Legislation that would allow Holocaust survivors to file suit over insurance policies from that era was the subject of debate at a hearing of the Senate Foreign Relation committee on Tuesday.
Sen. Bill Nelson, D-Fla., who chaired the hearing, noted that the occasion marked the first time a Senate committee has met to consider holocaust insurance issues specifically.
“While no amount of financial compensation or property restitution can ever make up for the indescribable wrong of the Holocaust, we all are committed to doing what we can to assist these survivors to obtain meaningful compensation due to them for the assets they lost during the war and around the period prior to the war, and to have that compensation come to them without delay,” he said.
Many Holocaust era claims were resolved through the International Commission on Holocaust Era Insurance Claims, which Nelson noted “closed its doors” last year after paying out more than $300 million in claims to over 48,000 survivors. However, other survivors have been critical of the ICHEIC, and last year Reps. Ileana Ros-Lehtinen, R-Fla., and Robert Wexler, D-Fla., introduced H.R. 1746, which would allow survivors to bring their cases to federal court and require insurance companies in the U.S. who wrote policies in Europe in the years before and during World War II to disclose the names of all their policyholders at that time to the National Archives for publication.
Jack Rubin, a Holocaust survivor and member of the advisory committee for the Holocaust Survivors of West Palm Beach in Boynton Beach, Fla., testified in favor of the bill before the committee, noting that his own claim with ICHEIC was denied over a supposed lack of evidence. Rubin said his father had purchased insurance with Generali Moldavia through an agent who was also killed during the Holocaust, but that the insurer claimed to have no knowledge of either the policy or the agent when he filed his claim.
“This is absurd, because I know we had insurance,” he said. “Don’t you think Generali, which even then was a global giant, would have kept information about its insurance agents, and about its subsidiaries? That’s what big insurance companies do.”
Additionally, Rubin criticized the ICHEIC as being “controlled by the insurance companies” and operating behind closed doors, a criticism echoed by Samuel Dubbin, a partner with the law firm of Dubbin & Kravetz, LLP in Miami.
“It is money, yes, because the insurers profited outrageously from the Holocaust and turned their backs on those who trusted the companies’ supposed integrity,” Dubbin said in his testimony. “But this law is also about the truth. And the current system, the status quo represented by the ICHEIC legacy, has permitted the companies to hide behind the secrecy of an unregulated and extra-legal process, chartered in Switzerland and headquartered in London, and make decisions about Holocaust survivors’ rights with no governmental or judicial oversight.”
However, critics of the proposed legislation argued that it could undermine the efforts to resolve Holocaust era claims and ultimately make things more difficult for survivors seeking restitution.
“My apprehension regarding H.R. 1746 is that it will not achieve its goal of providing an effective avenue to successfully compensate Holocaust victims and their heirs for unpaid insurance policies,” said Roman Kent, a Holocaust survivor and chairman of the American Gathering of Holocaust Survivors and their Descendants in New York. Kent said that while some survivors may benefit from the bill, its enactment would unduly raise the hopes of many others “that, in the end, will not be met, which will have a profoundly negative impact on survivors.”
Stuart Eizenstat, a partner with the law firm of Covington & Burling LLP and former Special Representative of the President and Secretary of State on Holocaust Issues, also noted that opening the court doors to survivors would not necessarily provide them with a reasonable chance for obtaining restitution.
“Litigants would be faced with statutes of limitation, jurisdictional arguments, rules of evidence and burdens of proof,” he said, adding that these cases would involve “considerable costs” that may only be recovered if the claimant wins in both the trial and an appeal. “Such as cause of action would likely raise the hopes of survivors without offering them a real chance at additional recovery,” Eizenstat said. “But most importantly, litigation would take time–time that survivors on the whole do not have.”
Eizenstat said the bill was also flawed in that it was “at odds” with U.S. policy regarding Holocaust claims, which he noted was based on negotiation.
“It imposes the probability of litigation on companies that have cooperated fully with the United States Government and in the ICHEIC process and that have paid tens of millions of dollars in an effort to satisfy their obligations,” he said. “It further imposes the probability of litigation on companies that have been deemed by the United States Government to be entitled to ‘legal peace,’ thereby undermining the word and credibility of the U.S. Government itself.”
However, Thane Rosenbaum, a law professor specializing in the area of human rights and moral justice at the Fordham University School of Law, argued that lawmakers should consider not only the foreign relation aspect of this, but whether the president has the authority to place that policy above the rights of citizens.
“The powers of the Executive Branch to conduct foreign policy surely cannot be expanded to allow the suppression of facts in the hands of foreign corporations that collaborated with the Nazis and defrauded its customers,” Rosenbaum said. “Whether there is a compelling foreign policy interest here or not, the Executive Branch simply cannot preempt and cancel the rights of citizens to avail themselves of American courtrooms. Unless Congress acts decisively in this matter, the forfeiture of these legal rights is exactly what will have happened.”
H.R. 1746 was approved by the House Foreign Affairs Committee last October, and is currently awaiting action by the House Committee on Oversight and Government Reform and the House Financial Services Committee.