The Strategies Used to Achieve Non-Monetary Goals
Copyright c 2001 by the authors. Fordham International Law Journal is produced by The
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The Strategies Used to Achieve Non-Monetary
Record of remarks from a panel titled, “The Strategies used to Achieve Non-monetary Goals.”
Panelists included law professors, Director of the Office of Special Investigations, United States
Department of Justice, and a Holocaust survivor and Treasurer of the American Gathering of
Jewish Holocaust Survivors.
THE STRATEGIES USED TO ACHIEVE
NOVEMBER 1, 2001
Professor Russell Pearce, Co-Director,
Louis Stein Centerfor Law & Ethics,
Fordham University School of Law*
Professor Michael J. Bazyler, Whittier
Professor Burt Neuborne, John Norton
Pomeroy Professorof Law, New York Uni
versity School of Law***
Eli Rosenbaum, Director, Office of Special
Investigations, United States Department
Max K. Liebmann, Holocaust survivor
and Treasurerof the American Gathering
ofJewish Holocaust Survivorstt
* Professor Russell Peace has taught at Fordham Law School since 1990. He is a
co-Associate Director of the Louis Stein Center for Law and Ethics and founded the
Center's Institute for Religion and Lawyer's Work. Professor Pearce teaches
Professional Responsibility, Ethics in Public Interest Law, and the Housing Rights Clinic.
** MichaelJ. Bazyler is a professor of international law at Whittier Law School and
a Research Associate at the Holocaust Educational Trust, London, UK. He has written
extensively in the area of international human rights law, including a 250-page legal
study of the Holocaust restitution efforts in the United States.
*** Burt Neuborne is the John Norton Pomeroy Professor of Law at New York
University School of Law, where he teaches civil rights and civil liberties, and serves as
Legal Director of the Brennan Center for Justice at NYU. Professor Neuborne is a
former National Legal Director of the American Civil Liberties Union and a member of
the New York City Human Rights Commission. He is the court-appointed Lead
Settlement Counsel in the U.S.$1.25 billion Swiss bank litigation and was a principal lawyer in
the cases against German industry that culminated in the establishment of the 10
billion DM German Foundation "Remembrance, Responsibility and the Future." He is
also a member of the Board of Trustees of the German Foundation.
t Eli M. Rosenbaum is the Director of the Office of Special Investigations ("OSI"),
the United States Department of Justice's special task force for the investigation and
prosecution of Nazi war criminals. Mr. Rosenbaum, who began his tenure with OSI as a
trial attorney, later Deputy Director, and now Director of OSI, is the longest-serving
prosecutor and investigator of Nazi criminals in world history. Mr. Rosenbaum has also
served as General Counsel of the World Jewish Congress, where he directed the
investigation that resulted in the worldwide exposure of the Nazi past of former United
Nations Secretary General and Austrian President Kurt Waldheim.
tt Mr. Liebmann was born in Mannheim, Germany in 1921. He is a Holocaust
survivor, having been deported to France in 1940 and spending almost two years in the
PROFESSOR ROSENBAUM: At this moment I would like
to introduce Professor Russell Pearce, who is the Co-Director of
the Louis Stein Center for Law & Ethics here at Fordham Law
School, a good friend, a fine human being, and a wise
moderator, who will be moderating Panel II.
PROFESSOR PEARCE: Good morning, everyone.
On this panel, we are going to continue a conversation that
was begun, in part, by the first panel this morning: What is the
relationship between moral objectives and legal and diplomatic
strategies? What have been the strengths and weaknesses of
these strategies in serving goals, such as seeking justice, assigning
responsibility, promoting truth, promoting reconciliation, and
allowing survivors to tell their stories?
We are going to begin the conversation with Professor
PROFESSOR NEUBORNE: Thank you, Russ.
Being on a panel like this is wonderful. It enables you to
really be an enfant terrible.
Let me challenge the very basis of the panel, that there is a
distinction between the non-monetary and the monetary goals.
As far as I am concerned, all goals in this process are
nonmonetary. I think Ben Meed put it best, that is: the only
question is whether the money helps or hurts those non-monetary
goals. The goals are essentially goals of truth, making sure that
the story and history of the agony and the suffering is projected
forward in time in a way that no denier can ever cast doubt on
again, and to create an historical record that is absolutely
irrefutable and that will stand for all time. That is one of the
extraordinarily important goals.
The second goal is, if it is possible-and I don't know if it is
possible-to foster some sense of reconciliation between the
survivors and the community of which the survivors are part and the
community that committed the awful events. Is it possible to
find ceremonies of reconciliation, if not closure, that will enable
French concentration camp, Gurs. When the round-up of Jews in France began in
1942, manyJews were sent to Auschwitz, but Mr. Liebmann was able to escape to a small
French village called Le Chambon s/Lignon. Soon thereafter, he escaped to
Switzerland. He emigrated to the USA in March 1948 with his wife and two-year old daughter.
In the United States, Mr. Liebmann worked as an executive in several organizations.
Most recently, Mr. Liebmann volunteers for the American Gathering of Jewish
Holocaust Survivors where he has been treasurer for many years.
us to focus our eyes forward instead of constantly focusing them
back, without ever forgetting, but recognizing that the future is
where we will live, and hoping to deal with that as some form of
And finally, the notions of re-establishing or fostering a
sense of justice, a sense of rightness, about what human beings
can do in the wake of evil as dramatic and unimaginable as the
I always view those as the three goals: truth, reconciliation,
and the re-establishment of a sense ofjustice. Monetary aspects
were certainly a piece of that, and always in my mind a relatively
I will tell you that my thinking on the monetary aspects of it
has changed a little bit over time. When I began working on
these cases five years ago-many of you know that I have been
deeply involved in the litigation and the negotiation of the
German Foundation, and the Swiss Banks case as well-I saw the
monetary aspects of this as essentially punitive. I saw this as a
disgorgement process and said that no sense of justice could
ever exist, no sense of reconciliation could ever exist, and there
would be a constant repetition of the lies, if private individuals
were permitted to have profited dramatically by the agony of the
victims and to simply keep their ill-gotten gains, I said: "I don't
care who gets it, I just know that that company shouldn't keep
That is the way I approached it originally. My sense was: "I
don't care who gets the Swiss money; I know it shouldn't stay in
the Swiss Banks. I don't care who gets the slave labor profits; I
know that the German companies shouldn't make a profit, the
insurance companies shouldn't make a profit, and that
disgorgement is necessary for that unjust enrichment."
Over the years, I have become increasingly concerned about
the fairness of the allocation.
But let me just, in a minute or so, advert to how we
consciously dealt with the non-monetary aspects, because I believe
the monetary aspects are part of a larger package, but there are
My participation in the German Foundation negotiations,
was one of the most extraordinary experiences I have ever had,
in part-and I am sorry that Count Lambsdorff is not here to
hear this. Oh, he is still in the room, good.
