1 See, e.g., Levy, Daniel & Sznaider, Natan, The Institutionalization of Cosmopolitan Morality: the Holocaust and Human Rights, 3 Journal of Human Rights 143, 143–144 (2004).Google Scholar

2 See, e.g., Buxbaum, Richard M., A Legal History of International Reparations, 23 Berkeley Journal of International Law 314, 314–317 (2005); Buergenthal, Thomas, International Law and the Holocaust, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy, 17 (Michael J. Bazyler & Roger P. Alford eds., 2006).Google Scholar

3 Agreement Between the Government of the Federal Republic of Germany and the Government of the United States of America Concerning Final Benefits to Certain United States Nationals Who Were Victims of National Socialist Measures of Persecution, 19 Sept. 1995, 35 ILM 195 (1996).Google Scholar

4 Following a lump-sum payment of $2.1 million by Germany to the US in 1995 for distribution to Hugo Princz and 10 other survivors, US implementing legislation entitled similarly situated persons to have their claims adjudicated by the Foreign Claims Settlement Commission, an agency within the US Dept. of Justice. Claims found by the Commission to satisfy eligibility requirements were awarded with distributions from an additional German lump-sum payment to the US in 1999 of $18 million. See www.usdoj.gov/fcsc/holocaustclaims.htm. This Internet citation and all which follow were last accessed on 13 July 2008.Google Scholar

5 Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994).Google Scholar

6 See Bettauer, Ronald J., Holocaust Claims: The Role of the United States Government in Recent Holocaust Claims Resolution, 95 ASIL Proceedings 37–38 (2001).Google Scholar

7 See Chung, John J., The United Nations Compensation Commission and the Balancing of Rights Between Individual Claimants and the Government of Iraq, 10 UCLA Journal of International Law and Foreign Affairs 141, 147–148 (2005); Wühler, Norbert, Institutional and Procedural Aspects of Mass Claims Settlement Systems: The United Nations Compensation Commission, in Institutional and Procedural Aspects of Mass Claims Settlement Systems 17–22 (The International Bureau of the Permanent Court of Arbitration ed., 2000).Google Scholar

8 See Wühler (note 7), at 17.Google Scholar

9 See In re Holocaust Victim Assets Litigation, 105 F. Supp. 2d 139 (E.D.N.Y. 2000), aff'd, 413 F.3d 183 (2d Cir. 2001) (hereinafter Swiss Banks Litigation). The settlement covered claims not only related to the dormant accounts of Holocaust victims in Swiss banks, but also looted assets, denials of asylum, slave labor and insurance policies. In exchange for payment of $1.25 billion by the Swiss banks, the plaintiffs dropped all claims against the banks and the Swiss government for damages related to the Holocaust and the war. Decisions over individual claims were left to the Claims Resolution Tribunal (CRT), which operated essentially as an arm of the District Court. See Burt Neuborne, Preliminary Reflections on Aspects of Holocaust-Era Litigation in American Courts, 80 Washington U. Law Quarterly 795, 801 (20002).Google Scholar

10 The German Foundation (see, infra, note 11) was such an entity. See Neuborne (note 9), at 821.Google Scholar

11 Agreement Concerning the Foundation “Remembrance, Responsibility and the Future” of 17 July 2000, 39 ILM 1298 (2000). The German Foundation, which provided the framework for a $5.2 billion out-of-court settlement, was established under German domestic law by the Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft” (EVZStiftG) (Law on the Creation of a Foundation “Remembrance, Responsibility and the Future”), 2 Aug. 2000, BGBl. I-1263, last amended by Art. 1 of the Gesetz vom 21. Dez. 2006 (Law of 21 Dec. 2006), BGBl. I-3343. Bettauer (note 6), at 39 (the executive agreement was intended to facilitate the dismissal of multiple class action lawsuits in the US through the creation of the German Foundation, on the one hand, and the provision of a “statement of interest” by the State Department to seized courts, on the other. This mix of domestic and international aspects warrants reference to the German Foundation as a “hybrid settlement.”). See Neuborne (note 9), at 820.Google Scholar

12 See Press Release, ICHEIC Announces Successful Completion of Holocaust Era Insurance Claims Process, 20 March 2007, and the Chairman's Cover Letter (accompanying an ICHEIC “legacy document,” cited, infra, at note 44), 18 June 2007, both available at: www.icheic.org.Google Scholar

