Michael J. Bazyler

The Holocaust Restitution Movement in Comparative Perspective

This article examines the use of civil litigation in the United States to deal with human rights abuses committed during World War II. The specific scenario examined is the Holocaust restitution movement in the United States, whose aim is to obtain financial restitution from European and American corporations 1 for their nefarious wartime activities. This article also examines other movements aiming to bring justice for historical wrongs that arose as a direct result of the successes achieved in the Holocaust restitution arena. Three such prominent movements are: (1) the lawsuits filed in the United States by victims of slave labor by Japan and Japanese industry during World War II; (2) the recent claims in U.S. courts of the survivors of Armenian genocide for reimbursement of the insurance proceeds paid by their deceased relatives; and (3) the emerging call for African-American reparations stemming from slavery. All of these movements are a direct outgrowth of the successful claims achieved in the Holocaust restitution arena. Finally, this article discusses the emerging debate about the propriety of seeking monetary damages for historical wrongs, especially as it has now emerged in the sphere of Holocaust-era litigation. The fact that American courts are being used today to deal with wrongs committed during World War II, over one-half century after the events took place, is astounding. In the history of American litigation, no class of cases has ever appeared in which so much time had passed between the wrongful act and the filing of the lawsuit. Most surprisingly, almost all of the Holocaust restitu-

Abolishing the Act of State Doctrine

INTRODUCTION .................................... 327 I. THE ACT OF STATE DOCTRINE IN PRACTICE ....... 330 A. The Act of State Doctrine in the Supreme Court: No Clear Guidance ........................ 330 B. The Act of State Doctrine in the Lower Federal Courts: Discord Among and Within the Circuits 344 1. The Second Circuit ..................... 346 2. The Ninth Circuit ...................... 348 3. The Third Circuit ...................... 357 4. The District of Columbia Circuit ......... 359 C. Executive Pronouncements on the Act of State Doctrine: Inconsistent Recommendations ....... 362 II. SOWING THE SEEDS OF CONFUSION: PROBLEMS CREATED BY THE ACT OF STATE DOCTRINE ........... 365 A. Fostering Widespread Confusion ............. 365 1. Disagreement About the Meaning and Scope of the Doctrine ........................ 365 2. Disagreement About Exceptions to the Doctrine ................................. 368 a. The Bernstein Exception ............. 368 b. The Commercial Activity Exception .... 370 C. The Treaty Exception ............... 371 d. The Fraud Exception ............... 372 e. The United States Property Situs Exception .............................. 372 f. The Human Rights Exception ........ 373 B. Violating the Separation of Powers Doctrine .... 375 C. Impairing the Effectiveness of United States Laws 376 1. The Foreign Sovereign Immunities Act ..... 376

