Holocaust Restitution

Holocaust Restitution: Perspectives on the Litigation and Its Legacy

Michael J. Bazyler
Roger P. Alford
Copyright Date: 2006
Published by: NYU Press
Pages: 374
https://www.jstor.org/stable/j.ctt155jjnz
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  • Book Info
    Holocaust Restitution
    Book Description:

    Description not available.

    eISBN: 978-1-4798-4562-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgments
    (pp. xi-xii)
  4. Holocaust Restitution Timeline
    (pp. xiii-xviii)
  5. Introduction
    (pp. 1-14)
    Michael J. Bazyler and Roger P. Alford

    Holocaust restitution is not about money. It is about victims. It is about individuals who have waited sixty years for something. Of course it is not about “perfect justice,” a phrase that may never pass one’s lips in the same breath as “Holocaust.” But it is about waiting for some recognition, some voucher to validate the misdeeds that have been perpetrated.

    Excerpts from the letters of one claimant appearing before the Claims Resolution Tribunal for Dormant Accounts in Switzerland give voice to this yearning for recognition:

    We had not been able to locate [my grandfather’s] personal account. My grandmother tried...

  6. PART I: Overview

    • Chapter 1 International Law and the Holocaust
      (pp. 17-29)
      Thomas Buergenthal

      This chapter reproduces one part of the lecture on “International Law and the Holocaust,” delivered by the author at the United States Holocaust Memorial Museum in 2003. The omitted part of the lecture dealt principally with international criminal law and the impact of the Holocaust on this branch of contemporary international law.

      I am profoundly honored to be this year’s Joseph and Rebecca Meyerhoff Lecturer here at the United States Holocaust Memorial Museum. The museum evokes very special feelings of awe and gratitude in me. When I came to the United States in 1951 as a boy of seventeen, no...

    • Chapter 2 The State Department, Nazi Gold, and the Search for Holocaust Assets
      (pp. 30-42)
      William Z. Slany

      During the last years of the twentieth century, an unprecedented international campaign to achieve long-delayed justice and compensation for the victims of the Holocaust and their heirs gathered strength until it became a powerful moral and political incentive to act. Stuart Eizenstat and the State Department gave essential leadership and vision to the United States’ management of the international negotiations for Holocaust-era restitution. In a unique occurrence for policymakers and historians, the historical staffs of the State Department and ten other federal agencies joined together to provide historical research that gave U.S. government negotiators important and essential insights and impetus....

    • Chapter 3 Confronting History: Restitution and the Historians
      (pp. 43-49)
      Michael Berenbaum

      The major drama regarding Holocaust restitution issues was played out by political leaders and Jewish communal officials, diplomats and lawyers, bankers and insurance company executives, businesspersons and survivors. Historians played a significant but clearly supporting role, reviewing archival findings and leading international commissions to establish or recreate the national narratives that had been so decimated by the new historical information. When called upon, their skills—combing archival records, reconstructing events, determining who was present where and when and what they did—proved useful in strengthening or counteracting the evidence that was being gathered. They also uncovered new evidence, as well...

    • Chapter 4 Holocaust Litigation and Human Rights Jurisprudence
      (pp. 50-59)
      Robert A. Swift

      The Holocaust litigation was both about achieving a sense of justice and obtaining a fair financial recovery. No attorney, class member, or defendant came away satisfied that either objective was fully satisfied. However, from the standpoint of providing material assistance to two million human rights victims or their heirs, the Holocaust settlements have achieved great success.

      In this chapter, I will explain some of the antecedents for the Holocaust litigation and the successes and problems encountered in settling Holocaust claims. The Holocaust cases represent a stage in the development of human rights jurisprudence, especially as those cases focus on property...

    • Chapter 5 A Tale of Two Cities: Administering the Holocaust Settlements in Brooklyn and Berlin
      (pp. 60-79)
      Burt Neuborne

      Holocaust-era litigation in American courts against Swiss banks and German industry has played a major role in assembling approximately $6.5 billion for distribution to hundreds of thousands of Holocaust victims who fell between the cracks of prior reparations programs.

      The Swiss bank cases were settled for $1.25 billion on January 26, 1999.¹ The German industry cases were settled on July 17, 2000, through the creation of a DM 10 billion ($5.25 billion) German Foundation, “Remembrance, Responsibility, and the Future,” which acts as a conduit for payment to designated categories of Holocaust victims.² In addition, slightly more than $1 billion has...