13 Levy & Sznaider (note 1), at 143.Google Scholar

14 For references to the original postwar debate over the propriety of Holocaust compensation and its more recent manifestation, see Adler, Libby & Zumbansen, Peer, The Forgetfulness of Noblesse: A Critique of the German Foundation Law Compensating Slave and Forced Laborers of the Third Reich, 39 Harvard Journal on Legislation 1, 54–57 (2002); Michael J. Bazyler, Holocaust Justice: The Battle for Restitution in America's Courts 286–293 (2003).Google Scholar

15 Curran, Vivian G., Competing Frameworks for Assessing Contemporary Holocaust-Era Claims 25 Fordham International Law Journal 107 (2001) (Symposium issue).Google Scholar

16 See id., 111–113; Adler, & Zumbansen, (note 14); Kent, Roman, It's Not about the Money: A Survivor's Perspective on the German Foundation Initiative, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy, 205, 213–214 (Michael J. Bazyler & Roger P. Alford eds., 2006); Edward B. O'Donnell, Ambassador, Special Envoy for Holocaust Issues, Compensation and Restitution for Victims of the Holocaust, Remarks at the Claims Conference Board of Directors, New York City, 11 July 2006, available at: www.state.gov/p/eur/rls/rm/69488.htm; Karrer, Pierre A., Mass Claims Proceedings in Practice: A Few Lessons Learned, 23 Berkeley Journal of International Law 463 (2005); Stuart E. Eizenstat, Imperfect Justice. Looted Assets, Slave Labor, and the Unfinished Business of World War II ix (foreword by Elie Wiesel, 2003).Google Scholar

17 See Curran (note 15), at 116–117.Google Scholar

18 Id. at 120 (quoting Deputy Treasury Secretary Stuart Eizenstat, the principal representative of the US government on Holocaust issues during the Clinton Administration).Google Scholar

19 For the view that claiming individual as well collective monetary compensation for Jewish victims of Nazi persecution is an understandable, natural and legitimate notion, see Siegfried Moses, Die jüdischen Nachkriegsforderungen (Tel Aviv 1944), reprinted in: IUS VIVENS: Quellentexte zur Rechtsgeschichte (Wolf-Dieter Barz, Andreas Roth & Stefan C. Saar eds., 1998). The expectation that Germany would restore property it had taken or provide material reparation for the loss it caused reflects nothing less an “elementary principle of justice and human decency.” Nana Sagi, German Reparations, A History of the Negotiations 76 (1980).Google Scholar

20 Curran (note 15), at 120.Google Scholar

21 The Conference on Jewish Material Claims Against Germany (Claims Conference). See http://www.claimscon.org.Google Scholar

22 See Agreement between the State of Israel and the Federal Republic of Germany (Luxembourg Agreement), 10 Sept. 1952, 162 UNTS 206 and German Wiedergutmachung legislation (see, infra, note 27).Google Scholar

23 For details regarding postwar Germany's financial response to Nazi persecution, see German Federal Ministry of Finance, Compensation for National Socialist Injustice: Indemnification Provisions (2006 edition).Google Scholar

24 See (note 9).Google Scholar

25 See Sidney Zabludoff, ICHEIC: Excellent Concept but Inept Implementation, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 260, 267 (Michael J. Bazyler & Roger P. Alford eds., 2006).Google Scholar

26 Bazyler (note 14), at 110. See also Press Release, $16 Million Paid to Holocaust-Era Insurance Claimants from ICHEIC Humanitarian Fund, 30 March 2004, available at: http://www.icheic.org/newsroom.html. But see The International Commission on Holocaust Era Insurance Claims (ICHEIC), Lessons Learned: A Report on Best Practices, June 2007, 7–8 (hereinafter ICHEIC, Lessons Learned), available at: http://www.icheic.org/pdf/ICHEIC%20Best%20Practices%20Paper.pdf (maintaining that the analogy, which raised claimants’ expectations, was relativized by ICHEIC's own research).Google Scholar

27 See Bundesentschädigungsgesetz (BEG) (Federal Compensation Law), 29 June 1956, BGBl. I-559, and the Bundesrückerstattungsgesetz (BRüG) (Federal Restitution Law), 19 July 1957, BGBl. I-734. See Bazyler (note 14), 144.Google Scholar