We went through a long set of negotiations before he joined
the German Foundation negotiations, and they were bogged
down in rhetoric and deliberate posturing. It was only when he
began to lead the German team that a voice of candor came
through. More than once he ended the negotiation sessions
when we would be frustrated and intensely divided with what
became a mantra for the negotiations, and that is: We are doomed
to succeed in these negotiations. And in large part, we
succeeded because his was a wise and candid voice.
The negotiators' "voices" spoke in four different tones, and
this is what made it such a unique experience for me. They
spoke in the voice of charity. At the beginning, the German side
consistently stressed that they were engaged in essentially giving
something away out of the goodness of their hearts, a kind of
charitable operation, which grated on a lot of the participants,
but it was one of the voices that existed.
We also talked in the voice of morality. A number of people
tried to place the negotiations in a context of moral statements,
saying what would the moral stance be. We very quickly drifted,
as Count Lambsdorff observed this morning, into the voice of
self-interest, because the German participants understood that
both morality and self-interest coincided in an effort to reach a
result. And then, the lawyers, because it is the only voice they
know, continually spoke in the voice of rights and justice.
And so you had in the same negotiating forum a
combination of people speaking in those four different voices: charity,
morality, self-interest, and rights. It was out of that that came the
effort to achieve both monetary and non-monetary justice.
My sense is-and I will end on this note-that it is the
combination of the moving apology by President Rau, the
combination of the significant financial gesture made by the Swiss
companies of putting U.S.$1.25 million into the Swiss settlement
fund, the significant financial gesture made by the German
Government in contributing DM 5 million, the significant financial
gesture made by German industry in contributing DM 5 billion,
and the gestures that can also be made by France and hopefully
other countries of Europe. That is what they are: they are
monetary and non-monetary gestures.
I ask you all to measure them, to measure their effectiveness
against those three goals: Do those gestures help in projecting
the truth? Do those gestures help in projecting some sense of
reconciliation that allows us to focus on the future and not be
fixated on the past? And do those gestures help in establishing a
sense of community and a sense of fairness? If so, we have done
something worthwhile. If not, the process is brittle and history
will judge it harshly.
PROFESSOR PEARCE: Thank you. Mr. Liebmann, to put
you on the spot a bit, do you have answers to those questions or
other thoughts about the topic?
MR. LIEBMANN: I have some thoughts. But let me tell you
that I am somewhat at a disadvantage because until last night at
9:00 o'clock I didn't know I would be here this morning at 11:00
to speak to anybody.
Let me talk about reconciliation. I do not think that
reconciliation between Jews and the perpetrators is possible as long as
we, the survivors, live. I am in daily contact with lots of survivors
who call the organization for which I work as a volunteer, and it
seems to me that most survivors feel the same way I do.
Reconciliation with the survivors will not be possible. The wounds are
too deep. In fact, I only personally achieved a sense of closure
about the murder of my parents when ashes were buried in the
Holocaust Museum in Washington. That was ten years ago.
But we do have to recognize that all of these negotiations
prompted many countries, which absolutely did not want to deal
with their guilt, which finally came around and started to slowly
discuss the fact that they also have guilt and should be involved
in some moral justice.
PROFESSOR PEARCE: Thank you.
Professor Bazyler, how would you respond to Professor
Neuborne's questions and to Mr. Liebmann's observation about
PROFESSOR BAZYLER: I am very honored to be on a
panel with Professor Neuborne. It is very easy for me, as a
professor in the Ivory Tower, to look at all the individuals who have
worked so hard over the last five years in order to bring this issue
to the forefront.
In looking at this-and my conclusions are very similar to
what Professor Neuborne has said-there are basically three
different questions that have to be asked, which are part of what
Professor Neuborne was saying and the discussion this morning.
Each time that someone spoke about a particular issue, I could
fit it into one of these three categories.
The first one is: Should the money be sought? Should we
seek money, regardless of whether you call it restitution or
reparations or anything else? Second, if you are going to seek the
money, how should it be collected; what is the method? The two
really come together. Sometimes you can say that the "how" may
lead you to the conclusion that it's too messy, that it shouldn't
be done. The third question is the one that Professor Neuborne
said he is focusing on right now, which is the allocation. Once
the money is collected, how should it be distributed?
There are many reasons, looking at number one and
number two, to say that we should not, that the morality calls for us
not to seek the money, and that the process itself is just too high
a price to pay, as a number of people have pointed out. You
could say that no matter how much money you get, the Swiss
banks did not pay enough, you have not fully disgorged the
amount of money which they earned. The Austrian banks did
not pay enough, the French banks did not pay enough, the
German companies themselves did not pay enough for the amount
of profits and the earnings from the slave labor.
Anti-Semitism increased as a result of the movement.
Sometimes accusations are made of countries in which historical truth
is stretched. The people who profited from this are really the
lawyers, the Jewish groups, and the politicians, and that it
demeans the memory of the Holocaust.
It also can make the perpetrators feel, "Well, we've gone
ahead and discharged our debt fully. Go away, Jews. Why do we
need to deal with you? Don't bring up this any more. We went
ahead and paid it."
There is also talk of the fact that if you are concerned about
the security of the State of Israel, that in fact that is too high of a
price to pay.
When you look at the distribution, you say: "Well, look at
the payouts"-as Professor Curran mentioned, pennies per day
for what the survivors went through. The lawyers' fees compared
to the amount of money that the individuals get, so that in the
slave labor distribution, the amount of money that the lawyers
received-the payouts to one lawyer were equal to how much a
thousand victims were receiving.
And then, needy survivors are being left out. The whole
controversy about whether you distribute to the double victims
in the former Soviet Union and Eastern Europe, and then the
needy survivors in the United States are left out. And then,
other individuals making more than the survivors, whether it is
travel agents, accountants, owners of hotels, or consultants. All
of that may lead to the conclusion that this fight was not worth it,
that no matter what, we should not have it.
The writings that I have done in this area-again looking
from the Ivory Tower point of view-explain that I disagree with
that. With all the costs that there are, I think it is a worthy fight,
I think it is something that should have been done, and it is
something that justice did require.
My concern also is the same as Professor Neuborne's, that
when this first began-and I look at it again, not being on the
front lines, but from the Ivory Tower-the issue was that this
money has to be disgorged. There are profits that were made,
moneys that were made by these corporations, and they have to
be given back.
There was a debate-you might have seen this-that went
on in the form of an article in the magazine Commentary by
Gabriel Schoenfeld, called "Holocaust Reparations: A Growing
Scandal," which I very much disagreed with. But what I thought
was useful about that was that in the January issue of Commentay
there was a much more interesting and much more useful
responses by various individuals that set out various issues.
