POLISH REVIEW OF INTERNATIONAL AND EUROPEAN LAW 2018, Vol. 7, Issue 2 WOLLT IHR DEN TOTALEN KRIEG? Political, Moral and LEGal Aspects of the Resettlement of German Population After World War II Jerzy Kranz* Abstract: Germany had started the Second World War in an intentional and conscious manner, obviously being aware that every action can have unpredictable and unwanted consequences. The Potsdam decisions were taken by the Great Powers after assuming supreme authority in Germany. They constituted a manifestation of the Allies’ rights and responsibilities. The territorial changes of Germany and the transfer of population were part of the general regulation of the effects of the Second World War. These decisions were not a simple matter of revenge. They must be perceived in a wider political perspective of European policy. The resettlement by Germany of ethnic Germans to the Reich or to the territories it occupied constituted an instrument of National Socialist policy. This German policy turned out in 1945 to be a tragic irony of fate. The resettlement decided in Potsdam must be perceived in the context of German legal responsibility for the war’s outbreak. The individual perception of the resettlement and individual guilt are different from * Professor, Department of International Law and European Union, Kozminski University 9 Jerzy Kranz the international responsibility of the state and from the political-historical responsibility of the nation. In our discussion we made the distinction between the individual and the collective aspect as well as between the legal and historical/ political aspect. We deal with the guilt of individuals (criminal, political, moral), the international legal responsibility of states, and the political and historical responsibility of nations (societies). For the difficult process of understanding and reconciliation between Poles and Germans, the initiatives undertaken by some social circles, and especially the church, were of vital importance. The question of the resettlement became a theme of numerous publications in Poland after 1989. In the mid 1990s there was a vast debate in the media with the main question of: should we apologize for the resettlement? Tracing a line from wrongdoing/harm to unlawfulness is not easy. In 1945 the forcible transfer of the German population was an act that was not prohibited by international law. What is significant is that this transfer was not a means of war conduct. It did not apply to the time of a belligerent occupation, in terms of humanitarian law, but to a temporary, specific, international post-conflict administration. Maybe for some people Potsdam decisions will always be seen as an illegal action, for others as an expression of strict international legal responsibility, for some as a kind of imperfect justice, and still for others as an opening of a new opportunity for Europe. Key words: World War II, Germany, international law, international humanitarian law List of Contents • Preface • Chapter 1: Introduction • Chapter 2: The Western Polish Border and the German Unification • Chapter 3: The Resettlement of Germans—War and Causality • Chapter 4: Guilt and Responsibility • Chapter 5: Apology for Resettlement? • Chapter 6: Tracing a Line from Wrongdoing/Harm to Illegality 10 Wollt ihr den totalen Krieg?… Preface* Despite the passage of time, there remains divergence between Polish and German legal and political opinions concerning the course and impact of the Second World War. While the historical experience of different generations is not hereditary, the interest in these questions persists, as does their effects. Societies cannot ignore the past, in which they were forged, because the past is prologue to their future fate. Individual nations’ perceptions of history are often at odds. If two sides cannot agree on the history or legal questions underlying an issue, each must come to an understanding of the point of view of the other side in the course of dialogue. Otherwise, the risk arises that controversies live on as tools for current political purposes, especially in the context of historical policies, which are the DNA of every state and society. Germany started the Second World War in an intentional and conscious manner, obviously being aware that every action can have unpredictable and unwanted consequences. The imperial and racist foundations of Nazi Germany and its methods of war led to irreversible outcomes for Germany itself. The resettlement of the German population after the Second World War by the victorious powers is an example of contested history that lives on with modern repercussions. How were resettlement decisions justified? Were they illegal in light of international law in force at that time? Propaganda minister Joseph Goebbels called for total war, adding that the defeat of Germany might lead to its destruction. Would the German defeat be less total than their victory? On what could the German state and its people count in 1945? The Potsdam decisions were taken by the Great Powers after assuming supreme authority in Germany. The territorial changes of Germany and * In memory of my mother and grandparents, who in March 1940 were forced to abandon their family home in Poznań forever, with two hours’ notice and two suitcases between them. Their forcible transfer was dictated to make room for baltendeutsche Umsiedler. After a few days in Lager Glowno (Posen-Ost), they were transported /Liste N°. 