A review of Michael R. Marrus’s Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s
Michael Marrus’s new book, Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s, is a compelling and detailed portrait of what he views to be a key moment—possibly a paradigm shift—in the understanding and reception of the Holocaust. In a turn of events that he views as remarkable, the Clinton-era U.S. federal courts welcomed a range of class action suits related to dormant Swiss bank accounts, looted European art, pre-war insurance policies, and slave and forced labour under German corporate organization across occupied Europe. The goal of his study is not simply to portray the outcomes of these suits—largely successful in negotiated settlements rather than through final court judgements—but also to understand in what way these cases confronted challenging questions raised by the Holocaust. Did the fact that survivors received settlement payments from governmental and business sources contribute to historical understanding, to an increased acknowledgment of the predicament of survivors and to the accomplishment of what Marrus calls, quoting Shakespeare, “some measure of justice”?
For the most part, Marrus’s answer to these questions is no. In this, his book is a subtly argued corrective to the general sense of triumph promoted by the press, key legal players and Jewish organizational leaders, who were able to point to substantial practical outcomes. First among these successes, and in Marrus’s view the trend setter, was a 1998 settlement by a group of Swiss banks by which they agreed to provide a $1.25 billion fund to account for lost and dormant Jewish accounts (at the time this was deemed “the largest settlement of a human rights claim in U.S. history”). Claims against German corporations for slave and forced labour resulted in a 1999 agreement worth $5.2 billion divided among
slave laborers, mainly Jews who had toiled in concentration camps and who were intended to be worked to death, and the much larger class of forced laborers, mostly Slavic people who had worked elsewhere for the German war machine under a variety of conditions, ranging from the most cruel to the relatively favorable.
What, Marrus asks, contributed to these settlements, and how have they affected our understanding of the events of the war? Do such outcomes point to the likelihood of other historical catastrophes being addressed through the American court system? First, he reminds us that the restitution cases of the 1990s were a late chapter in a process that began almost immediately after the war. He cites a post-war directive conveyed by General Dwight Eisenhower ordering military rulers in Germany to “impound ‘works of art or cultural material of value or importance’ for eventual repatriation and restitution.” The outcome of such efforts was meaningful—an impressive counter-example to American disinterest in the looting of cultural heritage after the second Iraq war—resulting in the return between 1945 and 1950 of “2.5 million cultural objects, including 468,000 paintings, drawings, and sculptures.” More importantly, he points to the agreement reached between German and Israeli governments in 1953, which led to an eventual payment of “more than $70 billion, in all, by the early twenty-first century.” Marrus reminds us of the harsh, divided reception this settlement received among citizens and politicians in the new Jewish state:
Political parties and factions opposing the very idea of talking to the Germans angrily denounced the very idea of the talks, let alone accepting payments from the perpetrators. Their claim, in a nutshell, was that German money would trivialize the Jews’ loss, devalue the lives that had been eradicated. “The reparations money is dipped in Jewish blood,” declared the Herut party, led by Menachem Begin. He and his followers mobilized “to frustrate this horrible plot.” Demonstrators besieged the Knesset and threatened to lynch the proponents of restitution. “May God help us all to prevent this Holocaust of our people, in the name of our future, in the name of our honor,” Begin warned the Knesset.”
(One might like to see the original Hebrew of this speech to see if Begin in fact used the word Holocaust in this metaphorical form, of if he used the more common pre-war Yiddish term, churban, meaning destruction or historical catastrophe.)
The principle underlying the Herut party’s response continues to haunt Holocaust restitution to this day, and Marrus deals with it relatively straightforwardly. Repeatedly, in the course of his study, he returns to the doubts shared by Jewish leaders, historians and survivors that proper restitution for the wrongs of the war might include the prospect of monetary gain. Efraim Zuroff, director of the Israeli office of the Simon Wiesenthal Center,
argued that restitution diminished the message Jews should relay about the Holocaust: “We’ve been telling the world for the last fifty years that the Holocaust is important. Is this why we’re doing it? So that in the end we’ll get paid back?”
Marrus is in measured agreement with the doubters. But his reasons for this are tied to his notion of historical responsibility and accuracy. The failure to see the events of the 1990s as part of a post-war continuum is his starting point. But beyond this, he argues that the legal context in which the restitution cases were heard—with aggressive defence lawyers broadcasting simplistic views aimed at press and government agencies—offered little in the way of historical edification. The tendency of lawyers and some plaintiffs, he says, was to describe wartime crimes as “thefticide,” to which one could attach monetary punishment as just restitution. In response to this notion, Marrus quotes Israel Gutman, whom he characterizes as “Israel’s most senior and respected Holocaust historian,” and who called the 1990s restitution efforts
a big mistake. At most, an effort should have been made to see if compensation could have been secured through quiet discussions. It shouldn’t have been made into a dramatic public struggle, as if it was the ultimate redress for the Holocaust.