28 See Detlev Vagts & Peter Murray, Litigating the Nazi Labor Claims: The Path Not Taken, 43 Harvard International Law Journal 503, 510–528 (2002) (for analysis of what the authors consider powerful legal defences of German industry which the plaintiffs would have had to overcome for the forced labor cases dismissed in connection with the German Foundation agreement to proceed). But see Adler & Zumbansen (note 14) (identifying significant weaknesses in these traditional defences).Google Scholar

29 See Bazyler (note 14), at xvi, 117, 138; Brown, Derek, Litigating the Holocaust: A Consistent Theory in Tort for the Private Enforcement of Human Rights Violations, 27 Pepperdine Law Review 553, 560 (2000).Google Scholar

30 Agreement on German External Debts (London Debt Agreement), 27 Feb. 1953, 333 UNTS 3.Google Scholar

31 Treaty on the Final Settlement with Respect to Germany (with Agreed Minute) (Two-Plus-Four Treaty), 12 Sept. 1990, 1696 UNTS 124. In effect, the London Debt Agreement of 1953 (note 30) postponed consideration of the liability of German companies until the conclusion of a peace treaty with Germany, something which the Two-Plus-Four Treaty of 1990 functionally represents. See Adler & Zumbansen (note 14), at 30–37; Neuborne (note 9), at 813–816.Google Scholar

32 For an overview of the litigation, see Bazyler, Michael J., Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. of Richmond Law Review 1 (2000-2001).Google Scholar

33 See id. at 114–116.Google Scholar

34 See Holocaust Era Insurance Restitution after AIA v. Garamendi: Where Do We Go From Here? Hearings Before the House Committee on Government Reform, 108th Cong., 1st Sess., 54, 62 (16 Sept. 2003) (hereinafter Hearings 2003) (Statement of Lawrence S. Eagleburger, Chairman, ICHEIC).Google Scholar

35 See, e.g., O'Donnell (note 16).Google Scholar

36 See (note 31).Google Scholar

37 By the end of 1998, 25 insurers had been sued. See Bazyler (note 14), at 132. The National Association of Insurance Commissioners (NAIC), in which all state insurance regulators participate, formed a working group to examine the matter; insurance commissioners in several states held hearings at which the companies were questioned on their non-payment histories. Id. at 69.Google Scholar

38 Holocaust survivors were dying at a rate of 10% per year. See Eizenstat, Stuart E., The Unfinished Business of World War II, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 297 (Michael J. Bazyler & Roger P. Alford eds., 2006).Google Scholar

39 See H.R. 1210, Holocaust Victims Insurance Relief Act of 2003, 108th Cong., 1st Sess. (11 Mar. 2003). See, moreover, H.R. 1905, Comprehensive Holocaust Accountability in Insurance Measure, 108th Cong., 1st Sess. (1 May 2003), recognizing the authority of states to pass laws requiring insurance companies to disclose policyholder names and the current status of Holocaust era insurance policies, and creating a federal cause of action permitting claimants to sue insurers for payment of such policies in federal court.Google Scholar

40 See Eizenstat (note 16), at 339.Google Scholar

41 See American Insurance Association v. Garamendi, 539 U.S. 396, 396–397, 421–423 (2003)(striking down California's attempt to force insurance companies licensed in the state, including the subsidiaries of European companies, to reveal the names of their Holocaust-era policyholders). The Court's holding rested primarily on its determination that the US government, through the executive agreement which led to the German Foundation and its provision for the Foundation to work with ICHEIC, had clearly formulated national foreign policy on the issue of Holocaust-era insurance claims and that the state law directly conflicted with this legitimate exercise of executive authority and was accordingly preempted. See also In re Assicurazioni Generali S.p.A. Holocaust Insurance Litigation, 340 F.Supp. 2d 494, 500, 503–505 (SDNY 2004) (hereinafter Generali II) (dismissing multiple suits against Generali on the basis of unambiguous executive branch policy favoring resolution of claims by ICHEIC).Google Scholar

42 The MOU is available at: http://www.icheic.org/pdf/ICHEIC_MOU.PDF.Google Scholar

43 See Megan Hoey, Holocaust Era Insurance Claims: Compensating the Unimaginable, 30 Australian Alternative Law Journal 134, 140 (2005).Google Scholar

