THE HOLOCAUST RESTITUTION MOVEMENT IN COMPARATIVE PERSPECTIVE

The modern era of Holocaust asset litigation began in October 1996 with the filing of a class a class action lawsuit against the three largest private Swiss banks – Credit Suisse, Union Bank of Switzerland ( hereinafter "UBS") and Swiss Bank Corporation – in federal district court in Brooklyn, New York. Thereafter, two other lawsuits were filed against the same banks , with all three actions consolidated in April 1997 as In re Holocaust Victim Assets Litigation, and heard by Judge Edward R. Korman, one of the heroes of this litigation.^[xii]

The consolidated lawsuits made three types of accusations against the Swiss banks:

(1) that the banks failed to return moneys deposited with them by Jews seeking a safe haven for their assets in the face of persecution by the Nazis – since such moneys are alleged to have been lain dormant in Swiss banks for the last half-century, these claims became known as the "dormant account" claims; (2) that the banks traded in assets looted from the Jews by the Nazis – these became known as the "looted assets" claims; and (3) that the banks traded in assets made by slave labor which were then sold, and the sale proceeds deposited with the banks – these became known as the "slave labor" claims.^[xiii]

The lawsuits alleged that the banks, for the dormant account claims, set up specious requirements, such as the necessity by heirs to produce death certificates for Holocaust victims, as a reason for failing to return funds deposited with them for safekeeping, and for the latter two categories, accepted deposits from the Nazis knowing that the funds deposited were either looted from Jews or came from sale of goods made by Jewish slave labor.^[xiv].

The Swiss banks, in response to the suits, filed voluminous motions to dismiss, setting out numerous reasons why the lawsuits could not proceed.^[xv] In addition to arguing that American courts lacked jurisdiction over these claims and that the claims were time-barred, the banks contended that they were already dealing with the problem; specifically, by publishing a list of dormant accounts and by creating the so-called Independent Committee of Eminent Persons ("ICEP"), chaired by Paul Volcker, the former head of the U.S. Federal Reserve Board, to both process claims made against them by Holocaust survivors or heirs and to reexamine their actions during the war. According to the banks, "Plaintiffs were not required to come to a court of law to seek redress. . .[S]uperior, cooperative mechanisms are available, and those alternatives become more attractive every day."^[xvi]

In June, 1998, while Judge Korman was considering their motions, the banks made, what they called, their first and last offer to settle the claims: $600 million.^[xvii]

In the meantime, a number of political factors came into the picture. First, the Senate Banking Committee, headed by Senator Alfonse D'Amato, began holding hearings on the issue.

Second, a number of state and local governments threatened to stop doing business with the Swiss banks unless they settled the claims. Third, the United States government issued a report, written by then-Undersecretary of State (and later Deputy Treasury Secretary and Special Representative of the President and the Secretary of State for Holocaust Issues) Stuart Eizenstat, sharply criticizing the Swiss for their World War II dealings with the Nazis Finally, UBS, now undergoing a merger with co-defendant Swiss Bank Corporation, was caught attempting to shred World War II-era financial documents, in contravention of a newly-enacted Swiss law forbidding such actions.^[xviii]

In August, 1998, the banks doubled their offer, and, under Judge Korman"s guidance,

settled the case for $1.25 billion. Rather than a lump-sum payment, the banks agreed to pay the $1.25 billion in four installments over three years, with the final payment to be made in November 2000 .

The settlement agreement sets out five classes of claimants eligible to receive payments from the $ 1.25 billion fund:

(1 ) the "Deposited Assets Class," consisting of "Victims or Targets of Nazi Persecution" (hereinafter "VTNP") claimants and their heirs seeking to recover World War II-era assets deposited in a Swiss bank prior to May 9 1945 (the end of World War II in Europe);

(2) the "Looted Assets Class," consisting of VTNP claimants and their heirs seeking to recover compensation for assets belonging to them and stolen by the Nazis, which made their way to the Swiss banks;

(3) "Slave Labor Class I," consisting of VTNP claimants who performed slave labor for companies that deposited assets derived from that slave labor in Switzerland;

(4) "Slave Labor Class II," consisting of individuals who performed slave labor at a facility or business or business concern headquartered, organized, or based in Switzerland; and

(5) the "Refugee Class," consisting of individuals who sought entry into Switzerland to escape the Nazis and were either denied entry, or, after gaining entry, were either sent back or mistreated by the Swiss.

One of the most striking elements about the Swiss settlement is that the class of recipients is not limited to Jews. Rather, it also contemplates that, in addition to Jewish victims, the following four groups persecuted by the Nazis are also VTNPs and, therefore, will receive a part of the $1.25 billion settlement: (1) homosexuals; (2) physically or mentally disabled or handicapped persons; (3) the Romani (Gypsy) peoples; and (4) Jehovah's Witnesses.^[xix] This non-Jewish victim group included in the settlement, however, is small, and excludes the entire category of Slavic peoples–primarily Poles and Russians–forced to work as slave laborers for the Nazis. These victims of Nazi persecution will not receive anything from the Swiss settlement, but must await recovery from the slave labor settlement finalized with Germany (see discussion below)..

In return for $1.25 billion, plaintiffs agreed to drop all lawsuits against the Swiss banks being sued. In addition, the settlement released not only the defendant banks but also "the government of Switzerland, the Swiss National Bank, all other Swiss banks, and all other members of Swiss industry, except for the three Swiss insurers who are defendants in the [federal class action insurance litigation (see discussion below)]."^[xx] Finally, as a condition of settlement, all sanctions and threats of sanctions against Switzerland and any of its businesses were dropped

In effect, the settlement agreement obtained by the two private Swiss banks insulates the entire nation of Switzerland and all its businesses from any kind of litigation – anywhere in the world – having any connection to World War II. .

The case marks a milestone in American litigation as, at that time, the largest settlement of a human rights case in United States history. Asked to explain the banks' sudden reversal of their position, Rabbi Marvin Heir, head of the Los-Angeles based Simon Wiesenthal Center, commented: "It was for only one reason: they were pressured into it. Without the pressure, with Sen. D'Amato's banking committee, without the threat of sanctions, the Holocaust survivors would have gotten nothing."^[xxi] The Financial Times came to the same conclusion:

The clearest lesson from the Swiss banks' $1 .25bn settlement

with holocaust survivors is this: threatening to impose sanctions

can work. Every important breakthrough in the negotiations

came soon after threats from US local government officials to

impose sanctions (banning, for example, Swiss banks from

certain kinds of business in New York). The settlement

itself came two weeks before a threat to start the sanctions

and a week after Moody's, the rating agency, published

a report saying that UBS, Switzerland's (and Europe's)

biggest bank, might lose its triple-A rating if sanctions

were imposed.^[xxii]

In accordance with American federal class action rules, Judge Korman held a hearing in November, 1999 to confirm the fairness of the settlement, and in July, 2000 finalized it. . Distribution is set to begin later this year. .

The current status of the Swiss banks settlement is available at <www.swissbankclaims.com>.

2. German and Austrian banks litigation

German and Austrian banks maintained close business relationships with the Nazis, and profited handsomely from such dealings. Deutsche Bank, Germany's largest bank, financed the building of Auschwitz.^[xxiii] A historical report of Dresdner Bank found that in Nazi-occupied lands the saying went, "Right after the first German tank comes Dr. Rasche from the Dresdner Bank."^[xxiv]

In June 1998, three Holocaust survivors, all American citizens, filed a class action lawsuit against the two German banks, charging them with profiteering from the looting of gold and personal property of Jews. Thereafter, other lawsuits were filed against these two banks and other German and Austrian banks for their World War II-era activities.

In March 1999, the lawsuits were consolidated as In re Austrian and German Bank Holocaust Litigation in the Southern District of New York before Judge Shirley Wohl Kram^[xxv]. That same month, Bank Austria and its recently-purchased subsidiary, Creditanstalt, settled the lawsuits against them for $40 million. A fairness hearing was held on November 1999, and Judge Kram approved the settlement in January 2000.^[xxvi]

As of June, 2001 , no moneys have yet been distributed from the settlement. The current status of the Austrian banks settlement is available at <www.austrianbankclaims.com>.

Litigation against the German banks continued. However, the "rough justice" settlement reached with the German government and industry in December 1999, and finalized in July, 2000, (see discussion below) also included the settlement of the claims made against the German banks.

3. French banks litigation

After the Nazis conquered France, French banks began to confiscate the accounts of their Jewish depositors in a process known as "Aryanization" of the accounts.

In late 1997 and early 1998 two class actions were filed against one-half dozen French banks in federal court in New York, followed by another action in California state court in San Francisco.^[xxvii] The defendant French banks all do business in the United States, and plaintiffs were both American nationals and foreigners.

The lawsuits also named the British bank, Barclays Bank, and two U.S. financial institutions, Chase Manhattan Bank and J.P Morgan & Co. These banks had branches in France during the war, and are alleged also to have participated in the confiscation of the assets of their Jewish depositors.

In July, 1999, Barclays settled for $3.6 million, to be paid to the families of its Jewish customers in France who lost their assets during the Nazi occupation.

The other banks declined to settle, and filed motions to dismiss. The motions were denied^[xxviii], and, as a result, a settlement was achieved in the last days of the Clinton Administration through the efforts of Stuart Eizenstat, appointed by Clinton as special envoy for Holocaust restitution issues.

The banks agreed to establish two funds to compensate claimants for assets seized by the French banks during the occupation. One fund, with no limits, will pay claimants who have documentation or some other substantiated proof of wartime assets held in French banks. The second fund, capped at $22.5 million, will compensate claimants with less proof, known as "soft claims", who will present their case to a commission. Each of the soft claims approved by the commission will be paid at least $1500.

B. CASES AGAINST EUROPEAN INSURANCE COMPANIES

In the time before the two world wars, insurance policies and annuities were popular investment vehicles in Europe. Jews in pre-war Europe often purchased insurance, and an insurance policy was known as a "poor man"s Swiss bank account."

