Jewish Political Studies Review
Jewish Political Studies Review 17:3-4 (Fall 2005)
The American Legal System and Holocaust Restitution
Manfred Gerstenfeld on
Holocaust Justice:
The Battle for Restitution in America's Courts,
by
Michael J. Bazyler
Michael Bazyler notes that according to historians, the Germans stole
assets valued at $230-$320 million in today's monies from the Jews in
Europe. The renewed Holocaust restitution process since the end of
the twentieth century has drawn major political and media interest in
many countries. It has led to substantial payments to both Jews and
non-Jews. Only part of these involve stolen assets and, despite their
size, represent only small percentages of the overall amount plundered
or even of what had already been paid out since the war. The process has
also stimulated official research about Holocaust and post-Holocaust
attitudes toward the Jews in more than twenty-five countries.
In the context of post-Holocaust studies, restitution issues are a
major subject. This field of research also deals with other important
topics related to the aftermath of the Shoah, such as the reception
that surviving Jews received in European societies to which they returned,
the judicial process concerning the war crimes committed
against the Jews, the theme of war memory versus history, as well as
Holocaust education.
A few books have contributed substantially to the understanding
of the latest restitution process. The one reviewed here enriches this
short list. Among the more valuable publications is Stuart Eizenstat's
Imperfect Justice,1 which gives the inside views of a major actor in the
process. Another is Avi Beker's The Plunder of Jewish Property during
the Holocaust, which covers a great variety of subjects.2 Many of these,
however, were still unfolding when the book was published.
Michael Bazyler is a professor of law at Whittier Law School,
California. He specializes in Holocaust law, a rare discipline. In this
book he covers a major topic: how the American legal system dealt
with restitution issues. The author refers to the Holocaust restitution
"movement" rather than "process," in view of its wide scope both
geographically and temporally.
The First Class Action
Lawyer Edward Fagan was the first to file a class-action lawsuit in an
American court on Holocaust restitution in October 1996. It claimed
$20 billion from the Swiss banks. This and other suits were settled
out of court in August 1998, with the approval of Edward Korman,
the judge presiding over the case.
The result was that the Swiss banks made payments in installments
of $1.25 billion. The agreement named five categories of eligible claimants,
which were given the status of "Victims or Targets of Nazi
Persecution." These included Jews, homosexuals, physically or mentally
disabled and handicapped persons, the Romani (Gypsy) people,
as well as a Christian group.
Bazyler also devotes detailed attention to how the sum was distributed.
Korman, in appointing a "special master" to propose an allocation
plan, chose Judah Gribetz, a well-known Jewish attorney from
New York.
Bazyler's book deals with other important restitution topics. These
include the major issue of German slaves and forced laborers. The
difference in definition between these two terms was initially made by
the plaintiffs' lawyers. The first were camp prisoners, mainly Jews, who
were intended to be worked to death. The second were meant to
survive but were also unpaid. More than twenty thousand German
companies used this type of labor. The first slave-labor action in the
United States was filed in March 1998 against the Ford Motor Company
concerning its German subsidiary.
At the end of 1999, an overall settlement with Germany was
reached valued at $5.2 billion. Here as well, large parts of the amounts
distributed were directed to non-Jews.
Another major issue of litigation concerned the reclaiming of
prewar insurance policies. Bazyler concludes that rather little has
been achieved on this matter. In a later publication, Sidney Zabludoff
concurs: "The International Commission of Holocaust Era Insurance
Claims (ICHEIC) failed to meet its promises to Holocaust
victims and their heirs to compensate in speedy fashion policies that
remained unpaid for some sixty years." Zabludoff adds that the
insurance companies, members of ICHEIC, did not honor their
initial pledges and also the U.S. legal decisions were unfavorable to
the claimants.3
Two other major matters addressed by Bazyler are the litigations
against French banks and those concerning art looted during the
Holocaust. The latter subject is still very much in development and
proceeds on a case-by-case basis. It is likely to continue for many more
years.
The Holocaust litigations in the United States also led to important
legal developments. They were accompanied by substantial disagreements,
mainly in the Jewish community and also outside it.
Bazyler considers various "gray areas" in his book, and addresses
them in more detail in a later article.4 These include: the question
of whether the demand for financial restitution demeans the memory
of the Holocaust, how to assure fair distribution of the funds collected,
and whether part of the restitution funds should be allocated
to Holocaust education and remembrance or belong solely to survivors.
Other such issues include the high legal fees and the controversy
over whether Jewish lawyers should have taken on the defense
of European companies sued on behalf of Holocaust survivors.