44 Initially outsourced, claims processing in-house came at a later stage. See ICHEIC's “legacy document”: Lawrence S. Eagleburger & M. Diane Koken, with Catherine Lillie, Finding Claimants and Paying Them: The Creation and Workings of the International Commission on Holocaust Era Insurance Claims 42 (2007), available at: http://www.icheic.org/pdf/ICHEIC%20Legacy%20Document.pdf‥ ICHEIC also established a call-center in New York, whose operations were outsourced to the Claims Conference. See id., 21, 42.Google Scholar

45 See id., 42; Bazyler (note 14), at 136; Eagleburger, Koken & Lillie (note 44), at 42.Google Scholar

46 See Hearings 2003 (note 34), at 11, 12 (Statement of Rep. Henry A. Waxman, Ranking Minority Member of Committee on Government Reform).Google Scholar

47 See (note 37).Google Scholar

48 See http://www.jafi.org.il/education/worldwide/synagogues/part2e.html.Google Scholar

49 The signatory insurance companies were Allianz, AXA, Basler Leben, Generali, Zurich Financial Services, and Winterthur Leben. Basler Leben resigned shortly after signing the MOU.Google Scholar

50 See ICHEIC Holocaust Era Insurance Claims Processing Guide 8 (1st Edition, 22 June 2003), available at: http://www.icheic.org/pdf/ICHEIC_CPG.pdf (hereinafter ICHEIC Claims Processing Guide);Google Scholar

51 See Eagleburger, Koken & Lillie (note 44), at 20. Despite the legacy document's reference to the articles of association, they are absent from the ICHEIC website.Google Scholar

52 See id. at 19.Google Scholar

53 Bettauer (note 6), at 39.Google Scholar

54 Presumably, the “European Economic Commission” referred to the Commission of the European Communities. For indications of the more active role than that of a mere passive observer played by the US government in ICHEIC, see, supra, note 41.Google Scholar

55 See ICHEIC Claims Processing Guide (note 50), at 9; Eagleburger, Koken & Lillie (note 44), at 31–32.Google Scholar

56 Agreement was entered into by ICHEIC and the WJRO with Assicurazioni Generali S.p.A. (Generali) in 2000. In 2001, the Generali Fund in Memory of the Generali Insured in East and Central Europe Who Perished in the Holocaust (Generali Trust Fund/ GTF), established in Israel, was recognized in a further agreement as the implementing organization. See ICHEIC Claims Processing Guide (note 50), 9. This arrangement ended in Nov. 2004, when the Generali Policy Information Center in Trieste, Italy, assumed claims-processing functions. See Eagleburger, Koken & Lillie (note 44), at 29. Agreement was concluded in 2003 with AXA, Winterthur and Zurich on the terms of claims processing and additional funds for ICHEIC. See id., 30.Google Scholar

57 ICHEIC, the German Foundation and the German Insurance Association (Gesamtverband der deutschen Versicherungswirtschaft) (GDV); ICHEIC and the General Settlement Fund (Austria); ICHEIC and the Buysse Commission (Belgium); ICHEIC and the Sjoa Foundation (the Netherlands); ICHEIC and the Drai Commission (France). See ICHEIC Claims Processing Guide (note 50), at 10–14.Google Scholar

58 While an official text is unavailable, the Humanitarian Claims Processing Agreement between ICHEIC and the Conference on Jewish Material Claims Against Germany is referred to in International Mass Claims processes: Legal and Practical Perspectives 36 (Howard M. Holtzmann & Edda Kristjansdottir eds., 2007).Google Scholar

59 Agreement Concerning Holocaust Era Insurance Claims among ICHEIC, the German Foundation and the German Insurance Association, 16 Oct. 2002, available at: http://www.icheic.org/pdf/agreement-GFA.pdf. The 111-page document, consisting of a main agreement and eleven annexes, served as a model for similar agreements sought with Austria and France. See ICHEIC Claims Processing Guide (note 50), at 11–12.Google Scholar

60 Most of the funds available for payment of claims under the ICHEIC process came from the German Foundation's DM 10 billion (€ 5.1 million) fund, to which German insurance companies had contributed about 10%. In total, DM 550 million resulted for ICHEIC from the side-agreement among the German Foundation, the German Insurers Association and ICHEIC, of which DM 200 million was for named or matched policies, with the remaining DM 350 million for humanitarian purposes, including claims resolved under the humanitarian claims process. See id. at 10–11.Google Scholar

