THE HOLOCAUST RESTITUTION MOVEMENT IN
COMPARATIVE PERSPECTIVE
Paper
presented at the Association of
Genocide Scholars
Fourth
Biennial Conference – June, 2001
Minneapolis, MN
Michael J. Bazyler
Professor of Law
Whittier Law School
Costa Mesa, California
USA
and
Research Fellow
Holocaust Educational
Trust
London, UK
Tel: 714.444.4141 x.216
bazyler@aol.com
I. INTRODUCTION
This
paper examines the role of law in dealing with genocide and other gross human
rights abuses. The focus is on the
use of civil litigation as an instrument for achieving some measure of justice
for human rights violations, separately and apart from bringing criminal
proceedings against the perpetrators.
The
specific scenario examined is the Holocaust restitution movement in the United
States, whose aim is to obtain financial
restitution from European and American corporations[i] for their nefarious
activities during World War II. The
paper then examines other movements
for historical wrongs, which arose as a direct result of the successes achieved
in the Holocaust restitution arena.
Three such prominent movements are: (1) the lawsuits filed by victims of
Japan and Japanese industry for wrongs committed during World War II; (2) the emerging call for African-American
reparations stemming from
slavery; and (3) the recent claims being made by
survivors of the Armenian genocide for insurance proceeds paid by their deceased
relatives. All of these movements are a direct outgrowth of the
successes achieved in the Holocaust restitution arena.
The fact that American courts are being
used today to deal with wrongs committed during World War II – over one-half
century after the events took place – is astounding. In the history of American
litigation, a class of cases has never appeared in which so much time had passed
between the wrongful act and the filing of a lawsuit. Most surprisingly, the recent spate of
Holocaust restitution lawsuits, for
the most part, have been successful. This is in contrast to Holocaust-era suits
filed between 1945 and 1995, when
less than one dozen lawsuits were
filed in American courts seeking compensation for World War II-era wrongs, with
most of these being summarily
dismissed.[ii]
As a result of the U.S.-based litigation, and concomitant political
efforts, taken place over the last six years – an astoundingly short period of time
– pledges to settle Holocaust-era
claims now total over $8 billion.
The
Holocaust did not occur in the United States, but in Europe. Most Holocaust survivors also
reside outside of the United
States. It is the United States
legal system, however, that has taken
the lead in delivering some measure of long-overdue justice to aging
Holocaust survivors.
Why
the United States? As with all
transnational litigation today, the highly-developed and expansive system of
American justice makes the United States the best – and, in most instances, the
only – legal forum for the disposition of such claims. American courts have a long history of
recognizing jurisdiction over defendants where courts of other countries would
find jurisdiction lacking. American-style discovery, mostly unknown in Europe, allows the
plaintiffs" lawyer to develop the case through production of documents requests,
requests for admission, and depositions of adverse parties and witnesses during
the pre-trial process, rather than having all the evidence available at the
outset of the litigation.
Guarantee of jury trials in
civil cases – and a culture where juries are accustomed to granting awards in
the millions (or even billions) of dollars[iii], both as
compensation and as punitive damages – makes the filing of a Holocaust-era
lawsuit in the United States more likely of financial success. The existence of the concept of a "class
action", where representative plaintiffs can file suit not only on their behalf,
but also on behalf of all others similarly situated, creates a more efficient
system of filing suits and raises the prospect of large awards against the
wrongdoers.[iv]
Moreover, American attorneys are greater
risk-takers than their European counterparts, and, unlike in most other
countries, can take a case on a "contingency basis"–where the client does not
pay if the case is unsuccessful, but must share a percentage of the award if the
case succeeds. Moreover, in the
United States, a losing party, except in unusual cases, does not pay the
attorneys' fees of the successful
litigant. As a result, an American
lawyer has less to lose if the case fails, and, therefore, is more likely to
file suit.[v]
.
The recognition of American courts as the most desirable forum for
transnational litigation was recognized by the great British jurist Lord Denning, when he wryly
observed in an English court opinion: "As a moth is drawn to light, so is a
litigant drawn to the United States.
If he can only get his case into their courts, he stands to win a
fortune."[vi]
The stark reality, however, is that until
recently, a Holocaust-era lawsuit would have been summarily dismissed if brought
in the United States.[vii] What made these lawsuits possible is the
development of human rights law by courts in the United States over the last two
decades. An American court today is
more likely to allow a human rights case to proceed forward even if (1)
the
acts complained of did not occur in the United States and (2) are brought by a foreign plaintiff.
The
recognition of such suits began with the seminal opinion of Filartiga v.