    • Chapter 6 How Swiss Banks and German Companies Came to Terms with the Wrenching Legacies of the Holocaust and World War II: A Defense Perspective
      (pp. 80-91)
      Roger M. Witten

      In 1996, long after World War II ended in Europe, the demands of Holocaust victims and others for compensation from Swiss and German companies began to receive sustained attention in the United States and abroad. Litigation and complex international negotiations ensued. This chapter offers a general perspective on how these difficult and emotional issues came to be resolved, as this resolution was viewed by a defense counsel who was intimately involved with the Swiss bank settlement and German Nazi-era negotiations and related litigation.

      Switzerland, of course, was not a belligerent during World War II; it was a neutral. Nevertheless, probing...

    • Chapter 7 Why Won’t Those SOBs Give Me My Money? A Survivor’s Perspective
      (pp. 92-100)
      Si Frumkin

      Actually, this is a rhetorical question. I know why they won’t. Isn’t it obvious? It is because they would rather keep it. They figure that if I got along all this time without them paying what they owe me, well, then I can wait a while longer and then, well, eventually I will be gone and that will be the end of the story. If they bother to talk or think about what I and the other survivors are bitching about, they probably say, “they shouldn’t bitch; they are lucky to be alive.”

      You know, they are right. I am...

  7. PART II: The Bank Litigation

    • Chapter 8 A Litigator’s Postscript to the Swiss Banks and Holocaust Litigation Settlements: How Justice Was Served
      (pp. 103-114)
      Melvyn I. Weiss

      Through the collaborative and tenacious efforts of U.S. class action attorneys, the governments of the United States, Germany, Israel, Poland, the Czech Republic, Ukraine, Belarus, and Russia, Jewish and human rights organizations, survivors of the Holocaust, and those who had been forced and slave laborers, settlements were reached amounting to more than $8 billion, resolving a series of Nazi victims’ economic claims, their demands for compensation having largely been ignored for more than fifty years. At issue were dormant Swiss, French, Austrian, and British bank accounts confiscated from Jews during the Nazi occupation of Europe, looted real and personal property,...

    • Chapter 9 Rewriting the Holocaust History of the Swiss Banks: A Growing Scandal
      (pp. 115-134)
      Edward R. Korman

      The impetus for my contributing an essay to this collection stems from what I see as an unfortunately common misrepresentation of the historical record concerning the activities of the Swiss banks before, during, and in the aftermath of World War II with regard to bank accounts and other assets deposited with the banks for safekeeping by their Jewish customers during the Nazi era.

      My first public response to the false record being created was a lengthy opinion published in February 2004 (In re Holocaust Victim Assets Litigation,302 F. Supp. 2d 59, E.D.N.Y. 2004), superseded by a slightly modified opinion...

    • Chapter 10 The French Holocaust-Era Claims Process
      (pp. 135-144)
      Eric Freedman and Richard Weisberg

      This essay addresses the present-day consequences of the expropriation, or spoliation, of Jewish assets that preceded extermination, as seen in the French government’s attempts at restitution or indemnification. It provides an overview of the current situation regarding the French Holocaust-era claims process, and may be considered a follow-up to the analysis of the French bank settlement as described by Bazyler and Eizenstat in their treatises on Holocaust restitution.¹

      We shall first summarize the French restitution process, which integrates, but is not limited to, the French-American Washington Accords of 2001. We shall then give an update on current developments, with a...

    • Chapter 11 The French Bank Holocaust Settlement
      (pp. 145-151)
      Shimon Samuels

      The domino process of World War II looted assets restitution research, negotiation, and claims was a lever for the settlement of historical accounts. Media and judicial pressure demanded transparency, and combatants and neutrals established national archival commissions to investigate banks, insurance companies, museums, and private property records. The restitution campaign shook to the core national myths of World War II neutrality and resistance, calling human behavior into question and disestablishing collective memories.

      Throughout the 1980s and 1990s, as director of the Simon Wiesenthal Centre in Paris, I had sought to draw a connection between the lessons of the Holocaust and...