61 See Satzung der Stiftung “Erinnerung, Verantwortung und Zukunft“ (Statutes for the “Remembrance, Responsibility and the Future” Foundation), available at: http://www.stiftung-evz.de/eng/foundation_remembrance_responsibility_and_future/statutes/, which lists ICHEIC among the institutional partners operating in the subject-area of the Foundation that “will assume functions assigned to them by the Foundation Act and relevant contracts. They are not organs of the Foundation, which will work together with them to fulfill the purpose of the Foundation …,” as envisaged under Section 7 of the EVZStiftG (note 11), amended 11 June 2007, Section 9.Google Scholar

62 For the German insurers, ICHEIC could indeed be considered an administrative sub-organ of the German Foundation. See Eizenstat, (note 38), 300; Kai Hennig, The Road to Compensation of Life Insurance Policies: The Foundation Law and ICHEIC, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 251, 254 (Michael J. Bazyler & Roger P. Alford eds., 2006).Google Scholar

63 Evidence of ICHEIC's hybrid quality may be seen in the fact that, under the executive agreement signed on 17 July 2000 (note 11), the US and Germany agreed that insurance claims against German companies that fell within the handling procedures of ICHEIC would be processed by the companies and the GDV on the basis of these procedures and additional processing rules to be accepted by ICHEIC, the German Foundation and the GDV.Google Scholar

64 Holocaust-era insurance claims were defined as those relating to policies issued to Holocaust victims between 1920 and 1945. See MOU (note 42), at Section 4.Google Scholar

65 For a general description, see Eagleburger, Koken & Lillie (note 44), 31.Google Scholar

66 By mid-Nov. 2000, ICHEIC's website listed only 39,000 of the more than 519,009 names that were eventually published by the end of 2003. See Press Release, International Commission on Holocaust Era Insurance Claims announces publication of additional 20,000 Holocaust-era insurance policies, 16 Nov. 2000, available at: http://www.icheic.org/pdf/2000-1116.pdf; Eagleburger, Koken & Lillie (note 44), 37. For a response to critics, echoing insurer's arguments against full disclosure, see Letter from Lawrence S. Eagleburger, ICHEIC Chairman, to Tom Davis, Chairman, Committee on Government Reform 1, 9, 10 (23 Oct. 2003); available at: http://www.icheic.org/pdf/2003-1023.pdf.Google Scholar

67 See (note 51) and accompanying text.Google Scholar

68 See In re Assicurazioni Generali S.p.A. Holocaust Insurance Litigation, 228 F. Supp.2d 348, 357 (2002) (hereinafter Generali I) (citing evidence of the understanding of Chairman Eagleburger and Generali regarding consensus).Google Scholar

69 Bazyler (note 14), at 158. For a critical assessment, tracing many of ICHEIC's problems to the “inept governance” which resulted from abandonment of the committee approach to consensus-building, see Zabludoff (note 25), at 262–263.Google Scholar

70 ICHEIC Guide to Valuation Procedures (edition 22 Oct. 2002), available at: http://www.icheic.org/pdf/ICHEIC_VG.pdf.Google Scholar

71 See Trilateral Agreement (note 59), at Annex D.Google Scholar

72 See ICHEIC, Standards of Proof (15 July 1999), available at: http://www.icheic.org/pdf/ICHEIC_SP.pdf; see also Trilateral Agreement (note 59), at Annex B.Google Scholar

73 ICHEIC Claims Processing Guide (note 50), at 20.Google Scholar

74 Id. at 22–23.Google Scholar

75 See Trilateral Agreement (note 59), at Annex C.Google Scholar

76 See Hearings 2003 (note 34), at 75–76 (Statement of Chairman Eagleburger). For detailed treatment of the humanitarian claims aspect of the ICHEIC process in the context of a comparative survey, see Holtzmann & Kristjansdottir (note 58).Google Scholar

77 The ICHEIC's competence to make such allocations is recognized under the law establishing the German Foundation in Section 9 (4) nos. 3 and 5 as well as Section 9 (5), EVZStiftG (note 11).Google Scholar

78 The Claims Conference (see note 21) was asked by ICHEIC to implement the distribution of the fund, which began in 2003 with allocations originally earmarked through 2011. See http://www.claimscon.org/index.asp?url=news/icheic_new_grants.Google Scholar