One of those responses came from Stuart Eizenstat. I just
want to quote a portion. To me, I could not say it better than
the way he said it:
Law, justice, and logic all come down strongly in favor of what
has been done. In every developed nation on earth, the
accepted method of compensating the victim when a civil
wrong has been committed, a contract breached, or labor
extracted under duress is through the award of money. Only
those on the fringe, those who deny the Holocaust and other
wrongs ever occurred, would disagree that its victims, Jews
and non-Jews alike, were grievously injured both by the Nazi
Government and by the German private industry. The same
can be said when it comes to Austrian industry and Swiss
banks. Insurance policies were not honored, dormant bank
accounts went unpaid, brutal labor conditions went
uncompensated, Aryanized property was never returned. If these
injuries occurred, why should their victims not have the same
right to sue for justice as victims or other and lesser
PROFESSOR PEARCE: Mr. Rosenbaum, I am going to try
to get us to look at Professor Neuborne's question. Let me ask
whether, as someone who is a prosecutor, whether you have a
different sense of whether the diplomatic and legal initiatives
here best satisfy the goal of seeing justice?
MR. ROSENBAUM: I think we are probably too close to
these recent events for history to have anything approaching a
final judgment yet. I will say that I do not believe that it is
possible to achieve anything but, in the final analysis, symbolic justice
when one is talking about a crime-and now just to speak about
the murder of the Jews-a crime in which, for four straight
years, an average of more than 4,000 men, women, children, and
babies were shot, gassed, beaten, or starved to death every single
But I do share the view, of course, that it is important to try
to pursue both the monetary and the non-monetary goals. I
think there are at least three kinds of key non-monetary goals, all
subsumed under the heading of the word that you used,
'justice"-provision of prosecutorial or law enforcement justice
against the perpetrators, provision of ethical and moral justice,
and provision of historical justice. The score on all three of
those I think is, at best, one of partial success, though, frankly, I
tend to view the world as having failed largely in all of them, just
as it has failed in the area of monetary justice.
I want especially to thank Professor Bazyler for speaking
some unpleasant truths about that process. I want, if I may be
permitted, also to state that, although I am with the Department
ofJustice, I am with the Criminal Division, and the Criminal
Division was not involved in any of the negotiations that took place
with Switzerland, Germany, Austria, et cetera. My small office
was intimately involved with that which preceded those
negotiations, the pursuit of historical justice, particularly in connection
with the wartime activities of Swiss institutions.
If one looks at prosecutorial justice, if I may stick with my
three goals, we have learned that only governments can
fully pursue justice. It seems that the world has, for whatever
reason, turned to private Nazi hunters, and they perform a
central role more as gadflies than as investigators. It is Nazi hunters,
Jewish organizations, other groups, the media, that have
embarrassed European governments in particular, but also our own,
into pursuing some measure of prosecutorial justice.
But, let's face it, that effort has failed. The overwhelming
majority of the perpetrators of the Holocaust have escaped.
Within a few years after the Nuremburg trials, the Cold War gave
most of the countries of the world, East and West, a ready excuse
to cease pursuing Nazi criminals.
It is scandalous that my tiny office of thirty-five people at the
Department of Justice has more Nazi cases in litigation than all
of the other countries of the world put together. I would like to
say that that is a tribute to the people I am privileged to work
with, but it is really more a condemnation of European
governments in particular, nearly all of which have to be pushed by
Nazi hunters, by Jewish organizations, by the U.S. Government,
to do the right thing. Our own government took thirty-five years
to finally get serious about pursuing Nazi and Japanese
I do want to correct one thing that Count Graf Lambsdorff
said about the statute of limitations in Germany. The statute of
limitations was allowed to run on all Nazi crimes years ago, with
the sole exception of what German jurisprudence refers to as
"base motive murder." So today, my friends, if you prove in a
German courtroom that the defendant manned a machine gun
and calmly mowed down 1,500 Jewish schoolgirls, he will be
acquitted unless you can prove that the did it because of what they
call "racial hatred." It is not enough to prove murder. And so
hardly any cases are prosecuted in Germany. Hardly any have
been prosecuted in the last ten or fifteen years.
In terms of the provision of ethical and moral justice, I have
in mind acknowledgment of national responsibility-not
collective guilt, but national responsibility. In that regard, Germany
has been a leader, and other countries, especially Austria and
Switzerland, have been very slow, as has France, in catching up.
I have in mind provision of a formal apology. Again,
Germany has led the way in that, and other countries are still trying
to get around to doing it. In the Baltic countries, for example,
anything that smacks of an official apology is extremely
Finally, I have in mind efforts to prevent the repetition of
such crimes. I think anyone who looks at the way Roma and
Sinti peoples are still treated in Europe knows that Europe has
not fully learned the lessons of the Shoah.
In terms of historical justice, historians of the world have
done an excellent job in studying and writing about the history
of the period, but only incomplete justice has been done there
as well, for a number of reasons, among them the fact that
documents the world over are still inaccessible in many cases. In
countries of the former Soviet Union, many documents are still
classified. In Great Britain, they have an Official Secrets Act that
still bars access to documents in many cases.
In our own country, there are hundreds of thousands, if not
millions, of classified documents relating to the period of the
Second World War that are still unavailable to the public more
than half a century after the crimes took place. We are in the
middle of a process, pursuant to legislation that President
Clinton signed in 1998, to seek out, declassify, and make public all of
One sees history in recent years being written by
government commissions, including ones in the United States, in
Switzerland, and in many of the countries of Europe. That is a
process that has great advantages, but is also fraught with danger. I
think, in general, governments should not be writing our
histories. One gets into all kinds of problems when that happens.
For example, the Presidential Advisory Commission on
Holocaust Assets in the United States made the mistake of releasing
a draft report on the so-called "Hungarian gold train." They gave
it to the media before it was vetted by qualified historians, and so
it is suffused with errors. But that account has never been
corrected as far as The New York Times was concerned. They ran it
on the front page, replete with a picture of a U.S. Army official
who happened to have the same name as someone who was
mentioned in the so-called "Gold Train Report," but was completely
uninvolved in those events. We have a long way to go.
I want to close by expressing my admiration for Mr.
Liebmann and Ben Meed and all the other survivors, and especially
their leaders, who have kept at the forefront of public
ness the crimes that were committed and the importance, above
all else, of an acknowledgment of national responsibility and the
provision of an apology, which is worth more than any money.
PROFESSOR PEARCE: I would like to follow up on a few of
the themes that have been mentioned. The first is Mr.