    • Chapter 12 Unholy Profits: Holocaust Restitution and the Vatican Bank
      (pp. 152-160)
      Lee Boyd

      In August 2000, tens of thousands of Ukrainian and Jewish Holocaust survivors and their heirs sued the Vatican Bank and the Order of Franciscans for restitution of expropriated funds stolen by the Ustasha—the Nazi regime in the former Yugoslavia. The case was filed on the heels of large settlements in the Swiss, French, German, and Austrian bank cases brokered in large part by Stuart Eizenstat at the U.S. State Department. Indeed, in 1998, Eizenstat had called for the opening of Croatian, Serbian, and Vatican archives so that a full accounting could be made of the fate of the Ustasha...

  8. PART III: The Slave Labor Litigation

    • Chapter 13 Where Morality Meets Money
      (pp. 163-169)
      Gideon Taylor

      Holocaust-era reparations is truly the place where morality meets money. The amount of money handled by the Conference on Jewish Material Claims Against Germany (Claims Conference) is, by any standard, large. As a result of negotiations by the Claims Conference since 1952, more than half a million victims of persecution by the Nazis have received close to $60 billion.¹

      Yet Holocaust-era compensation and restitution is about much more than money. It is also about justice, history, law, politics, and social work. It is about those who are entitled and about those who need help. It is about responsibility and about...

    • Chapter 14 The Negotiations on Compensation for Nazi Forced Laborers
      (pp. 170-180)
      Otto Graf Lambsdorff

      The project of payments to Nazi forced laborers was and is a moral and historical challenge for the German government and for German industry. It involved numerous legal and economic issues that I had to master in three years of arduous negotiations.

      Foreign laborers, especially agricultural workers from Poland and Russia, had been traditionally employed in Germany since well before the First World War. But, the demand for labor during World War II far surpassed the possibilities of voluntary recruitment. The Nazi government, thus, resorted to pressure, coercion, and, finally, brutal force. For example, of twenty-seven thousand foreign workers in...

    • Chapter 15 German Economy and the Foundation Initiative: An Act of Solidarity for Victims of National Socialism
      (pp. 181-189)
      Lothar Ulsamer

      In recent decades German companies have assumed historical and moral responsibility for their cooperation with the Nazi regime during the Second World War. Initially this sense of responsibility was expressed on an individual basis. Later it was expressed on a larger scale, with more than sixty-five hundred companies contributing to the German Economy Foundation Initiative “Remembrance, Responsibility, and the Future” (hereafter “Foundation Initiative”) in a major gesture of reconciliation. Numerous companies founded after the war participated in this effort as well, thus placing it on a broader footing and making it possible to provide financial compensation to former forced laborers...

    • Chapter 16 Processing of Claims for Slave and Forced Labor: Expediency versus Accuracy?
      (pp. 190-196)
      Roland Bank

      The program of awarding payments to victims of slave and forced labor as well as other National Socialist injustice through the Foundation “Remembrance, Responsibility, and the Future” has been carried out from the outset under intense time pressure: more than fifty-five years after the end of World War II, the victims are very old and any delay in the procedures inevitably would mean the gesture of compensation would reach fewer of its addressees. As a consequence, it was repeatedly emphasized during the course of international negotiations and the drafting of the German law establishing the Foundation (hereinafter “Foundation Law”) that...

    • Chapter 17 Corporate Profits and the Holocaust: A Dissent from the Monetary Argument
      (pp. 197-204)
      Peter Hayes

      Much of life often seems to be a matter of “two steps forward, one step back.” The quest for compensation to victims of the Holocaust certainly has made great strides forward in the last decade. Billions of dollars have been extracted from the German and Austrian states and from European financial and industrial enterprises for the benefit of living survivors and, in some cases, their descendants. Along with these successes have come enormous increases in information about the complicity of officially neutral countries during World War II and of firms in the Axis or Axis-occupied nations. Italian, French, German, Swiss,...

    • Chapter 18 It’s Not about the Money: A Survivor’s Perspective on the German Foundation Initiative
      (pp. 205-214)
      Roman Kent

      For more than two years—from the beginning of the German Foundation Initiative in 1998 to 2000—I was intimately involved in the intense negotiations with German government and German industry regarding compensation for survivors who had been slave or forced laborers during the Nazi era. Originally, the meetings were held in Bonn, but they were subsequently moved to Berlin, the new capital of a unified Germany.

      Beside myself, the Jewish lay leadership delegation consisted of two additional survivors, Ben Meed and Noah Flug; and the staff of the Claims Conference was represented primarily by Gideon Taylor, Saul Kagan, Karl...