. The European insurance company with the most notoriety in the field of Holocaust-era restitution is Assicurazioni Generali S.p.A., the largest insurance company in Italy, and owner of Israell"s largest insurer, Migdal. Generali, as the company is commonly known, was founded in 1831 by a group of Jewish merchants, and, until recently, its chairman was a Jewish survivor of Auschwitz. In pre-war Europe, Generali was known as a "Jewish company, whose agents saturated the major Jewish population centers before the war."^[xxix] In a situation akin to the failure by the Swiss banks to return moneys deposited with them prior to the war, Generali, along with other European insurers, has been accused of failing to honor policies purchased from them by Holocaust victims in pre-war Europe.^[xxx]

The other insurance company with a large stake in the pre-war European market is Allianz of Germany, presently the second largest insurance concern in the world. Allianz's CEO, Kurt Schmidt, was Hitler's Minister of Economy. Allianz also insured a number of concentration camps, including Auschwitz and Dachau.

Upon coming to power in Germany, the Nazis' persecution of Jews included confiscation

of insurance policies from its Jewish citizenry. A particularly poignant example of the theft of insurance proceeds by the Nazis, and German insurers' collusion in such theft, occurred in the aftermath of Kristalnacht, in November 1938. Since many of the Jewish merchants, whose shops and other properties were damaged or looted during the campaign, held casualty insurance to cover such losses, the Nazis ordered the insurance companies to pay all such claims to the state rather than to the injured parties. In a deal made with the insurers, the companies were allowed to expunge the claims of their Jewish policyholders by paying only a fraction of the claims' value to the German state.^[xxxi]

Beginning in 1997, two class action lawsuits were filed against more than one-dozen European insurers in federal court in New York, followed by six individual actions in California state court. The claims were brought either by Holocaust survivors or heirs, with the insurance companies sued doing business in the United States.

As with the Swiss bank litigation, political pressure has been an important component in either settlement, or, at the least, in bringing the European insurers to the bargaining table.

In 1997, the National Association of Insurance Commissioners, composed of the insurance regulators in all fifty states, created a working group on Holocaust and insurance issues. Some of the regulators began holding hearings, inviting the companies to explain their reasons for non-payment of these pre-war policies. Since insurance companies in America are regulated at the state level, and receive their licenses to operate from the state, the commissioners began threatening to revoke the licenses of the European insurers for failure to honour these claims.

Prodded by the commissioners from California, New York and Florida, which contain the largest concentration of Holocaust survivors in the United States, five of the insurers sued – including Generali and Allianz ^[xxxii]– formed (and funded) the International Commission on Holocaust Era Insurance Claims, commonly known as ICHEIC, headed by former U.S. Secretary of State Lawrence Eagleburger.^[xxxiii]

Following the model of the Swiss banks' ICEP, ICHEIC, likewise, is intended to be a non-adversarial alternative to the American litigation brought against the insurance companies. In February 2000, after numerous delays, ICHEIC announced that it would began a two-year claim process to locate and pay unpaid Holocaust-era insurance policies. That same month, ICHEIC began placing advertisements in newspapers and journals world-wide soliciting Holocaust survivors and heirs to submit claims.

Unfortunately, to date ICHEIC has done a poor job. By May, 2001, it distributed only $3 million to claimants, while spending more than $30 million in expenses.^[xxxiv] Eagleburger's annual salary alone is $350,000.^[xxxv] The individual California lawsuits, five of which have settled, have yielded higher payments than the amounts distributed through ICHEIC.^[xxxvi] While the settlement terms remain confidential, the New York Times reported that one of the California cases alonesettled for $ 1.25 million.^[xxxvii]

The current status of the ICHEIC claims settlement process is available at <www..icheic.org>.

C. CASES STEMMING FROM THE USE OF GERMAN AND AUSTRIAN SLAVE LABOR

Between eight and ten million people were forced to work as laborers in factories

and camps in Germany, Austria and throughout occupied Europe during World War II. Approximately 1 1/4 million of these laborers – now elderly -- are alive today.

The reparations program to Jewish victims of Nazi persecution promulgated by West Germany (see discussion below) specifically excluded payment for slave labor. Former German slave laborers found themselves in a "Catch-22" situation: the German government claimed that it was not obligated to make payments to them because the laborers worked during the war for private German firms; German industry, on the other hand, argued that any payments should come from government coffers, since, German firms claimed, they were forced to use the slave laborers to support the Nazi war effort. ^[xxxviii]

In October 1998, the then-newly-elected Chancellor Gerhard Schroeder reversed German government policy by announcing the creation of a fund to compensate the former slave laborers. By that time, however, American plaintiffs' lawyers, emboldened by their success with the Swiss bank litigation, had already begun filing suits in American courts against various German – and even American – companies on behalf of the slave laborers, living both in the United States and abroad.

Eventually, close to forty separate lawsuits were filed in various courts throughout the United States against numerous German companies which used slave labor during World War II.

These slave labor lawsuits constituted the largest category of cases filed in the United States stemming from the Holocaust.

On September 13, 1999, the claimants suffered a serious setback in the litigation. That day, two federal judges sitting in New Jersey issued separate opinions dismissing five of the lawsuits. Judge Joseph Greenaway, Jr. dismissed the lawsuit against Ford Motor Company and its German subsidiary Ford Werke, filed by a Belgian national who was deported by the Nazis from the Soviet Union and forced to work at the Ford Werke plant in Cologne.^[xxxix] . Judge Dickinson R. Debevoise dismissed four separate lawsuits against German companies Degussa and Siemens^[xl].

Both judges held that the suits were non-justiciable, specifically that they were precluded by the treaties entered into by Germany and the Allied powers after the war. Judge Greenaway also found some claims against Ford to be time-barred.

The dismissals were appealed, but eventually became moot when German government and industry, in December 1999, entered into a preliminary settlement with the plaintiffs' lawyers and representatives of Jewish organizations to resolve all slave labor and related claims^[xli] for DM 10 billion (approximately $4.8 billion). While the total amount may seem significant, it appears that each survivor will receive a lump sum payment of only between $2,500 and $7,500.^[xlii]

It took over one and one-half years to finalize the German slave labor settlement. Final resolution was achieved in May, 2001 , when the German parliament gave final approval to a law funding the settlement fund.^[xliii] Distribution of the funds to the aging survivors is set to begin in the latter half of 2001 .

Under the contemplated scheme for distribution, those forced by the Nazis to work to death – slave laborers, and primarily Jews – who survived the war and are still living will receive payments up to $7,500. According to some estimates, approximately 240,000 former slave labor claimants are alive today..^[xliv] Former forced laborers –primarily non-Jews and estimated to number today approximately 1 million – will be awarded $2,500 each.

In return for the settlement, the plaintiffs' attorneys agreed to drop all the pending slave labor

suits. To block future litigation, the United States government, as part of the deal, agreed to intervene on behalf of German defendants in any future lawsuit for wartime slave labor filed in the United States. As with the Swiss banks' $1..25 billion settlement, Germany and its entire private industry, for DM 10 billion, have bought for themselves complete legal peace from bothersome American litigation.

The Germans have conceded that, after a half-century of failing to recognize the claims of the slave laborers, the fear of American litigation is what finally brought them to the bargaining table.

Chancellor Schroeder, announcing in February 1999, the establishment of a fund for slave laborers (then set at $1 .7 billion) explicitly stated that the fund was being established "to counter lawsuits, particularly class action suits, and to remove the basis of the campaign being led against German industry and our country."^[xlv] German industry, in a website devoted to charting the progress of the settlement fund, stated: "For the Foundation to be established and for the funds to be made available, it is an indispensable prerequisite that the enterprises have full and lasting legal certainty, in other words, that they are safe from legal action in the future."^[xlvi] To make this point, Germany delayed finalizing the settlement until all the lawsuits in the United States were dismissed. This fear of American litigation and Germany's requirement of "legal peace" added another six months to the settlement process, when one American federal district court judge, contrary to the wishes of the U.S. government, asserted her judicial independence and refused to dismiss the slave labor suits against the German companies until she was satisfied that the settlement was fair.^[xlvii] Following the German precedent, the Austrian government and Austrian industry likewise agreed to compensate its former slave laborers and other victims of its policies. .

Under a preliminary agreement reached in October, 2000, Austria pledged $500 million to settle claims for Holocaust-era seizures On January 17, 2001 , it agreed to add $210 million, and $20 million in interest, for other property claims and unpaid insurance policies. An additional $ 112 million was pledged for social benefits, such as pensions and $8 million for a land swap – a total package of $500 million.

Earlier, Austria agreed to compensate former slave and forced laborers, setting aside approximately $410 million, and to supplement those payments with an additional $ 112 million for pension payments to Jewish victims who fled Austria as children.

III. WORLD WAR II-ERA CLAIMS AGAINST JAPANESE COMPANIES^[xlviii]

The suits for Holocaust restitution have now led to claims being filed against Japanese corporations for their use of captured soldiers and civilians as slaves during World War II.^[xlix] Without a doubt, the claims against the Japanese multinationals are a direct result of the earlier litigation brought against their European counterparts. Aging victims of Japan's wartime activities began filing their lawsuits in American courts only after seeing the successes achieved by their counterparts in the Holocaust litigation.^[l]

Over 36,000 American soldiers became Japanese prisoners of war during World War II. The Japanese also captured nearly 14, 000 American civilians. Approximately 25,000 American prisoners were then shipped to Japan and Japan-occupied Asia to work for private Japanese companies.^[li] These companies are now some of the largest corporate concerns in the world: Mitsubishi, Mitsui, Nippon Steel, Kawasaki Heavy Industries, and at least forty other Japanese companies^[lii]

Additionally, the Japanese captured tens of thousands of British, Canadian, Australian and New Zealand soldiers, who also toiled as slave laborers for Japanese industry..