These themes are highlighted in the foreword to Marrus’s volume, by William Schabas, who directs the Irish Centre for Human Rights and has sat on numerous international human rights tribunals. Schabas characterizes the restitution suits as forums in which the Holocaust was recast as “thefticide, whereby prosperous Jews lost their artworks and antiquities, their large homes and their Swiss bank accounts,” and warns that alongside such stories “we lose sight of the fact that most Jewish victims of the Nazis were indigent.” This latter claim reflects the fact that major jurists and historians can themselves overstate or misstate the facts under discussion. One wonders where Schabas learned of this mass of indigent pre-war Jews, if not from a folkloric sense of the Polish shtetl as a place of mud, cart wheels and town fools. In light of Schabas’s rhetorical excesses, it is worth considering the rhetorical nature and context of fears connected with Jewish justice focused on money. This motif is not, of course, limited to Holocaust history. The invocation of Shakespeare in Marrus’s title points to a better-known play about Jewish victimization and vengeance, and to an ongoing discussion over whether Shylock’s desire for his “pound of flesh” is a humane or hateful portrait. But we can point, too, to a contemporary text, Philip Roth’s 1979 novel, The Ghost Writer. Focused on Newark in the mid 1950s, on such writerly figures as Bernard Malamud and the historical details associated with Anne Frank’s life and diary, Roth’s novel is remarkably far-reaching, considering its Jamesian precision and brevity. In the midst of its historical themes is a typically funny Rothian investigation of what happens when Jews bring their stories and personal sense of victimization before a non-Jewish audience. In this case, it is Roth’s alter ego, Nathan Zuckerman, who publishes a short story based upon a family squabble over inheritance. The tone of Nathan’s father’s critique of his fiction is reminiscent of Gutman’s plea, noted above, as well as of Schabas’s warnings about money becoming the framework for Holocaust response. Nathan’s short story, his father asserts, that “as far as Gentiles are concerned, is about one thing and one thing only … It is about kikes. Kikes and their love of money. That is all our good Christian friends will see, I guarantee you.”
Reading Gutman out of context may not prove entirely revealing, but his wish that monetary compensation not be the “ultimate” outcome of the Holocaust is useful in our consideration of Marrus’s goals as a historian. Marrus’s judgement regarding the overall effect of the restitution cases of the 1990s can be understood through his impressions of the court battles over looted Jewish-owned European art, which did “not produce outcomes that elucidate history or contribute decisively to justice over the Holocaust.” The most glaring case of this can be seen in efforts to sue American companies, including IBM, General Motors and Ford, to prove that their German subsidiaries profited under American management from the Nazi employment of slave and forced labour. The historical record does not bear this out. On the most basic level, Marrus argues, German corporate sponsorship and management of such labour did not prove to be a profit-making undertaking; and he is categorical on the inaccuracy of claims that American corporations continued to control their German-based subsidiaries after 1941. In the case of GM’s subsidiary Opel, Marrus tells us, “all direct contact” between the American company and its German offices “had been lost” well before Hitler declared war on the United States. Still, high-profile suits and studies such as Edwin Black’s IBM and the Holocaust: The Strategic Alliance between Nazi Germany and America’s Most Powerful Corporation contributed to misleading views.
It can be argued, however, that the press response to the repatriation of major art pieces, such as five Klimts that hung for decades in an Austrian gallery, has had the effect of instructing readers on the intricate details of Nazi efforts to loot the valuables of their victims. The life stories of the people who owned such art came to light, alongside the means by which they lost their possessions and the often pathetic ways in which flight led to penury or death. Alongside these narratives, Schabas’s fear that students of the war will mistake all Jewish victims for wealthy art patrons seems trivial. Another point can be made about the lessons to be learned from an understanding of the German focus on looting, whether this is related to Klimts or the gold chiselled from the teeth of the concentration camp dead. One of the most difficult things to convey to students of Holocaust literature is the nature, or character, of the perpetrators. Readings of Holocaust memoirs, and even the canonical works by Primo Levi and Eli Wiesel, tend to offer only an obscure or abstract sense of the activities and ideals of the Germans, since the writers, victims themselves, had narrow and particular interactions with the engineers and managers of their slave labour and planned death. But recognition that an aspect of what the Germans undertook was theft on a grand scale, in pursuit of the wealth of European art collections, the valuables brought by unknowing victims of the deportations to concentration camps, even the clothing these people wore on their arrival at the camps, aids us in understanding German behaviour as something other than monstrous, something other than mythical or grotesque, but rather as human in the most debased sense. A literary anecdote that is relevant here is found in one of Tadeusz Borowski’s devastating stories collected under the title This Way for the Gas, Ladies and Gentlemen. There, a Polish inmate of Auschwitz is close enough to German camp workers to see clearly as the SS appointed to gather the valuables from deportees fills one briefcase after another, in order to bankroll the Reich’s war effort.
Marrus asserts that the restitution era must not become the “ultimate redress for the Holocaust,” and the conclusion of his book suggests that it will not be
rectifying injustices of the Holocaust era turns out to be a continuous process and not a one-time-only political, legal, and moral exercise. It is not surprising that undoing great historic harm takes time, operates differently in different countries, and impacts people differently—which is to say it is subject to historical evolution, a process that is likely to continue, both with the Holocaust and with other historic wrongs.
In light of this recognition, the fact of restitution settlements and intergovernmental agreements takes on a less monumental or epoch-defining character. Marrus points to the importance of the fall of the Soviet Union, the opening of European archives, the peculiarities of American civil court litigation and the solid support lent by the Clinton administration in creating the right circumstances for such outcomes. But the point of his study is to carefully contextualize legal outcomes, to question the quality of their response to the events of the war, and to direct us to follow attentively the “historical evolution” of Holocaust research and response.