23 der evakuierten Personen, die in das Generalgouvernement abtransportiert worden sind/ to Mielec (city in South East Poland). They spent five difficult and hungry years in Mielec, under constant threat to their lives. Their return home became possible as a result of unexpected consequences of WWII, which turned out to be a tragic irony for Germany and for the Germans. 11 Jerzy Kranz the transfer of population were part of the general regulating of the effects of the Second World War. These decisions were not a simple matter of revenge. They must be analysed in a wider political perspective of European policy. The resettlement decided in Potsdam was part of German legal responsibility for the war’s outbreak. The individual perception of the resettlement and individual guilt are different from the international responsibility of the state and from the political/historical responsibility of the nation. The international legal responsibility of states inevitably affects their population, which shares the fate of the state both in times of peace and in war. In our discussion we made the distinction between the guilt of individuals (criminal, political, moral), the international legal responsibility of states and the political/historical responsibility of nations (societies). For the difficult process of understanding and reconciliation between Poles and Germans, the initiatives undertaken by some social circles, and especially the church, were of vital importance. The question of the resettlement became a theme of numerous publications in Poland after 1989. In the mid 1990s there was a vast debate in the media with the main question of: should we apologize for the resettlement? Tracing a line from wrongdoing/harm to unlawfulness is not easy. In 1945 the forcible transfer of the German population was an act that was not prohibited by international law. What is significant is that this transfer was not a means of war conduct. It did not apply to the time of a belligerent occupation, in terms of humanitarian law, but to a temporary, specific, international post-conflict administration. The resettlement of the German population after the Second World War by the victorious powers is an example of contested history that lives on with modern repercussions. We attempt to provide a perspective on the problem: the first part (Chapters 1 and 2) deals with the border change as an essential precondition of resettlement; the second part (Chapters 3, 4 and 5) presents the political and moral aspects; and the third part (Chapter 6) appraises the resettlement in the light of international law. 12 Wollt ihr den totalen Krieg?… Chapter 1: Introduction For they sow the wind, and they shall reap the whirlwind1 1.1. Legal controversies between Poland and Germany were inevitable following the Second World War.2 The peace settlement with Germany, announced at the Potsdam Conference (11 July – 2 August, 1945), never went into effect. The collapse of the victorious coalition and the division of Europe (including Germany) into two opposing blocs (“the Iron Curtain”, “the Cold War”) ensured a contested future for Poland. Several elements contributed to the situation which arose in 1945. 1 Old Testament, Hosea 8:7. 2 See J. Kranz, Polsko-niemieckie kontrowersje prawne – próba syntezy, [in:] W.M. Góralski (ed.), Przełom i wyzwanie . XX lat polsko-niemieckiego Traktatu o dobrym sąsiedztwie i przyjaznej współpracy – 1991-2011, Warszawa 2011, pp. 477-520 (English version: Polish-German Legal Controversies – An Attempt At Synthesis, [in:] W.M. Góralski (ed.), ‘Breakthrough and Challenges. 20 Years of the Polish-German Treaty on Good Neighbourliness and Friendly Relations’, Warsaw 2011, pp. 419-460); W. Czapliński, B. Łukańka (eds), Problemy prawne w stosunkach polsko-niemieckich u progu XXI wieku [Legal issues in Polish-German relations on the brink of XXI century], Warszawa 2009; W.M. Góralski (ed.), Polska-Niemcy 1945-2007 . Od konfrontacji do współpracy i partnerstwa w Europie . Studia i dokumenty [Poland-Germany. From confrontation to cooperation and partnership in