Local Chinese, Korean, Vietnamese and Philippine civilians also were used as slaves by these companies.^[liii]

The first World War II-era restitution lawsuit was filed in July, 1999, by former POW Ralph Levenberg against Nippon Sharyo Ltd. and its U.S. subsidiary.^[liv] The suit was filed in federal district court in San Francisco. Other lawsuits followed in other jurisdictions.^[lv] Eventually, all such litigation gravitated to California, as a result of a state law enacted in July, 1999 permitting an action by a "prisoner-of-war of the Nazi regime, its allies or sympathizers" to "recover compensation for labor performed as a Second World War slave victim. . . . from any entity or successor in interest thereof, for whom that labor was performed. . . .^[lvi] The California statute extended the limitations period for filing such lawsuits until 2010.^[lvii]

The statute was passed at the time that the negotiations with the German companies for compensation for their WWII use of slave labor was stalled, and so its goal was to allow lawsuits against these German companies to proceed in California.^[lviii] As an afterthought, language was added to allow similar suits by POWs captured by "allies or sympathizers" of the Nazi regime – meaning, of course, Japan and Italy, among others. Ironically, the statute was never used for its primary purpose, since shortly thereafter the German companies entered into an all-inclusive settlement of the claims against them.^[lix] Rather, every use of the statute has been by victims of Pacific conflict, in suits against Japanese companies.

Eventually, over two dozen lawsuits were filed against numerous Japanese corporations which had employed slave labor during the war. ^[lx] Plaintiffs included American POWs, allied POWS, and civilians, both U.S. citizens and aliens. The companies sued all do business in the United States.^[lxi]

By Transfer Order dated June 5, 2000, the Federal Judicial Panel on Mutidistrict Litigation consolidated the lawsuits before Judge Vaughn Walker of the Northern District Court of California, the judge presiding over the Levenberg lawsuit. ^[lxii] .

On September 21, 2000, Judge Walker dismissed the lawsuits filed by American POWs and Allied POWs. ^[lxiii] The court held that the United States, in the 1951 Peace Treaty with Japan, waived – on behalf of itself and its nationals – claims arising out of actions taken by Japan and its nationals (including private Japanese corporations) during the war. The court relied on Article 14(b) of the Peace Treaty, which states:

Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations

claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of

any actions taken by Japan and its nationals in the course of the prosecution of the war, and

claims of the Allied Powers for direct military costs of occupation.^[lxiv]

The court, based on this language, also dismissed the claims of the British, Australian and New Zealand POWs, since these POWs also came from nations that were signatories to the 1951 Treaty. The court, however, left open the claims of Chinese, Filipino and Korean civilian internees because "these plaintiffs are not citizens of countries that are signatories of the [1951 Peace T]reaty."^[lxv] It then asked the parties to file supplemental briefs on these claims. As of June 1, 2001, the court has not issued a ruling on the claims of these alien civilian claimants. Strangely, therefore, the wartime claims of American POWs may be excluded from litigation in U.S. courts, while the wartime claims of aliens may be able to proceed forward.

Critical to the court's ruling was the appearance of the United States government in the litigation.^[lxvi] In a Statement of Interest filed with the court, the United States asserted that the claims of the Allied POWs were barred by the above-quoted language of the 1951 Peace Treaty. The court emphasized the "significant weight" to be given to the U.S. government's statement of interest.^[lxvii]

The position taken by the U.S. government in the Japanese litigation differed significantly from the position it took in the Holocaust litigation. In the Holocaust slave labor litigation, the U.S. government was specifically asked for its position regarding the impact of the various postwar treaties with Germany on the slave labor litigation. The government there did not file a Statement of Interest on behalf of the private German companies. Rather, it only advised the court that negotiations over the creation of a German foundation to compensate the former slave laborers of the German companies were under way, with the aim of fully resolving such claims. The U.S. government continued to play an active role as a party to the German slave labor negotiations – even after the slave laobr cases were dismissed by the courts as being precluded by the postwar German treaties. For the Japanese slave labor claims, however, the U.S. government not only sided with the Japanese companies, but has, to date, has failed to press Japan and its private industry to recognize the same type of claims that it forced Germany and its private industry to resolve^[lxviii]

Concerned with the disparity in the U.S. government's treatment between the German restitution and Japanese restitution claims, the Senate Judiciary Committee, in June, 2000, held a hearing on the matter^[lxix]. At the hearing, the State Department maintained its position that the 1951 Treaty barred the claims of the POWs ^[lxx] At the conclusion of the hearing, at the urging of committee chairman Senator Orrin Hatch, the State Department representative agreed to reevaluate the government's position.^[lxxi] However, it subsequently filed two more Statements of Interest, urging that cases filed by (1) alien civilians against private Japanese companies similar to the claims of the allied POWs^[lxxii] and (2) claims by sex slaves of the wartime Japanese army – the so-called "comfort women" -- also be dismissed.^[lxxiii] Both of these suits are still pending. The POWs lawsuits are now on appeal before the Ninth Circuit. ^[lxxiv]

While the above-quoted waiver language of article 14(b) may appear broad, it is not clear, however, that this language in fact bars the type of damages sought in the Japanese litigation: private POWs' and civilians' claims against private Japanese companies for uncompensated labor. .

First, article 14(b) speaks of waiver of "reparations." The POWs and civilian victims are not seeking reparations from the Japanese companies, since reparations are defined as ‘[p]ayment made by one country to another for damages during war." ^[lxxv]

Article 14(b) then speaks of a waiver of "other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war". While this second waiver appears to extinguish the individual claims of U.S. nationals and the nationals of U.S. allies (the plaintiffs in these suits) against the nationals of Japan (which would include the private Japanese corporations named as defendants), it also contains an important qualifier. Not all claims for any wartime actions taken by Japanese nationals are waived – rather, only those wartime "actions taken. . . in the course of the prosecution of the war." ^[lxxvi] It is quite reasonable to interpret this clause to exclude actions taken by private Japanese companies done for profit – the use of unpaid slave labor – as not being actions taken in the "course of the prosecution of the war." In fact, the U.S. Supreme Court, in a post-war appeal of a treason conviction of a dual U.S.-Japanese national who worked for a Japanese mining company, and brutally abused U.S. POWs who worked there, opined that Japanese companies during the war should be viewed as nothing more than private, profit-making ventures.^[lxxvii] Private, profit-making enterprises do not prosecute war; governments do.

Finally, article 26 of the 1951 Peace Treaty states that if Japan ever entered into a war claims settlement agreement with any other country that provides terms more beneficial that those extended to the Allied Powers signatories to the 1951 Treaty, then those more favorable terms would be extended to the Allied Powers.^[lxxviii] In fact, Japan entered into subsequent bilateral treaties with Sweden, Spain, Burma, Denmark, Netherlands and Russia, in which it agreed to pay compensation to the nationals of those countries^[lxxix]. Therefore, even if article 14(b) of the 1951 Peace Treaty is interpreted as a bar to compensation claims by nationals of the Allied Powers signatories against Japan or its nationals, that bar was lifted, pursuant to article 26, when Japan agreed to make such payment to the nationals of other countries under subsequent peace treaties it signed

In his opinion, Judge Walker held that the article 26 "more favorable treatment" clause^[lxxx] cannot be asserted by private individuals. Rather, since it is part of a treaty entered into between Japan and the Allied signatory nations, the provision can only be asserted against Japan by a signatory nation.^[lxxxi] With this in mind, in March, 2001, a bill was introduced in Congress specifically for that purpose.^[lxxxii] The bill, with over forty co-sponsors, is presently before the U.S. House of Representatives. If the bill passes Congress, it remains unclear what position the Bush Administration will take on it

IV. THE HOLOCAUST-ERA RESTITUTION MOVEMENT AS A MODEL

FOR OTHER COMPENSATON CLAIMS FOR HISTORICAL WRONGS

A. THE CALL FOR AFRICAN-AMERICAN REPARATIONS

One of the most interesting consequences of the Holocaust restitution litigation has been to give fresh impetus to the call for payments to African-Americans by the U.S. government for slavery which ended with the Civil War. The African-American reparations movement is now being taken seriously directly as a result of the achievements made in the Holocaust restitution arena.

Reparation proponents specifically point to the payments now being made for WWII-wrongs as precedent for their cause.. If the American legal system can be used to obtain $8 billion in compensation from European entities for slavery and other wrongs committed in another part of the world, and over a half-century ago, they argue, why cannot similar compensation be made for slavery that occurred here in the United States, which ended over a century ago, but whose consequences still reverberate today in the African-American community?

Holocaust survivors and their heirs have been seeking restitution over fifty years. The African American slavery reparations movement is well over a century old^[lxxxiii] Since 1989, Michigan Representative John Conyers, Jr., has introduced every year legislation in Congress to study the issue of slavery reparations, all without success. ^[lxxxiv]

An important precedent for African-American reparations was the success of the so-called redress movement for the interment of American citizens of Japanese ancestry in the United States during World War II.^[lxxxv] The redress movement resulted in the passage in 1998 of the Civil Liberties Act^[lxxxvi], which authorized a one-time lump-sum payment of $20,000 to approximately 60,000 Japanese-American survivors of the wartime internment..^[lxxxvii] Equally significant, in 1990, President George Bush issued an apology to the Japanese-Americans on behalf of the United States government for the wartime internment.^[lxxxviii]

In 1999, prominent African-American activist Randall Robinson published The Debt, which forcefully argued for slavery reparations^[lxxxix]. The book's theme, however, did not gain much interest outside the African-American community until Robinson and others began to use the Holocaust restitution movement as a model for their cause. Robinson now was able to entice superstar attorney Johnie Cochran to join the cause, and the talk now is of putting together another "dream team" of lawyers – this time to file suit for African-American slavery restitution.^[xc]

Such a suit would face a variety of procedural legal obstacles. Foremost, of course, would be the statute of limitations. Slavery in the United States ended in 1865, and the suit appears to be time-barred. As with the Holocaust restitution and Japanese slave labor litigation, this can be overcome by the passage of a federal or state law extending the statute of limitations (i.e. the California statutes created a new limitations period for WWII claims, expiring in 2010). More difficult is finding the proper class of aggrieved claimants. In both the Holocaust restitution and Japanese slave labor lawsuits, the plaintiffs were the actual slaves or their immediate heirs. (In the Japanese-American internment movement, the claimants also were individuals who were actually interned by the U.S. government during the war). No former American slaves are alive today to serve as plaintiffs^[xci].

