute over a set of controversial post-World War II Czech presidential decrees. RFE/RL's Jolyon Naegele examines the origins and current validity of the so-called Benes Decrees.

Prague, 1 March 2002 (RFE/RL) -- A number of center-right leaders in Central Europe are calling on the Czech Republic -- and in some cases Slovakia, as well -- to abolish what have come to be known as the Benes Decrees.

The decrees stripped the citizenship and appropriated the land of some 2.5 million Sudeten Germans and tens of thousands of Hungarians after World War II. The current status of the decrees has become an issue as the Czech Republic seeks to join the European Union. Elections also are scheduled this year in Germany, Hungary, Slovakia, and the Czech Republic, where many fear that if the decrees are annulled, relatives of expelled Sudeten Germans and Hungarians could make restitution claims.

Hungarian Prime Minister Viktor Orban has said the decrees are incompatible with EU membership, and German Chancellor Gerhard Schroeder yesterday called off a visit to Prague set for later this month because of the growing dispute.

How did the Benes Decrees come to be passed, and what precisely do they contain?

The decrees were issued between 1940 and 1946 by Czechoslovak President Eduard Benes while in exile in London, and on Czechoslovak territory from the spring of 1945 until the first free postwar parliamentary elections one year later. The decrees were intended to enable the renewal of Czechoslovak statehood and a return to conditions of peace.

Several months after the end of World War II, a provisional national assembly was convened in Prague. Until parliamentary elections in the spring of 1946, the assembly reshaped the decrees into laws, ensuring, according to Czech historians, that once ratified they were in line with the body of Czechoslovak law and in harmony with the European legal order at the time.

Many Czech and Slovak authorities still insist that the decrees are not only history, but a significant part of their states' current legal foundation, and that to repeal them would be to rewrite history and forget who won and who lost World War II.

The idea to punish Czechoslovakia's Sudeten Germans was discussed by the government in exile in the course of the World War II and consulted on with the Allies.

Prokop Drtina was a close aide to Benes while in exile and Czechoslovak justice minister from late 1945 until the communist takeover in 1948. Drtina later wrote that without new legislation, the overwhelming majority of crimes committed by the Nazi occupiers would remain unpunished. Drtina said this was in large part because prewar Czechoslovak legislation did not foresee the kind of crimes that occurred during the war and because the Nazi occupiers enacted legislation that provided a legal basis for almost everything -- from confiscating foodstuffs to meting out death sentences to members of the resistance.

Professor Karel Jech is a Prague-based historian who co-edited a study of the decrees published in 1995. "Above all, it must be said that the term 'Benes Decrees' is very imprecise and misleading because these were legislative acts which the government prepared either in exile or on the liberated territory of Czechoslovakia, and the president signed them. In addition to the government's position [on a given decree], he had other expert opinions from members of the London government in exile, his legal counsel, and other institutions."

Jech notes that the decrees became part of the Czech legal code. "As soon as it became possible in liberated Czechoslovakia, the decrees were ratified as regular or constitutional laws of the Czechoslovak Republic. And so it would be more correct to call them laws."

Jech says the decrees were necessary legal measures under conditions of legislative emergency during the German occupation and immediately thereafter. These measures, for example, provided for the participation of Czechoslovak military units in the Allied war against Nazi Germany. Jech says these decrees were also supposed to resolve issues complicated by the Munich accords of 1938 -- relations between the Czechoslovak state and the German and Hungarian minorities on the territory of Czechoslovakia.

It is what Jech calls these "closely watched decrees" that are currently in the public spotlight.

"They dealt with issues of punishment of Nazi and occupation criminals, ensuring the seizure and confiscation of properties of the Nazi Reich on the territory of Czechoslovakia, of persons who committed offenses against the Czechoslovak republic regardless of their nationality. It dealt in this regard with the resolution of the state citizenship problems of people of German and Hungarian ethnicity. And the culmination then were the decrees, which resolved the problems of nationalizing key branches of the national economy."

Jech suggests that judging by what the German and Austrian news media and politicians are saying about the decrees, considerable ignorance remains about certain aspects of this postwar Czechoslovak legislation. He rejects allegations that the transfer or expulsion of the Sudeten Germans constituted punishment for their "collective guilt."

"I don't agree with the thesis that it was a matter implementing the principle of collective guilt because numerous exceptions were made. There were opportunities for very broad exceptions. Above all, little use was made of these opportunities because, for example, there were many antifascists who, while having the opportunity to remain in Czechoslovakia and retain their standing, their property and so on, left for Germany voluntarily."

The presidential decree of 1 February 1945, known as the "retribution decree," was issued when the end of the war was still more than three months away and President Benes and his government were still in exile in London. It provided for "punishing Nazi criminals, traitors, and their helpers," as well as for "extraordinary people's courts."

