Behind Restitution

This is the first in a series of articles on Holocaust restitution as The Journal observes the 64th anniversary of Kristallnacht (Nov. 9). The next article will deal with the hands-on work of Bet Tzedek Legal Services, a beneficiary agency of The Jewish Federation of Greater Los Angeles, and will include a concise listing of all claims categories.

Restitution and reparations to Holocaust victims and their families have been described as a minimal repayment for European Jewry’s material losses, if not their suffering, a trigger for renewed anti- Semitism, a triumph of American justice and, most tellingly, as a minefield of passions.

Picking his way through the minefield for the past five years has been law professor Michael J. Bazyler, whose book, "Holocaust Justice," is to be published by New York University Press next April.

Right off the bat, the book pithily takes care of the Third Reich’s "kleptocracy," whose Nazi elite, according to World War II scholar Allan Millett, consisted of "Lowbrow guys with highbrow pretensions. They stole everything in sight — art, jewelry, artifacts and paintings of the masters."

Altogether, the Nazi loot from the Jews of Europe came to $230 billion-$320 billion in today’s dollars, estimates Bazyler, who teaches at Whittier Law School in Costa Mesa and is the son of Polish and Russian Holocaust survivors.

From its very beginning in the early 1950s, the restitution issue has been driven by deeply felt philosophical and emotional controversies.

At the time, the acceptance by the Israeli government and Holocaust survivors of some $800 million in West German reparations was heatedly denounced as "blood money" meant to "expiate" the Nazi murder of 6 million Jews. Variations on this controversy have continued for half a century.

In 1951, representatives of 23 Jewish organizations met in New York and formed the Conference of Jewish Material Claims Against Germany, Inc. to unify and spearhead demands for restitutions. The Claims Conference, as it is generally known, has since been the object of high praise, as well as bitter denunciations.

In 1996, the battle shifted to the courts, not in Europe where they had proven unsympathetic and ineffective, but in the United States.

Bazyler, whose book is subtitled "The Battle for Restitution in America’s Courts," describes the U.S. justice system as "heroic" and the only one in the world flexible enough to break new ground in the restitution battle.

The first legal shots were fired with the filing of three federal class-action suits against Swiss banks for failure to return money deposited by Jewish account holders just before and during World War II. After two years of legal wrangling and congressional and public pressure, the banks agreed to pay out $1.25 billion, described by Bazyler as the largest settlement ever in a human rights case.

These court victories, he writes, opened "the floodgates of litigation." The next targets of both legal and political pressures were European insurance companies, which had largely failed to honor, for half a century, policies taken out by Holocaust victims and survivors.

Next were demands for compensation by former slave laborers, forced to work under generally inhuman conditions for German companies and their subsidiaries during World War II.

In December 1999, the German government and private corporations settled the slave labor suits for $5 billion. As in other cases, non-Jews benefited greatly from lawsuits filed by American Jewish lawyers and organizations.

Bazyler points out that 80 percent of the slave labor compensations are going to elderly East European Slavs and Romani.

With the slave labor payments, post-war Germany has committed itself to a total of nearly $70 billion in restitution to Jewish and non-Jewish victims of the Nazi regime.

More recently, legal actions have focused on the recovery or compensation from museums worldwide, including some in the United States and Israel, for artworks looted by the Nazis from Jewish collectors.

As the restitution money, large in the aggregate but in small amounts to individual recipients, becomes available, two contentious issues have emerged: Who should get the money? And is the emphasis on monetary compensation obscuring and demeaning the suffering of the 6 million dead and of the roughly 400,000-500,000 survivors living in Israel and the rest of the world.

There is no dissension that the bulk of the money should go to Holocaust survivors, in whose names the lawsuits were filed and who are dying off at a rapid rate.

But should all the money go to survivors or should some be set aside for broader Jewish causes?

Rabbi Israel Singer, president of the Claims Conference and secretary general of the influential World Jewish Congress, has argued that the "heirs of the 6 million is the entire body of world Jewry" and has proposed that roughly 20 percent of restitution moneys be set aside for a Fund of the Jewish People. Such a fund might be used for Holocaust education and remembrance, general Jewish education and to aid Israel.

Most recently, some have proposed that part of the funds go to victims of genocides in Rwanda, Cambodia and Bosnia.

Such proposals are bitterly opposed by the Holocaust Survivors Foundation USA and individual survivors, who depict the Claims Conference as an elitist group of insiders that has sold out the interests of the survivors themselves. Under the motto "Money for persons, not projects," the foundation has criticized, for instance, a $1.45 million grant by the Claims Conference to the Yiddish Theater of Tel Aviv.

Just as acrimonious has been the debate over the morality of demanding restitution funds at all, harking back to the "blood money" controversy in Israel in the 1950s.

Abraham Foxman, national director of the Anti-Defamation League, himself a "hidden child" during the Holocaust, initiated the debate in 1998 by arguing that the lawsuits against Swiss banks threatened to make money "the last soundbite" of the Holocaust.

Columnist Charles Krauthammer warned of an increase of anti-Semitism in Europe, while one of the shrillest critics has accused American Jewish organizations of "extorting" money to perpetuate their existence.

A reasoned response came from Elie Wiesel, who said, "If all the money in all the Swiss banks were turned over, it would not bring back the life of one child. But the money is a symbol. It is part of the story. If you suppress any part of the story, it comes back later, with force and vengeance."

The most lasting legacy of the legal restitution battles may not be the monetary but the historical aspect, and as role models for other international disputes and grievances, Bazyler said.

As an outgrowth of the court cases, many European countries, among them Sweden, Switzerland, France and Italy, have been forced to reexamine their often inglorious wartime roles. Some 50 governments have created commissions of inquiry, or less formal bodies, for self-examination.

Even the United States is now looking into its military’s complicity in the looting of art works during World War II, while Israeli banks have been accused of withholding funds deposited by European Jews in pre-war Palestine.

The same kind of self-examination is revealing the complicity of major corporations in collaborating with the Nazi regime, including such U.S. icons as IBM, General Motors, Eastman Kodak, J.P. Morgan and the Ford Motor Company.

Building on the model of the Holocaust reparations, long- suppressed grievances are being aired. Among plaintiffs now seeking redress are American prisoners of war who were forced to work for Japan in World War II, Asian women exploited as sex slaves by the Japanese army, Armenians charging Turkey with genocide during World War I, and African Americans seeking reparations for the slavery endured by their ancestors. Other victims of historical wrongs are also considering litigation, among them Sudeten Germans expelled from Czechoslovakia after World War II, Nepalese Gurkhas for discrimination while serving in the British army and South African blacks for suffering under the apartheid regime.

Bazyler thinks that the model might even be extended to help bring peace to the Middle East. One of the major factors for the breakdown of peace negotiations has been the Palestinians’ insistence on the right to return to Israel.

If they could drop this demand, he reasons, and focus instead on compensation to those Palestinians who actually lost land and real estate — perhaps counterbalanced by the material losses suffered by Jews in Arab lands who fled to Israel — a solution to the contentious issue might be found.

"It would be a magnificent legacy of Holocaust restitution," Bazyler concluded, "if it could resolve the conflict and bring peace to the state created out of the ashes of the Holocaust."