For Holocaust survivors here and across the country, it may be a last gasp for justice.
The United States government has blocked their attempts to sue European insurance companies to collect on their family’s Holocaust-era policies, and their class-action suit seeking reparations from the French national railroad has also been thrown out of court.
Now, in a last-ditch effort, they are mounting a full-court press in the halls of Congress, hoping lawmakers will pass legislation giving them the measure of justice they say they have been denied.
Leo Rechter, president of the 900-member National Association of Jewish Child Holocaust Survivors, said the survivors are not asking Congress to compel the insurance companies to pay their unpaid policies. “All we are asking for is a chance to present our case in court,” he said.
Whether the legislation wins enough congressional backing is uncertain; both bills were introduced several times in recent years and failed to garner the necessary support. But Harriet Tamen, the Manhattan lawyer handling the French railroad case, said additional staff has been hired this year and that she is “hopeful” of success.
The rail line, Societe Nationale des Chemins de fer Francaise or SNCF, is reported to have transported 76,000 people in 76 cattle cars to their deaths in Nazi extermination camps. Fewer than 3,000 reportedly returned alive.
“We filed suit against the railroad in 2000, and it was tossed out of court in 2005 because of sovereign immunity,” she said, referring to the fact that the French government owns the railroad’s corporate shares.
“Nobody denies what happened,” Tamen added.
Guillaume Pepy, SNCF’s chairman, said in a statement last fall that France’s president in 1995 recognized his country’s responsibility for the “criminal madness” of the Holocaust. And he said that as an arm of the state, his company “fully embraces these words and the sorrow they reflect for the victims, survivors, and their families who suffered as a result of our role during the war.”
Tamen said SNCF officials claim that “the Germans made them do it, but to me that is rewriting the history of the Shoah [Holocaust]. They were paid quarterly throughout the war — per head and per kilometer. The Germans didn’t force them to get paid or force them to send a bill [for their work] to [Gen. Charles] DeGaulle after the liberation of Paris [in August 1944]. We have a copy of the bill, and they even said they would charge 1.5 percent interest if payment was more than 30 days late. He paid the bill.”
Because French law prohibits suits against French companies for actions committed in the 1940s, Tamen said survivors filed suit in a French administrative court that is used to sue government entities. She said that when survivors and heirs filed such a suit, SNCF “claimed they were a private entity and therefore the court had no jurisdiction.”
“So if you listen to SNCF, there is no court in the world that has jurisdiction over them because they are private company in France and a public company in the United States,” Tamen said.
Charles Srebnik, 75, a child survivor who lives in New City, N.Y., said his uncle, Hershel Sluszny, was “caught in a street roundup in Paris in 1942 and sent by train to Auschwitz. That is the basis for my claim because he died in Auschwitz.”
“It’s not about the amount of money we get from the suit,” he said. “For me, it would be closure.”
Tamen said Srebnik is one of more than 600 plaintiffs — including some survivors of the train ride to Auschwitz — who hope that Congress will permit them to sue SNCF here. Asked how much she might seek in damages, she replied: “We don’t know because we don’t know how much SNCF made.”
But Maryland Gov. Martin O’Malley signed legislation into law last month that would require SNCF to detail online its role in the transportation of Jews and others to Nazi death camps as a condition of receiving a rail contract from the state. The law, which took effect June 1, is the first in the nation and O’Malley said he hoped it becomes “a national model.”
Both New York Sens. Chuck Schumer and Kirsten Gillibrand have co-sponsored legislation to permit survivors and their heirs to sue SNCF. A spokesman for Gillibrand said she has not yet decided whether to support survivors seeking legislation that would allow them to sue insurance companies that have failed to pay Holocaust-era policies.
That legislation is being opposed by the U.S. government and by most of the organized Jewish community. They insist that the bill would cripple the president’s ability to make foreign policy because he requested that the insurance companies participate in the International Commission on Holocaust-Era Insurance Claims to address the issue of unpaid insurance policies. In return, the U.S. promised to seek dismissal of any subsequent survivor lawsuits against the companies.
“We think that in large measure [ICHEIC] addressed the claims of individual complainants,” said Rabbi Andrew Baker, director of International Jewish Affairs at the American Jewish Committee. “It paid $300 million to 48,000 complainants.”
“The fact is that ICHEIC spent several years coming up with lists [of Holocaust-era policyholders] and went through a laborious process with Yad Vashem sifting through the lists [to identify those who were killed by the Nazis],” he said. “To me, the question is who are the individuals with unmet claims. My guess is you could probably count them on your fingers and toes. There may be enough for a class action suit, but the notion that there are hundreds of people with legitimate unmet claims is unfounded.”
But Sam Dubbin, a Miami lawyer who is representing survivors, insists there are “several thousand survivors and their heirs” who could conceivably sue. He noted, for instance, that the Italian insurance giant Assicurazioni Generali rejected claims submitted to ICHEIC even though it “admitted a policy was sold.”
“It denied payment on the ground [the policy] was previously paid or lapsed, but refused to provide proof,” he said. “In normal litigation, Generali, not the insured, would have the burden of proving that it paid or that the policy lapsed.”
In addition, Dubbin said, survivors would have the “right of discovery in a lawsuit” against insurance companies that said they could find no record that a policy was ever taken out.
Two survivor groups took out an ad last month claiming that the reason the AJC and the Anti-Defamation League are fighting them is because they have a conflict of interest after taking money from those companies. It charged that the AJC is “protecting Allianz, which insured death camps while selling policies to European Jews and turning over customer files to the Nazis.” Survivors said that in each of the last three years the AJC has taken $25,000 from Allianz for goodwill trips to Germany. And they said the ADL accepted $100,000 from Generali in 1999 and that Generali’s lawyer is its former national chairman, Kenneth Bialkin.
Rabbi Baker called the charge a “smear campaign” that is “offensive and outrageous.”
“It is not automatic that the Jewish organizations are all in agreement — it doesn’t come easily and it means something,” he said. “Allianz contributes $25,000 to take a group of people to Germany and somehow we are tainted — we are bought off by this. What an offensive comment.”
Susan Rubin of Brooklyn said her father, Jozef Rosenfeld of Budapest, took out an insurance policy with Generali before the Holocaust.
“I was 16, the war was on and Hitler was already in Hungary,” she recalled. “My father said to me, ‘Suzy, I made insurance in case something happens to me. Hopefully you will get something.’”
In May 1944, she said her father and the rest of her family were taken to Auschwitz and killed; she was the lone survivor.
Rubin filed a claim with ICHEIC in 2001 and then spotted her father’s name on a list ICHEIC published of Holocaust-era policyholders.
“In 2004, my application was rejected by ICHEIC without any explanation and without any documentation,” she said, adding that a similar claim she later made to Generali was also denied.