On 19 June 1945, some 40 days after the war ended, Benes -- now back in Prague -- reissued the decree, stiffening the punishment for informing to the death penalty in cases in which such collaboration resulted in someone's death.

The Czech retribution decree made no differentiation between nationalities. The preamble stated: "Severe justice is called for by the unheard-of crimes of the Nazis and their treacherous accomplices in Czechoslovakia."

By 1947, when the law expired, 24 extraordinary people's courts had handed down some 38,000 indictments and sentenced 713 people to death -- 475 Germans and 234 Czechs; 741 to life in prison (443 Germans and 293 Czechs); and nearly 20,000 to lesser prison sentences.

The government returned to Czechoslovak territory in April 1945. As soon as it had established itself in the eastern Slovak city of Kosic, it issued a government program. This program accused "Czechoslovak Germans of participation in the extermination drives against the Czech and Slovak people." It said these crimes require "a profound and lasting intervention" against Germans and Hungarians who were Czechoslovak citizens.

Subsequent decrees paved the way for the expropriation and expulsion or transfer of more than 2.5 million Germans and tens of thousands of Hungarians.

Decree Number 12 of 19 May 1945 dealt with "the national administration of material property of Germans, Hungarians, traitors, and collaborators."

On 16 June 1945, Benes issued a decree on "the confiscation and accelerated distribution of the agricultural property of Germans, Hungarians, as well as of traitors and enemies of the Czech and Slovak peoples."

In August 1945, Benes issued a constitutional decree on the revision of Czechoslovak state citizenship for persons of German and Hungarian ethnicity, denying them citizenship if, during the war, they had become German or Hungarian citizens.

The following month, Benes signed a decree requiring able-bodied Germans and others whose Czechoslovak citizenship had been withdrawn to work, pending their transfers abroad.

The Czech government currently prefers to use a nonlegal term -- "extinguished" -- in referring to the current status of the decrees.

The head of Germany's Sudetendeutsche Landsmannschaft party, Bernd Posselt, says Czech claims that the decrees are "extinguished" are false. "They are being applied just as before," he says. And Posselt says Prague still owes Sudeten German expellees "an answer to the question of when and how the decrees will be repealed."

After the collapse of communist rule in Czechoslovakia in 1989, lawmakers decided to restitute property to anyone from whom the communists had confiscated, provided the confiscation occurred after the February 1948 coup. This effectively barred former German and Hungarian minority residents from qualifying.

Jiri Pehe is a leading Czech political analyst and former adviser to Czech President Vaclav Havel. "I think that the Benes Decrees have not been extinguished -- neither de jure nor de facto -- because the decrees established a certain reality that is still valid. That is, the resettlement or expulsion of almost 3 million people who continue to be expellees or, shall we say, resettlers. And even if they wanted to, they cannot seek any satisfaction or [a return of] their rights."

Pehe is one of the few Czechs publicly calling for the repeal of some of the decrees.

"I think that from the whole package of decrees, [parliament] should repeal those decrees which massively violated human rights and were essentially undemocratic, because not all the decrees issued by President Benes were like that. Decision making through decrees in the first months after the war was a legitimate component of the Czech legal order. To that end, the decrees were ratified by the provisional parliament."

Zdenek Jicinsky is a Czech lawmaker, the author of all the country's constitutions since 1960, and a member of the ruling Social Democratic Party.

Jicinsky notes that the Benes Decrees were issued as the result of Germany's defeat after an all-out war in a bid to re-establish the Czechoslovak state within its borders and above all to create the legal framework for expelling -- or as he says "transferring" -- the ethnic German population.

Jicinsky rejects calls to repeal Benes's amnesty of persons who committed crimes against Germans because it covers acts against Germans in time of war, as well as in peace. The amnesty also applied to certain crimes committed against the German minority, largely by the vigilante Revolutionary Guard, in the initial days and weeks after the war ended.

"That decree, which became a law, did not concern solely or mainly the period after the end of World War II. It also concerned acts committed against the Nazi occupiers during World War II. One can't take out of context certain things that the law referred to. I remember...I was a young person at the time, but I remember that certain excesses happened -- it would be irresponsible to deny this -- in the period after World War II ended. These excesses were prosecuted by Czechoslovak authorities, and the perpetrators were punished. I'm not claiming that it happened in all cases, and I don't think there's any real point in reviving this today, because if it happened, I doubt the perpetrators are still alive. If anyone has concrete evidence, let him present it, and no doubt there will be a willingness to deal with it."

Vaclav Klaus, former Czech prime minister and current speaker of parliament, has suggested the Benes Decrees be implanted in the Czech treaty of accession with the European Union to ensure they are not tampered with.

But Jicinsky rejects this idea, too, and echoes the views of European Commissioner for Enlargement Guenter Verheugen, who says the decrees should have no effect on Czech-EU relations, since they were issued long before there was a European Union or any of its predecessor organizations.