Passage of time, therefore, poses a major legal obstacle for a suit for African-American reparations to be recognized by a U.S. court. Most likely, a suit seeking such damages will be summarily thrown out of court, if ever filed. . In fact, in 1995, the Ninth Circuit affirmed the dismissal of two such suits, brought by African American plaintiffs against the U. S. government seeking reparations.^[xcii] The court of appeals held that: (1) the United States possesses sovereign immunity to such claims; (2) that the claims were time-barred, and (3) claimants lack standing to pursue such claims since they themselves were never slaves^[xciii].

However, when the first Holocaust restitution lawsuit was filed in October, 1996 against the Swiss banks it was also viewed by most legal observers as a "sure loser"; less than two years later, the Swiss banks were ready to pay $1.25 billion to end the litigation. Germany and its industry, in the face of the slave labor litigation, in December, 1999 agreed to pay $10 German marks ($4.8 billion) – even after two New Jersey federal courts ruled months earlier that German companies were immune from such litigation in the United States.

One of the most critical lessons to be learned from the Holocaust restitution movement is that once momentum is created for a cause, which is then embraced by the public and the media, a favorable resolution – either through a court settlement or though the political arena, or both – becomes much more likely.

The call for African-American reparations presently has such momentum. The issue has been featured on all the major American television networks^[xciv], and lengthy and incisive articles have been written about it, including a recent piece in the New York Times^[xcv] and a cover story in the leading American law magazine, the ABA Journal.^[xcvi]

Politicians have also gotten into the act. In 2000, The Chicago City Council passed a resolution calling for federal hearings the issue. Cleveland, Detroit and Dallas also passed similar resolutions^[xcvii]. California, again leading the way, enacted a law in 2001 forcing American insurance companies who sold policies insuring slaves as chattel to disclose information about such policies^[xcviii]. This sets the stage for the next step: filing suits against these insurers for compensation and disgorgement of profits, similar to the earlier Holocaust-era insurance lawsuits and the suits against American insurers for profiting in the aftermath of the Armenian genocide (see below). In March, 2000, Aetna Insurance Company issued an apology for having issued policies to slave owners insuring slaves as property.^[xcix] As with culpable insurers from the Holocaust-era and in the Armenian genocide, public pronouncements of contrition may not be enough. Aetna and other American insurers which issued similar slave policies may now be forced to confront lawsuits and make some form of financial restitution over their long-forgotten activities.

B. INSURANCE CLAIMS ARISING OUT OF THE ARMENIAN GENOCIDE

During the Turkish Ottoman Empire, Armenians and other minorities purchased insurance policies from European and American insurance companies, which marketed their policies in the region. Many of the Armenian purchasers perished in the Armenian genocide during and after World War I. Their relatives, some of whom survived the genocide as young children but are now quite elderly, sought payment from the insurers, claiming that payments was never made.

The first, and to date, only lawsuit filed on these insurance claims was brought by twelve elderly Armenians, all but one who reside in the United States , against the American insurance giant, New York Life Insurance Company. The suit, Marootian v. New York Life Ins. Co.^[c], akin to the Holocaust restitution and Japanese slave labor litigation, was filed as a class action, and sought for New York Life pay on the policies. In response, New York Life filed motions to dismiss. The insurance company did not dispute that it sold such policies to the Armenian population in Ottoman Trukey. In fact, it combed its archives and located records, including aged insurance cards, for 2,300 Armenian policy holders from that time period. It argued, however, that the suit should be dismissed because all of the policies contained forum selection clauses mandating that if a dispute ever arose about the policies, they would be resloved either before French or English courts.^[ci]

An additional problem was the limitations period. Since the policies were written and allegedly unpaid almost a century ago, New York Life could argue that the lawsuits were time-barred.

California again came to the rescue. In 2001, the California legislature enacted a statute similar to the statutes it passed in response to the World War II-era insurance and slave labor litigation. The statute, first, allows suits to collect premiums on Armenian genocide-era policies to be heard in California courts, despite the forum-selection clauses in the policies, and, second, extends the limitations period of such suits to 2010.^[cii]

In May, 2001, New York Life,. to its credit, agreed to settle the matter. The settlement amount was $15 million. ^[ciii] As of June, 2001, the parties are awaiting a "fairness hearing," during which the judge presiding over the case would confirm the settlement. V. THE BENEFICIAL CONSEQUENCES OF HOLOCAUST RESTITUTIONAt the end of World War II, both Holocaust survivors and the new State of Israel (created, to a large extent, by survivors of the Holocaust and which today still has the largest population of Holocaust survivors per capita) found themselves in, what historian Elazar Barkan has called, "the Faustian predicament."^[civ] Should Israel and the survivors accept restitution from a willing West Germany, or is acceptance of such funds amounts to a dishonor to the six million killed by the Nazis? Informal negotiations between West Germany and Jewish representatives began not long after it became clear that the Western allies would not impose onerous reparations on defeated Germany. Jewish and German representatives had to meet in secret, for fear of their personal safety from Jewish opponents who viewed the Jewish delegates as traitors.^[cv]

In September, 1951, the German Bundestag (Parliament), under the government of Chancellor Konrad Adenauer, formally approved restitution payments to the surviving victims and Israel. In January 1952, the Israeli Knesset (Parliament) agreed to authorize negotiations with West Germany over the payments. The debate was raucous, as opponents labelled such payments "blood money." Street demonstrations, led by both opponents and proponents, showed the terrible rift in the Israeli populace over the issue, creating the first great debate in the new Israeli state. The controversy was mirrored outside Israel, as American Jewry and surviving European Jews also held angry exchanges as to how to respond to the West German offer.^[cvi]

Practical pragmatism eventually won out. Israel was in dire financial straits, needing an estimated $1.5 billion to resettle the refugees from Europe. It was agreed that West Germany would pay $1 billion, or two-thirds of that amount. This led to next stage of payments, where individual Holocaust survivors throughout the world began receiving lifetime monthly payments from West Germany. These payments still continue today. To date, Germany has paid approximately $60 billion.^[cvii]

While this amount comes nowhere close to even compensating the material losses suffered by European Jewry during Word War II – never mind the loss of life – at least the debate over whether to accept financial restitution appeared to have been settled by the late1950's.

That, however, does not appear to be the case. The same debate has now reemerged, more than forty years later, with the Holocaust restitution litigation in the United States against the Swiss, German, Austrian and other private European corporations.

The first publicly-raised misgivings over the litigation appeared in late 1998, with two prominent editorials. Abraham Foxman, head of the U.S.-based Anti-Defamation League and himself a Holocaust survivor, in a December, 1998 commentary in the Wall Street Journal, labelled the litigation against the Swiss banks as undignified. In an oft-repeated statement, he decried that this struggle for restitution from the private defendants makes money the "last sound bite" of the Holocaust. According to Foxman, this is a "desecration of the victims, a perversion of why the Nazis had a Final Solution, and too high a price to pay for justice we can never achieve."

Nationally syndicated columnist Charles Krauthammer, that same month published his critique of the litigation under the title "Reducing the Holocaust to Mere Dollars and Cents."^[cviii] Krauthammer suggested that "[i]t should be beneath the dignity of the Jewish people to accept [money], let alone to seek it."^[cix] To Krauthammer, the villains are the lawyers. He accused attorneys representing Holocaust victims of being "shysters" out to commit a "shakedown of Swiss banks, Austrian industry, [and] German auto makers." ^[cx] Krauthammer warned that ‘[t]he scramble for money by lawyers could revive anti-Semitism [in Europe]."^[cxi] .

That same message was a theme in an angry diatribe published last year, with the sensational title, The Holocaust Industry. ^[cxii] In the book, American professor Norman Finkelstein, in an over-the-top style, accused Jewish organizations in the United States of using the Holocaust to perpetuate their existence. Finkelstein claims that these organizations are extorting money from European concerns who are vulnerable to blackmail because they dealt with the Nazis during the war. An anti-Zionist, Finkelstein also sees the movement as part of the drive to "justify [the] criminal policies of the Israeli state."^[cxiii]

Finkelstein's book has largely been ignored in the United States,^[cxiv] but received extensive publicity in Europe. Finkelstein was featured on the BBC as the book was launched in England, and portions of the book were serialized by the the London-based daily The Guardian.^[cxv] The Economist labelled it a "provocative new book."^[cxvi] It still remains on the best-seller lists in many European countries, including Germany and Switzerland.^[cxvii] Finkelstein has been able to reap much of his publicity from "the fact, first that he himself is Jewish and, second, as he repeats shamelessly at every opportunity, that he is the son of Jews who suffered in the Holocaust."^[cxviii]

A more serious critique of Holocaust litigation appeared last year in Commentary, the respected Jewish monthly, written by its senior editor Gabriel Schoenfeld, and entitled Holocaust Reparations – A Growing ScandaI. ^[cxix] Schoenfeld, while not denying the legitimacy of seeking Holocaust restitution payments from the European wrongdoers, expressed concern about how the movement was being conducted. He accused the Jewish community leaders involved in the restitution efforts of ignoring concerns of the individual survivors, frequent lack of adherence to historical truth in making their accusations against the wrongdoers, and failing to see the impact that the movement is having on other Jewish vital interests, primarily the security of the state of Israel.

Schoenfeld and other critics are correct in some points. Actual payments which the Holocaust claimants will receive are minuscule (whether $7,500 or $50,000) compared to the personal and financial losses they suffered. The payments made by the corporate wrongdoers also will come nowhere close to disgorging the profits they made from their dealings with the Nazis or participation in the Holocaust. Antisemitism may increase as a result of these latest financial demands being made on behalf of Jewish victims of the war.