Holocaust, Genocide and the Law: A Quest for Justice in a Post-Holocaust World

Introduction PART I: THE LEGAL HISTORY OF THE HOLOCAUST AND GENOCIDE Chapter 1 The Holocaust: A Legal History A. Nazi Germany as a Law-Based State B. The Nazis Come to Power Through Law C. Legal Measures Against Jews in the Reich D. War, Occupation and Ghettoization in Occupied Europe E. Extermination: The Legal Holocaust F. Aftermath Chapter 2 Naming the Crime: Genocide A. The Historical Background of the Term Genocide B. The Genocide Convention 1. Legislative History 2. Definition of Genocide 3. Actus Reus of Genocide - The Prohibited Acts 4. Mens Rea of Genocide: With Intent to Destroy, In Whole or in Part 5. Genocide-Related Crimes: Conspiracy, Incitement, Attempt and Complicity 6. Proving Genocide 7. Punishment C. Use and Misuse of Genocide Terminology 1. Using and Misusing the G-word: Why Words Matter 2. When Is It Proper to Characterize A Historical Event as a Genocide? Part II: Legal Reckoning with the Crimes of THE HOLOCAUST Chapter 3 Prosecution of Nazi War Criminals at Nuremberg A. The International Military Tribunal at Nuremberg 1. The Rocky Road at Nuremberg 2. The Trial 3. Major Criticisms of the IMT 4. The Holocaust at Nuremberg B. The Later Nuremberg Proceedings 1. The Twelve NMT Trials 2. Noel, Noel, what the hell 3. Legacy of the NMT Chapter 4 National Prosecutions of Nazi War Criminals A. Prosecutions in Germany 1. The Ulm Einsatzgruppen Trial 2. The Frankfurt Auschwitz Trial B. The Trial of Adolf Eichmann in Israel 1. Eichmann Before Jerusalem - The Nazi Era Eichmanns Escape and Capture 2. Eichmann in Jerusalem -The Trial 3. Legacies of the Trial C. Hunting for Nazis in America D. Retrospective Chapter 5 Civil Litigation for the Financial Crimes of the Holocaust A. Stealing From the Jews B. Returning What Was Stolen 1. Restitution by the Allies in Occupied Germany 2. German Reparations to Israel and Survivors 3. Holocaust Restitution in the 1990s - A Measure of Justice Fifty Years Later 4. Holocaust Restitution in the 21st Century: The French Railroad Settlement C. Why Didnt the Holocaust Restitution Model Work for Other Historical Atrocities? 1. Herero Genocide Litigation 2. Litigation Against Japanese Industry Arising Out of the Second World War 3. South African Apartheid Litigation 4. African-American Reparations Litigation 5. Armenian Genocide Era Litigation 6. Shutting the Door on Universal Jurisdiction: The 2013 Kiobel Supreme Court Decision Chapter 6 Holocaust Denial and the Law A. What is Holocaust Denial? B. Criminalizing Speech: Holocaust and Genocide Denial Laws in Europe C. Should Holocaust Denial Be a Crime? D. The Future of Denial Laws Chapter 7 The Impact of the Holocaust on Post-Holocaust Legal Philosophy A. Carl Schmitt and the State of Exception B. Karl Loewenstein and Germanys Militant Democracy C. Gustav Radbruch and the Hart-Fuller Debate: What is Law? D. The State of Exception After 9/11 Part III: The Holocaust As A Catalyst For MODERN International Criminal Justice Chapter 8 Nurembergs Legacy: The UN Tribunals for Yugoslavia and Rwanda and the International Criminal Court A. Building a Better Nuremberg B. Creating the Case Law of Genocide 1. Joint Criminal Enterprise and Genocide 2. Public Incitement to Commit Genocide 3. Command Responsibility and Genocide C. Criticisms of the ICTs Slow start D. Nuremberg and the International Criminal Court Chapter 9 Prosecuting Genocide A. International Prosecutions 1.ICTR Prosecutions 2.ICTY Prosecutions 3.ICC Prosecutions B. Domestic Prosecutions 1.Nikola Jorgi?: The First Person Convicted of Genocide? 2.Rwandan Genocidaires Conclusion: Can Genocide Be Prevented? Index

