You Can’t Win Them All

Benjamin B. Ferencz

The Nuremberg trials could try only a small sampling of major Nazi war criminals. German restitution negotiations were bound to have an unhappy ending, since no payments could possibly erase the harm or painful memories. No problems related to the Holocaust could be resolved quickly or adequately. Nor could they be swept under the carpet and be expected to disappear. When I bid farewell to my staff in 1956 at a party in Kronberg Castle near Frankfurt, I had no idea where Fate might take me. I soon discovered that my traumas of World War Two and the work I had been doing in Germany thereafter could not simply be discarded and forgotten. I was condemned, like Sisyphus of Greek mythology, to push a heavy rock up a very steep hill, not knowing if I would ever reach the top. The ultimate goal, of course, would be a world of justice under law where all could live in peace and human dignity. I tried to live in the real world without losing sight of the dream. It wasn’t always easy.

To avoid starvation, I did the things that lawyers are normally expected to do to gain clients. I became a member of the local reform synagogue and went on “retreats” with my rabbi and congregation. I joined organizations and social groups. I invited acquaintances to lunch and dinner, went to the theater, and made speeches to countless assemblies that could not afford a speaker. At one bible breakfast I was rewarded by being allowed to take home three leftover bagels. Man cannot live by bagels alone. I characterized my efforts to attract paying clients as “indecent exposure.”

I even tried investing in real estate, but soon realized that since there were more tenants than landlords, the “temporary” wartime rent controls would last forever. It was impossible for income to match the expenses. I was disheartened to see whole neighborhoods turn into slums, and the prevailing corruption led me to abandon or dispose of my holdings at any price—which wasn’t much. Small commercial transactions and dubious negligence cases on a contingent fee held no attraction or treasures. It became plain that an admittedly inexperienced and often-absentee lawyer was not in great demand. I decided to stick with the subjects I knew best.

At Nuremberg, we had conducted three trials against German industrialists without whose help Hitler could not have come to power. They had worked concentration camp inmates to death as slave laborers, and had seized factories in German-occupied territories. Around 1953, Norbert Wollheim, a former inmate who had worked for IG Farben in Auschwitz, started a lawsuit against the German company demanding DM 10.000 (then about $2,500) as compensation. German indemnification laws provided a small payment for his unlawful detention, but nothing whatsoever for the value of the labor or the pain and suffering. The Finance Ministry insisted that it was a private matter between the laborers and the companies that employed them. Wollheim and his German attorney, Henry Ormond, who had served time in Dachau, turned to the Claims Conference for help. Because of my Nuremberg connection, it was natural that I should accept primary responsibility for proceeding against Farben on behalf of all those who had toiled for the firm at Auschwitz and other camps.

Less than 15,000 camp survivors were able to prove their entitlement, and they received payouts that ranged from under $1,000 up to $3,000. Every penny received was divided among the entitled survivors. Only a portion of the accumulated interest was used to cover administrative costs. The German companies paid as little as they felt they could get away with. It was often very painful for me to explain gently why some were paid, while others, who had been equally exploited by other companies, had to go away empty handed. All of the parties were dissatisfied with the meager settlements that were made with a few companies. It was the best that could be done under the circumstances. Many on the German side argued that there was no obligation to do anything—“war is war!” Some companies felt that, at best, it was perhaps a moral obligation; survivors insisted it was also a legal one.

The paltry sums eked out for former slave laborers would cost the German firms dearly about thirty years later. That is not my story to tell, since I was not involved in the later proceedings. That the companies would regret their meager payments was predicted by my law partner, Telford Taylor, in his prescient introduction to my 1979 book, Less Than Slaves (Harvard University Press). My own retrospective evaluation appears in the reprint, published in 2002 by Indiana University Press in association with the United States Holocaust Memorial Museum. There is no doubt that the settlement set a historical legal precedent that those who abuse others in their power have an obligation to make amends. That moral principle has become binding international law under the statue for the International Criminal Court created in 2002.

