Competing Frameworks for Assessing Contemporary Holocaust-Era Claims
Fordham International Law Journal
Copyright c 2001 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Contemporary Holocaust-Era Claims
Vivian Grosswald Curran
Suppression and erasure have played a significant role in the context of the Holocaust. The
massive number of deaths yielded a terrible weight of silence, and the erasure of memory
occurred in a multiplicity of ways, including: (1) viciously and cynically on the part of many who
sought to hide all traces of their crimes; (2) protectively on the part of some who sought to save
the lives of the prosecuted; and (3) inevitably as the result of the disappearance of a world and
culture destroyed beyond any possibility of resuscitation by the few individuals who survived in
displacement and dispersal.
Vivian Grosswald Curran*
There are many angles from which to perceive the
contemporary holocaust-era claims. In 1997, Time magazine quoted Elie
Wiesel as saying that
[i]f all the money in all the Swiss banks were turned over, it
would not bring back the life of one Jewish 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 violence.'
Wiesel touches on two perspectives: first, what has been
described as "litigating the holocaust," with all that that implies
about the law's questionable capacity to adjudicate issues
containing vast extra-legal components; and secondly, the
problematic of suppression and erasure that has pervaded the holocaust
at many different levels. Suppression and erasure are recurrent
and very complicated phenomena of history and historiography
in general, whether perpetrated wilfully or unwittingly.
They have played a particularly significant role in the
context of the holocaust. The massive number of deaths yielded a
terrible weight of silence, and the erasure of memory occurred
in a multiplicity of ways, including: (1) viciously and cynically on
the part of many who sought to hide all traces of their crimes;
(2) protectively on the part of some who sought to save the lives
of the persecuted;2 and (3) inevitably as the result of the
disap* Associate Professor of Law, University of Pittsburgh. Unless otherwise indicated,
translations are mine. Parts of this Essay were presented at The Stefan A. Riesenfeld
Symposium 2001, Fifty Years in the Making: World War II Reparation and Restitution Claims, Boalt
Hall Law School, University of California at Berkeley, on March 9, 2001.
1. Lance Morrow, The Justice of the Calculator,TIME, Feb. 24, 1997, at 45.
2. One thinks, for instance, of the mayor of the town in southern France in which
Gertrude Stein and Alice B. Toklas lived, who deleted their names from the town
records in order to hide their presence from the Germans. Countless Jews or
"nonAryans" erased their identifying names and backgrounds in false papers in order to
escape persecution. See SUSAN Zuccorri, THE HOLOCAUST, THE FRENCH AND THE JEWS
47 (1993). For an excellent account and analysis of law in Vichy France, see RICHARD
H. WEISBERG, VICHY LAw AND THE HOLOCAUST IN FRANCE (1996).
pearance of a world and culture destroyed beyond any possibility
of resuscitation by the few individuals who survived in
displacement and dispersal.
I. SMOTHERED PALIMPSESTS
The post-war world indulged in numerous conscious
erasures, such as the physical destruction or transfer of documents
and files to obscure and unexpected archives. These acts aimed
to prevent the story of officially sanctioned horrors from being
revealed,3 or, as alleged in some of the holocaust litigation
claims, they were part of concerted attempts by banking and
insurance officials to minimize the possibilities for the robbed to
reclaim or even identify their assets, thus precluding the
assertion of the victims' legal right to property.
Official initiatives of erasure also resulted from acts that
were not linked to past culpability, such as the efforts of de
Gaulle in France to represent the French as having been unified
throughout the war and Occupation in the face of a German
oppressor. He declared that Vichy, France's collaborationist
war-time government, never existed as a French phenomenon.
De Gaulle proclaimed that France could be France only when it
was a Republic; hence, Vichy never was France.' Consistently
with this approach, de Gaulle's position was that he had
embodied the legal government of France from 1940 to 1944, a
government in exile, a government of a people trapped in military
defeat, but allegedly resisting at every opportunity the enemy
occupier and the enemy's mere handful of French-born henchmen.
This myth essentially erased Vichy from the slate of official
French history for many years, just as post-war ordonnances
en3. I think here of the Nazi and Vichy census files of ParisJews, the notorious "fichier
desjuifs," and other documentation hastily sent from police precincts in France to
obscure locations where they would be difficult to find, and where they would be subject
to refusals on the part of their guardians to release the documents. For further
discussion, see Vivian Grosswald Curran, The Legalization of Racism in a ConstitutionalState:
Democracy's Suicide in Vichy France, 50 HASTINGs L.J. 1, 53 n.172, 64 n.217 (1998); Eric
Conan, Vichy: le rapport qui love l'inigme sur le"fichierjuif " L'ExPREss, July 10, 1996; Le
"Fichierjuij"auMmorial,162 REVUE D'HISTOIRE DE LA SHOAH: LE MONDEJUIF 203, 206-09
4. See Curran, The Legalization of Racism, supra note 3, at 60-61. De Gaulle's
position was reflected in the August, 1944 ordonnance, stating that "the form of France's
government is and remains a republic . . .in law, [and therefore the Republic] never
ceased to exist." Quoted in the original French in Dominique Rousseau, Vichy a-t-il
existe'?, inJUGER sous VicHY 97, 103 (Maurice Olender ed., 1994).
acted under de Gaulle wiped Vichy laws from the legislative slate
It should be noted that, although a myth, de Gaulle's
rendition was not just the preferred view of those who had reason to
avoid confronting France's role in the holocaust. Although it
enabled such avoidance, it also was the position of most anti-Vichy
French people in the immediate aftermath of the war, including
the Nobel laureate and eminent legal scholar Ren6 Cassin, who
had left France in 1940 to join de Gaulle in London. 5 The view
of Vichy's ab initio illegality in practice also proved essential to
the success of the hasty post-Liberation trials of intellectuals for
their collaboration in order to defeat their defense of having
behaved patriotically by collaborating with Vichy.6
De Gaulle's version of Vichy profoundly appealed to
Resisters inasmuch as it relegated Vichy to complete ignominy, as an
essentially Nazi German phenomenon, thereby validating the
concept of another France, which in their eyes was the France
for which they had fought and risked their lives: a beacon of
civilization. From 1940 on, one saw frequent references to the
concept of "la vraie France," "the true France." Both pro-P~tain
collaborationists and anti-P6tain resisters used it, although at
complete cross-purposes. To the Resistance, it was the idea of a
true France that embodied the best of human ideals flowing
from the Revolution of 1789, and that Vichy was disguising
temporarily in a fraudulent and illegitimate personification.7
5. See Curran, The Legalization of Racism, supra note 3, at 24-30, and sources cited
6. See PHILIP WATTS, ALLEGORIES OF THE PURGE: How LITERATURE RESPONDED TO
THE POSTWAR TRIALS OF WRITERS AND INTELLECTUALS IN FRANCE 18-19 (1998). Those
post-Liberation trials also contributed to erasure in terms of holocaust history, as
collaborators were judged for treason and national indignity, but rarely did antisemitism
figure in the judicial proceedings. It took half a century for France to discuss Vichy in
terms of its anti-Jewish measures. See, e.g., Watts' analysis of the trial of C6line. Id. at
2526. Similarly, in a eulogy for the poet Max Jacob, who died in the Drancy internment
camp in 1944, his colleagues described him as having been tortured and murdered as a
French poet whose poetry symbolized good. See id. at 34. MaxJacob died at Drancy for
a reason that had nothing to do with his poetry: because he was ajew, and, as such, was
outside the scope of legal rights or protections in Vichy France.
7. Among the many who espoused this fervent faith was my grandfather, whose
letters to his family from the French internment camps of les Milles and Gurs make
recurrent references to "la vraie France," whose return he awaited, leading him to
postpone emigration for a perilously long time. See Curran, The LegalizationofRacism, supra
note 3, at 5-6.