In the Footsteps of Raphael Lemkin

When Raphael Lemkin invented the word ‘‘genocide’’ in 1944, he explained that this is a ‘‘new word, coined by the author to denote an old practice in its modern development.’’1 As Lemkin wrote these words, the paradigmatic genocide, the Holocaust, was raging in Europe. Follow this and additional works at: http://scholarcommons.usf.edu/gsp This Article is brought to you for free and open access by the Tampa Library at Scholar Commons. It has been accepted for inclusion in Genocide Studies and Prevention: An International Journal by an authorized administrator of Scholar Commons. For more information, please contact scholarcommons@usf.edu. Recommended Citation Bazyler, Michael J. (2007) In the Footsteps of Raphael Lemkin, Genocide Studies and Prevention: An International Journal: Vol. 2: Iss. 1: Article 7. Available at: http://scholarcommons.usf.edu/gsp/vol2/iss1/7 In the Footsteps of Raphael Lemkin Michael J. Bazyler Professor of Law and ‘‘1939’’ Club Law Scholar in Holocaust and Human Rights Studies, Whittier Law School; Distinguished Visiting Professor of Law, Pepperdine University School of Law (2007) When Raphael Lemkin invented the word ‘‘genocide’’ in 1944, he explained that this is a ‘‘new word, coined by the author to denote an old practice in its modern development.’’ As Lemkin wrote these words, the paradigmatic genocide, the Holocaust, was raging in Europe. Since Lemkin was a lawyer, he put great weight on both national and international legal rules as one of the best tools to prevent and eventually eradicate this ‘‘old practice.’’ His response was to propose an international crime for which individuals committing such acts against a group of people—whom he labeled ‘‘a collectivity’’—could be punished, irrespective of national boundaries. In effect, Lemkin was proposing the now-accepted rule of universal jurisdiction, whereby individuals committing certain heinous crimes are considered hostis humani generis—enemies of all humankind—and can be prosecuted by any national or international court, regardless of where the crime was committed. It is the legalistic background of the inventor and the purpose for which the term was invented—to make certain group behavior an international crime recognized by the community of nations as illegal through a multilateral treaty—that put the term ‘‘genocide’’ solidly within a legal framework. The culmination of Lemkin’s work during his lifetime was the Convention on the Prevention and Punishment of the Crime of Genocide (UNCG), adopted by the UN General Assembly in 1948 and entering into force in 1951. More than 130 states today are parties to the UNCG, in whose article 1 they solemnly ‘‘undertake to prevent and punish’’ genocide. How states are to do so is left unstated in the treaty. Though Lemkin died impoverished and in relative obscurity in 1959, his word has achieved a recognition beyond his dreams. ‘‘Genocide’’ has now become synonymous with extreme evil and, as noted by William Schabas, the ‘‘crime of crimes.’’ A Google search today yields more than 26 million entries for the term. Unfortunately, one of the major reasons for its widespread popularity is the failure of the UNCG to prevent repeated occurrences of this particular extreme evil. While the term ‘‘genocide’’ should by now be relegated to descriptions of historical events, most recently the Holocaust, it is instead still being used by those who followed Lemkin to describe current events. As explained by Gregory Stanton, When the Genocide Convention was passed by the United Nations in 1948, the world said, ‘‘Never again.’’ But the history of the twentieth century instead proved that ‘‘never again’’ became ‘‘again and again.’’ The promise the United Nations made was broken, as again and again, genocides and other forms of mass murder killed 170 million people, more than all the international wars of the twentieth century combined. As I write this commentary, a genocide is raging in the Darfur region of Sudan while the international community, in ‘‘Keystone Kops’’ fashion, haplessly tries to figure out how to respond to the events. Despite massive demonstrations, Michael J. Bazyler, ‘‘In the Footsteps of Raphael Lemkin.’’ Genocide Studies and Prevention 2, 1 (April 2007): 51–56. 2007 Genocide Studies and Prevention. letter-writing campaigns to politicians, public appeals, and extensive coverage by the media, the genocide in Darfur continues unabated. As Jerry Fowler recently explained in a more elegant manner, Darfur adds another sad chapter of irony in the convention’s history, given the dramatic incongruity between the sense of urgency that one might expect a plausible case of ongoing genocide to engender and the relatively lackadaisical international political response that has in fact unfolded. The failure of the international community to stop the Rwandan genocide of 1994, during which approximately one million victims were murdered over a period of 100 days, provides another sad and sorry example of the ‘‘again and again’’ phenomenon. As we approach the half-century mark of Lemkin’s death, it is a great blot on both international law and international diplomacy that we have failed miserably to make his dream into reality and relegate genocide to the trash bin of history. Not that we haven’t tried. Numerous proposals, some put into practice, have been offered over the last fifty years to make the work of genocide prevention more effective. The topic has also been the subject of numerous books, articles, policy papers, and speeches. In the 1970s, Israel Charny and Chanan Rapaport devised the Genocide Early Warning System (GEWS), an analytic process by which to recognize preludes to genocide so that effective action can be taken before events on the ground escalate into full-blown genocide. GEWS is based on the fact that genocides, including the Holocaust, are never spontaneous events; rather, they occur incrementally, in predictable steps. In the 1990s, Gregory Stanton addressed the same issue and gave us an important tool by likewise identifying the signposts on the road to genocide. Stanton explains that ‘‘genocide is a process that develops in eight stages that are predictable but not inexorable. At each stage, preventive measures can stop it. The later stages must be preceded by the earlier stages, though earlier stages continue to operate throughout the process.’’ At the policy level, UN Secretary-General Kofi Annan took a stab at the task in 2004 by creating the position of Special Adviser on the Prevention of Genocide and appointing Juan Mendez, law professor, human rights advocate, and former political prisoner from Argentina, to the post. Events in Darfur demonstrate, at least to date, that the addition of such a special adviser for genocide prevention at the UN has had little effect in the real world. In 1997, the Clinton administration in the United States had created a new post in the US State Department, the US Ambassador at Large for War Crimes Issues, with a similar mandate to focus on genocide and other large-scale violations of international criminal law. The creation of this post has likewise had, at most, a negligible effect on the task of genocide prevention and the current holder of the position, John Clint Williamson, seems to play a minor role in the State Department. Prior to Williamson’s appointment in April 2006, the post was vacant for six months. David Scheffer, the first ambassador for war crimes issues and currently a law professor at Northwestern University, now offers another proposal to make genocide prevention more effective. Scheffer correctly points out that the legal definition of genocide, as found in the UNCG, has acted to constrain genocide prevention, since it offers both the United Nations and individual nations a ready-made legal excuse not to take action. It allows them to claim that the acts being committed, while horrible, have not yet risen Genocide Studies and Prevention 2:1 April 2007

Holocaust Restitution in the United States

This paper examines one of the most important developments of the post-Holocaust era: the legal efforts in the United States by survivors of the Holocaust and their heirs to obtain restitution from European and American corporations1 for their nefarious activities during World War II.