    • Chapter 19 Germany’s Reexamination of Its Past through the Lens of the Holocaust Litigation
      (pp. 215-225)
      Deborah Sturman

      Those familiar with Germany in 1996, when the Holocaust litigation began, would agree that it was no surprise that most Germans experienced someschadenfreudeat seeing the Swiss and their banks brought to task for their World War II activities. The Swiss litigation provided at least a momentary diversion from Germany’s decades-long introspection about the horror and evil that is its own World War II history. The diversion was all but forgotten less than two years later, in March 1998, when Germany’s former World War II slave laborers filed suit in U.S. courts against Germany’s largest and most respected corporations,...

    • Chapter 20 Austria Confronts Her Past
      (pp. 226-236)
      Hannah Lessing and Fiorentina Azizi

      To understand Austria’s attempts to confront her past and face responsibility for acts of persecution perpetrated during the Nationalist Socialist regime, we need first to ask whether compensation measures are an integral part of this process and, more specifically, what the meaning of “compensation” could possibly be in this context. In fact, a legal and an ethical interpretation could be given to the idea of compensation. The legal definition seems ready at hand: restitution or monetary reparation given to the victims and their heirs. On the other hand, it seems very difficult to give any ethical definition. Terms come to...

  9. PART IV: The Insurance Litigation

    • Chapter 21 Holocaust-Era Insurance Claims: Legislative, Judicial, and Executive Remedies
      (pp. 239-250)
      Lawrence Kill and Linda Gerstel

      One may have assumed that of all the Holocaust class action litigation, the class action concerning failure to pay Holocaust survivors and their heirs the proceeds of insurance policies should have been resolved swiftly.¹ However, the litigation concerning Holocaust insurance policies has been interminable. While the creation of the International Commission for Holocaust-Era Insurance Claims (ICHEIC), an alternative to litigation, was probably begun with an abundance of good intentions, it had the effect of slowing down the litigation process and setting up an administrative nightmare.

      The first class action complaint seeking the proceeds of unpaid Holocaustera insurance policies from European...

    • Chapter 22 The Road to Compensation of Life Insurance Policies: The Foundation Law and ICHEIC
      (pp. 251-259)
      Kai Hennig

      When the law creating the “Remembrance, Responsibility, and Future” Foundation (“the Foundation”) entered into force on August 12, 2000, the way was paved not only for payments to former forced laborers under the National Socialist regime but also for settling individual claims on unpaid Holocaust-era German insurance policies. German insurance companies contributed approximately DM 600 million of the DM 10 billion paid to the Foundation. According to the Foundation Law, the handling of unpaid insurance claims stemming from the Nazi era will be carried out by the International Commission on Holocaust-Era Insurance Claims (ICHEIC). This essay briefly summarizes the payment...

    • Chapter 23 ICHEIC: Excellent Concept but Inept Implementation
      (pp. 260-268)
      Sidney Zabludoff

      Holocaust survivors and their heirs seeking justice through the settlement of their insurance claims have once again fallen victim; this time the culprit is inept governance and poor management by those charged with helping them. Making matters worse is the failure of insurance companies to fully honor their initial pledges of cooperation and to “expeditiously address the issue of unpaid insurance policies,” as the ICHEIC charter states.

      The International Commission of Holocaust-Era Insurance Claims (ICHEIC) got off to a promising start when cooperation among its members initially led to a credible system to meet the unpaid life insurance claims from...

  10. PART V: The Looted Art Litigation

    • Chapter 24 The Holocaust Claims Processing Office: New York State’s Approach to Resolving Holocaust-Era Art Claims
      (pp. 271-279)
      Monica S. Dugot

      And there’s still so much left to be done.These closing remarks by Jane Lerner, the daughter of Dr. Ismar Littmann’s eldest daughter, Eva, at a ceremony in New York in February 2001 celebrating the return of Alexander Kanoldt’sOlevano,summarize the situation in which the art world finds itself. For all the hard work that has gone into researching Nazi-era art looting and clarifying the provenance of many items and collections, there is much that remains to be done.

      The event at which Jane Lerner spoke was both celebration and commemoration.Olevanowas part of a large collection originally...

    • Chapter 25 Portrait of Wally: The U.S. Government’s Role in Recovering Holocaust Looted Art
      (pp. 280-287)
      Howard N. Spiegler

      In 1999, a magistrate judge, acting in response to a request by the U.S. Government, issued a seizure warrant for a portrait by the noted Austrian artist Egon Schiele. The work was on loan to the Museum of Modern Art in New York (“MoMA”) from the Leopold Museum in Vienna as part of a major Schiele exhibition. Although the other works in the show had been allowed to go to their next destination when the exhibition ended in early 1998, the portrait, a haunting depiction of Schiele’s mistress Wally Neuzil entitledPortrait of Wally,had been subpoenaed by New York...