Liebmann's suggestion that reconciliation is not possible. How do
you respond to that, Professor Neuborne, in light of your sense
that fostering some sense of reconciliation should be or was one
of the major goals?
PROFESSOR NEUBORNE: First, I want to make a very
important distinction. It is impossible, it is immoral, it is
outrageous, for anyone to attempt to speak for a survivor. I can't, I
won't, I would never try.
My intuition is that Mr. Liebmann is right. I think it is
probably impossible for people who actually suffered the persecution
and the horror to become reconciled to their oppressors. It
would be wrong to ask them to do so. This is not something that
can ever, ever be rectified.
And so, the reconciliation I am talking about is not a
reconciliation of the victim to the oppressor. I do not believe in
asking victims to forgive the people who oppressed them. The
reconciliation I am talking about is a more structural reconciliation
between the cultures, between German culture, between the
culture in the United States.
I confess to you that when I went to Berlin, and to Bonn
initially, to engage in these negotiations, I found myself feeling
extremely uncomfortable, extremely out of place. I was hostile, I
was angry (and I suffered no personal loss through the
Holocaust). But I was a representative of my culture, a culture that I
love and revere, and I was reacting as strongly and negatively as I
The reconciliation that will allow a lessening of that
emotional anger is the reconciliation I am talking about, allowing the
two communities to be able to speak to each other, over time, in
ways that are not constantly dominated by a retrospective anger,
so that we can acknowledge the fact that we have to live together
in the world, we have to find ways of getting into the future.
That doesn't mean forgiving, it doesn't mean asking the
victims to forgive, but it does mean trying to find ways that the two
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communities can deal with each other on a reasoned basis, and
to try to find ways that we can work together in the future.
And, perhaps on a totally romantic note, but it is one that I
hope that we can do so, to try to see not just that we look
backwards, but that we look forwards and try to minimize the
possibility that anything like this can ever happen, not only between and
among our communities, but to try to minimize the chance that
this happens elsewhere in the world as well. It is that kind of
reconciliation I am striving for.
MR. LIEBMANN: What I would like to add to my remarks is
of course the following. I have no problem dealing with the next
generation of Germans. As Count Lambsdorff said, his children
bear no responsibility for what happened between 1933 and
1945. I have in the past had dealings with the next generation of
Germans and I had no problems with that. But we have to
recognize that the wounds of the survivors are too deep to effect
any reconciliation with our generation.
PROFESSOR PEARCE: Professor Bazyler, on this topic do
you have thoughts, or Mr. Rosenbaum, that you would like to
PROFESSOR BAZYLER: The question is-again I am going
to focus back on the money-what do the payouts do? Does that
help the process of reconciliation? Does it somehow diminish
the process of reconciliation?
In the brief remarks I made, I pointed out there are some
negatives in the payouts and, and as Professor Neuborne pointed
out, there are some positives in bringing a reconciliation. So
there are factors affecting it both ways.
MR. ROSENBAUM: I think it would be interesting for
someone to do some opinion sampling to find out whether as a
result of the events of the last five years, particularly the litigation
and the payments, survivors in general are more or less angry
than they were before the process began. I will leave it to others
to suggest what the survey is likely to reveal.
PROFESSOR PEARCE: Let me move to the theme that
Professor Neuborne suggested, which we talked about a little
PROFESSOR NEUBORNE: Russ, if you don't mind, I just
want to respond very briefly.
I hope if you do take that poll that you poll survivors in
Byelorussia, the Ukraine, Russia, Poland, people whose lives
were extraordinarily disrupted and who are poor beyond our
imagination, and not simply ask-I mean, we sometimes forget
what a blessed land we live in, in terms of the fact that people
who live here-there is a safety net below which many of us
simply do not fall-not that the government necessarily gives it to
us, but that the community will give it to us-and below that
safety net many people do not fall.
PARTICIPANT: That is not true.
PROFESSOR PEARCE: Excuse me.
PROFESSOR NEUBORNE: I have spent a lifetime arguing
that our safety net is too porous and that we fail. But if you think
that this is a country that can be compared with Byelorussia in
terms of the way people live, then I suggest that you visit
The fact is that if you are going to poll the survivor
community, please don't poll the Americans survivor community and
think that what you have done is given us an answer.
PROFESSOR PEARCE: Let me ask the panel to go back to
this question of reconciliation and what Professor Neuborne has
suggested with regard to it. Professor Bazyler, I think, would like
to add some comments.
PROFESSOR BAZYLER: About the money, I was born in
the Soviet Union, I lived in Poland, and I have relatives in both
countries, and I still send funds to an aunt in Odessa. That
U.S.$7,500 will make an incredible difference to that woman.
And as Count Lambsdorff did say, it's a fortune for her. That
can make a difference.
MR. ROSENBAUM: I, too, think Professor Neuborne made
an important point about the impact that these funds may have
on survivors in Eastern Europe. But if one looks at the concept
of disgorgement, and also entitlement to compensation just for
labor, it is hard to understand, for instance, when four American
companies that manufacture cigarettes have settled with the
state governments for U.S.$240 billion, why anyone should be
dancing around the room celebrating the fact that U.S.$5 billion
was given up by all of German industry put together.. The
lawyers fought as hard as they could, and I am certainly not blaming
them, but let us not delude ourselves into thinking that what has
been done is anything more than symbolic.
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PROFESSOR PEARCE: That, I think, segues us to another
question. Mr. Liebmann, I will give you the heads up and put
you on the spot on this. This goes to Professor Neuborne's
question about a sense ofjustice for survivors. What is your
perspective with regard to a sense ofjustice about the litigation and
MR. LIEBMANN: I think it is a matter of morality that there
was some money given. I do not know if you can call it justice,
because it is still only a minor token as to what was paid. And
let's not forget one thing: The U.S.$5 billion total of the
initiative goes seventy percent, I believe, to the so-called forced
laborers-in other words, to the non-Jewish side-and only about
twenty-five or thirty percent goes to the Jewish side. I think that
is a point, which has been studiously avoided by Germany to be
PROFESSOR PEARCE: Professor Bazyler?
PROFESSOR BAZYLER: That is correct.
PROFESSOR PEARCE: But any thoughts? What is your
view with regard to that? I'm not checking the accuracy of his
statement. What I would like to know is what about with regard
to those facts and the question that Professor Neuborne raised
about the re-establishment of a sense of justice? We heard a
little bit of Mr. Rosenbaum's response; I think it is fair to say. I
want to go to Mr. Liebmann and now to you. What do you think
the bottom line on the establishment of a sense ofjustice, given
Mr. Liebmann's comments?
PROFESSOR BAZYLER: Five billion dollars is not enough.