79 ICHEIC'S proportional allocation of funds for social welfare (80%) and educational purposes (20%) was also defended as being “[i]n keeping with general practice for funds reclaimed from Holocaust-related assets…” Eagleburger, Koken & Lillie (note 44), at 61.Google Scholar

80 See Hearings 2003 (note 34), at 76 (Statement of Chairman Eagleburger). The ICHEIC Service Corps Program encouraged voluntary social assistance to Nazi victims by students. See ICHEIC, Humanitarian Fund, http://www.icheic.org/fund.html.Google Scholar

81 Initiative to Bring Jewish Cultural Literacy to Youth in the Former Soviet Union (developed and run by the Jewish Agency for Israel) and the ICHEIC Program for Holocaust Education in Europe (established and administered by the Yad Vashem International School for Holocaust Studies).Google Scholar

82 ICHEIC Claims Processing Guide (note 50).Google Scholar

83 See id. at 14.Google Scholar

84 Appeals are otherwise considered along with monitoring in the context of oversight, rather than under ICHEIC's procedural aspects, in Part B V.Google Scholar

85 See (note 27).Google Scholar

86 See ICHEIC Claims Processing Guide (note 50), at 19; Trilateral Agreement (note 59), at Section 2 (1)(C).Google Scholar

87 See Hearings 2003 (note 34), at 73–75. In the relevant cases, claims were matched under the Trilateral Agreement against the list of Holocaust-era insurance policies compiled by the Bundesanstalt für Finanzdienstleistungsaufsicht (BAFin) (German Federal Agency for the Supervision of Financial Services). See ICHEIC Claims Processing Guide (note 50), 37.Google Scholar

88 See id. Google Scholar

89 See id. at 35.Google Scholar

90 Under the Trilateral Agreement (note 59), Annex A, Section 24, companies reported their findings to the GDV, which in turn communicated this information to ICHEIC.Google Scholar

91 See Part B II 3.Google Scholar

92 See Curran (note 15).Google Scholar

93 These included, e.g., the claimant's agreement to share the payment with other entitled persons who make a claim or seek compensation with regard to the policy in question. See Trilateral Agreement (note 59), Annex F, Consent and Waiver, Section (e).Google Scholar

94 Id. at Section (a).Google Scholar

95 ICHEIC Claims Processing Guide (note 50), at 33–34.Google Scholar

96 These “higher levels” were the ICHEIC and, in the case of German companies covered by the Trilateral Agreement, the German Foundation. See id. Google Scholar

97 See MOU (note 42), at Section 8 (A)(1).Google Scholar

98 See Trilateral Agreement (note 59); see also ICHEIC, Concluding Meeting of the International Commission on Holocaust Era Insurance Claims, Washington D.C., March 20, 2007, 21, available at: http://www.icheic.org/pdf/Meeting%20Presentation%203-20-07.pdf (hereinafter ICHEIC, Concluding Meeting) (indicating that the US Holocaust Memorial Museum would continue to store key documents, research data and claims files following ICHEIC's closure).Google Scholar

99 Trilateral Agreement (note 59), at Annex I.Google Scholar

100 Id. at Annex I, Sections 11–23.Google Scholar

101 Id. at Section 21.Google Scholar

102 Id. at Section 22.Google Scholar

103 See ICHEIC Decision Verification System, available at: http://www.icheic.org/pdf/ICHEIC_VP.pdf.Google Scholar

104 See id. Google Scholar

105 See id. Google Scholar

106 See Zabludoff (note 25), at 262. See Hearings 2003 (note 34), 140, 143 (Statement of Daniel Kadden). See also Generali I (note 68), at 356–357 (describing ICHEIC as “entirely a creature of the six founding insurance companies” and “the company store”). With respect to ICHEIC's outsourcing of core functions, see, supra, note 44 and, implicitly self-critical, ICHEIC, Lessons Learned (note 26) 14.Google Scholar

107 Trilateral Agreement (note 59), at Annex K, Section 5.Google Scholar

108 The Monitoring Group's ineffectiveness was also criticized in congressional testimony by Daniel Kadden. See Hearings 2003 (note 34), at 140, 143.Google Scholar