    • Chapter 26 Whose Art Is It Anyway?
      (pp. 288-294)
      E. Randol Schoenberg

      My grandparents were all Austrian refugees from Hitler. My father’s parents, the composer Arnold Schoenberg and his wife Gertrud, famously fled in the middle of the night from Berlin in May 1933 several weeks after Nazi culture minister Josef Goebbels announced that Jewish artists and intellectuals had to be expelled from all German universities and cultural institutions.¹ My maternal grandparents, Eric and Trude Zeisl, fled Vienna on November 10, 1938, the day after Kristallnacht.² My grandparents left behind not only their careers and the cultural institutions that had supported them but also large numbers of their extended families, among them...

  11. PART VI: The Litigation’s Legacy

    • Chapter 27 The Unfinished Business of the Unfinished Business of World War II
      (pp. 297-314)
      Stuart E. Eizenstat

      In my bookImperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II,¹ I describe the struggle for belated justice for the victims of World War II through restitution of Holocaust-era assets and my role in that struggle as the presidential and State Department envoy on Holocaust issues during the Clinton administration. In this essay, I focus on those portions of the struggle that still remain unfinished, and offer my prescriptions for their resolution.

      Most of the historic Holocaust restitution agreements we reached in the Clinton administration with the Swiss, Germans, Austrians, French, and the former...

    • Chapter 28 Poor Justice: Holocaust Restitution and Forgotten, Indigent Survivors
      (pp. 315-321)
      David A. Lash and Mitchell A. Kamin

      The history of the United States has often included an unfortunate ignorance of the needs and concerns of poor Americans. Indeed, the poor often have been an invisible population, ignored by many, and this has been particularly true for indigent Holocaust survivors. The tragedy and suffering of poor survivors has been compounded by their indigency, their minority, and the desire of the world to pretend they simply do not exist. Even today, as high-profile, well-publicized Swiss bank settlements, unpaid insurance claims, and stolen property make headlines around the world, the lives of the poorest, most invisible survivors recede further and...

    • Chapter 29 The Holocaust Restitution Enterprise: An Israeli Perspective
      (pp. 322-330)
      Arie Zuckerman

      An analysis of Israel’s attitude to the Holocaust restitution and compensation enterprise must begin with an examination of the manner in which Israeli society copes with the Holocaust itself. Israel’s attitude is inherently different from the attitude of Diaspora Jewry, insofar as generalizations may be drawn.

      The Jewish nation endured a trauma that is unprecedented in the annals of humankind. An attempt was made to wipe a nation off the face of the earth, and it partially succeeded, as a third of world Jewry was exterminated. Consequently, the Jewish people will never be the same. The Holocaust will always accompany...

    • Chapter 30 Historical Reparation Claims: The Defense Perspective
      (pp. 331-344)
      Owen C. Pell

      The use of the class action to address vast historical wrongs has come into its own over the last decade. Rather than individual plaintiffs seeking damages against the specific state officials who may have harmed them, reparation litigation has now become akin to mass tort litigation, with broadly defined classes seeking billions of dollars in damages against defendant classes sometimes comprising entire industries and generally including the largest multinational corporations in the world.

      As these claims have moved from discrete to sweeping, so has the temporal reach of these suits. U.S. courts have been presented with claims relating to historical...

    • Chapter 31 The Legacy of Holocaust Class Action Suits: Have They Broken Ground for Other Cases of Historical Wrongs?
      (pp. 345-356)
      Morris Ratner and Caryn Becker

      In the mid-1990s a small group of American class action counsel, including the authors of this essay, changed the history of the postwar reparations movement by commencing scores of private civil law suits in U.S. courts on behalf of victims of Nazi persecution, against Swiss, German, Austrian, French, and other European entities. To settle these suits, European governments and companies have, to date, paid more than $8 billion to these victims and their heirs.

      The results in these cases have inspired victims of other historical atrocities to place hope in the U.S. judicial system—hope that they too might receive...

  12. About the Contributors
    (pp. 357-362)
  13. Index
    (pp. 363-373)
  14. About the Editors
    (pp. 374-374)