Nevertheless, not seeking financial restitution in the face of documented proof that financial giants worldwide are sitting on billions of funds made on the backs of World War II victims, which they then invested and reinvested many times over during the last half-century, amounts to an injustice that cannot be ignored. Allowing these corporate concerns to escape financial liability amounts to unjust enrichment.

Equally significant, forcing a wrongdoer to pay up is a form of retributive justice. As Stuart Eizenstat, the top U.S. official involved in the Holocaust restitution effort, has observed, "I think there is a certain symbolic quality that only money can convey to repair the injustices."^[cxx] Israel Singer, rabbi and a leader of the World Jewish Congress who intimately was involved in crafting many of the settlements, explains as follows:

I don't want to enter the next millennium as the victim of history. . . . Himmler said

you have to kill all the Jews because if you don't kill them, their grandchildren will ask

for their property back. The Nazis wanted to strip Jews of their human rights, their

financial rights and their rights to life. It was an orderly progression. I want to return

to them all their rights.^[cxxi]

Roger Cohen, in the Washington Post, also accurately answers criticism that seeking compensation and making the wrongdoers pay demeans the memory of the Holocaust:

An immense calamity was committed in Europe, a moral calamity

that left a black hole in the middle of the 20^th century. Money is

the least of it. But money is part of it. Holocaust victims paid once

for being Jewish. Now, in a way, they or their heirs are being asked

to pay again–a virtual Jewish tax which obliges them not to act as

others would in the same situation. But in avoiding one stereotype,

they adopt a worse one–perpetual victim.^[cxxii]

Besides obtaining long-overdue restitution, the litigation in America has produced other beneficial effects.

^[i]. Almost all of the lawsuits filed in the United States to-date stemming from the Holocaust have been against private entities rather than against governments, since litigation against foreign governments would, most likely, be barred by the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1350 et. seq. For examples of unsuccessful Holocaust-era restitution litigation against foreign governments see Princz v. Federal Rep. of Germany, 26 F.3d 66 (D.C. Cir. 1994) (suit against present-day Germany by Jewish-American sent to concentration camp by the Nazis dismissed; Germany subsequently settles with Princz and ten other Holocaust survivors who were American citizens during the war for $2.1 million); Haven v. Rep. of Poland, Case No. 99 C 727, filed on June 25 1999 in the U.S. District Court for the Northern District of Illinois, and dismissed on Sept. 29 1999 (suit dismissed against Poland for failure to return properties to Holocaust survivors from Poland living abroad; case is now on appeal).

^[ii].. In contrast to less than a dozen lawsuits filed in the first fifty years after the end of World War II, since 1996 over 75 lawsuits have been filed in the United States by various World War II survivors or their heirs seeking damages for wartime wrongs. As I describe in another article, "the floodgates of litigation have opened [in the United States]...." Michael J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 Univ. of Richmond L. Rev. 1 (2000). Appendix A of this article ( at pp. 265-71 ) lists every lawsuit filed in the United States since October, 1996, by Holocaust survivors or heirs.

^[iii] See e.g. James Sterngold, Jury Awards Smoker With Lung Cancer $3 Billion From Phillip Morris, New York Times, June 7, 2001, at 1.

^[iv].. In Germany, for instance, every former slave laborer had to file a separate lawsuit against his or her former German corporate master, making slave labor litigation both inefficient and expensive. In the United States, rather than repeating the same claims in hundreds of individual lawsuits, the cases were filed as class actions and could all be consolidated before one judge.

^[v].. David Irving learned the bitter lesson of filing an unsuccessful defamation lawsuit in the UK against Deborah Lipstadt, the American Holocaust scholar, and being forced to pay Lipstadtl"s legal fees. In the United States, Irving would only be assessed court costs.

^[vi]. Smith Kline & French Labs. v. Bloch,[1983] 2 All E.R. 72, 74 (Denning, MR).

^[vii].. For examples of earlier lawsuits brought by Holocaust survivors against private parties which were dismissed by American courts see Kelberine v. Societe Internationale, 363 F.2d 989 (D.C. Cir. 1966)( slave labor class action lawsuit brought by Holocaust survivor against European corporation dismissed as non-justiciable); Handel v. Artukovic, 60 F.Supp. 42 (C.D. Cal. 1985) (class action lawsuit brought by Holocaust survivors from Yugoslavia against former pro-Nazi Croatian official living in the United States dismissed for lack of jurisdiction and also as being time-barred). See also Princz, supra.

^[viii] , 630 F.2d 876 (2d. Cir. 1980).

^[ix].. The Second Circuit found jurisdiction based upon a long-forgotten law, passed by the first U.S. Congress in 1789, entitled the Alien Torts Claims Act, 28 U.S.C. Sec. 1350 ("ATCA"), which declares that federal district courts shall have jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

The Filartiga court found that state-sanctioned torture is a clear violation of the law of nations, or (using modern terminology) international law, and since the plaintiffs were Paraguayan nationals, as aliens, their claims fell within the ambit of the ATCA.

For a treatise discussing the Filartiga case and its aftermath, see Ralph Steinhardt & Anthony D'Amato, (eds.), The Alien Torts Claim Act: An Analytical Anthology (New York: Transnational Pubs. 1999).

Many of the Holocaust-era lawsuits have relied on the ATCA to establish jurisdiction in United States courts. See e.g. Sonabend v. Union Bank of Switzerland,

Case No. CV-97-046 (E.D.N.Y., filed Jan. 29, 1997) (class action against Swiss banks; alien plaintiffs assert jurisdiction under the ATCA); Snopczyk v. Volkswagen AG, Case No. 99-C-0472 (E.D. Wis., filed May 5, 1999)(slave labor lawsuit against VW; alien plaintiffs assert jurisdiction under the ATCA)

^[x].. See e.g. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (lawsuit against Bosnian Serb warlord Rodovan Karadzic brought by victims of Serb atrocitities in Bosnia; in August 2000, jury awards $745 million to plaintiffs); Marcos Estate II, 25 F.3d 467 (9^th Cir. 1994)(lawsuit against estate of former Phillipine dictator Ferdinand Marcos brought by victims of human rights abuses in the Phillipines); Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9^th Cir. 1992) (lawsuit against Argentina for human rights abuses during military rule brought by Argentine Jew and his family); Doe v. Unocal Corp., 963 F.Supp. 880 (C.D. Cal. 1997)(lawsuit against American oil company by Burmese nationals forced to resettle due to building of oil pipeline in Burma).

^[xi] Publ. L. No. 102-256, 106 Stat. 173 (1992) (codified as an amendment to the ATCA at 28 U.S.C. Sec. 1350)

^[xii] In re Holocaust Victim Assets Litigation, Case No. CV-96-4849 (E.D.N.Y 1996.)

^[xiii] Id.

^[xiv] Id.

^[xv] For a detailed discussion of the various defense arguments to the lawsuits presented by the Swiss banks to the lawsuits, see Michael J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. Richmond L. Rev. 1, 39-57 (2000).

^[xvi].. Defendants' Overview Reply Memorandum at (filed July 9, 1997), In re Holocaust Victims Assets, supra.

^[xvii] For a more detailed discussion of the Swiss banks settlement see Michael J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. Richmond L. Rev. 1, 61-88 (2000).

^[xviii].. In January, 1997, Christoph Meili, a night security guard working at the UBS offices in Zurich, discovered such documents in the UBS shredding room, and publicly disclosed the bank's shredding activities.

^[xix] Settlement Agreement, para. 8.2, available at <www.swinkbankclaims.com>.

^[xx].. Settlement Agreement, paragraph 3, available at <www.swissbankclaims.com>.

^[xxi].. Lisa Anderson, Jewish Leaders Hail Decision by Swiss on Stolen War Assets, Chicago Tribune, Aug. 3, 1998 at A3.

^[xxii].. John Authers and Richard Wolfe, When Sanctions Work, Financial Times, Sept. 9, 1998.

^[xxiii]. Deutsche Bank disclosed that officials discovered documents showing a branch of the bank

in Nazi-occupied Katowice, Poland, had provided loans to construction companies with contracts for facilities at Auschwitz, as well as an adjacent IG Farben chemical plant. Brian Milner, Auschwitz Role May Derail Bank Deal–German Institutional's Revelation of Activities During War Adds Firepower to Holocaust Suits, Globe & Mail, Feb. 6, 1999, at A 6.

This information came to light through an independent historical commission created by Deutsche Bank after it was sued. The same commission found that Deutsche Bank l"had bought more than 4.4 tons of gold from the Reichsbank, the onetime central bank. "This gold business

was normal business during the war," [stated a Deutsche Bank spokesperson]. . . . Of purchases totaling 4,446 kilograms of gold, the [historical] report concluded, 744 kilograms were dental

gold taken from Jews" teeth, wedding bands and personal jewelry amassed in Berlin by an SS officer known as Bruno Melmer. . . .[In a statement, Deutsche Bank] "fully acknowledges its moral and ethical responsibility for the darkest chapter of its history."" Alan Cowell, Biggest German Bank Admits and Regrets Dealing in Gold, N.Y. Times, Aug. 1 , 1998, at A2.

^[xxiv]..Holman W. Jenkins, Jr. Once More into the Dock with "Nazi" Companies, Wall Street Journal, March 24, 1999, at A27.

^[xxv] Case No. 98 Civ. 3938 (S.D.N.Y. 1999).

^[xxvi] For a more detailed of the Austrian banks litigation and settlement, see Michael J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. Richmond L. Rev. 1, 239-42 (2000).

^[xxvii]..Bodner v. Banque Paribas, Case No. CV 97-7443 (E.D.N.Y. filed Dec. 7, 1997); Benisti v. Banque Paribas , Case No. CV 98-785 (E.D.N.Y. filed Dec. 23, 1998).

^[xxviii] Memorandum and Order, dated Aug. 31, 2000, Bodner v. Banque Paribas, Case No. 97 CV 7433 (E.D.N.Y. 1997).

^[xxix].. Marilyn Henry, A Holocaust Paper Trail to Nowhere?, Jerusalem Post, May 2, 1999.