109 See Beschluss des Deutschen Bundestages vom 28. Juni 2001 (Decision of the German Bundestag of 28 June 2001) (Bundestagsdrucksache 14/6465); with regard to ICHEIC, see, e.g., Fünfter Bericht der Bundesregierung über den Stand der Auszahlungen und die Zusammenarbeit der Stiftung “Erinnerung, Verantwortung und Zukunft” mit den Partnerorganisationen, Bundestagsdrucksache 15/5936 (21 July 2005) (Fifth Report of the German Government on the Status of Distributions and the Cooperation of the Foundation “Remembrance, Responsibility and Future” with Partner Organizations).Google Scholar

110 See Pub. L. 107–288, Section 704, Foreign Relations Authorization Act of 2003.Google Scholar

111 The limitations for effective oversight are manifest in the State Department's open acknowledgment that it “was unable to obtain such information on the ICHEIC claims process as required by Section 704 (a)(3)-(7)” and its referral in this connection to publicly available statistics on the ICHEIC website. See US Dept. of State, Bureau of European and Eurasian Affairs, Report to Congress: German Foundation “Remembrance, Responsibility, and the Future,” March 2006, available at: www.state.gov/p/eur/rls/rpt/64401.htm. But see Review of the Repatriation of Holocaust Art Assets in the United States, Hearing before the Subcommittee on Domestic and International Monetary Policy, Trade and Technology, 109th Cong., 16, Appendix 1, Best Practices in Holocaust Era Claims Restitution, NY State Banking Dept. Research Paper (27 July 2006) (Testimony of Catherine A. Lillie, Director, Holocaust Claims Processing Office, NY State Banking Dept.), available at: http://www.claims.state.ny.us/sp060727.pdf, qualifying as a “best practice” ICHEIC's provision to US insurance regulators of a monthly report on the status of claims filed by US residents or by a US regulatory agency on their behalf.Google Scholar

112 See NY Consolidated Laws Service, Banking Law, Art. II, Section 37-a (2007).Google Scholar

113 Holocaust Claims Processing Report, Report to the Governor and the Legislature, 15 January 2007, 10 (New York State Banking Dept. ed., 2007).Google Scholar

114 For comprehensive links to the testimony presented, see the website of Rep. Henry A. Waxman, www.henrywaxman.house.gov, as well as that of the Committee on Oversight and Government Reform, http://oversight.house.gov/.Google Scholar

115 See Hearing on H.R. 2693, The Holocaust Victims Insurance Relief Act of 2001, Before the Subcommittee on Governmental Efficiency, Financial Management and Intergovernmental Relations, Committee on Government Reform, 107th Cong., 2nd Sess. (24 Sept. 2002).Google Scholar

116 American Insurance Association v. Garamendi, 539 U.S. 396 (2003).Google Scholar

117 See H.R. 1210 (note 39), and H.R. 1905, Comprehensive Holocaust Accountability in Insurance Measure, 108th Cong., 1st Sess. (1 May 2003) (introduced in the House), recognizing the power of the states to place conditions on insurance companies operating within their territory.Google Scholar

118 See Joseph B. Treaster, Settlement Approved in Holocaust Victims’ Suit Against Italian Insurer, N.Y. Times, 28 Feb. 2007, Section C, 3; In re Assicurazioni Generali S.p.A. Holocaust Ins., Slip Copy, 2007 WL 601846, S.D.N.Y., 27 Feb. 2007 (hereinafter Generali Settlement).Google Scholar

119 There was no right to appeal concerning unnamed and unmatched claims or the humanitarian awards of ICHEIC. See ICHEIC Claims Processing Guide (note 50), at 35.Google Scholar

120 ICHEIC Appeals Tribunal Rules of Procedure, available at: http://www.icheic.org/pdf/ICHEIC_Appeals.pdf. The ICHEIC Appeals Process is detailed in the ICHEIC Claims Processing Guide (note 50), 38–45.Google Scholar

121 See id. at 43.Google Scholar

122 See id. at 44–45 (with regard to the Sjoa Foundation, the GTF and the Buysse Commission).Google Scholar

123 With respect to the UNCC, for example, see Chung (note 7).Google Scholar

124 For unwaivering support by prominent German academics for this traditional approach, see, e.g., Doehring, Karl, Reparationen für Kriegsschäden, in Jahrhundertschuld – Jahrhundertsühne: Reparationen, Wiedergutmachung, Entschädigung für nationalsozialistisches Kriegs- und Verfolgungsunrecht, 41 (Karl Doehring, Bernd J. Fehn & Hans G. Hockerts eds., 2001); Tomuschat, Christian, Ein umfassendes Wiedergutmachungsprogramm für Opfer schwerer Menschenrechtsverletzungen, 80 Die Friedens-Warte/Journal of International Peace and Organization 160–167 (2005) (with an English summary, 12).Google Scholar

