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Some Measure of Justice
The Holocaust Era Restitution Campaign of the 1990s
By MICHAEL R. MARRUS
THE UNIVERSITY OF WISCONSIN PRESS
Copyright © 2009 Michael R. Marrus
All right reserved.
ISBN: 978-0-299-23404-1
Introduction
Spit at it," wrote Leon Wieseltier, a sophisticated Jewish writer not known for extreme views, advising his mother, a Holocaust survivor, about how to respond to a query about possible restitution payments for wartime wrongs committed against Jews. Apparently, Wieseltier's mother needed no persuasion. At issue, as is clear from his November 1999 article on the subject in
The New Republic, was not so much the alleged insufficiency of the proposed payment from the "Swiss Fund for Needy Victims of the Holocaust/Shoa," but also, as often in the sometimes heated discourse on this subject, the
principle of the matter.
"I am sick of hearing about the fate of gold," Wieseltier complained. He was also sick of hearing about the Jewish claims for restitution of paintings by the Austrian Expressionist artist Egon Schiele, at the time a major preoccupation of the New York art world. And similarly about the claims for stolen insurance payments and demands of German corporations for payment for wartime slave labor. "In the discussion of the Holocaust now, the authority of the philosophers and the historians is being usurped by the authority of the lawyers and the museum directors; and the subject, more and more, is money," Wieseltier protested. "I agree that there will be no justice in letting the 'neutrals' and the opportunists and the collaborators get away with it; but there will be no justice also in not letting them get away with it. Whatever happens, in the matter of what transpired in Europe between 1933 and 1945 there will be no justice."
Wieseltier's problem, he stressed, was not so much with the justice of the claims. Rather, it was that money was displacing more appropriate reactions to the Jewish catastrophe. "The emergence of the new reparations industry represents the strange and sapping illusion that certain elements of Jewish destiny in the blood-field of Europe may be reversed. I understand that the money that is the object of all this litigation is 'our' money, but what has litigation to do with sorrow? I really cannot bring myself to care about where the Monets of the martyrs will hang. I would rather grieve than sue. It seems more lucid." He had no more to say than that. It all came down to money because "money is swamping everything now.... We are fat and we are acting fat." There was nothing really to be done, although, as his article finished, "a little nausea would go a long way."
What Wieseltier was reacting to is the subject of this book. My focus is a wave of Holocaust-era restitution, triggered by legal and then political action in the United States. Beginning in 1996 Jewish plaintiffs launched a series of claims in American courts against Swiss banks, focusing first on dormant accounts from the Holocaust era and then extending to other wrongs against the victims of Nazi persecution, including slave and forced labor and insurance claims. And shortly after, as a leading student of this process notes, "the floodgates of litigation have opened." These have included actions against the banks of other European countries and against German and other corporations as well as demands for the return of works of art stolen from Jews during the Nazi era.
Remarkably, the actions begun in American courts were crowned with success. The Swiss settled in August 1998 for $1.25 billion, which at the time, it was noted, was "the largest settlement of a human rights claim in U.S. history." Other banks settled similarly, as did corporations for their use of slave and forced labor and, to a much lesser extent, the insurance companies for their failure to honor obligations to clients who were victims of the Nazis. In all, the total awarded to Holocaust survivors and other persecutees amounted to some $8 billion paid or promised to survivors, a particularly impressive level of reparation in a relatively short period of time. Proceedings to return stolen works of art have proceeded more unevenly, although I think most specialists would agree that, no matter what the results in specific cases, the general environment has improved significantly over the past decade for claimants seeking to gain possession of their own or their family's stolen treasures.
At issue here is not just the resolution of lawsuits-resulting in the $8 billion or so-but rather, to use a phrase frequently heard when settlements were finally achieved, the realization of "some measure of justice for the Holocaust." But in what way were such settlements "justice for the Holocaust"? That is what I want to discuss. About ten years ago I wrote about the latter subject, attempting to survey Holocaust-related trials since the end of the Second World War. My conclusion, in the mid-1990s when I first turned to this matter, was that the law's involvement with the Holocaust-I focused on criminal prosecutions-was essentially finished. The courts had largely run out of perpetrators to try. The major directors of the massacre of European Jewry had passed from the scene. Some criminals were at large, to be sure, but the few that remained were aging, lower-level killers, about whom there was sometimes insufficient evidence for full-blown prosecutions and against whom legal proceedings were generally unsatisfactory encounters with the larger history and significance of the Holocaust itself.