The 1946 French Constitution of the Fourth Republic,8 one
of the most beautiful and moving of documents in terms of
tolerance and humanity,9 attempts to articulate this vision of a nation
and a national identity cherished fervently by many. The
Preamble to the 1946 Constitution reads like a transmutation of the
Declaration of the Rights of Man of 1789 onto the terrain of
French anti-fascist Resistance. De Gaulle's own articulation of
the true France was both grandly imprecise and exquisitely
simple: "Toute ma vie, je me suisfait une certaineidge de la Francd' ("All
my life, I have had a certain idea of France"), as he subtly and
subtextually invited his readers to invest their own ideals in his
Even as time suggested that denying Vichy as a French
phenomenon increasingly was becoming synonymous with an
official French denial of responsibility for its predecessor's crimes,
many former Resistance members continued to adhere to the
denial, in memory of how important a point of honor it had
been for them during the years of the Occupation."
Consequently, a highly distorted text of the past was written,
superimposed on the original events, and obfuscating much that had
transpired. As Wiesel observed however, suppressed texts
eventually rear their heads. 12
Like a palimpsest, the past never had been erased
completely; it remained beneath the surface, seeping through
occasionally, until finally, albeit much later, it burst forward in the
midst of a national insistence by a new generation to know what
Vichy France really had been.13 And so, like layers of
superimposed parchment cracking with age and peeling away, slowly the
past that had not ceased to haunt the nation re-emerged,
provoking legal and political crises half a century after the events
II. JUDICIAL RE-COLLECTIONS
To the extent that the crisis has played itself out in the
courts, law's interaction with the holocaust has involved not only
adjudications half a century after the end of the events at issue,
but also adjudications of issues that stray far from the
traditionally legal: namely, adjudications concerning ethics, the
reconstruction of history and even the formulation of national
identity. These tasks were thrust on the courts of France before the
recent litigation which is our subject-namely, in the criminal
trials of the German, Klaus Barbie, commonly known in France
as the butcher of Lyon, and of the French defendants Paul
Touvier and Maurice Papon. Despite protests to the contrary by
some of the legal actors, those trials were viewed by the nation as
the trial of Vichy France, the State, and not, or at least not
merely, the trial of the individual defendants.
As a consequence of involving history, both these trials and
the later reparations claims also implicate memory. Memory is
an area deeply relevant to court proceedings. In recent years,
Paul Ricceur has written insightful books, elucidating the
complex links of memory and history.' 4 Ernst Cassirer also has made
a brilliant contribution to this issue. In one of the few texts he
wrote in English originally, he discusses the intertwining of
history with memory as a process of "re-collection," a new collection, a
new assembling of traits from the past, always creative and always
novel invention, both through reconfiguration and through
selection, and always impregnated with the symbolic.' 5 The great
novel of Marcel Proust, A la Recherche du temps perdu, although
indirectly, also sheds light on the problematic of memory's
relation to the past: paradoxically, a relation of simultaneous
subjugation and empowerment. 6
Memory's re-collections are situated in the context of the
language by means of which one remembers, a crucial
component of ideation and cognition. The human condition is a
condition that frequently accords primacy to representations of
events over the actual events in life. This result is effected by
means of the symbolic representations that language constitutes.
The contemporary French intellectuals Boris Cyrulnik and
Edgar Morin have described the dominant position of the
symbolic in human thought and action in terms of its tragic
potential to relegate events in life to a secondary or even irrelevant
position. They signal the terrible danger of human inability to
distinguish the representation from the represented (i.e., from
the real). The failure to distinguish between the two signifies a
loss of feedback from reality in the formation of one's
representation of reality, and consequently, of one's understanding of
reality. This in turn can cause one to believe and act upon
[F]rom the instant when one becomes able to inhabit the
world of virtuality-which one invents with one's
narrativesone easily can hate each other and logically wish to kill each
other based on the idea one forms of the other, rather than
on the knowledge one has of the other. At that moment, one
escapes the regulating mechanisms of nature and becomes
completely subjected to the world one creates. And it then
becomes both quintessentially moral and logical to construct
and constitute genocides. 7
[I]deas- . . . the necessary means for communicating with
reality-also will disguise reality and will cause us to mistake
the idea for the reality. This barbarous relationship to ideas
is one of the greatest atrocities to have befallen humanity...
IT]he principal organ of vision is thought. We see with our
ence from trauma in intricate interplay with the variables of each person's genetic and
cultural circumstances. See CYRULNIK, supra note 13.
17. BoRIs CYRULNIK & EDGAR MORIN, DIALOGUE SUR LA NATURE HUMAINE 27 (2000)
("des lVinstant oil l'on devient capabled'habiterle monde virtuel-qu'oninvente avec nos
ricitson peut trs bien se hairet disirerlogiquement se tuer,pour lidle qu'on sefait de l'autreet non pas
pour Ia connaissanceque lon en a. A cet instant, on 9chappeaux mgcanismes rgulateursde la
natureet Pon devient completement soumis au monde qu'on crie. Et c'est alors le plus moralement
et le plus logiquement du monde, quonfabriqueet constitue des genocides"). Cf ISAIAH BERLIN,
EN TOUTES LIBERTES: ENTRETIENS AVEC RAMIN JAHANBEGLOO (trans. Gerard Lorimy,
1990) ("Limaginationpeut nourrirlefanatime,mais la penetrationpar 'imaginationdans des
situations tres differentes des v6tres doit en fin de compte l'affaiblir." ["The imagination can
feed fanaticism, but penetration by the imagination in situations very different from
one's own ultimately must weaken it."]).
itdheoausgh.t. o.bOeyusr oeuyreseyoefst.e' n8 obey our thought more than our
One of the results of trials relating to holocaust events,
whether criminal or civil, is that they become vehicles for
memorializing the holocaust. They fashion narratives of reality
influenced by judicially recognized issues, concepts, and categories.
Inevitably, they involve gaps between the events of life that they
purport to adjudicate and their own creation of a judicially
wrought account thereof.
The inefficiency of the judicial proceeding as a vehicle of
memory was signalled after the war by the French National
Committee of Writers, a group which had been anti-collaborationist
throughout the war. The Committee wrote of France's
collaborationist writers that there were some "whom even death cannot
save, those who have paid only in the eyes ofjustice, but not in the
least [in the eyes] of human conscience." ("[dies 9crivains que la mort
mime n 'en peut sauver, ceux qui ne peuvent avoirpayg qu 'aux yeux de
la justice, mais non point de la conscience humaine"). "
Part of the tension and uneasiness generated by all litigation
concerning the holocaust, including Hannah Arendt's sense that
the Eichmann trial imposed metaphysical symbolism on nothing
more than a petty civil servant,2" involves, to echo the thought of
the French writers' group, a reluctance even to seem to suggest
that, by virtue of resorting to the judicial arena, the court
verdict, defined as justice, also is the verdict of human conscience.
Along similar lines, one of the great French poets of the
Resistance, Paul Eluard, wrote "Et que comprendre juge . . .
("And may understanding judge .. ."). He was not trying to
exonerate the guilty by pleading for understanding; on the
contrary, like Sartre and de Beauvoir, he believed that collaborators
should be held accountable for their actions. 22 His equating
understanding with judging signals, rather, the commonplace
principle that understanding is a pre-condition for judging, what in
the law we call a condition precedent. Therein lies another
profound source of discomfort with court judgments connected
to the holocaust, for the holocaust ultimately eludes and defies
This problem takes on particular acuity within the United
States' common-law judicial system because of the paradox that,
while the holocaust was unprecedented, common-law legal
conclusions derive from, and depend on, precedent.24
of the United States essentially cannot function without
precedents as their point of departure for reasoning. That which has
no precedent is meaningless to the common law, and this is true
even where the courts themselves proclaim that they are
adjudicating a situation without precedent. 25
Such situations, known as cases of first impression, would
seem to contradict my statement that the courts require
precedents. A close look at how United States courts handle cases of
first impression, however, reveals that they continue to reason by
22. See id. at 49. tluard revealed his exacting attitude to collaborators in his poetry
as well as his actions: "Je veux quon . . . rendejustice / Unejustice sans piti!/ Et que l'on
frappe en plein visage les bourreaux/ Les maitres sans racinesparmi nous" ("I want justice to
be rendered .. . / Ajustice without pity / And may the tormentors be struck in their
faces / The masters without roots among us"), and in a poem titled "Lajusticen'est pas
faiblesse" ("Justice is not weakness"). Id. at 268.