^[xxx]. Generali originally maintained that it had no records of policies it issued before the war. In late 1997, however, it revealed that a warehouse at its headquarters in Trieste, Italy, was found to contain partial records (called "water copies," akin to carbon copies) of such policies. Originally, said to contain records of between 330,000 and 384,000 pre-war policyholders, Generali culled the list down to approximately 100,000 policies, which it transferred to a CD-ROM disc. In mid- 1998, it turned over the disc to Yad Vashem to match the names of Holocaust victims found in Yad Vashem's archives with its list. As of June 1, 2001, Yad Vashem still has released its data.

^[xxxi].. For a discussion of the scheme concocted in the aftermath of Kristalnacht, as well as a general discussion of the Holocaust-era restitution claims, see Deborah Senn, Private Insurers and Unpaid Holocaust Era Insurance Claims (Olympia, Wash: Washington State Insurance Commission, 1999), available at <http://www.insurance.wa. gov>.

^[xxxii]. The other three insurers participating in ICHEIC are France's AXA, and Swiss insurers Winterhur Lieben (owned by Credit Suisse Bank), and Zurich. Eagleburger has attempted to have the other European insurers sued join the Commission, but, so far, without success.

^[xxxiii].. In addition to the participating insurance companies and the insurance commissioners of the three states, the World Jewish Congress, the Claims Conference, and the World Jewish Restitution Organization (all related NGOs), as well as the State of Israel, have a seat on the ICHEIC board.

^[xxxiv]See Henry Weinstein, Spending by Holocaust Claims Panel Criticized, L.A.Times, May 17, 2001, at 1. See also Michael Maiello & Robert Lenzer, The Last Victims: As the Jews Fled the Holocaust, European Insurers Pocketed Their Premiums. Decades Later, they Promised Compensation. But So Far, They've Paid Out a Pittance, Forbes, May 14, 2001, at 112.

^[xxxv] Weinstein, supra. According to Forbes,

[As of May, 2001,] 70,000 claims have been filed with [ICHEIC] – but over 80% of them still haven't been processed. Only 9,600 have reached a final ruling, and the commission

has made settlement offers in a mere 496 cases, totaling only $5.7 million, an

average of less than $12,000 per claimant – a tiny sum given the value of money,

the equivalent of $300 compounded at 7% since the end of World War II.

Maiello & Lenzer, supra (emphasis added).

^[xxxvi]. A substantial reason for settlement of these individual suits in California has been the aggressive stance taken by California against the insurers accused of failing to honor Holocaust-era insurance claims. California led the way in enacting new laws threatening suspension of licenses of such insurers (California Insurance Code Sections 790-790.15, enacted in 1998), requiring the insurers to open their pre-war insurance records (California Insurance Code Section 3800, enacted in 1999), and extending the limitations period for filing suits for such claims until 3 December 2010 (California Code of Civil Procedure Section 354.5, enacted in 1998). The states of Washington and Florida have followed suit by enacting similar statutes. See Holocaust Victim Insurance Act, Fla. Statutes, chapter 626.9543 (1999); Holocaust Victims Insurance Relief Act, Wash. Revised Code Section 48. 04.060 (1999) and Holocaust Victims Insurance Act, Wash. Revised Code Section 48. 04.040 (1999). The insurance companies have challenged these statutes, asserting that they are unconstitutional. To date, no final ruling has been issued on this question.

^[xxxvii].. Holocaust Insurance Settlement Reported, N.Y. Times, Nov. 25, 1999, at A4, reporting settlement of Stern v. Generali, a case filed by a Holocaust survivor, Adolf Stern, 82 years old, and his family for policies purchased from Generali by his father Moshe "Mor" Stern, a wealthy wine and spirits merchant from Uzghorod, Hungary, who perished at Auschwitz. In June, 1945, Adolf, who survived Buchenwald and was then 28-years old, presented himself to Generalil"s offices in Prague seeking payment on the policies. At his deposition, Adolf testified that the Generali officials demanded that he produce a death certificate for Mor. When Adolf explained that the Nazis did not issue death certificates, he was forcibly ejected from Generali's offices. Deposition of Adolf Stern, at. 26-27.

^[xxxviii].. As stated by Bernard Graef, head of the Volkswagen historical archives: "From a legal position the crimes of the Nazis were a state crime, and the issue of slave labor compensation must be addressed to the [German] government" Adam Lebor, Holocaust Slaves Set to Gain Compensation, Independent (London), Aug. 22, 1998, at 5 (quoting Mr. Graef).

^[xxxix] Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424 (D.N.J. 1999))

^[xl] Burger-Fischer v. Degussa A.G., 65 F. Supp.2d 248 (D.N.J. 1999)).

^[xli].. In addition to claims for slave labor, the settlement also includes: (1 ) claims by mothers shipped to Germany whose children were taken away from them and placed in a kinderheim, a children's home, where they often died; and (2) claims by survivors of horrific medical experiments conducted by the Nazis, allegedly for the benefit of German private pharmaceutical concerns.

^[xlii] Count Otto Lambsdorff, the German government representative to the slave labor negotiations, testifying before the U.S. Congress, defended the settlement figure as follows: "Believe me, I wish I had greater funds available for distribution. But 10 billion marks is what we got and what was agreed upon all the participating parties after long and arduous negotiations."

U.S. House of Representatives, 106^th Congress, "Hearing of the Committee on Banking and Financial Services, at 6 ( Feb. 9, 2000).

^[xliii] Carol J. Williams, Germany Oks Funds for Nazi Slave Laborers, L.A. Times, May 31, 2001 at A9..

^[xliv] INTERNATIONAL MONITOR, Aug. 2000, p. 1 , available at < (website of the Office the New York City Comptroller Alan G. Hevesi, head of the U.S.-based Executive Monitoring Committee, "a panel of [U.S. state and local] public and regulatory officials who monitor worldwide progress in Holocaust-era asset restitution efforts".

^[xlv]. Roger Cohen, German Companies Set up Fund for Slave Laborers under Nazis, New York Times, Feb. 7, 1999 at A1.

^[xlvi] See < (preamble of the German Economy Foundation Initiative Steering Group).

^[xlvii] Grant McCool, U.S. Judge Helps Clear Holocaust Payment Obstacle, New York Times, May 16, 2001, at A1.

^[xlviii] In the interest of full disclosure, I note that I have advised plaintiffs' counsel in this litigation, even though I am not counsel of record in any of the cases. I have not been involved in the Holocaust restitution litigation.

^[xlix].. For news articles describing the ongoing claims made against both Japan and Japanese corporations, see Mark Fritz, Calling Japan to Account, Boston Globe, May 31, 2001 at A1;

Michael Dobbs, Lawyers Target Japanese Abuses, Washington Post,

March 5, 2000 at A1; Mike Tharp, Past-Due Bills for Japan, U.S. News & World Report, Feb. 7,. 2000, at 30; Sonni Efron, U.S. Rabbi Presses Japan To Investigate Its War Crimes, L.A. Times, Feb. 9, 2000 at A6; Shirley Leung, Suit Will Test State Law on War Labor, Wall Street Journal, Oct. 27, 1999, at CA1; Teresa Watanabe, Japan's War Victims in New Battle, L.A. Times, Aug. 6, 1999 at A1 .

In the U.K., the government has paid compensation to British soldiers captured by the Japanese during the war, each POW receiving 10,000 pounds. See Payments to Begin for Former POWs, L.A. Times, Feb. 1, 2001, at A4.

^[l] In fact, many of the attorneys involved in the Holocaust restitution litigation are now. acting as counsel for claimants in the litigation against the Japanese companies.

^[li] See Linda Goetz Holmes, Unjust Enrichment: How Japan's Companies Built Postwar Fortunes Using American POWs , (Stackpole Books 2001), p. xvii.

^[lii] The U.S. government-created Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group ("IWG") is now searching through U.S. archives to ferret out, among other matters, information detailing the wartime activities of Japanese companies. See < detailing the work of the IWG.

^[liii]See Elizabeth Rosenthal, Wartime Slaves Use U.S. Law to Sue Japanese, New York Times, Oct. 10, 2000, at A1.

^[liv] Levenberg v. Nippon Sharyo Ltd, Case No. C-99-1554 (N.D. Cal., filed July 16, 1999).

^[lv] See e.g. Jackfert v. Kawasaki Heavy Industries, Ltd., Case No. CIV 99 1019 (D. New Mexico, filed Sept. 13, 1999).

^[lvi] CAL. CIV. PROC. CODE Sec. 354.6 (West Supp. 2000).

^[lvii] Id.

^[lviii] The legislative history of CCP Sec. 354.6 sets outs the statute's primary objective as follows:

" According to the author [California State Senator Tom Hayden], ‘thousands of elderly California residents are survivors of slave labor exploitiation carried out by the Nazis during the Holocaust, living victims of the "real profiteers" of Hitler's Third Reich. These slave laborers and their heirs are entitled to seek just compensation from their oppressors.' SB 1245 would allow for victims to attempt to seek such compensation." SB 1245 Senate Bill - Bill Analysis, available at <www.ftp://leginfo. public.ca.gov/pub/bi..._cfa_19990628_172504_asm_comm.html>. See also Henry Weinstein, Bill Signed Bolstering Holocaust-Era Claims, L.A. Times, July 29, 1999 at A:3.

^[lix] See supra Section III ("Cases Stemming From the Use of German and Austrian Slave Labor").

^[lx] For a list of lawsuits filed to-date in the United States against Japanese companies (maintained by the author) see <www.law.whittier.edu/sypo/final/lawsuit.htm>

^[lxi] Goetz points out that "Kawasaki Heavy Industries used at least 250 American POWs for slave labor at its shipyard in Kobe, but the company was awarded a $190 million contract in December 1998 by the Metropolitan Transit Authority of New York to build 100 new subway cars. Kawasaki was awarded even larger contracts by transportation departments in Maryland and Boston, but our ex-POWs never got a dime from their former ‘employer.'" Goetz, supra, at xix.