A Spearhead for Non-Jewish Claimants
As aforementioned, while the Jews were the spearhead of the Holocaust
litigations in the United States, large parts of the funds obtained will
go to non-Jewish claimants. The widespread criticism of the proceedings
was, however, entirely directed against the Jews and the Jewish
organizations. This discrepancy has received little media attention.
It was the Jews who also created the infrastructure for many other
claims. This subject has also been addressed by Eizenstat. Bazyler,
however, discusses this in more detail in the final chapter of his book.
The use of the Holocaust restitution process as a precedent for
claims by other victims is still in early gestation. Among the disparate
array of claims are those concerning slave labor in Japanese companies,
insurance claims from the Armenian genocide, and African American
claims for slave labor. Others include claims of apartheid victims in
South Africa, Sudeten Germans expelled from Czechoslovakia after
World War II, and of the Nepal Gurkhas for discrimination in benefits
during their military service in the British army. Bazyler also briefly
considers the significance of the restitution issue for a possible future
settlement involving Palestinian refugees and Jews forced to flee Arab
countries.
The Holocaust restitution issue is momentous, and scholars are
likely to study it for decades to come. By dealing with a large variety
of subjects, Bazyler has laid the basis for many future detailed investigations
in various areas.
* * *
Notes
1. Stuart Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished
Business of World War II (New York: Public Affairs, 2003).
2. Avi Beker, ed., The Plunder of Jewish Property during the Holocaust: Confronting
European History (London: Palgrave, 2001).
3. Sidney Zabludo., "The International Commission of Holocaust-Era Insurance
Claims: Excellent Concept but Inept Implementation," Jewish Political
Studies Review, Vol. 17, Nos. 1 & 2, Spring 2005, pp. 81-82.
4. Michael Bazyler, "Suing Hitler's Willing Business Partners: American Justice
and Holocaust Morality," Jewish Political Studies Review, Vol. 16, Nos. 3 & 4,
Fall 2004.
The opinions expressed herein do not necessarily reflect
those of the Board of Fellows of the Jerusalem Center for Public Affairs.
The above book review appears in the Fall 2005 issue of the Jewish Political Studies Review, the first and only journal dedicated to the study of Jewish political institutions and behavior, Jewish political thought, and Jewish public affairs.
Published by the Jerusalem Center for Public Affairs (http://www.jcpa.org/), the JPSR appears twice a year in the form of two double issues, either of a general nature or thematic, with contributors including outstanding scholars from the United States, Israel, and abroad. The hard copy of the Spring 2005 issue will be available in the coming weeks."
From the Editors: Manfred Gerstenfeld and Shmuel Sandler
The Forgotten Narrative: Jewish Refugees from Arab Countries by Avi Beker
European Politics: Double Standards toward Israel by Manfred Gerstenfeld
Annals of Israeli-Albanian Contacts on Establishing Diplomatic Relations by Yosef Govrin
Perspectives - Jomo Kenyatta and Israel by Asher Naim
Assessing the American Jewish Institutional Response to Global Anti-Semitism by Steven Windmueller
The New Muslim Anti-Semitism: Exploring Novel Avenues of Hatred by Raphael Israeli
Arab and Muslim Anti-Semitism in Sweden by Mikael Tossavainen
Kill a Jew - Go to Heaven:
The Perception of the Jew in Palestinian Society by Itamar Marcus and Barbara Crook
Israel in the Australian Media by Tzvi Fleischer
Barbara Tuchman's Comments on Israel by Moshe Yegar
Hidden in Plain Sight: Alexis de Tocqueville's Recognition of the Jewish Origin of the Idea of Equality by Joel Fishman
Perspectives - The Seventh-Century Christian Obsession with the Jews: A Historical Parallel for the Present?
by Rivkah Duker Fishman
Book Reviews:
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Shalom Freedman on Iran's Nuclear Option: Tehran's Quest
for the Atom Bomb by Al J. Venter
Shalom Freedman on Rabin and Israel's National Security
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Freddy Eytan on The Long Journey to Asia
by Moshe Yegar
Susanne Urban on From Cooperation to Complicity:
Degussa in the Third Reich by Peter Hayes,
and The Nazi Dictatorship and the Deutsche Bank
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Joel Fishman on The Oslo Syndrome: Delusions of a People
under Siege by Kenneth Levin
Manfred Gerstenfeld on Rising from the Muck: The New
Anti-Semitism in Europe by Pierre-André
Taguieff
Manfred Gerstenfeld on Les territoires perdus de la
République: Antisémitisme, racisme et sexisme en milieu
scolaire by Emmanuel Brenner
Manfred Gerstenfeld on Holocaust Justice: The Battle for
Restitution in America's Courts by Michael J. Bazyler
Shalom Freedman on Double or Nothing: Jewish Families
and Mixed Marriages by Sylvia Barack Fishman
About the Contributors
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