23. As a corollary of this idea, Jean Clair posits that even memory is impossible:
"Les camps de concentration introduisirentcette rupturefondamentale qui marque la modernit:
ils rendirentla mbmoire impossible" ("The concentration camps introduced the
fundamental rupture that characterizes modernity: they made memory impossible"). JEAN CLAIR,
LA BARBARIE ORDINAIRE: Music A DACHAU 80 (2001). See also id. at 92-93. For the
contrary argument that the holocaust does not defy understanding, see YEHUDA BAUER,
RETHINKING THE HOLOCAUST (2001). But seeJORGE SEMPRUN, LE MORT QU'IL FAUT 143
(2001) (remarking about a comrade whose dying he watched in Buchenwald, that
"[o]ne has but to look at the photographs that bear witness to the deaths, even today,
...to realize to what extent the absolute, frantic question about that death [i.e., that of
his comrade] has remained without answer" ["I1 suffit de regarder,aujourd'huiencore,...
les photographies qui en tbniognent,pour constater d quel point linterrogationabsolue,frndtique
de cette mort, est restie sans rdponse"]).
24. I discuss this phenomenon at length in Vivian Grosswald Curran, Romantic
Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the
European Union, 7 COL.]. EuR. L. 63 (2001).
25. See id. at 82-85. For my discussion of a civilian view of this issue, see id. at 83;
and Vivian Grosswald Curran, Rethinking HermannKantorowicz: Free Law, American Legal
Realism and the Legacy of Anti-Formalism, in RETHINKING THE MASTERS OF COMPARATIVE
LAw 66-91 (Annelise Riles ed., 2001).
way of analogy to precedents even ir cases of first impression;
i.e., even where they themselves proclaim that no precedents
exist. In such cases, the courts tend to extend the horizon
encompassing persuasive authority to foreign case law, whether of
other states or even other countries, precisely because their
modus operandi is to reason by analogy to, and distinction from,
prior adjudicated cases, and because they are not adept at
engaging in the process of resolving a pending case's issues in any
Given how many frameworks the holocaust reparations
claims asserted in the United States courts implicate, it is not
surprising that they have elicited considerable criticism.
Criticism has focused on litigation as a conceptually inappropriate
remedy for the injustice of the past, tainting and demeaning the
memory of the holocaust by reducing it to purely material
concerns. As one respondent to an article on the subject of
holocaust reparation claims that appeared in Commentary put it,
'justice is unattainable. Better not to use its name in vain."27 The
most heated criticism concerns perceived abuse of the tragic past
by lawyers and others who would derive personal profit at the
expense of the survivor claimants and, still more grievously, at
the expense of demeaning the significance of past suffering.
One survivor, a former slave laborer and concentration camp
inmate, including, among others, at Auschwitz-Birkenau, has
[we] survivors . .. never were properly [re]presented in the
[holocaust reparation] negotiations . .. Survivors were not
united. Some spoke of "blood money." Others made
impossible demands as to the amounts they envisioned. In this
emotionally charged debate, [many] of us tended to forget
that human life has no price, that there is no such thing as
"compensation" . . . The organizations, on their part, were
fighting for a big slice of the pudding. They were
negotiatingnot us, the survivors. I never empowered anybody to speak for me. I
never had an opportunity to do so. I never appointed the Claims
26. See Curran, Romantic Common Law, supra note 24, at 82-85. I also have
discussed the issue of the judiciary where the holocaust is concerned more generally and
at greater length in Curran, The Legalization of Racism, supra note 3, at 87-94.
27. Yacov Lozowick letter, in Holocaust Reparations: Gabriel Schoenfeld & Critics,
COMMENTARY, at 16 (Jan. 2001), available at http://www.commentarymagazine.com/
Conference to represent me ...I haven't been asked.28
This sentiment was echoed more formally in the Newsletter of
the National Association of Jewish Child Holocaust Survivors
[O]ur large standing grievances [are] that all the settlements
so ostentatiously flaunted by the self-appointed negotiators,
amounted to very little benefits to the majority of survivors;
that the actual demands by the grass-roots survivor
population had been repeatedly ignored; that funds obtained in the
name of Nazi-victims had been and are being spent on all
kinds of esoteric projects of no direct benefit to survivors and
that there is a pressing need for a home-care/health-care
dthigenistuyrvaivnodrswmitahyoubtefaebalreotfofliinvaenocuiatlthrueiirn.r2e9mainOne senses in these comments the fear that, in the end, the
survivors once again might be erased, or at least ignored in some
measure. One wound that reverberates from the writing of
virtually all survivors who have written memoirs is the sense camp
inmates had during the Nazi years that they did not exist for the
world as individuals. In the words of Jean Clair, "[t] he triumph
of Nazism was to have made man lose his face." ("Le triomphe du
nazisme, c'est d'avoirfaitperdre la face d l'homme").30 And indeed,
the very concept of justice and of "the opposite of
totalitarianism"" in our times has been defined as "maximum differentiation
as against maximum coordination."3 2
III. NAZISM'S ERASURE OF THE HUMAN FACE: GENOCIDAL
The Nazis' total de-individualization of Jews extended
beyond the realm of physical acts, even beyond the act of murder:
it was also a matter of legal theory advocated by the scholars of
28. E-mail from Fred Klein reproduced in e-mail response thereto of Gabor Hirsch
(Nov. 30, 2000), Internet discussion group "H-Holocaust" at (on
file with author) (emphasis added). See also NEWSL. NAT'L ASS'N OFJEWISH CHILD
HOLOCAUST SURVIVORS [hereinafter NAHOS], Nov. 1, 2001 (noting failure of claims process
in vindicating rights of survivors).
29. NAHOS, supra note 28, at 2.
30. CLAIR, supra note 23, at 28.
31. MICHAEL WALZER, SPHERES OFJUSTICE: A DEFENSE OF PLURALISM AND EQUALITY
32. Id. (emphasis added). Walzer elaborates an intricate idea to support his thesis,
whose rendition above is in too summary a form to do it justice.
Nazi Germany. One professor of law after another, from
Schmitt to Huber to Larenz to Maunz to H6hn, emphasized the
need for Germans to expel the alien, the different, the foe, and
to nullify his individual existence as legal subject or actor."3
Germans were urged at many levels, including at the level of
legal theory, to be strong enough to destroy even those whose
Judaism lay in remote ancestry, and even if they as individuals
had espoused the most nationalistic of Germanic goals.34
According to Nazi legal theory, the inevitably alien spirit of Jews,
even those Jews who tried to further German nationalism, would
thwart, undermine, and eventually destroy the spirit of
Individual decency was of no relevance whatsoever to the
new German legal theory, because individual attributes of any
kind were irrelevant. Only the people, the community with
whom the law categorized the individual, counted, and the Nazi
rendition of biology was deemed determinative of human
value. 36 The allegedly ever- and overly-sensitive, even gullible,
Germans were to be reminded of this in order to fulfill what was
billed as a duty of mercilessness towards the one defined as
33. See Vivian Grosswald Curran, Fearof Formalism: Indicationsfrom the FascistPeriod
in France and Germany ofJudicialMethodology's Impact on Substantive Law, CORNELL INT.
L.J. (forthcoming 2001) (discussing the views of these Nazi legal theorists). Yehuda
Bauer has signalled the importance of the German intelligentsia in general: "[W]ithout
the enthusiastic support of [Germany's] intelligentsia, neither war nor Holocaust would
have ensued." BAUER, supra note 23, at 33.