Ten is not enough. Yes, the Jewish survivors should have gotten
more, and yes, the forced laborers should have gotten more. I
think in part of his testimony-I think it was before the
HouseCount Lambsdorff said, "$10 billion is what we got and that $10
billion is what we're giving. I wish I could have gotten more." I
wish he had gotten more too.
I also suspect, but for the messy negotiations that went on,
we would not have gotten to the U.S.$10 billion. You know, it is
interesting. When Count Lambsdorff spoke about this not being
a class action settlement, that this is money that is being paid
out-but it was paid out because of the hard-fought
negotiations. It was paid out because of the greedy class action lawyers
sitting there and grinding the other side to get the greatest
You know the ads that were placed-I brought those with
me-that I show to my class in the newspapers, The New York
Times, talking about the offer, the measly offer that the German
companies were making. It was all part of the process. It was the
number that was received. We wish there was more, but that is
the reality of the situation.
PROFESSOR PEARCE: So your answer to the question that
Mr. Rosenbaum raised earlier, about whether the sense of
justice-I know you cannot answer it from the perspective of the
survivor community-but your answer from your view as to
whether there is more of a sense ofjustice now than before
appears to be yes. I think everybody agrees there is no complete
justice that is possible. But in terms of sense of justice, you
would take the position that there is more now?
PROFESSOR BAZYLER: There is some, absolutely. This is
a positive development. It is a positive development in the
human rights field, it is a positive development in international
law, and it is a positive development in the memory of history.
PROFESSOR NEUBORNE: Russ, can I explain why I think
it is a positive development, not just for the Holocaust cases,
because the Holocaust cases were obviously the thing that drove
the passion with which we work on it. But when I teach about
this, when I speak about this, I think about the wonderful work
that the prosecutors have done on this. I say that there has been
a substantial growth in the notion of law as a way of dealing with
these cataclysmic outpourings of evil that cannot possibly be
dealt with by any single nation State. They are international
violations in the truest sense of the word.
Beginning with the Nuremberg Trials and the evolution
toward the struggle to create a World Court in Rome that will
actually have jurisdiction over violations like this, the legal
community has made significant strides since the Second World War on
the criminal side.
On the civil side, we have not moved an inch. Think about
this as a metaphor. We figured out a way to deal with the guy
who runs the concentration camp. The guy who runs the
concentration camp is an international criminal, and we are, slowly
but surely, moving toward a world in which there would be an
international criminal court before which someone like that can
be brought to create some sense of justice.
The guy who sells the barbed wire to build the
concentration camp, knowing what it is being used for, and knowing that
he or she is making a huge profit from the transaction, we have
no international mechanism for taking that profit back, for
taking the profit out of being the civil conspirators with the
criminal evil that creates these horrors.
One of the reasons I worked on these cases was not just the
Holocaust, although it consumed my life for the past five years
with a passion that I did not dream would occur, but I worked on
it as well because I wanted to try-we all did-the lawyers wanted
to try to kick-start a process by which there would be a legal
vocabulary to describe the requirement that there not be a profit
motive in cooperating with genocide, and that if you cooperate
with genocide, someday, somewhere, some time, someone is
going to come and take the profit back.
That is why I thought disgorgement was such an important
role here, and that is why I agree entirely that this is all symbolic.
We did not come close to getting a disgorgement that is
accurate, but sixty years after the fact, in the historical imperative in
which we live, it was the best we could do, and it is a gesture, no
more than that, and the beginning, no more than that.
PROFESSOR PEARCE: Professor Bazyler, then Mr.
Rosenbaum and Mr. Liebmann.
PROFESSOR BAZYLER: The "somewhere" answer is the
United States. That is the only place.
PROFESSOR NEUBORNE: Now. Now it is the only place.
PROFESSOR BAZYLER: Now, it is here. I mean, as part of
the settlement, what the Germans wanted-you know, this is the
term that was used-was legal peace. What does that mean,
legal peace? It is not a fear of being sued in German courts; it's
not a fear of being sued in courts in any other country in the
world. It's a fear of being sued in the United States. It is the
same thing with the Swiss banks and the same thing with the
What it has led to-and I have said this in some of the other
writings that I've talked about-is what I hope is a new view of
other perpetrators, even from World War II, and also of other
historical wrongs, being sued in U.S. courts and having the same
kind of recognition.
A couple of months ago, there was a conference
commemorating the 1951 treaty between the Allied powers and Japan.
Imagine the audience, consisting of American POWs who worked
as slave laborers for Japanese companies, who suffered like the
Holocaust survivors suffered. The door has been closed on
them. They have not been able to get compensation. They
would be extremely happy to be in the shoes of those individuals
who are receiving the compensation from the DM 10 billion
settlement. They want that. They have been denied that. How are
they going about it? They are filing lawsuits in the U.S. courts.
There is a settlement with New York Life Insurance
Company stemming from the Armenian genocide, where New York
Life came in and sold policies in the Ottoman Empire. How did
that lawsuit come about? As a result of the Holocaust litigation
that occurred here.
There is talk right now of the African-American reparations
movement that is going on. I get weekly runs on those cases in
newspaper articles. How do I get those? By plugging in the
word "Holocaust." Everyone of those takes its cue from the
Holocaust litigation cases.
So, hopefully, this will be a new way of going against
companies and saying: "If you do the same things as these companies
did fifty years ago, you also will be sued, except this time we
won't have to wait fifty years."
PROFESSOR PEARCE: Mr. Rosenbaum?
MR. ROSENBAUM: If the historical question is: Will
history judge this particular settlement as "a dignified sum"-which
is what the White House called it during the celebration
surrounding the signing of the agreement last year-my hunch is
that history will not agree.
There are so many numbers one can look at. If a person of
color in this country is not seated at a Denny's restaurant, he or
she will get a lot more than U.S.$7,500. If we are paying people
just for their slave labor, not for their anguish and their pain and
suffering, and if they each worked on average certainly more
than a year in slavery and we are paying them in today's dollars, I
doubt there is anyone-I know there is no one in this
roomwho will work at a job in which what you say most of the time is
"Would you like fries with that burger?" for U.S.$7,500 a year.
But let us hope that that is not the standard for measuring what
As Professor Neuborne and Professor Bazyler indicated, let
us hope that the key question is: Will the landmark precedent of
last year's agreement, the result of some very, very difficult
negotiating and some very tough fighting by the lawyers and others,
be a precedent that ensures that in many cases in the future,
unlike this one, the full profits of inhumanity really will be
disgorged? If they are, then what happened last year was actually a
success, and we have to pray that it was.
PROFESSOR PEARCE: Mr. Liebmann?
MR. LIEBMANN: There is one thing, which has not been
mentioned here at all. I think one of the reasons why this
agreement came about altogether is thanks to the American
regulators, the insurance regulators and the banking regulators, who
put an enormous amount of pressure on the German side to
come to some kind of an agreement because it was in their
economic interest. With all the lawyers and all the negotiations, I
think the overriding reason why Germany came to the table and
finally came to the settlement was the regulators.
