Litigating The Holocaust: A Consistent Theory in Tort For The Private Enforcement of Human Rights Violations

Abstract

Survivors of the Holocaust have repeatedly attempted, with little apparent success, to recover the assets their families deposited in Swiss banks prior to World War II. Considering the claimants' subsequent-yet understandable lack of documentation, until now these survivors have had to rely solely on the banks' promises to expedite the return of these "dormant accounts" to their rightful owners. Reliance on such promises, however, quickly evaporated with the public disclosure of one man's experience: Christoph Meili.

The recent avalanche of Holocaust related litigation may be generally divided into three phases, or categories. The first category ("Category I") constitutes attempts by plaintiffs to remedy unjust enrichment by forcing the return of both converted property and its profits to the rightful owners. The second category ("Category II") constitutes endeavors to force the return of profits earned by German corporations that used Jewish slave laborers, as well as efforts to force back payment of the laborers' wages. The third wave of Holocaust related litigation ("Category III") commenced in August 1998. This category includes multitudinous lawsuits filed against any company which profited from its commercial intercourse with the Third Reich.

Section II of this Comment will lay a foundational backdrop by reviewing the most noteworthy historical events which have acted as precursors for these legal phenomena. Section III will cover the recent litigative responses aimed at remunerating those impacted by the horrors of the Holocaust. Section IV will review the attempts by several countries to rectify, through non-litigative fora, the damages which category I and category II litigation have attempted to remedy. Finally, Section V will analyze category III litigation in light of other similar pending tort litigation. It will then discuss the inherent pitfalls of this wave of litigation and suggest the tort of "private human rights reparations" which would both award damages to injured parties and simultaneously prevent an abuse of the legal system.