34. See Geoffrey Hartman, Is an Aesthetic Ethos Possible? Night Thoughts After
Auschwitz, 6 CARDOZO STUDIES L. & LIT. 135, 146, 147 (1994). This attitude was
articulated explicitly by Hitler's higher education minister, Rust, in a speech in which he
specified that it might be painful to expel Jews who individually could wish to take part
in German society, but that their expulsion was indispensable because their blood and
blood instincts prevented them from being German, regardless of what personal
characteristics any individual among them might possess. The text of Rust's speech is
reproduced in significant part in ANNA MARIA, GRAFIN VON LOSCH, DER NACKTE GEIsT: DIE
JURISTISCHE FAKULTAT DER BERLINER UNIVERSITAT IM UMBRUCH VON 1933, at 168-70
(Beitrdge zur Rechtsgeschichte des 20. Jahrhunderts No. 26, Knut Wolfgang N6el al. eds.,
35. Von L6sch relates the intended applicability of this message to German law
professors ofJewish descent, who for the most part were members of the Protestant or
Catholic church, and whose political views tended to be conservative and often
nationalistic. See id. (recounting in detail the situation of each law professor deemed
"nonAryan" at Berlin University during the Nazi period).
36. See, e.g., BERND ROTHERS, DIE UNBEGRENZTE AUSLEGUNG: ZUM WANDEL DER
PRIVATRECHTSORDNUNG IM NATIONALSOZIALISMUS 323-36 (3d ed. 1988); MICHEL
STOLLEIS, THE LAW UNDER THE SwAsTIKA 81 (Thomas Dunlap trans., 1998) (1994).
S-118 FORDHAMIATERNATIONAL LAWJOURNAL
standing outside of the legal community; namely, the
Thus it was that the legal scholars of Nazi Germany
provided the courts with a theory that enabled judges to deprive
Jews progressively of all legal rights, and not merely pursuant to
Nazi-enacted laws, but even when the courts were applying
unrepealed laws of the pre-Nazi era. The courts developed a doctrine
of analogizing the Jewish person to a dead person, based on
legal theory that openly and explicitly advocated the expulsion of
Jews from the German community, the German
Volksgemeinschaft. A contemporary German legal scholar has called this
doctrine the judicial "concept of the 'civil death' ofJews." 8 Since the
German Civil Code had not been repealed, and granted legal
capacity ("Rechtsfdhigkeit") to all individuals by virtue of birth,
such a doctrine was essential if Jews were to be deprived of all
legal rights in a manner bearing a semblance to law. 9
In a remarkable feat, Raphael Lemkin, a Polish-Jewish
lawyer who drafted the U.N. Convention on Genocide, and who is
credited with having coined the term "genocide," understood
the Nazi genocidal phenomenon before he learned the terrible
facts that later substantiated his theory. At a time when others
who, unlike Lemkin, were privy to the relevant facts, could not
bring themselves to believe the import of what was happening
(people such as Isaiah Berlin, Nahum Golman, and Chaim
Weizmann), Lemkin understood, and, according to a recent
article, the reason he understood the Nazi genocide was by a
process of deductive reasoning from his study of Nazi
The erasure of the human face by Nazism is a principal
theme in the painting of Music, whose post-war work has been
haunted by images of the cadavres that surrounded him in
Dachau. In his book on Music's art, museum curator Jean Clair
notes the declaration by Stangl, Commandant of the Treblinka
camp, to the effect that he did not perceive his prisoners to be
individuals."1 And of Music's paintings of the dead and dying in
Dachau, Clair observes the following:
[T] hose bodies, deprived of distinctive features and returned
to formless mass, dissolve as the mountains north of Venice
...under the acid rain, and as in Carso the earth of the hills
dissolves under the furrowing of waters. ...[And] then it is
the individual who melts away, forgetting [himself that] he
had a face .. .a personality, a look.4"
IV. CLASS ACTION CHALLENGES
If there is a point of extreme sensitivity to holocaust
survivors, it lies in their individuality; and if there is a duty holocaust
survivors consider sacred, it is to the memory of the dead. Class
action suits by their nature challenge both of those sentiments,
each for different reasons. The class action suit is that legal
proceeding in which all plaintiffs are lumped together based on the
allegedly identical and undifferentiated nature of their claims
and situations. The voices of many are channelled into a
Secondly, being legal proceedings, class action suits like all
other suits, lead to a court record that cannot hope to be
historically complete in reconstructing the past. Indeed, United States
law in particular, due to its unique rules of evidence, which in
turn in large part are due to the unique use ofjuries in civil cases
in the United States, intentionally tends to prioritize the
exclurendition to his attention, and to ask if his own view is indeed irreconcilable with
Ignatieff's. Professor Bauer responded that Ignatieff's account was accurate and that his
own was not intended to suggest otherwise. Letter from Yehuda Bauer to Vivian Curran
(May 20, 2001) (on file with author).
41. CLAm, supra note 23, at 63.
42. Id. ("Et ces corps, prives de traits distinctifs et rendus d la masse informe, se dissolvent
donc comme se dissout dans les montagnes an nord de Venise .. .souls la pluie acide, comme se
dissout, dans le Carso, la terre des collines sous le ravinement des eaux . . .Mais c'est alors
l'individu qui sefond, qui perd conscience d'avoir eu un visage, une personnalitd, un regard")
(In the words "rendus a la masse informe" is the connotation not just of having been
.returned," but also of having been "rendered" or "represented" as formless).
sion from the court record or proceedings of numerous facts
from life whenever the law deems such facts to be capable of
engendering jury prejudice, or in other ways to be capable of
misleading the jury as to their proper probative weight.4"
On the other hand, are those who were robbed really not
entitled to what was stolen from them? Does this quite simple,
straightforward and virtually universally acknowledged basic
legal right that civilized societies accord their citizens not apply to
them, and does it not exist quite apart from the more esoteric
realm of the symbolic paradigms mentioned above? Or, in the
words of The Newsletter of the NationalAssociation of Jewish Child
Holocaust Survivors, "[a] re Holocaust survivors being singled out
(again) as less deserving of justice and basic legal rights?"44
Moreover, as Irwin Coder put it, "we are talking about
thefticide-the greatest mass theft on the occasion of the greatest
mass murder in history. 45
Motions to dismiss the United States claims asserted against
European banks and insurers include certain generally shared
defenses, including the defense of statutes of limitations. United
States law of course applies the discovery rule to limitations
periods, such that the relevant statutory period is tolled where the
plaintiff was not reasonably able to assert the claim within the
prescribed time frame. In France, the late Vladimir
Jank6Mlvitch, one of France's foremost philosophers and a
Resistance hero, took up his pen when the statutory period for crimes
against humanity was about to expire in France. His
impassioned argument was titled l'Imprescriptible. "Imprescriptible" in
French connotes both that which is not contained within the
purview of a statute of limitations, and also that which is not
forgettable.4 6 In 1964, France's legislature agreed with
43. I have discussed this issue in the context of the Papon trial in Curran, The
Legalization ofRacism, supra note 3, at 73-94. See also CYRULNIK, supra note 13, at 151-56
(language is representation that alters the event from life; in the case of traumatic
events, language's alterations allow the traumatized to master the traumas of their past
in order to resume living, but, by the same token, the inevitable refashioning of
traumatic events by means of linguistic representation never remains faithful to the original
44. See NAHOS, supra note 28.
45. Irwin Coder, The Holocaust, Thefticide andRestitution: A Legal Perspective, 20
CARDOZO L. REv. 601, 602 (1998).
46. See VLADIMIRJANK9LIVITCH, L'IMPRESCRIPTIBLE: PARDONNER? DANS L'iONNEUR
ET LA DIGNITt (1986). The French writers' committee, writing in 1946, already had
made this point: "Les sanctions moralesprisesparle CNE. .. ne sont limitles comme le sont les
Jankflfvitch, and decided that crimes against humanity were
legally unforgettable and not subject to any statutory period of
limitations. However, this did not affect the continued
applicability of statutes of limitations to crimes of lesser magnitude than
the crime against humanity. Thus, financial claims still would be
subject to those limitations.4" The conduct of Swiss banks has
received considerable press coverage. Less well known are the
actions of the French banking system. In the holocaust litigation
in which I have been involved, France's banks asserted not just
the defense of the statute of limitations, but also the substantive
defense that everything they had done had been legal at all
relevant times, and in fact had been mandated either by the Vichy
French government or by Nazi Germany.