PROFESSOR NEUBORNE: I think we have to acknowledge
that. I worked on this so hard as a lawyer, but I always describe
this now to myself-and now this is the first time I will try
describing it publicly-I always think of this process as a
threelegged stool, that it is one of those milking stools with three legs.
First, the work of the U.S. Government-I mean, the work
of the regulators, the work of the state insurance regulators, of
the banking regulators, the Senate, and various officials. Some
of the unsung heroes are the people who were the comptrollers,
the treasurers at the local level of various cities across the United
States, who made it very clear that they would not do business
with banks that would not find a way to end this process. That
pressure was absolutely crucial. All the lawyering in the world
does not get us to first base without that pressure.
And then, secondly, the lawyers. The lawyers essentially
provided a legal vocabulary, a matrix, within which the discussion
could go on, and a theory which created a little more
self-interest in settlements. The lawyers I think participated
constructively, but could not possibly have done it alone.
But the thing that put it over the top, frankly, although you
are too modest to say it, was the organized activity of the Jewish
community that put this on the agenda back in the early-1990s,
that would not let it go away, and that insisted that there be a
resolution. The politicians and the lawyers helped craft the
resolution, but the pressure for the resolution came from the
It couldn't have been done without the cooperation of all
PROFESSOR PEARCE: Professor Bazyler and then Mr.
PROFESSOR BAZYLER: You know, there is a Chinese
proverb that says "failure is an orphan and success has many parents."
What I have seen in all these settlements, because it is seen as a
success, is so many people and so many organizations coming
forward and saying, "We are the one." It is not. Again, I have to
agree with Professor Neuborne. All these people have come
I do think that the Swiss settlement, in particular, which I
call the "mother of all Holocaust restitution settlements," would
not have occurred without the pressure from the regulators, and
specifically Alan Hevesi and the Executive Monitoring
Committee on those banks. Once that happened, that became a very
And I do think that the threat of sanctions was very
important. It was something that was opposed by the U.S.
Government. There were ads against it-you know, "trade war against
Switzerland." But it worked. Without it, who knows? None of
this would have occurred.
PROFESSOR PEARCE: Mr. Rosenbaum?
MR. ROSENBAUM: I agree. I think the work that the
Jewish organizations did to make sure that through the media this
issue was never allowed to walk off center stage was essential. I
see my friend Menachem Rosensaft here, who was intimately
involved in that, who wrote some terrific Op Ed pieces, in
particular. The World Jewish Congress led the way initially in this, later
joined by the Wiesenthal Center and others.
I well remember a very powerful full-page ad that ran in
newspapers around the country, and perhaps around the world,
placed by the American Jewish Committee, which pointed out
that even while Germany was refusing to pay pensions to former
slave laborers, it was handsomely rewarding its SS veterans. Alas,
SS veteran pensions still greatly exceed these amounts that are
being paid to the victims, but that deal is done.
I, too, want to pay tribute to the work of the regulators. As
long as we are doing that, I think this would be an appropriate
time to mention the extraordinary contribution of Neil Levin,
who perished in the World Trade Center attack.
PROFESSOR PEARCE: Let me change the direction of the
conversation just a little bit and ask about non-monetary
remedies that were left out. Some of the remedies that I have heard
mentioned have included a forum, which would have enabled
survivors to tell their stories. A different type of remedy I have
heard discussed is the notion of attempting to rebuild
What I would like to ask-and maybe I will start by laying
out the question for Professor Neuborne and then raise it for
others: Professor Neuborne, if you had a wish list, were there
some kinds of remedies that had to be dropped in the
negotiation? For all the panelists, I would like to hear your thoughts
about these remedies in general, and also about the question of
whether class action or diplomatic strategies made it more
difficult perhaps to achieve these remedies. It is a big question.
PROFESSOR NEUBORNE: That is a tall order.
I will say personally the non-monetary remedy we did not
get is what I feel most troubled about and what I consider a
genuine failure is that we were unable to require that private
archives be opened-in other words, the company records, the
bank records, the insurance records. I think that our inability to
force the public disclosure of all records relating to this era as a
matter of course, just as a matter of ordinary human decency, is
a great failure.
If there is an anchor that is hooked to this process that
could sink it in the future, it is the failure to get adequate public
disclosure, because I think that is just going to encourage
deniers to go back and start telling stories again. As long as this
information is in the gray area, in archives that people cannot get
at, and as long as information can be manipulated because it is
not in the public sector, that is a bad thing.
In terms of the psychology, the apology, I was at the
German President's residence, at President Rau's residence, when
he made that apology. It was one of the most moving
experiences I have ever seen. There was not a dry eye in the audience.
There were many survivors in the audience who spoke and said
that this was a very important day for them.
To the extent that that apology was a central aspect of the
negotiation, I think it was the most important non-monetary
event that took place, the formal apology by the President of
On the class action, for an academic like me, this is a perfect
kind of experiment, because the Swiss Banks case proceeded as a
classic Rule 23 class action. You will hear this afternoon from
perhaps one of the most important figures in the Swiss Banks
case, Judah Gribetz, the Special Master, given the very difficult
responsibility of helping us work out a plan of allocation and
distribution. That is a classic Rule 23 case.
The German cases went into this mixed legal/diplomatic
bag, which I think is unprecedented. Interestingly enough, I
think, just as a bottom line, we got more money out of the class
action. The Swiss Banks case, the U.S.$1.25 billion, was a better
economic return than the German settlement, which was the
best we could do and symbolically an important amount, but if it
had gone through the traditional class action process, my sense
is more money would have been generated.
On the other hand, the Swiss distribution is much slower
than the German distribution. So there are tradeoffs that get
PARTICIPANT: Why is it slower?
PROFESSOR NEUBORNE: Because it has to go through a
series of formalities. It is the formalities in the class action
mechanism-constant notice, constant mailings, and constant legal
formalities-which are important to assure formal legal fairness,
but which take time. The German system, because it operates
outside of a court, can operate more flexibly, but with the risk
that there is not a judge looking over the shoulder to make sure
that everything is done perfectly. So there are going to be risks
in both situations.
PROFESSOR PEARCE: Mr. Liebmann, are there remedies
that were left out that you would have liked to see?
MR. LIEBMANN: I think what we did not mention at all is
that there is a vast store of histories recorded by both the
Speilberg Foundation and the United States Holocaust
Memorial Museum. I do not know if this is the case overseas in
Europe. I think it is very important that these histories be
preserved in order to make sure that the deniers have nowhere to
go. Besides, the German records are so complete that I think
eventually the deniers will end up at a dead end.