In considering disappointments, we should recall the failure to obtain compensation from the communist government of the East German Democratic Republic (GDR). After the brusk return of a million dollars to the GDR by the Jewish Claims Conference, in November 1976, it took at least a year before the negotiations could be put back on track. The GDR was in no rush; neither was the U.S. government. The negotiations continued for years.

After Nahum Goldmann died in 1982, Rabbi Israel Miller took his place as chairman of the Claims Conference. Negotiations regarding compensation for the Jews continued in secret meetings with the GDR Foreign Minister, Oskar Fischer, when he visited the UN in New York. After years of tough negotiation, an agreement was reached whereby the GDR promised to pay the Claims Conference $100 million in installments. It wasn’t exactly what we wanted, but it was better than nothing. I drew up the contract with the GDR Ambassador in Washington, and the Claims Conference Board was kept fully informed at all times. The U.S. State Department was also fully informed, and seemed to be overruled when Colin Powell, then National Security Council Advisor, vetoed any agreement with the communist government.

Shortly thereafter, I was surprised to read in The New York Times that the President of the World Jewish Congress, Edgar Bronfman, son of Sam Bronfman, had met with the communist dictator of East Germany, Erik Honnecker. It was announced in East Berlin that the GDR agreed to pay $100 million to Nazi victims in the U.S. I feared that such a premature announcement might raise false hopes among Nazi victims. It may have enhanced the prestige of the World Jewish Congress and its President, but it was news to me that Bronfman was in any way involved in these negotiations for the previous 10 years. In the end, Honnecker pinned a medal on Bronfman, and the GDR went out of existence and in the end, paid nothing.

But that’s not the conclusion of what seemed like a sad story. When Germany was given back its sovereignty in 1952, it agreed, that in the unlikely event of reunification, they would enact restitutional legislation similar to what they had done in the West. This meant that the Jewish Nazi victims whose assets in East Germany had been seized received infinitely more than they might have gotten from any deal with the defunct German Democratic Republic.

As consolation to Honnecker and Fischer, I shall recall another case that was lost by me and redounded to the benefit of East Germany. On one of my European trips, I was approached by a regal lady known with the majestic title, “The Grand Duchess of Weimar, Saxony, and Eisenach." Her Majesty alleged that some paintings had disappeared from her castle in Weimar, East Germany. The paintings by the renowned artist Albrecht Duerer had apparently been acquired by an art lover who happened to be in the U.S. Army when it occupied Weimar during the war. The “liberated” portraits of a husband and wife next showed up in New York where they were bought by another art connoisseur, a lawyer who balked at the asking price of $500 and paid only $450. Of course, the paintings were worth millions. The lawyer said he kept the paintings on display in his living room for 15 years after which, coincidentally, no legal claims could be expected. The Grand Duchess, Her Highness, my client, wanted the paintings back. The East Germans said the palace and the paintings were public property. West Germans also wanted the paintings as national treasures. Who was the real owner was very much in dispute.

I realized, when I agreed to represent her, that the Grand Duchess had a very doubtful case. But I hoped I might induce the communist government to swap the pictures of a Nuremberg banker and his spouse for some fine portraits of Comrade Stalin or Trotsky or similar revolutionary heroes, that might be languishing in the cellar at the Metropolitan or some other U.S. museum. No way! The U.S. District Court in Brooklyn, that had been mulling over the case for about 10 years, concluded that a thief cannot pass good title. The American soldier who removed the paintings from Germany may have been an art lover, but he was also a crook. Those who later bought the painting could not become lawful owners of the stolen objects.

Despite protests by my distinguished client, the evidence indicated that her husband, the Duke, had surrendered the paintings to the State. The two portraits were returned to Weimar where they now hang in the public castle from whence they were taken. I hope that they will be enjoyed by the good citizens of Weimar forever. Her Highness had promised me one of the paintings as my fee. Now, all I can do is look at the photographs and sigh. I was beginning to reach the conclusion that I should look for a new career. My mind began to focus on something simple, like the prevention of another Holocaust.