V. FRANCE'S BANKS
Little known research published in 1997 by Professor
Lacroix-Riz suggests that the banks were not acting out of
coercion, and, indeed, that they often acted contrary to Vichy's
wishes. The research to which I refer is, incidentally, "little
known" because of yet another instance of suppression and
attempted erasure. Perhaps as telling as the substance of her
historical findings is the difficulty Professor Lacroix-Riz
encountered when she sought to publish them. She originally had a
contract for the publication of her research findings with Etude et
sanctionsjuridiques d temps .. ." ["The moral sanctions taken by the CNE . . .are not
limited by time as are legal sanctions.. .]. Ls LETrRES FRAN(,AiSES, supra note 19, at
47. For the often bizarre judicial contortions of the definition of the crime against
humanity in recent French court decisions, see Curran, The Legalization of Racism, supra
note 3, at 73-94. The problem of the passage of time has been a severe hindrance to
France's trials from several vantage points. Witnesses' memories have faded and
documents have vanished. See id.; see also infra notes 77-82 and accompanying text. Klaus
Barbie finally was convicted of the deaths of a tiny fraction of the people whose deaths
he almost certainly caused, as the passage of time made it impossible to connect him
with more. See Curran, The Legalization ofRacism, supra note 3. The same was true with
the milicien Paul Touvier. See id. Finally, in March, 2001, a French court convicted the
infamous Alois Brunner in absentia("par contumace"), once again unable to connect him
in a legally cognizable fashion to more than the deaths of a handful of children,
although he was responsible for the deportations of hundreds of thousands of Jews to
their deaths. French TV-5 broadcast, Mar. 2, 2001. See Curran, The Legalization of
Racism, supra note 3. A television broadcast reported that Brunner is either dead or still in
Damascus, Syria, where he found refuge after the war. French TV-5, supra. One can
view this predicament caused by the passage of time as a kind of banalization or
trivilaization of the past.
S-122 FORDHAMINTERNATIONAL LAWJOURNAL
documents, a journal operating under the auspices of France's
Ministry of the Economy and Finances ("ministre de l'conomie et
des finances").4 When it saw Professor Lacroix-Riz's findings,
however, the government-sponsored journal refused to publish
the article." The article eventually found its way into print only
when the Paris Center for Contemporary Jewish Documentation
("le Centre de documentationjuive contemporaineet mmorial du martyr
juif inconnu") published it.5"
In terms of erasure and suppression, this was a most fitting
place for publication, for the Center for Contemporary Jewish
Documentation was founded in the 1940's under Nazi
occupation when France's Jewish community began to understand that
all of its members were targeted for death. In the expectation
that no one might survive, France's Jewish community began the
task for posterity and history of documenting the process of its
own destruction. Unlike some similar attempts in the ghettos of
Poland, the French undertaking was successful, and today the
Center's extraordinarily rich archive is a treasure trove of
documentation about Vichy France and the Nazi Occupation of
France. Among the institution's many activities is the
publication of the journal in which Professor Lacroix-Riz was able to
publish her findings.
Professor Lacroix-Riz uncovered bank industry complicity
with the Nazis motivated by personal profit.5 Her account is in
direct and irreconcilable conflict with the banks' defense in
holocaust survivor litigation to the effect that their conduct at all
relevant times not only was legal, but was the result of dual
pressure by both Vichy and Nazi Germany.5" Apparently the banks
kept their distance from Vichy, seeking to do business with the
Germans to maximal profit, whether or not the result would
further Vichy's aims.
In a book written over a decade ago, the noted historian
Andr6 Kaspi pointed out that, in the area of "aryanization,"
Vichy itself atypically did not collaborate with the Nazis with its
customary enthusiasm for collaboration.53 Professor Lacroix-Riz
concurs with this view.5 4 During the years of Occupation, the
French Vichy government was the most eager collaborator with
Germany of any western nation. As Professor Kaspi has shown, it
was, however, at its least cooperative with the Nazis when it came
to coordinating the "aryanization" of Jewish property.55 In this
matter, Vichy heatedly asserted and defended its right to operate
independently of Germany for the simple reason that it wanted
the looted property to remain in France.56 In other words, while
Vichy collaborated with alacrity in handing Jewish persons over
to the Germans, it resisted handing over Jewish assets to the
Post-war opinion has not been unanimous as to whether
Vichy legislation and subsequent conduct sought to protect the
French industrial and banking sectors from the Nazi occupier,
or if, on the contrary, they sought to collaborate with the
Germans. In the best-known study of France's banking and
industrial sectors during the Occupation, La Banque sous
l'Occupation: Paradoxesde l'histoire d'une profession 1936-1946,
Professor Claire Andrieu provides an overview of existing research
through 1990." 7 She also depicts the penury of archival
materials, impeding historical analysis and conclusions.58 Professor
Andrieu herself seems on the whole to agree with Professors Kaspi
and Lacroix-Riz in finding persuasive evidence that Vichy made
efforts to protect the French economic sectors from German
Similarly to Professors Kaspi and Lacroix-Rix, Professor
Andrieu notes that resistance on the part of otherwise eager
collab53. See ANDRi KASPI, LES JUIFS PENDANT L'OCCUPATION (1991).
54. See Lacroix-Riz, Les Elitesftanfaises, supra note 48.
55. See KASPI, supra note 53.
56. See id.
57. See CLAIRE ANDRIEU, LA BANQUE SOUS L'OccUPATION: PARADOXES DE L'HISTOIRE
D'UNE PROFESSION 1936-1946, at 119-40 (1990).
58. See id.
59. See id. at 131.
S-124 FORDHAMINTERNATIONAL LAWJOURNAL [Vol.25:S-107
orators was a consequence of economic self-interest militating
against compliance with German economic demands. 60
Professor Andrieu describes the French banking sector as undergoing
panic in the wake of the German invasion, a panic which
provoked an initial response of patriotism, a sudden acceptance of
national regulation of, by and for France, and against the
enemy.6" This initial wave of patriotism, however, gave way to a
collaborationist zeal born of economic interest. In the words of
Professor Andrieu, "It] he original reaction, both financial and
patriotic in nature, was forgotten, giving way to subsequent
rational motives emanating from economic doctrine. 62
That tension and conflict existed between France's banks
and the Vichy regime seems indisputable from Professor
Andrieu's research. In addition, Professor Lacroix-Riz argues that
France's banks went so far as to prioritize their own agenda,
independently of and occasionally contrary to, the Vichy regime's
objective of allegedly representing the entire French nation's
financial interests by trying to keep Jewish property for French
consumption. According to Professor Lacroix-Riz, the banks
had no scruples about acting solely to magnify their own profits.
She also concludes that, as a consequence of the French banking
sector's eagerness to do business with the Nazis, not only did the
banks make great sums of money, but Germany also profited far
more from its dealings with French banks than it did from
dealings with banks in other occupied countries.63
Professor Andrieu's better-known study of France's banks
during the Occupation supports these findings inasmuch as it
depicts France's banks as seeking independence from State
control. While Professor Andrieu does not engage in a discussion of
the banks' specific substantive actions during the Occupation,
she recounts the struggle in which France's banking sector had
been engaged well before the Second World War to remain
independent of State control and resist increasing legislative and
60. See id. at 133 ("le simple inttritpourraitconduirecertains collaborateurssur la voie de
la rsistance" ["simple self-interest could lead certain collaborators down the path of
61. See id. at 153-54.
62. Id. at 54 ("La raction d'origine,d la fois patrimonialeet patriotique,Jut oublige au
profit des motivations rationnellessecondes puisies aux sources de la doctrine1conomique").
63. See Lacroix-Rix, Les Elitesfranfaises,supra note 48, at 58 (contrasting Nazi
Germany's larger profit from its dealings with the banks of France than with the banks of
public regulatory pressures. 64
The second part of Professor Lacroix-Riz's findings
concerns France's major banks' post-war falsification of their
activities from 1940 to 1944, in order to disguise their past conduct as
having consisted of forced compliance to Vichy and Nazi law.