But how wrong I was! For just as I was completing my consideration of this topic, masses of litigants and their lawyers were opening up a major new front in the United States-claims for restitution that had seldom been broached in the courts of any country, yielding results with a global impact scarcely even contemplated in the half century or so that had elapsed since the collapse of the Third Reich. To consider these I have taken up my previous subject once again. This time, to be sure, my focus is not criminal proceedings but, rather, civil actions and their accompanying resolution in the United States. And this time I am reluctant to declare that this will be the final concerted effort to come to terms with the Holocaust through legal processes. There are indications, especially with regard to looted art and Jewish communal property in Eastern Europe, that such efforts will continue, and not just through legal channels in the United States.
Throughout, I will refer to "restitution," not because the term is a precise terminological fit with what is usually at issue but because it is very widely used and because it is probably better suited than any other to refer to the broad spectrum of issues at stake. The more familiar "reparations" usually signifies a wider spectrum of remedies in international law. In its discussion of this subject, the United Nations International Law Commission's "Responsibility of States for Internationally Wrongful Acts" identified three kinds of reparation-restitution, compensation, and satisfaction. In common parlance, "reparation" usually signifies an effort, arguably impossible for the Holocaust, to "repair" wrongs that were done, while "compensation," at least in the UN definition, suggests a similarly inappropriate effort "to cover any financially assessable damage." "Satisfaction" refers to apologies and other acknowledgments of wrongdoing. While "restitution," in the UN's definition, entails an impossible undertaking "to re-establish the situation which existed before the wrongful act was committed," in practice it may signify a more modest goal than "reparation," something closer to "recompense"-a term that has no legal currency at all but was admirably used by the American diplomat Sumner Wells in reference to the Jewish people in 1945.8 "Restitution," in addition to its generally accepted reference to the restoration to a previous condition (restitutio in integrum), can also mean "the act of making good ... for any loss or injury"-begging the question, to be sure, of what "making good" actually entails. The latter, indeed, is the subject of this book.
Settling for second best in terminology should be a sign that with Holocaust restitution we are entering relatively uncharted and hence hazardous legal and historical waters. This is, indeed, one of the findings of my inquiry. I want to stress, at the outset, the wide range of legitimate views on this subject, extending far beyond questions of terminology. Reflecting on his several years of constructive involvement, the Clinton administration's point man on this subject, Stuart Eizenstat, observes that the entire subject of the Holocaust "is politically radioactive." That is why, several years into this process, there were views on all sides of the question-many of them held by survivors who differed strenuously among themselves.
Leon Wieseltier was certainly not alone. From across the Jewish spectrum there were strong opponents of the entire process. Abraham Foxman, national director of the Anti-Defamation League, spoke as a Holocaust survivor to denounce "a new 'industry' ... spearheaded by lawyers and institutions, in an effort to get what they call 'justice' for Holocaust victims." In Jerusalem, Efraim Zuroff, director of the Israeli office of the Simon Wiesenthal Center that emphasized the hunt for Nazi war criminals, argued that restitution diminished the message Jews should relay about the Holocaust: "We've been telling the world for the last fifty years that the Holocaust is important. Is this why we're doing it? So that in the end we'll get paid back? Or is it because the Holocaust is a watershed in the annals of human history, and that everything has to be done to see that it doesn't happen again-I'm talking about the genocide aspect, not the grand larceny aspect." In Paris, the Jewish author and human rights activist Marek Halter said much the same thing, decrying the suggestion that Jews were killed for any other reason but that they were Jews. "Enough of bargaining about their money," he told the readers of Le Monde.