PROFESSOR PEARCE: Is there anything, though, in
particular that you would have also liked to see in terms of a remedy?
I take it what you are saying is in terms of the issue of giving
people an opportunity to tell their stories, you did not
necessarily see this process as the place for that. Are there other kinds
of remedies that you would have liked to have seen come out of
MR. LIEBMANN: The only thing I can say is that there are
still too many countries who have not yet admitted to what they
did or to their guilt. I think it is important that these countries
come to grips with their past.
MR. ROSENBAUM: I do not know if it can be forced under
the heading of remedy but the one thing I would have liked to
have seen, beyond, obviously, greater compensation, would have
been additional transparency in the negotiating process. It was
very difficult to follow what was going on, what was being said to
I am not saying that the negotiations had to be conducted at
Yankee Stadium. But there were questions raised after the fact,
most notably about the side agreement that was, as far as I know,
kept secret for quite some time. It was signed by the United
States, Germany, and the representative of German industry,
which guaranteed a certain sum, between U.S.$50 and U.S.$75
million, to the trial lawyers. For some reason, that was not
published at the same time as the other agreements. I think the
survivors had a right to know about those kinds of things, and
they did not.'
1. After this Symposium, Eli Rosenbaum sent a copy of a letter addressed to "the
plaintiffs' attorneys participating in the negotiations" from Mr. Stuart Eizenstat, Count
Otto Graf Lambsdorff, and Mr. Manfred Gertz. This letter states the following:
This is to confirm our understanding of the resolution of the issue of
attorneys' fees. An allocation from the administrative budget of the
Foundation consisting of not less than 100,000,000 DM and not more than
125,000,000 DM will be set aside for the payment of attorneys' fees, expenses,
PROFESSOR NEUBORNE: Just for historical accuracy, the
agreement you are talking about was an arbitration agreement
that was negotiated in June. It was never secret. It was as public
as anything else. And the amounts you are talking about are just
completely wrong. The total amount of all attorneys' fees paid
to every attorney, including 278 survivors who received special
compensation for having been the spearhead to do this, and
every penny of costs, the total amount in all of that is U.S.$52
Now, that is a lot of money, but there were fifty-one lawyers
who worked for five years. I am not going to argue about the
morality of the way we compensate our lawyers, we compensate
our baseball players, or we compensate our movie stars. This
and related payments. Two arbitrators will decide on the allocation of this
fund, and must unanimously decide on a figure within that range. One
arbitrator will be selected by the plaintiffs, and will be Ken Fineberg. The second
arbitrator will be selected by the German side, with the approval of the
plaintiffs' attorneys. By July 24, 2000, the German side will present the plaintiffs
with a nominee, and the second arbitrator will be determined by August 23,
2000. This fund will be limited to the lawyers in the United States legal
actions, including Michael Witti. Payments to lawyers will be made when the
Foundation begins making payments to victims, either directly or through
We confirm to you here that we will jointly present this resolution to the
Foundation Board with the support of the U.S. Government, German
Government, and German companies, so that the Foundation Board may officially
implement it in accordance with the Foundation legislation.
Letter from Stuart E. Eizenstat, Otto Graf Lambsdorff, and Manfred Gertz to the
Plaintiffs' Attorneys (Slave Labor cases) (submitted by and on file with Eli Rosenbaum). In
the same correspondence, Mr. Rosenbaum also noted that
[A]s of the July 17, 2000 signing date, the minimum payment to attorneys
under the assurance of that date was set at DM 100 million, the equivalent of
nearly U.S.$50 million, specifically U.S.$47.8 million .... [T]he upper limit
set by the accord was approximately U.S.$63.9 million (i.e., the dollar
equivalent of DM 125 million), not U.S.$75 million as [I] estimated in [my]
Email from Eli Rosenbaum, Jan. 18, 2002 (on file with FordhamInt'l L.J.).
2. Professor Neuborne responded to Mr. Rosenbaum with the following comment:
If it would help clear up any misunderstanding, the actual distribution to
lawyers and 278 named plaintiffs was 124 million DM. The sum was used to make
modest payments to each of the 278 named plaintiffs for their courage in
agreeing to serve as named-plaintiffs, to reimburse 51 law firms for the
enormous out-of-pocket costs (like printing, telephone and travel) associated with
five years of litigation, and to provide a fee based on the arbitrators' judgment
about the relative quality of each lawyer's work. No other fees have been paid
Email from Burt Neuborne, January 18, 2002 (on file with FordhamInt'l L.J).
culture needs to talk a lot about the way we allocate our
Within the culture, within the way we do it, this was a
relatively modest compensation. That is all I can say.
PROFESSOR PEARCE: I want to go back to the
non-monetary remedies. Mr. Rosenbaum, are there remedies that you
would have liked to have seen, and are there ways in which you
think that either the class action or diplomatic efforts shaped
consideration of which remedies were appropriate?
MR. ROSENBAUM: I think, in general, everyone of good
will would like to see the countries of Europe in which these
crimes took place do more in the way of Holocaust education,
more in the way of funding scholarship.
Interestingly, Germany has, long before the advent of this
process of litigation, done more of that than any other
government of Europe, I am sure. Much of the best research on the
Holocaust comes out of the Institute for Contemporary History
in Munich. What I would have liked to see, and would still like
to see, is that example emulated by other governments of
PROFESSOR PEARCE: Professor Bazyler?
PROFESSOR BAZYLER: One of the things that did occur
as a result of this movement and the litigation was the setting up
of these various historical commissions. I mean, the Berger
Commission in Switzerland, the Mattioli Commission in
France-none of that, I do not think, would have occurred
without the litigation starting here and the pressure being felt. So I
think that a lot of the historical facts have come out. And yes,
there are some more that need to come out.
Some companies have hired independent private historians
to come in and to review their records, and those have issued
reports, and those reviews by the historians are independent in
the sense that they do not take cues from the company and they
bring out the information which they find. So I think that is a
positive. Should more companies have done that? Absolutely.
One of the sets of companies that I think that has not come
forward as much is the American companies. We point the
finger at other countries, we point the finger at foreign companies,
but U.S. companies have not been able to do so. General
Motors was accused in a series of articles that resurrected some of
the facts of its involvement of its German subsidiary during
World War II, and they first denied wanting to do that, then they
hired Professor Henry Turner of Yale to do a report. I think
more companies should do that.
You might have seen last year the book on IBM and the
Holocaust, and that IBM was unwilling to go ahead and to have an
independent historical review of its records. So if we are going
to point the finger at other countries, we should also do it to
PROFESSOR PEARCE: I want to go back to this issue of
giving people an opportunity to tell their stories. In my days in
practice before academia, I would often have clients who would
say, "You know, what I really want is to go before the judge and
have my story heard." I might say, "That is not going to be the
most effective way to proceed. I can just talk to the lawyer and
talk to the judge and I think that is going to be the easiest way to
go." Sometimes they would say, "No, that's the reason I'm here
in court. I want to tell my story to the judge."