The banks apparently destroyed evidence in order to exculpate
themselves." Professor Lacroix-Riz discovered records of
depositions and other evidence that show a pattern of intentional
falsification of past events by the banks.6 6 According to Professor
Lacroix-Riz, surviving documents of the post-war "cleansing" or
"l'6puration"in France (very roughly, the equivalent of
"de-Nazification" in Germany) contain numerous declarations by bank
officials as to their having dutifully informed Vichy of specific
projects they were undertaking with the Nazis, a far cry from
having operated under ordersfrom Vichy, as they claimed in the
reparations claims litigation.6 7 Professor Lacroix-Riz in fact recounts
how numerous the French banking and industrial projects with
Nazis were which those sectors conducted entirely behind the
back of Vichy: i.e., without even informing Vichy of them. The
banking and industrial sectors' omissions in communicating
64. ANDRIEU, supra note 57. See especially in id.: L'anti-itatisme de principe de la
profession bancaire, id. at 49-55; Le refusparles banques de la reglementation, id. at 55-60; Les
banques risistent au gouvernement, id. at 79-110.
65. See Lacroix-Riz, Les Elitesfrancaises,supra note 48, at 38-122.
66. See id. So much has been said about Swiss banks that I would just make one
point in this context. By the time Swiss banks agreed to disclose the identity of
holocaust-era bank account holders, the Swiss system of anonymity had become endowed
with a sacrosanct quality in the Swiss national psychology as a defining feature of their
way of doing business. See, e.g., Alan Cowell, Swiss Offer to StartFundfor Victims of
Holocaust, N.Y. TIMES, Jan. 8, 1997, at A6. See also Gabriel Schoenfeld, Holocaust
Reparations-A Growing Scandal, COMMENTARY (Sept. 2, 2000), at http://www.commentary
magazine.com/0009/schoenfeld.html. Swiss banks "closed accounts in such a way as to
complicate or rule out any future tracing of ownership." Id. While to holocaust
survivors and their heirs, the past half century of stalling seemed unbearable and
inexcusable, to Swiss banks the loss of anonymity marked a profound change in their
profession. See Curran, The LegalizationofRacism, supra note 3, at 72-73 n.249. Until recently,
the belief was widespread that the bank-holder anonymity rules had been promulgated
in order to assist German Jews in hiding their assets from the Nazi regime. See id.
Recent research seems to indicate that the original goal was to buttress Switzerland's
general policy of protecting capital that tax authorities from either Switzerland or abroad
might attempt to locate. See id. The irony remains, although less dramatically, that the
very anonymity which held out the promise to Jews during the period of Nazi
persecution of disguising their ownership of property, ultimately also was the instrument that
undermined and nullified their hope of preserving assets for their future or the future
of their descendants.
67. See Lacroix-Riz, Les Elites franfaises, supra note 48, at 43.
their activities to Vichy resulted in the transfer of significant
French assets and natural resources to Germany, which Vichy
would have wanted to retain in France and for France.68
Professor Lacroix-Riz's work has been controversial, and its
validity is impossible to assess on the basis of Professor Andrieu's
study. Andrieu is familiar with Lacroix-Riz, and refers to her
findings, but with the sole evaluative comment that historians
have reached contradictory conclusions. 69 The focus of
Professor Andrieu's own interest is not in the interaction between
France's banks and the Vichy government with respect to joint
or conflicting responses to Nazi Germany, but, rather, in the
larger significance to France of the French bank regulations
instituted by Vichy, and in the continuities and ruptures in the
banking sector from before 1940 and extending beyond 1944. I
have noted above the extent to which Professors Andrieu and
Lacroix-Riz's findings overlap and agree.
Among the reviewers whose opinion has been unfavorable
to Lacroix-Riz, Patrick Friedenson reproaches her for not
making sufficient use of archival documents, while simultaneously
conceding that some of that material remains closed and
unavailable.70 On the other hand, the negative response of one of
the committee members of the government related journal
which initially commissioned and then rejected Professor
Lacroix-Riz's article, was not substantive: he declared it
undesirable to publish her results because publishing them would be
risky.7 Robert Paxton, perhaps the most eminent historian of
the Vichy period, criticizes Lacroix-Riz in a book review which
appeared in the Times Literay Supplement.7 2 Professor Paxton
assesses Lacroix-Riz as being "reductionist in limiting
entrepreneurial motives to short-term profit,"73 and concludes that
her vast research and documentation amount to a great deal of
68. See id.
69. See ANDRIEU, supra note 57, at 260 n.1.
70. See Nicolas Weill, Des enterprises ftancaises au service de l'Allemagne nazie, LE
MONDE, Oct. 11, 1996, at 1.
71. See Ben Macintyre, French Chemical Firm is Linked to Holocaust Gas, THE TIMES,
Oct. 9, 1996.
72. See Robert 0. Paxton, Occupations of the Occupation, TIMES LITERARY
SUPPLEMENT, May 19, 2000, at 12 (reviewing ANNIE LACROIx-Riz, INDUSTRIELS ET BANQUIERS
FRANCAISES SOUS L'OCCUPATION: LA COLLABORATION ICONOMIQUE AVEC LE REICH ET
"archival energy within [a] cramped . . . intellectual
framework."74 Paxton confirms, however, that Professor Lacroix-Riz
correctly portrays the unreliability of post-war testimony, as well
as the French banking and industrial sectors' enthusiasm to
engage in business with the Germans, and that she has done
extensive research. 75 Given that Andr6 Kaspi has amply substantiated
Professor Lacroix-Riz's assessment of the Vichy regime's
differences with Germany where it came to trying to keep French
wealth in France, 76 and that her critics do not appear to dispute
her claim that the banks eagerly sought to do business with the
Germans, my sense is that the thesis for which I cite her in these
pages is likely to be fairly close to historical truth.
VI. TIME LAPSE
While the post-war retaliatory measures against
collaborators in France were harsh to the extent of lawlessness, they also
were swift and notoriously incomplete. Much of the French
population had been involved in collaboration with Vichy in one way
or another, and the impetus to resist punitive measures against
collaborators not only was a potent force after the war, but one
that reached into the farthest and most powerful recesses of
French government in both the ensuing Fourth and Fifth
Republics, protecting the banks as it did the highest-ranking police
and militia ("milice") collaborators from prosecution for some
The governmental plan was to delay and delay until all of
the guilty had died natural deaths, which would render
prosecution moot and leave hidden forever the vast extent of French
74. Id. After completing the initial draft of this Essay, I received a communication
from a French doctoral candidate to the effect that his own review of the documents on
which Professor Lacroix-Riz based her conclusions invalidates those conclusions, and
that he will establish this in his forthcoming doctoral dissertation, currently
unpublished, and which I have not had the opportunity to read. E-mail from Jean-Marc
Dreyfus to Vivian Curran
(Mar. 28, 2001)
(on file with author).