^[lxii] In re World War II Era Japanese Forced Labor Litigation, MDL Docket No. 1347 (N.D. Ca. June 5, 2000). In the Swiss banks litigation, the terms "slave labor" and "forced labor" were used interchangeably. In the Holocaust litigaton against German companies, plaintiffs' lawyers began to distinguish between "slave laborers" and "forced laborers," defining the former as "concentration camp inmates earmarked for extermination" and the latter as "conquered civilain population and prisoners of war." See e.g. Class Action Complaint and Jury Demand, para. 22, Rosenberg v. Continental AG, Case No. 99 DC 01892 (D.N.J. Apr. 26, 1999). However, such a distinction was never adopted by the Nuremberg Tribunal. See The Nurnberg Trial, 6 F.R.D. at 123-26 (discussing slave labor policies of the Nazis). In the Japanese litigation, the two terms also have been used interchangeably.

^[lxiii]In re World War II Era Japanese Forced Labor Litigation, 114 F.Supp.2d 939 (N.D. Cal. 2000).

^[lxiv]Treaty of Peace with Japan, Sept. 8, 1951, 3 UST 3169, 136 UNTS 45.

^[lxv] In re World War II Era Japanese Forced Labor Litigation, 114 F. Supp.2d, at 945.

^[lxvi] The United States appeared in response to a request by Judge Walker that the U.S. government express its views on whether federal or state law should cover the POWS claims. The United States, in response, not only answered this question – stating that federal law should govern – but also opined that article 14(b) of the 1951 Peace Treaty precluded the claims. 114 F. Supp. at 939, 948.

^[lxvii] Id. at 948.

^[lxviii] See supra Section III ("Cases Stemming from the Use of German and Austrian Slave Labor").

On the eve of his departure from the U.S. government, Deputy Treasury Secretary Stuart Eizenstat, President Clinton's special representative on Holocaust issues, expressed in an interview that "one of his regrets was his inability to get Japan to make a similar commitment to Chinese, Korean and others whose assets had been seized or who had been forced into slave labor. ‘The 1951 treaty with Japan clearly foreclosed a lot of options to seek redress, he said, adding, ‘In the end we never heard back from the Japanese government or companies.'" David Sanger, Report on Holocaust Assets Tells of Items Found in the U.S., New York Times, Jan. 17, 2001 at A3. Eizenstat, however, did not explain why he continued negotiations with Germany and its industry even after the U.S. courts held that the postwar treaties with Germany also precluded the claims of the slave laborers from Nazi-occupied Europe.

^[lxix] Former U.S. World War II POWs: A Struggle for Justice, Hearing before the Senate Comm. on the Judiciary, 106 Cong. 14 (2000) [hereinafter "Sen. Judiciary Comm. Hearing"].

^[lxx] Referring to article 14(b) of the Peace Treaty, the State Department representative stated: "This is clear and unequivocal language: all reparations claims against Japan and its nationals.. . . The overreaching intent of those who negotiated, signed, and ultimately ratified this Treaty was to bring about a complete, global settlement of all war-related claims, in order both to provide compensation to the victims of the war and to rebuild Japan's economy and convert Japan into a strong ally. It was recognized at the time that those goals could not have been served had the Treaty left open the possibility of continued, open-ended legal liability of Japanese industry for its wartime actions. " Id. at 14-15 (statement of Ronald J. Bettauer, U.S. State Dept. Deputy Legal Adviser).

^[lxxi] Id.

^[lxxii] Statement of Interest of the United States of America, In re World War II Era Japanese Forced Labor Litigation (Sun Yoon Kim v. Ishikawajima Harima Heavy Industries), Master MDL Docket No. 1347 (N.D. Cal., filed Dec. 13, 2000). .

^[lxxiii] Statement of Interest of the United States of America, Hwang Geum Joo v. Japan, Case No. 00-CV–288 (D.D.C., filed April 27, 2001); see also Bill Miller, U.S. Resists ‘Comfort Women' Suit, Washington Post, May 14, 2001 at A1.

^[lxxiv] Titherington v. Japan Energy Corp., Case No. 00-17111, (U. S. Court of Appeals for the Ninth Circuit, appeal filed Oct. 25, 2000).

^[lxxv] Black's Law Dictionary at 1298 (6^th ed. 1990).

^[lxxvi] The term "in the prosecution of the war" is never defined in the 1951 Peace Treaty. However, before the Senate Judiciary Committee hearing, three international law professors submitted opinions stating that the claims being made in the Japanese slave labor litigation do not come fall within the meaning of that term. See Senate Judiciary Comm. Hearing, supra, at .

^[lxxvii] Kawakita v. United States, 343 U.S. 717 (1952). Defendant Kawakita defended his actions on the ground of coercion. He argued before the Supreme Court that, as an employee of Oeyama Nickel, which used soldiers captured by the Japanese military as captive labor, he was part of the Japanese war effort The Supreme Court rejected this characterization of his status and that of Oeyama Nickel:

The Oeyama Nickel Industry Co., Ltd., was a private company, organized

for profit. . . .The company's mine and factory were manned in part by prisoners

of war. They lived in a camp controlled by the Japanese army. Though petitioner

[Kawakita] took orders from the military, he was not a soldier in the armed

services. . . His employment was as an interpreter for the Oeyama Nickel Industry

Co., Ltd., a private company. The regulation of the company by the Japanese

government, the freezing of its labor force, the assignment to if of prisoners

of war under military command wre incidents of a war economy. But we find

no indication that the Oyeama Company was nationalized or its properties

seized and operated by the government. The evidence indicates that it was part

of a regimented industry; but it was an organization operating for private profit

under private management.

Id. at 727-28.

^[lxxviii] Article 26 provides: "Should Japan make a peace settlement or war claims settlement with any State granting that State greater advantages than those provided by the present Treaty, those same advantages shall be extended to the parties to the present Treaty."

^[lxxix] For example, in the bilateral Japan-Netherlands Treaty, entered into in 1956, Japan, "[f]or the purpose of expressing sympathy and regret for the sufferings inflicted during the Second World War by agencies of the Government of Japan upon Netherlands nationals," agreed to pay

$10 million "to the Government of the Kingdom of The Netherlands on behalf of those Netherlands nationals." Protocol Between the Government the Kingdom of the Netherlands and the Government of Japan Relating to Settlement of the Problem Concerning Certain Types of Private Claims of Netherlands Nationals, art. 1 (No. 3554, signed on March 13, 1956).

^[lxxx] Courts have also called this type of clause in treaties a "most favored nation" clause, borrowing the phrase from economic trade agreements. See e.g. United States v. Cole, 717 F. Supp. 309 (E.D. Penn. 1989).

^[lxxxi] In re World War II Era Japanese Forced Labor Litigation, 114 F. Supp.2d, at 945.

^[lxxxii] Justice for United States Prisoners of War Act of 2001, H.R. 1198 (introduced in the U.S. House of Representatives on March 22, 2001). Section 3(a)(2) of the bill also would specifically construe section 14(b) of the 1951 Peace Treaty as not "constituting a waiver by by the United States of claims by nationals of the United States, including claims by members of the United States Armed Forces, so as to preclude [litigation of such claims]." Id. .

^[lxxxiii] For a history of the African-American reparations movement, see Robert Wesley, Many Billions Gone: Is It Time To Reconsider the Case for Black Reparations?, 40 B.C. L. Rev. 429 (1998).

^[lxxxiv] Tamar Levin, Calls for Slavery Restitution Getting Louder, New York Times, June 4, 2001, at 1.

^[lxxxv] For a discussion of the parallels between the two movements, see Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 19 B. C. Third World L.J. 477 (1988).

^[lxxxvi] 50 U.S.C. app. Section 1989(b)-4. See also Mochizuki v. United States, 43 Fed. Cl. 97 (Fed. Cl. 1999).

^[lxxxvii] For a discussion of the movement for payments and apology for the wartime internment of Americans of Japanese ancestry, see Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices at 30-41 (Norton 2000) and sources cited therein.

^[lxxxviii] "A monetary sum and words alone cannot restore lost years or erase painful memories; neither can they fully convey our Nation's resolve to rectify injustices and to uphold the rights of individuals. We can never fully right the wrongs of the past. . . In enacting a law calling for restitution and offering a sincere apology, your fellow Americans have, in a very real sense, renewed their traditional commitment to the ideals of freedom, equallity and justice." Barkan, supra, at 34 (quoting President George Bush).

^[lxxxix] Randall N. Robinson, The Debt: What America Owes to Blacks (Dutton/Plume 1999).

^[xc]Rick Montgomery, Emotions High When The Issue Is Reparations; Push to Make Amends for Slavery Advances, The Kansas City Star, March 11, 2001, at A1. Others on the reparations legal "dream team" include Harvard Law School professor Charles Ogletree. The formal name of the legal team is "The Reparations Coordinating Committee." Tamar Levin, Calls for Slavery Restitution Getting Louder, New York Times, June 4, 2001, at 1.

A separate legal team, the "Reparations Litigation Committee," established by the National Coalition of Blacks for Reparations in America (N'COBRA), is also planning to file suit. See <www.ncobra.com>.

^[xci] Stuart Eizenstat, President Clinton's chief envoy on Holocaust restitution and one of the chief architects of the Holocaust-era settlements, explains the difference between the two movements as follows: "For slavery qua slavery, I think the appropriate remedy is affirmative government action in general, rather than reparations. . . And if 100 years from now the great-great- grandson of a Holocaust laborer asked for reparations, I don't think that would be appropriate, unless there was some specific property that had been confiscated that they wanted to cover." Tamar Levin, Calls for Slavery Restitution Getting Louder, New York Times, June 4, 2001, at 1.

^[xcii] Cato v. United States, 70 F.3rd 1103 (9^th Cir. 1995).

^[xciii] Id. at 1107-1111.

^[xciv] See e.g. ABC News 20/20, America's IOU: Debate Over Reparations To Black Americans For Slavery (program screened on March 23, 2001; full transcript available at < , 2001 WL 21803895).

