September 23, 1999
How tough? Well, they've got Barry Fisher rattled, and that isn't easy. A Los Angeles human-rights lawyer, Fisher has tussled with some of the toughest of the tough. But those New Jersey judges are something else.
Last week, two federal judges in Newark separately decided to throw two Holocaust-related lawsuits out of court. Kaput. Both cases were class-action lawsuits by Holocaust survivors against German companies that used them as slave laborers. Both judges decided, for different reasons, that the cases couldn't be tried in court. This could be trouble.
Barry Fisher knows something about slave-labor justice. Besides being co-counsel on all the main Holocaust restitution lawsuits, he's pursued his own worldwide crusade for justice. In Tokyo, helping Chinese and Korean war victims to seek redress from their one-time Japanese slavemasters. In Warsaw, representing the tormented Romany people ("don't call them Gypsies") in Holocaust-related lawsuits. In Vienna, working with lawyers for non-Jewish Poles suing their World War II-ear corporate slavemasters. In Miami, consulting with former American POWs who are suing their Japanese tormentors. And that's just in the last week.
The toughest part of Fisher's global tour this month was leaving Miami for home. He had to drive all night, dodging Hurricane Floyd, to find an open airport. Somehow he also managed a side-trip to Italy, where his klezmer band (he plays accordion) performed at the wedding of British actress Julia Ormond. No, there isn't much that fazes Barry Fisher.
Those New Jersey decisions have him spooked, though. It's not the substance of the rulings. They were based on fairly narrow grounds, he says. The statute of limitations ran out in one case, while the other appeared to run afoul of several postwar treaties. Both cases may be reversed on appeal. Even if the rulings stand, they shouldn't have any direct legal impact on the dozens of other Holocaust-related lawsuits pending in U.S. courts.
What worries Fisher is the psychological impact. All told, there are about 36 Holocaust restitution lawsuits pending in federal courts, he says. So far, the New Jersey rulings "are the first substantive decisions on legal issues in any of these cases." All the others are either sitting on judges' desks or mired in out-of- court negotiations.
Even the big one, the Swiss banking case that ended last year in a $1.25 billion settlement, never received a single ruling from the judge. The judge forced the parties to negotiate a settlement before he ever decided any matters of law.
From a legal point of view, therefore, you might say this was the first test of Holocaust restitution, Fisher says, "and the good guys lost."
The cases tossed out last week were class-action lawsuits against three German companies that used slave labor during the war, Siemens, Degussa and Ford. Degussa was also being sued for manufacturing the Zyklon-B gas used in death camp extermination chambers.
Dismissal doesn't end the story. Separate from the lawsuits, the companies are locked in a complex negotiating process with victims' representatives, along with Jewish organizations and the U.S., Israeli and German governments. The Germans have offered to set up a foundation to compensate victims. But they're offering a fraction of the amount the lawsuits were demanding.
Victims' lawyers say the suits' dismissal removes any pressure on the companies to improve their offer. "The Germans are going to use it to try and lower the dollar amounts they're going to offer, by saying they have no legal exposure," says New York attorney Melvyn Weiss, one of the lead counsels in both cases. "Of course it's going to hurt."
Not everyone is so gloomy. Some leading Holocaust victims' advocates think the lawsuits' dismissal might even be a blessing in disguise. Removing the battle from the courts of law puts it back in the court of public opinion, where it belongs. "We've always said this is a moral issue, not a legal one," says World Jewish Congress executive director Elan Steinberg.
Part of that thinking is practical. Bringing the Holocaust restitution struggle into court may inadvertently have played into the hands of the banks and companies, some strategists argue. Courtrooms offer defendants endless opportunities to stall for time. And time is one thing Holocaust survivors don't have.
The World Jewish Congress and its allies maintain the best way to pursue justice is through their strategy of jawboning and public pressure. First get the Germans, Swiss or whoever to sit down. Then bring in a top U.S. government official -- usually Deputy Treasury Secretary Stuart Eizenstat -- as mediator. Keep up the public heat through congressional hearings. In the background, maintain a threat of boycotts by American city and state governments, organized by New York City Comptroller Alan Hevesi. That combination brings results, like the Swiss banks' $1.25 billion, advocates say. And it doesn't give the other side an opening for endless motions, writs and depositions.
By way of contrast, Jewish organizational leaders cite the settlement the lawyers negotiated with the Bank of Austria last spring, over the objections of the Jewish organizations. The result was a mere $40 million, of which one-fourth goes for costs and lawyers' fees. Worse still, the organizations say, the Austrian settlement sets up a process for notifying claimants that's hopelessly slow and complex. The only thing the lawyers add, they suggest, is lawyers' fees.
Unless you're a Gypsy Holocaust survivor, that is. Or a Korean, Chinese or non-Jewish Pole used for slave labor during the war. People like that don't have a World Jewish Congress behind them. All they have is a lawyer.
Barry Fisher, who's championed both Jewish and non- Jewish human rights causes for years, views the World War II restitution lawsuits as a crucial building block in a larger process: the developing body of international human-rights law. Along with the Bosnian war crimes tribunal, the Pinochet arrest and similar developments, they offer hope for the first time that victims of atrocity and can demand and win redress.
"We're at a rare moment in history," Fisher says. "As we end the century it's kind of a hopeful sign that there's interest in having an international human rights system."
That's why the New Jersey rulings are so worrying. As the first-ever decisions in federal Holocaust restitution cases, they set a sort of precedent. And, Fisher says, "precedent is important in human rights law."
J.J. Goldberg writes a weekly column for The Jewish Journal.