75. See Paxton, supra note 72.
76. See KAsPI, supra note 53.
77. Those who were tried in the immediate aftermath of the Liberation often were
put to death. Thus, in 1944, while the worst political collaborators were in exile in a
still undefeated Germany, it was French collaborator writers and intellectuals who were
tried and executed. See WATrs, supra note 6, at 22. When the politicians' turn came,
time had passed, lessening passions and often leading to far milder sentences (as well as
to the framing of milder criminal charges).
collaboration.78 The executive branch's traditional control over
the French justice department enabled foot-dragging of
monumental proportions in the prosecution of collaborators. It
almost worked, and it was successful in some ways, including that
almost all major criminals obligingly died natural deaths in time
to avoid prosecution. The lapse of time also created such
difficulties with proof that those few who were prosecuted could be
judged for only a tiny fraction of the crimes they had committed,
the vast bulk of their crimes no longer attributable to them in a
legally cognizable fashion.79
This was true for both the German and French defendants
of recent years, including Klaus Barbie, Paul Touvier, and
Maurice Papon.80 Finally, in March 2001, Alois Brunner was
convicted in absentia ("par contumace"). He had been guilty of
deporting hundreds of thousands of Jews to their deaths, but the
court convicted him only of the deportations of a handful
ofJewish orphans from France, none of whom returned."' On the
other hand, the government's delay tactics may be said to have
failed inasmuch as some French defendants were prosecuted
when their unexpected longevity coincided with a veritable
outcry in the country to conduct criminal trials and to search the
VII. THE LAW AS A CLUMSY INSTRUMENT
The law's propriety in dealing with the claims of half a
century ago raises one set of issues: notably, as we saw earlier,
problems of historical recollection, and of defining the past
through judgments often ill-suited to such a task.83 But the law
has proved clumsy in the context of holocaust-generated claims
even where it addressed highly practical issues that arose in the
direct aftermath of the Nazi regime. For example, in the 1950s
the Federal Republic of Germany granted pensions to Jewish
civil servants who had been stripped of their citizenship status by
the Nazis. Citizenship had been lost by all German Jews in
1935.84 Pursuant to a decree that was passed in 1941, the
eleventh decree ensuing from the 1935 Nuremberg Reich
Citizenship Law, German nationality was withdrawn from all German
Jews residing outside of Germany, thus rendering them
One such previously denationalized and stateless refugee to
whom a German pension was restored was a Mr. Oppenheimer,
who before emigration had been a civil servant in Germany as a
teacher in ajewish orphanage. His case arose in England, where
he had resided since 1939, and where in 1948 he had acquired
British citizenship.8" If Mr. Oppenheimer, who had been born
German, was deemed to have German as well as British
citizenship, he would be exempt from British taxation on the pension
Germany had restored to him. If the British court adjudicating
his case held that he had not been German, however, he would
be liable to double taxation. While it was undisputed that Mr.
Oppenheimer lost his German citizenship in 1948 when he
became British, it was less clear if he should be considered to have
been German for the years 1941-1948, for purposes of the
taxation of his back-paid pension for those years.
The British court decided that he was subject to double
taxation, reasoning that he could not have been German once
Germany had stripped him of citizenship in 1941.87 Although the
Hitler decree of 1941 had been rendered null and void by the
allied powers in 1944,88 the effect of the nullification of Nazi law
was not retroactive,with the net result that Mr. Oppenheimer was
deemed not to have had German nationality from the time of
Hitler's decree of 1941, until the time of his acquisition of
English citizenship, consequently entailing taxation of the German
pension by both Germany and England.89
Unfair as the outcome of the Oppenheimer case may seem,
post-war courts were to reach worse results in other cases. For
example, after the Second World War, France enacted
legislation intended to repair some of the damage the German
occupier had caused.9° One such statutory enactment involved the
restoration of residences to people who had lost their homes
due to the Nazis.9" There was a severe housing shortage in
France at the time, and people returning to the formerly
occupied areas of France from the formerly unoccupied zone, or
from abroad, often Resistance members or Jews, discovered their
apartments now occupied by strangers, often former
collaborators who had had no need to flee the German Occupation.
Here too it might be noted that the post-war legislation
addressed the problem of alleged Nazi-German injustice, but left
unarticulated that many, and probably most, of the actual cases
involved French collaborators who had garnered better living
arrangements by moving into residences abandoned by those who
had fled the Germans. 92
In a case that was litigated to the Court of Cassation, the
French supreme court for private law, the plaintiff was a German
Jewish refugee who had managed to get to France in 1939, and
who subsequently lost his official ties to Germany pursuant to
the 1941 decree that had affected Mr. Oppenheimer in England
89. See id. at 194. The British press seems to have reacted angrily to this decision,
with the comment that "[i]f the law supposes that, the law ist ein Esel." Id.
90. See H. Lauterpacht, The Nationalityof DenationalizedPersons, 1948 JEWISH
YEARBOOK INT'L L. 164 (1949).
91. See id. John Dawson wrote a fascinating study ofcases arising under this
legislation, although his principal focus is on the French phenomenon (still extant, although
today with dramatic modifications) of astreintes. SeeJohn P. Dawson, Specific Performance
in Franceand Germany, 57 MICH. L. REv. 495, 514-32 (1959).
92. See JOAN LiTLEWOOD,BARON PHILIPPE: THE VERY CANDID AUTOBIOGRAPHY OF
PHILIPPE DE ROTHSCHILD 259-60 (1984) (giving one a good sense of how difficult it
turned out to be to recover one's home after the war. Being French, the baron de
Rothschild had every legal right to repossess his Paris house. The resident usurper
nevertheless was not easily displaced, however, going so far as to argue that his
possession was primafacielegal, since, in is words, "[tjhis property was confiscated ...".until
the baron resorted to threatening the usurper with his gun. When he finally left, it was
with most of de Rothschild's furnishings.) Dawson's article on astreintes also conveys a
measure of the practical obstacles to recovering one's home pursuant to the legislation
in question. See Dawson, supra note 91.
in the same manner, by stripping all Jews residing outside of
Germany of German nationality. 3 The French high court held
that the plaintiff, Mr. Kurzmann, was not entitled to be
reinstated in his apartment because he was considered under French
law to be German, pursuant to the Allied post-war legislation
that had nullified the Nazi citizenship- and nationality-stripping
The French court held that, as a German, Mr. Kurzmann
was ineligible for redress statutorily limited to the victims of
Germans, regardless of the fact that he had been forced to flee
his apartment in France due to the Germans, and that Germany
had stripped him of his German citizenship, then nationality,
and had rendered him stateless.94 The net result once again was
to impose a dual penalty on a plaintiff who had suffered as ajew,
such that he now suffered as a German, and the latter regardless
of whether he had sought to avail himself of his post-war right to
reacquire German citizenship, or whether he personally had
decided not to opt to be a German citizen again.
Mr. Kurzmann figured among many who, although victims
of Nazi Germany, were deemed after the war to be German
enemy aliens in their countries of refuge. As such, in the words of
Professor Lauterpacht, they were "subject to the discriminatory,
confiscatory, and repressive measures to which German
nationals and their property [were] subjected" outside of Germany in
numerous countries after the war. 95
While France and Germany tended to resort to courts, the
approach of the judicial arena as the appropriate forum that
dominated in Germany and France more recently was rejected
by South Africa. The Truth and Reconciliation hearings provide
an alternative model for analyzing the pros and cons of litigating
the holocaust.96 A foundational idea of the Truth and
Reconciliation Hearings was to give a voice to the formerly dispossessed
93. LAUTERPACHT, supra note 90, at 166 (describing at length the French case,
Kurzmann v. O'Hea, Nov. 26, 1946).
94. See id.
95. LAUTERPACI-IT, supra note 90, at 166-67. Among the legal issues this case raised
were whether nationality or citizenship may be imposed on individuals regardless of
their volition; and whether legal measures, such as the 1944 Allied Military Law that had
repealed the Nazi denationalization measure, could be applied retroactively. See id. at
96. For an excellent book on the truth and reconciliation model by an author of
South African origin who also has written widely about holocaust-related issues, see
and voiceless, with the express intention of recording events of
the past for posterity in a context free of many of the drawbacks
associated with the court system. 97 The Truth and
Reconciliation Hearings also, however, represent a decision to privilege
reparations of a symbolic order over those of a concrete order,
since the Hearings seek to record a narrative for posterity rather
than to concentrate on redress for specific, legally cognizable
The law's clumsiness and inadequacy in the area of
remedies for holocaust-era losses are apparent. In large measure, like
every other societal institution, law is unequipped to handle
damages of the order of magnitude that occurred during the
holocaust. The danger of using an instrument such as law to
remedy the wrongs that were done to survivors is the danger of
distorting and of demeaning the past. The danger of failing to
do so, however, is to say that one should not even try to remedy
damages which may be compensable because of the existence of
others which are not compensable. For all of its imperfections
and drawbacks, law also has some advantages: a signal advantage
is that it can shift problems from, in the words of Max Radin,
"the sphere of the impossible to . . . the range of the
practicable."99 And maybe that is all one can ask of law.