^[xcv] Tamar Levin, Calls for Slavery Restitution Getting Louder, New York Times, June 4, 2001, at 1.

^[xcvi] ABA Journal, , 2000. For a view, by an African-American, arguing against the reparatons movement, see Jack E. White, Don't Waste Your Breath, TIME, April 2, 2001, at 48.

^[xcvii] Rick Montgomery, Emotions High When The Issue Is Reparations; Push to Make Amends for Slavery Advances, The Kansas City Star, March 11, 2001, at A1.

^[xcviii] CALIFORNIA INSURANCE CODE SECTIONS 13811 - 13813

^[xcix] Peter Slevin, In Aetna Archives, Insurance Policies on Slaves for Owners, Washington Post, March 9, 2000, at A17.

^[c] Case No. 99-12073 (C.D. Cal. 1999, filed Jan. 17, 2000).

^[ci] Mem. of Points of Authorities In Support of Defendant's Motion To Dismiss Due To Improper Venue, Marootian v. New York Life Ins. Co., . filed March 10, 2000 (Case No. 99-12073, C.D. Cal. 1999). The policies purportedly contain one of the following two forum selection clauses: 1) "For the enforcement of this document, the civil Courts of France will be the only competent courts"; or 2) "Any action or proceeding under this Policy shall be brought in the London Courts." Id. at 2..

^[cii] The applicable provisions of the new statute, CALIFORNIA CODE OF CIVIL PROCEDURE, SECTION 354.4, read:

"(b) Notwithstanding any other provision of law, any Armenian genocide victim,

or heir or beneficiary of an Armerican Genocide victim, who resides in this

state and has a claim arising out of an insurance policy or policies purchased

or in effect in Europe or Asia between 1875 and 1923 from an insurer. . . may

bring a legal action or may continue a pending legal action to recover on that

claim in any court of competent jurisdiction in this state, which shall be deemed

to be the proper forum for that action until its completion or resolution

victim, whether a resident or nonresident of this state, seeking benefits under the

insurance policies issued or in effect between 1875 and 1923 shall not be dismissed

for failure to comply with the applicable statute of limitations, provided the action

is filed on or before December 31, 2010.

Id., Sections 354(b) and (c).

^[ciii] Nathan Vardi, Settling A Case – After 85 Years, Forbes, May 14, 2001, at 120. See also Beverly Beyette, He Stands Up In The Name of Armenians, Los Angeles Times, Apr. 27, 2001, at E-1.

^[civ] Id. at 3.

^[cv] Interview by author with Benjamin Ferencz, one of the Jewish representatives to the negotiations, April 23, 2001.

^[cvi] Barkan, supra, at 9, 23-27.

^[cvii] The Conference on Material Claims Against Germany, 1998 Annual Report, at 1 ("Since the end of the initial negotiations in 1952, the German government has paid more than DM 118 billion in indemnification for suffering and loses resulting from Nazi persecution'). The Claims Conference is the umbrella organization for worldwide Jewry dealing with wartime compensation from Germany and Austria. See Ronald W. Zweig, German Reparations and the Jewish World: A History of the Claims Conference (Westview Press 1987). See also Michael J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. Richmond L. Rev. 1, 25- 28 (collecting criticism and litigation against the Claims Conference by Holocaust survivors and others).

^[cviii] Charles Krauthammer, Reducing the Holocaust to Mere Dollars and Cents, L.A. Times, Dec. 11, 1998, at 26.

^[cix] Id.

^[cx] Id.

^[cxi] Id.

^[cxii] Norman Finkelstein, The Holocaust Industry: Reflections on the Exploitation of Jewish Suffering ( Vesco, 2000).

^[cxiii] Id. at .

^[cxiv]"While some leading American historians have welcomed Mr. Finkelstein's determination to open up the subject of how the Holocaust is remembered for debate, they have generally been fiercely critical of his conspiracy theories about American Jews and contested the accuracy of the book." Roger Cohen, Book Calling Holocaust A Shakedown Starts A German Storm, New York Times, Feb. 8, 2001 at 1. For a well-written, critical review, see Mike Steinberger, He Could Have Been A Star, The Jerusalem Report, Aug, 28, 2000, at 44.

^[cxv] Norman Finkelstein, The Holocaust Industry, The Guardian, July 12, 2000 at 1 and July 13, 2000, at 1.

^[cxvi] Explosive Charges, The Economist, Aug, 5, 2000, at 103. The book reviewer concludes:

" [Finkelstein] is obsessive, and he rants. Yet his basic argument that memories of the Holocaust are being debased is serious and should be given its due." Id.

^[cxvii] See e.g. German weekly Der Spiegel, 17/2001, at 217, listing Die Holocaust-Industrie as #2 on the non-fiction German best seller list. See also Roger Cohen, Book Calling Holocaust A Shakedown Starts a German Storm, New York Times, Feb. 8, 2001, at 1: "The publication of a book here today by an American historian declaring that the Holocaust has become an ‘extortion racket' through which some Jews blackmail Germany has ignited a stormy debate. A television. documentary on the author, Norman Finkelstein, . . .was canceled at the last moment. . . . Mr. Finkelstein, protected by security guards, and looking tense, said he was ‘concerned about the enthusiastic reception of my book that may occur in right-wing circles'. . . .But the author, who teaches at Hunter College, said his worries about how the German right would use his book were outweighed by his determination to put ‘the Holocaust industry out of business' and so end what he called the ‘exploitation of my parents' memory.'" .

^[cxviii] Controversy: Holocaust Reparations, Commentary at 20 (Jan. 2001)( comment by Gabriel Schoenfeld).

^[cxix] Gabriel Schoenfeld, Holocaust Reparations – A Growing ScandaI. Commentary at 1 (Sept. 2000).

^[cxx] Richard Wolffe, Putting A Price On the Holocaust, Irish Times, March 16, 1999, at 15.

^[cxxi] Id.

^[cxxii].. Cohen, supra.

^[cxxiii]. For example, Switzerland created a historical commission headed by Swiss historian Francois Bergier, to examine its role during World War II. In 1999, the Commission issued its report castigating both the private Swiss banks and the Swiss government for their dealings with the Nazis, and corroborating most of the allegations made in the Holocaust lawsuits filed in the U.S. See Independent Commission of Experts, Second World War, Switzerland and Refugees in the Nazi Era (1999) (report of Bergier Commission on wartime treatment of refugees by Switzerland).

Similarly, France created a historical commission under former Cabinet minister and Resistance hero Jean Matteoli to examine the looting of assets of Jews in wartime France. The Matteoli Commission likewise accused wartime French officials of theft of Jewish assets, and recommended restitution. See The Prime Minister's Office, Extracts From the Second Report of the Study Mission Into the Looting of Jewish Assets in France (1999).

Sweden, like Switzerland also a WWII neutral, in 1997 created a commission to determine the fate of Jewish assets which made their way to the country in the pre-war and war years. In March, 1999, the commission submitted its final report. See Sweden and Jewish Assets: Final Report From the Commission on Jewish Assets At the Time of the Second World War (1999). To its surprise, the commission found that the issues of Sweden's wartime role as a haven for Jewish assets and as a possible, but unintended, accomplice to the Nazi atrocities have never been examined in Sweden. The commission called for further research in three areas: (1) whether Sweden's trade with Nazi Germany prolonged the war and persecution of the Jews; (2) the relation of Swedish industry to Jews and Jewish businesses at the time of the Nazi persecutions; and (3) persecution in wartime Europe of the non-Jewish victims of Nazi Germany. Id. at 18.

In mid-2001, an Italian government commission created in 1998 issued its final report. It determined that both Italian Fascists and Nazis systematically plundered Jewish assets in Italy. Allesandra Rizzo, Italy Panel Finds Asset Plundering, AP Online, May 2, 2001. Italian Premier Guiliano Amato stated that the report's findings left him " breathless." Id.

^[cxxiv].. For example, the Swiss Bankers Association created the Volcker Committee to determine the Swiss banks" dealing with the Nazis. See Independent Committee of Eminent Persons, Report on

Dormant Accounts of Victims of Nazi Persecution ( 999). Deutsche Bank also hired a team of historians to examine its wartime activities. See Jonathan Steinberg, The Deutsche Bank and its Gold Transactions During the Second World War (30 July 1998). Other German companies have followed suit. As reported by The New York Times, l"the lawsuits have also created a mini-boom for . . . [World War II-era] historians and research [scholars].l" Barry Meier, l"Chronicles of Collaboration: Historians Are in Demand to Study Corporate Ties to Nazis, New York Times, Feb. 8 1999 at C1. .

^[cxxv] The Commission maintains a web site at <www.pcha .gov>.

^[cxxvi] See Plunder and Restitution: The U.S. and Holocaust Victims' Assets -- Report to the President of the Presidential Advisory Commission on Holocaust Assets in the United States (December 2000).

^[cxxvii] Id., at SR-113-117. For a copy of the report, see <www.pcha.gov/pr993 7.htm>.

^[cxxviii] Rosner v. United States of America, Case No. , (S.D. Fla.., filed May 7, 2001).

^[cxxix] Henry Weinstein, Hungarians Sue U.S. Over Seized Holocaust Loot Reparations: Plaintiffs Seek Payment For Assets Stolen by Nazis and Captured by Americans, L.A. Times, May 8, 2001, at A14.

^[cxxx] Edwin Black, The IBM and the Holocaust (Crown 2001).

^[cxxxi] Id. The lawsuit has been temporarily dropped to effectuate the German slave labor settlement, since IBM-Germany is participating in that settlement. For the current state of the litigation, see <www.cmht.com> (web site for Cohen, Milstein, Hausfeld & Toll, attorneys for plaintiffs in the lawsuit).

^[cxxxii] For a discussion of these lawsuits, see Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 Univ. of Richmond L. Rev. 1, 259-262 (2000).

^[cxxxiii] Isaac Gilbert, Panel to Probe Holocaust-Era Assets, The Jerusalem Post, Apr. 20, 2001, at 5A.