So let me raise the question of what the panelists think of
the notion that going to a trial might have provided a type of
remedy itself and whether that would have been a useful remedy
under these circumstances.
Professor Bazyler, I see you shaking your head.
PROFESSOR BAZYLER: These cases would never have
gone to trial. I was naive enough to believe that, and then I
remember speaking to one of the lawyers involved, and she
reminded me of a very important fact, that-and the French Bank
cases showed that-as soon as you are able to beat the motion to
dismiss, defendants will end up settling with you. That is what
happened in these cases. There is no way that these companies
wanted Holocaust survivors paraded on the witness stand telling
And I think the survivors' stories have been told. Mr.
Liebmann referred to the Shoa Visual History Foundation that the
Speilbergs put forth in my hometown of Los Angeles. They have
gone all over the world and taken video narratives. Now they are
in the second phase, where they are actually going to be-if you
pick a particular word, you will be able to go and through that
technology find all the survivors who have mentioned that
particular word or that particular place.
S-202 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 25:S-177
The survivors' stories are being told. I do not think that was
part of what this was about.
PROFESSOR PEARCE: Mr. Liebmann, you have taken one
crack at this. Do you have anything you would like to add in
response to this?
MR. LIEBMANN: No.
PROFESSOR PEARCE: Mr. Rosenbaum and then Professor
MR. ROSENBAUM: As someone who has presented
survivor testimony in courts of law in our prosecutions now for fifteen
years, I am partial to that. I believe in the importance of
presenting those remembrances in a court of law, subject to
cross-examination, which is the ultimate test of its reliability.
The great privilege of my professional career has been to be
associated with so many survivors who have been willing to
reopen these wounds that have never really closed and to brave
American courtrooms and withstand some pretty nasty tactics on
the part of defense lawyers.
But I, too, agree that these cases would never have actually
gone to trial and that, fortunately, survivor testimonies have
been recorded by the Shoah Foundation, by Yale, by the
Holocaust Museum, by the Wiesenthal Center, by others, and have
been presented in courts of law both here and abroad.
PROFESSOR PEARCE: Professor Neuborne?
PROFESSOR NEUBORNE: I would dearly love to have
tried these cases. I wanted very much to try them. There were
three reasons why we ultimately did not.
One, a trial and an appeal would have taken at least six
years. Our estimate was at least six years for the case to wind its
way through the system, assuming we won every stage of every
motion. At that point, our estimate was the entire survivor
generation would have passed into eternity; virtually the entire
survivor generation would have been gone. We felt that there was
significant time pressure to do something while at least some of
them were able to recognize what was being done.
Secondly, although I am proud of the legal theories, the
legal theories were not ironclad legal theories. We were reaching
to the very edge of a lot ofjurisdictional arguments, a lot of
arguments on the merits. It is not at all clear that if we had pushed
the envelope to the end that we would have won. That is why
people settle. They settle because there is a mutual sense of
anxiety about how it will finally come out. We shared that mutual
sense of anxiety.
And finally, we did do at least-it is not the same as
testimony-but in the Swiss Banks case, we polled the survivors. We
sent out well over 1.5 million questionnaires to the surviving
generation using every informational source we could to identify
where they could be reached. We received 580,000 answers,
580,000 questionnaires detailing experiences of the survivor
When the case was over, we lodged those questionnaires
with an appropriate historical archive. I am pleased to tell you
that currently there is a nationwide project in which American
law students are reading every single questionnaire so that they
will be in some sense in touch with this generation in a personal
way. The questionnaires are being read and worked through to
make sure that no Swiss bank claim goes unexplored.
That is the best that we were able to do with actually letting
PROFESSOR PEARCE: I am going to ask each of the
panelists if you have any thoughts that we have not been able to get to.
We have about a minute apiece. In case you do not have
anything in particular to add-I will ask you to speak about one of
the remedies that we did not address: the question of rebuilding
communities. Do you think that notion had any value or
whether it was unrealistic and/or inappropriate?
I am going to go in reverse order from how we started to
give Professor Neuborne a chance on this one. So let me start
with Mr. Rosenbaum.
MR. ROSENBAUM: I do not know that I am qualified to
address the concept of rebuilding communities, so let me
conserve some time for others by just thanking Fordham for
sponsoring this wonderful conference. I want especially to thank
Thane Rosenbaum, who I am sure will want me to acknowledge
that we are not related in any way, for inviting me.
PROFESSOR PEARCE: Professor Bazyler?
PROFESSOR BAZYLER: I lived in post-war Lodz-you do
not want to rebuild the Jewish community in post-war Lodz.
That is not where the money should go. If even one dollar is
being used to build a monument or to do something, that dollar
FORDHAMINTERNATIONAL LA WJOURNAL
should go to a needy survivor. The money should go to a needy
PROFESSOR PEARCE: Mr. Liebmann?
MR. LIEBMANN: I think I would agree with Professor
Bazyler that money should first go to the survivors before it goes
PROFESSOR PEARCE: Professor Neuborne?
PROFESSOR NEUBORNE: (Smiling) I can read this
crowd. I have not survived this long by taking unpopular
In fact, the theory of the distribution in both the Swiss and
the German cases is exactly that. The theory of the distribution
in the Swiss case is that we are exhausting every possibility and, I
assure you, spending a significant amount of resources-it
makes me nervous sometimes at how expensive it is to attempt to
find survivors to give them a chance to put claims in. So we
share the notion that as much as possible of the Swiss settlement
fund should be distributed to survivors in an effort to provide
actual compensation for actual harms to actual people.
To the extent that proves impossible-and I am hoping that
it does not; I am hoping that we spend every single penny in that
aspect of the process. But if at the end of a very, very intense
effort to return the money to individuals, that turns out not to
be possible, what we plan to do is have a secondary distribution
procedure at which people will suggest proposals for the use of
whatever funds are left over.
I do not think rebuilding Jewish communities is going to
have a particularly high priority, but there will be important
possible ways of benefiting the survivor community and the various
victim communities. Thejudge, aided byJudah Gribetz, will
ultimately make that decision, but I am hopeful that is going to be a
very small chunk of the money.
In the German fund, as you may know, DM 700 million have
been set aside as a future fund to try to both benefit in some
small sense the heirs of survivors, but also in a larger sense to try
to fund programs of toleration throughout Europe, to try to
prevent anything like this from ever happening again. So a little
over eighty percent of the German fund is being distributed
directly to survivors, as it should be.