"My family belonged to the middle class but we did not have a bank account in Austria, let alone in Switzerland," grumbled Raul Hilberg, dean of Holocaust historians. On the right, Charles Krauthammer described how "what began as an attempt to locate actual confiscated Swiss bank accounts of individual Holocaust victims has turned into a treasure hunt for hungry tort lawyers and major Jewish organizations." Similarly, Christopher Hitchens sneered about "Holocaust profiteers." According to Israel Gutman, Israel's most senior and respected Holocaust historian, the restitution campaign "was a big mistake. At most, an effort should have been made to see if compensation could have been secured through quiet discussions. It shouldn't have been made into a dramatic public struggle, as if it was the ultimate redress for the Holocaust." In a lengthy article in Commentary, its senior editor, Gabriel Schoenfeld, described Holocaust reparations as "a growing scandal." The entire exercise was wrongheaded, he suggested. Despite some good intentions, the campaign had gone off the rails in a misguided effort to extract "every last ounce of justice," with unseemly political tactics, questionable legal claims, and reckless disregard for historical truth. And on the far left, in an egregious and dogmatic rant against the entire process, which attributed much of the blame to political mobilization for Israel, maverick political scientist Norman Finkelstein lambasted "the Holocaust industry," a campaign "to extort money from Europe in the name of 'needy holocaust victims' [that] has shrunk the moral stature of their suffering to that of a Monte Carlo casino."
Defenders of restitution responded vigorously. "If these injuries occurred," asked Eizenstat pointedly, "why should their victims not have the same right to sue for justice as victims of other and lesser catastrophes?" To fail to pursue these claims, according to Michael Bazyler, "would be [to] let off the hook ... some of the world's wealthiest concerns" and to permit them "to keep their ill-gotten gains." Going further, Bazyler claimed that the Holocaust restitution cases could "serve as a template for a new era of relief to victims of war crimes and crimes against humanity-but this time without the fifty-year wait for justice." Similarly, Canadian political leader and human rights scholar Michael Ignatieff, aware of the dilemma, came down on the side of restitution: "Financial restitution runs up against the idea that honor and dignity are beyond price and that once they are taken away, they cannot be restored by mere money. But if such things have no price, it is hard to undo the harm done when they are lost. The perpetrators can always say they are sorry, but that is too easy. They must be made to pay. So money becomes the sorry center of the whole restitution business." Burt Neuborne, a distinguished legal academic and one of the lead attorneys in the Swiss banks and German corporations litigation, reminded critics that Jews received less than a quarter of the payment from the German settlement, with the rest going to non-Jewish victims of industrial forced labor. Neuborne referred to the "vast profits" earned during the Holocaust and to similar wrongdoing by the Swiss banks. He also offered a strong defense of the theory behind the plaintiffs' case and a stout defense of the lawyers involved. "Lawyers worked extremely hard for years to develop novel legal theories and to uncover the facts sixty years after the events. Despite their enormous effort, more than half the lawyers in the Swiss bank cases have waived all fees." Similarly, in the settlement with German corporations, "the attorney's fees in the more than fifty cases will total 1 to 1.25 percent of the settlement figure. That is, I believe, the lowest fee structure in history for comparable levels of success."
Alongside these polemics and in part flowing from their Holocaust-related themes has come a torrent of analysis of human rights, historical memory, memory politics, apologies, and the reparation of historic wrongs. Increasingly, these writings draw new attention to the victims of great persecutions and crimes against humanity, and how we contend with their grievances after the events themselves. "Restitution is in the air," writes one observer. This suggests that we are likely to be dealing with a phenomenon that extends beyond the Holocaust in both its origins and its wider implications. Tome it suggests as well that, with recent efforts at Holocaust-era restitution, we are in a domain that supersedes the demands for legal certainty and definitive answers that are integral to the legal process.
In the chapters that follow I will try to make sense of the most recent wave of justice seeking for the Holocaust: what it has been, why it has emerged when it did, how it fits with earlier reparation to the Jewish people, its implications for the historical representation of the Holocaust, and, finally, what its implications are in the wider project of justice seeking in our time. Up to this point, as the notes to this book will show, writing on this subject has mainly come from participants, lawyers, philosophers and social scientists specializing in restitution, and journalists. Most of these writings appeared when the campaign was under way, or just at the point of resolution. Now that the dust has settled somewhat, it may be possible to look at things with a bit more perspective-including historical perspective. I take up the issue as a historian first and foremost, but as a historian preoccupied with claims of historical justice that set this campaign in motion and with the larger questions of what happens to historical understanding and historical interpretation when they enter the legal arena.
Excerpted from Some Measure of Justice by MICHAEL R. MARRUS Copyright © 2009 by Michael R. Marrus. Excerpted by permission.
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