DAVID DYZENHAUS, JUDGING THE JUDGES, JUDGING OURSELVES: TRUTH, RECONCILIATON
AND THE APARTHEID LEGAL ORDER (1998).
97. See id.; see also Curran, The Legalization ofRacism, supra note 3, at 73-94 (noting
some of the drawbacks of the French use of trials).
98. See id.
99. Max Radin, The PermanentProblemsof the Law, inJURISPRUDENCE IN AcTION 413,
428 (The Ass'n of the Bar of the City of N.Y. Comm. on Post-Admission Legal Educ.,
8. LA CONSTITUTION DU 27 OCTOBRE 1946 , reprinted in LES CONSTITUTIONS DE LA FRANCE DEPUIS 1789, at 389 (Jacques Godechot ed., 1995 ) ( 1979 ).
9. See id. pmbl.
10. CHARLES DE GAULLE , MEMOIRES DE GUERRE: L'APPEL : 1940 - 1942 , at 1 ( 1954 ).
11. See Curran , The Legalization ofRacism, supra note 3 , at 64.
12. See Morrow, supra note 1 , at 45; Cf JEAN-MARIE AROUET DE VOLTAIRE , 82 THE COMPLETE WORKS OF VOLTAIRE 452 ( 1968 ) ("Un historienest un babillardquifait des tracasseries aux morts" ["historians are babblers who harass the dead"]).
13. Cf BoRIs CYRULNIK , LES VILAINS PETITS CANARDS 26 ( 2001 ) ("/e palimpseste qui r,;veille les traces du passdfait resurgirles ehnements que l'on croyait enfouis" ["the palimpsest that awakens the traces of the past causes events one thought buried to resurface"]).
14. See , e.g., PAUL RICOCUR , LA MEMOIRE , L'HISTOIRE , ET L' OUBLI ( 2000 ).
15. See ERNST CASSIRER , AN ESSAY ON MAN: AN INTRODUCTION TO A PHILOSOPHY OF HUMAN CULTURE 51 ( 1944 ).
16. See MARCEL PROUST , A LA RECHERCHE DU TEMPS PERDU ( 1954 ). Proust's work, like Cassirer's, elucidates the primacy of the symbolic. In the context of France in particular, Pierre Nora's Les Lieux de mnnoire also is a significant contribution . See PIERRE NORA , LES LIEUX DE MEMOIRE (Pierre Nora ed ., quart. ed. 1997 ). Boris Cyrulnik, the French-Jewish psychoanalyst who escaped alone at the age of six from an internment camp, where he hid in the recesses of a toilet as the other prisoners in the camp were being deported from France to Nazi concentration camps, has written an extraordinary book on memory as history ofand in the individual, both hindering and enabling resili-
18. CYRULNIK & MORIN, supra note 17, at 29 ( "les iddes - qui sont desormais nos intermyddiaires ndcessairespour communiquer avec la rgalitt-vontaussi masquer la realitMet nous faireprendre ' idee pour le reel. Ce rapportbarbareavec les idees et l'une des plus atroces choses qui soient arriviesd I'humanit .... le principalorganede la vision, c'est la pensde . On voit avec nos idges . . . Les yeux obissent souvent d nos espritsplus que nos esprits d nos yeux" ).
19. Comitd nationaldes 9crivains, in LES LETTRES FRAN , AISES, Nov. 22 , 1946 , quoted in Watts, supra note 6 , at 20 (emphasis added).
20. See generally, HANNAH ARENDT, EICHMANN IN JERUSALEM ( 1963 ) and Michel Dobkine, Permanenceet banalitd du crime contre l'humanite , LE RECUEIL DALLOZ 42/7002E, Nov. 30 , 2000 , at III (quoting a letter Arendt wrote to Jaspers discussing this issue).
21. PAUL ELUARD, La Pogsie ininterrompue, in II (EuvRES COMPLETES 39 (Lucien Scheler & Marcelle Dumas eds., 1968 ).
37. See Hartman, supra note 34; VON LOSCH supra note 34 , at 168- 70 . See also ROTHERS, supra note 36 , at 330 ( citing GRUNDFRAGEN DER NEUEN RECHTSWISSENSCHAFT 241 (Larenz ed ., 1935 )) (declaring that anyone who is not a member of the Volk stands outside the law ).
38. INGO MOLLER , HITLER'S JUSTICE: THE COURTS OF THE THIRD REICH 116 (Deborah Lucas Schneider trans ., 1991 ) (emphasis added). For further discussion of this judicial doctrine of analogy between the Jew and deceased persons , see ROTHERS, supra note 36 , at 332.
39. See Curran , Fearof Formalism, supra note 33 (discussing the legal concept of Rechtsfdhigkeit in German law during the Nazi period ).
40. See Michael Ignatieff , The Dangerofa World Without Enemies: Lemkin's Word , NEW REPUBLIC, Feb . 26 , 2001 , at 25- 28 . It should be noted that in a passing reference to Lemkin, Yehuda Bauer appears to suggest in his latest book that Lemkin was working from knowledge of the facts of genocide, in apparent contradiction to Ignatieff's account . See BAUER, supra note 23 , at 9. I wrote to Professor Bauer to bring Ignatiefrs
48. See Annie Lacroix-Riz, Les Elitesfranfaiseset la collaborationiconomique: la banque , l'industrie, Vichy etFrance, 159 REVUE D 'HISTOIRE DE LA SHOAH: LE MONDEJUIF 7 ( 1997 ).
49. This was not an isolated event. Rita Thalmann has reported the pattern in France that until very recently prevented scholarly research dealing with Vichy France . Rita Thalmann, Le Silence des historiens? , 160 REVUE D 'HISTOIRE DE L-ASHOAH: LE MONDE JUIF 154 ( 1997 ). Professors as eminent as the historian Braudel refused to be advisors to graduate students interested in writing their doctoral dissertations in the area of Vichy. See id . at 158. Since professorships are government positions in France, the government could prevent Vichy scholars from access to university teaching . See id.
50. See Lacroix-Riz, Les lk1ites francaises, supra note 48 , at 6.
51. See id.; Les Grandesbanquesftanvaises de la collaborationd l'Ipuration, 141 REVUE D 'HISTOIRE 2E GERRE ( 1986 ).
52. See Lacroix-Riz, Les Elitesfranfaises, supra note 48 , at 38.
78. See Curran , The Legalization of Racism, supra note 3 (discussing Mitterrand and others' protection of collaborators). It also is possible that the astonishing attempt of Maurice Papon to flee France in November 1999, after his conviction for crimes against humanity, but while his appeal was still pending, emanated from a belief that he still had enough friends and protectors in high places that he would be allowed to escape. The public outcry was too potent, however, and prominent politicians including Prime Minister Lionel Jospin and Minister of Justice Elisabeth Guigou declared publicly that they shared the widespread sentiment of outrage at Papon's behavior, and pledged a national commitment to tracking him down . French TV-5 broadcast , Oct. 23 , 1999 .
79. See Curran , The Legalization of Racism, supra note 3 , at 73-94.
80. See id.
81. French TV -5 broadcast, Mar. 2-4 , 2001 .
82. See Curran The Legalization of Racism, supra note 3 , at 73-94.
83. See id.
84. Technically, all German Jews lost their "citizenship" in 1935. For the 1935 Reich citizenship law, see Reichsbirgergesetz, in REICHSGESETZBLATr ("RGBL") I, at 1146.
85. For the November 25, 1941 decree deprivingJews residing outside of Germany of their German "nationality" (not "citizenship," since all Jews had been degraded from German "citizens" to the lesser stature of "nationals" ["Staatsangehdrige"]pursuant to the 1935 Nuremberg law) see RGBL I, at 722, the "elfie Verordnungzum Reichsbiirgergesetz."
86. See F. A. Mann , The Present Validity of Nazi NationalityLaws , 89 L.Q. REv . 194 ( 1973 ) (discussing Oppenheimer v. Cattermole (Inspector of Taxes) 3 W .L.R. 815 ( 1972 )).
87. See id. at 200.
88. See id. at 198 (Military Government Law No. 1 , 1944 ).