Pena[viii], where the Second Circuit of the Court of
Appeals held that the Paraguayan father and sister of a victim of
state-sanctioned torture and killing committed in Paraguay can sue the
perpetrator, a government official, if the perpetrator is found in the United
States.[ix]
This decision opened the door to a number of other
human rights victims injured abroad also to successfully bring suit in the
United States.[x] In 1992, Congress confirmed the right of
victims of foreign torture
to sue in American courts by enacting the Torture Victims Protection Act
(hereinafter "TVPA"). [xi].
Without the groundwork laid
out by Filartiga , the cases
that followed it, and the TVPA, the recently-filed Holocaust-era cases
surely would have been summarily dismissed.
II. HOLOCAUST RESTITUTION EFFORTS IN THE
UNITED STATES
A. CASES AGAINST EUROPEAN BANKS
1. Swiss banks litigation
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 20th 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.
The litigation has forced
European governments to create various historical commissions,[cxxiii] which have
unearthed new and valuable information about the financial wrongs committed
against European Jewry during the war.
Private
companies, against whom similar accusations have been made, are likewise putting
Holocaust historians on retainer and, for the first time ever, opening up their
wartime files for inspection.[cxxiv]
In
the United States, former President Clinton created the Presidential Commission on
Holocaust Assets to ferret out Nazi-stolen loot which may have gotten into
U.S.-government hands in the
aftermath of the war.[cxxv] The Commission issued its final report in December,
2000.[cxxvi] The report included a study of the plunder by
American troops of a train loaded with gold, artworks, and other valuables
stolen from the Hungarian Jews by the Nazis. The train was captured by the
Allies on May 16, 1945, a
week after V-E Day. According to
the report, in a notable exception to the generally good effort of American
troops to restore property to its rightful owners, both high-ranking U.S. Army
officers and lower-level personnel may have helped themselves to these
valuables, rather than returning them to the Hungarian Holocaust survivors or
the postwar Hungarian Jewish community.[cxxvii]
In
May, 2001, a group of Holocaust
survivors from Hungary sued the United States, seeking restitution for the
American military's complicity in the so-called "Hungarian gold" theft.[cxxviii] According to one of plaintiffs'
attorneys, "This is the first case of its type – a class action brought on
behalf of Holocaust survivors that charges the U.S. government with improperly
disposing of assets."[cxxix]
Earlier
that year, IBM was sued for its wartime dealings with the Nazis after
publication of a sensational study examining IBM's role in supplying the Nazis
with custom-made IBM-created punch cards and tabulating machines (which were
precursors to modern computers). [cxxx] The IBM
equipment apparently enabled the Nazis to identify and categorize their Jewish
victims. [cxxxi] Suits also have
been filed against Ford Motor Company, General Motors, and American financial
giants Chase Manhattan Bank and J.P. Morgan & Company. All have accused of profiting from the
Holocaust.[cxxxii]
Strangely,
therefore, the Holocaust restitution movement, born in the United States with a specific focus to determine
wartime financial misfeasance in Europe, has now ensnared both the U.S.
government and corporate America.
The finger of blame that was first
pointed from the United States. to Europe is now being pointed back
toward the United States.
Even Israel has not been immune from
becoming ensnared in the Holocaust
restitution controversy.
In the face of accusations that Israeli banks, like the Swiss banks, are
holding dormant funds deposited in the pre-war Palestine by European Jews who
perished during the war, the Israeli Knesset, in April, 2001, created a commission of inquiry to search for
such funds.[cxxxiii] Estimates have placed the value of such
dormant accounts in Israeli banks at $40 million. The commission will also search Israeli property records to
determine which landholdings may
have belonged to Holocaust victims.
The Israeli custodian-general estimates the value of such unclaimed land
at a minimum of $90 million. The
commission chair stated that the goal of the one-year probe is to "arrive at the
truth about the assets in Israel of Holocaust victims."
V. CONCLUSIONThe
new trend by governments and
corporations finally to "come
clean" about the wrongs committed
by them in the past would not be
occurring without the spotlight being shined on their activities through the
lawsuits in the United States.
As
shown above, the successes achieved in obtaining funds from War War II
wrongdoers for acts committed over a half-century ago has led to a resurgence of
movements seeking to obtain compensation and recognition for other historical
injustices. The ongoing claims of
the victims of Japanese wartime corporate misfeasance, the debate about reparations to African-Americans for slavery, the
payment to descendants of the Armenian genocide, and new litigation for other
historical injustices are all a direct consequence of the Holocaust restitution litigation.
The
ultimate goal is that the Holocaust restitution cases can serve as a template
for a new era of financial relief and recognition to victims of other war crimes and
crimes against humanity – but, this time, without the fifty year wait for
justice. As a result of the victories achieved by victims of the Holocaust in
courts of the United States individuals and corporations presently
engaged in human rights abuses are being on notice: eventually you will be held
responsible for your misdeeds.
[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 (9th 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 (9th 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,
106th 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 (6th 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 (9th 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
(c) Any action, including any
pending action brought by an Armenian genocide
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.