April 22, 1999
Making a Case for Victims of the Holocaust
What progress have American courts made in bringing legal closure to some of the appalling evils perpetrated by the Nazis during their reign of terror?
First we have to understand what is actually going on. There are five sets of cases currently pending: The first was filed in 1996 in the Eastern District of New York against three major Swiss banks on behalf of persons who, relying on promises of secrecy, deposited money into Swiss banks in the decade before the Holocaust in an effort to shield it from the Nazis, only to be told after the Holocaust that bank secrecy precluded the banks from talking to surviving family members about the accounts.
The Swiss banks simply held the money for 50 years. The complaint also sought the return of property seized by the Nazis and "fenced" through Swiss banks in an effort to raise Swiss francs to support the German war effort. I am pleased to report that after an intensely contested litigation, and very difficult negotiations, the parties have agreed to a settlement of $1.25 billion. I am also delighted to tell you that virtually all of the lawyers who carried on the Swiss bank litigation for more than two years have declined to accept fees, and those few lawyers who cannot afford to waive fees have agreed to limit their fees drastically. So much for charges posited against layers for behaving like Shylock.
The second of the cases was filed in 1998 on behalf of slave and forced laborers who were forced to work for German corporations during WWII under conditions of inhuman brutality, and who have never received a penny for their labor or their suffering. The defendants -- German corporations that reaped enormous economic benefits from the labor of enslaved humans -- are being asked to disgorge their unjust profits to the victims. The cases distinguish between "slave" laborers, mostly Jewish, who were viewed by the Nazis as wasting assets, and simply worked to death, and "forced" laborers, mostly Slavs, who were viewed as productive assets and kept alive under brutal conditions. Both should be compensated, but at different levels.
The first slave forced labor case was argued on March 8, 1999, in the District of New Jersey against Ford Motor Co. and its German subsidiary, Ford Werke. Similar cases are pending against virtually every major German corporation that used involuntary labor during the war. After the filing of the lawsuits, the German government offered to establish an industry financed fund to compensate involuntary laborers, but, thus far, neither the structure of the fund, nor the amounts involved are acceptable. Negotiations will continue.
The third case, filed in 1997, involves claims against German and Austrian banks that provided the financial backbone of the Third Reich. German banks were the financial agents of the "Aryanization" laws that forced Jewish businesses to sell involuntarily to Aryan owners. The German and Austrian banks bought the Jewish business for next to nothing, and either retained them or sold them at huge profits to Aryan owners. Despite making vast profits from the Aryanization program, German banks have never been asked to account to the victims for the unjust profit. The cases are pending in the Southern District of New York. Former Sen. Alfonse D'Amato has been appointed a settlement master, but thus far, the defendants are recalcitrant. Deutsche Bank's desire to merge with Bankers Trust may change that.
The fourth set of cases involve European insurance companies that collected a fortune in premiums from Jews and other victims of Nazi oppression in the years preceding the Holocaust, but have never paid off on the policies or accounted for the premiums. Many of the policies are classic life insurance policies. Many are small dowry policies that were taken out to assure that when a young girl came of marriageable age, a small dowry would be available. For 50 years, the insurance companies have unjustly profited from funds belonging to Holocaust victims. It's long past time for an accounting. After the lawsuits were filed, a consortium of insurance regulators, aided by Lawrence Eagleburger, agreed to an attempt for an international remedy. So far it looks to be too late.
The final set of cases involve efforts to regain the vast art holdings confiscated from Jewish families by the Nazis, much of which currently hangs in national museums. After years of denial, movement has begun to restore the seized art.
So where do we go from here? The Swiss bank cases achieved an excellent result for only one reason: We were able to maintain a triangular approach that combined a carefully prepared and vigorously argued legal position, thoughtful and effective diplomacy on behalf of the United States -- pressed by Undersecretary Stuart Eizenstat -- and passionate public advocacy and moral persuasion advanced by Jewish organizations like the World Jewish Congress and the Simon Weisenthal Center. Not one of the participants could have achieved such an excellent result without the aid of other two. As we go forward in an effort to resolve the remaining claims, the lesson of unity learned in the Swiss cases cannot be forgotten.
Legal (not moral) Closure
Ultimately these cases are about more than the Holocaust
Let me begin with two important caveats: First, the Holocaust litigation is designed to achieve legal, not moral, closure. No human agency can provide moral closure to Nazis. No amount of money, no level of legal condemnation, no statement of apology can deal morally with an evil unparalleled in world history. But individual Holocaust victims survive to be comforted and compensated; and wrongdoers remain in possession of vast wealth stolen from Holocaust victims.
We have waited more than 50 years for the international community to make the wrongdoers disgorge their ill-gotten gains and make restitution to the victims. This is our last chance to provide a modicum of justice to victims of the Holocaust before that generation passes into oblivion. Acknowledging the very real risks, I believe that it would be a greater risk for us to do nothing; to stand by while injustice triumphs. Demanding justice for Holocaust victims in an American court, provided that it is done with dignity and integrity, will not cheapen the memory of the Holocaust. Remaining silent out of fear and timidity would be the true betrayal.
Second, the litigation is not only about Jews. While Jews suffered disproportionately at the hands of Nazis, they were not alone. Gays, disabled, Romaine's, Jehovah's Witnesses, Slav forced laborers -- were all victims of the Nazis. All suffered great legal wrongs. All should be included in our efforts to secure justice.
How can anything be done legally after all these years? Isn't there a statute of limitations? In fact, most legal claims arising of the Nazi era were "deferred" by international agreement for almost 40 years in order to allow Germany to recover its economic health. Historians tell us that the Treaty of Versailles imposed crippling reparations on Germany after WWI, dooming the Weimar Republic to Nazi takeover. In an effort to avoid a replay of the Treaty of Versailles, the international community deferred individual Holocaust legal claims until final settlement of reparations claims against Germany, an event that finally took place in 1991 with the signing of the treaty paving the way for German reunification. Sadly, German industry, having used the 40-year breathing period to become immensely rich, is now trying to welsh on the deal by claiming that too much time has passed.
Why an American court? Well, why not? Jurisdiction over most of the defendants is not a problem, since very few major corporations elect to pass up the opportunity to do substantial business in the world's largest market. American procedure is among the most sophisticated in the world, permitting large numbers of similarly situated victims to be represented in class actions, and requiring disclosure of relevant corporate records. In no other legal system is the playing field so truly level between weak and strong.
Finally, American courts are not afraid to enforce the bans on genocide, war crimes and crimes against humanity announced by the Nuremberg tribunals as the core of customary international law. We hope to blend sophisticated American procedure and humanitarian international law to provide victims of the Holocaust with a modicum of legal justice.
We should also remember that these cases are ultimately about more than the Holocaust. What is really at issue is whether we can forge an international law of minimal decency, enforceable on the courts of the civilized world, that can hold war profiteers liable to their victims. Thus far, Nuremberg principles have been used only to justify imposing criminal sanctions on war criminals. But a complete legal prohibition of war crimes must take the profit out of knowingly cooperating with war criminals. Until the unjust profits earned by participants in the Nazi terror are disgorged and returned to victims, we cannot close the legal books on Holocaust. With humility and reverence, let us do justice, love mercy and walk humbly with our God. -- Professor Burt Neuborne
Burt Neuborne is the John Norton Pomeroy Professor of Law and legal director of the Brennan Center for Justice at New York University.