125 See Doehring (note 124), at 41; Dolzer, Rudolf, The Settlement of War-Related Claims: Does International Law Recognize a Victim's Private Right of Action? Lessons after 1945, 20 Berkeley Journal of International Law 296–341, 335 (2002), Their depiction comes disconcertingly close to that which refers to representatives of the “Jewish-American establishment” and class action lawyers as being engaged in an enterprise to “shakedown” or “extort” payments in the name of Holocaust victims for their own personal, political and financial motives. See Norman Finkelstein, The Holocaust Industry: Reflections on the Exploitation of Jewish Suffering (2001). The failure of such critics to appreciate “the essential moral value that formed the heart of these processes” or the legitimacy of the American approach to mass injury cases is noted, e.g., by Weiss, Melvyn I., A Litigator's Postscript to the Swiss Banks and Holocaust Litigation Settlements: How Justice Was Served, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 103, 109–111 (Michael J. Bazyler & Roger P. Alford eds., 2006) and Eizenstat (note 16), at 345.Google Scholar

126 UN GA Res. 60/147 of 16 Dec. 2005.Google Scholar

127 Nowak, Manfred, The Right of Victims of Gross Human Rights Violations to Reparations, in Rendering Justice to the Vulnerable. Liber Amicorum in Honour of Theo van Boven 203, 223 (Fons Coomans et al. ed., 2000) (referring to Special Rapporteur van Boven's first draft of Principles and Guidelines on a Right to Reparation for Victims of (Gross) Violations of Human Rights and International Humanitarian Law, UN Doc. E/CN.4/1997/104). But see Christian Tomuschat, Dafur – Compensation for the Victims, 3 Journal of International Criminal Justice 579, 587 (2005) (denying the existence of individual compensation claims under customary international law); Albrecht Randelzhofer, The Legal Position of the Individual under Present International Law, in State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights 231, 242 (Albrecht Randelzhofer & Christian Tomuschat eds., 1999), (denying that any fundamental change has occurred with respect to the reparation of individuals under international law).Google Scholar

128 See Eizenstat (note 16), at 353 (offering cautious recognition of such a trend: “Although I would like to think my teams and I helped write a new page in creating civil liability for the violation of human rights, we provided scant legal precedent” which, however, “does not diminish the legal and diplomatic implications of what we accomplished.”).Google Scholar

129 See, e.g., ICHEIC Memorandum: Laws of General Application, 4 Feb. 2004 (detailing – in a noticeably directive-like communication – laws relating to currency conversion which are to be taken into account in the processing of ICHEIC claims). The legal nature of the Chairman's memoranda apparently evolved during ICHEIC's existence. See, supra, note 69 and accompanying text; ICHEIC, Lessons Learned (note 26), 4.Google Scholar

130 See Hearings 2003 (note 34), 33, 36 (Statement of Ambassador Randolph M. Bell, Special Envoy for Holocaust Issues, US Dept. of State) (referring to the total number of names registered in the companies’ files from 1920 through 1945). See Hennig (note 62), at 255 (indicating that the German insurance companies themselves had compiled a database – monitored by the German Federal Financial Supervisory Authority – which contained 8.5 million names.Google Scholar

131 See Agreement Between the International Commission on Holocaust Era Insurance Claims and the General Settlement Fund of the Republic of Austria, 8 Dec. 2003, available at: http://www.icheic.org/pdf/agreement-RAGSF%20(eng).pdf.Google Scholar

132 See Operating Agreement between ICHEIC and La Commission Pour le Dedommagement des Membres de la Communaute Juive de Belgique (Buysse Commission), 14 July 2003, available at: http://www.icheic.org/pdf/agreement-buysse.pdf.Google Scholar

133 With respect to the Commission pour l'indemnisation des victimes de spoliations intervenues du fait des législations antisémites en vigueur pendant l'Occupation (CIVS) (Commission for the Compensation of Victims of Spoliation under the anti-Semitic Legislation in force during the Occupation), see http://www.civs.gouv.fr/. Formal signed agreements did not result, however, in the cases of France and the Netherlands, although member companies of the Dutch Insurance Association joined the ICHEIC.Google Scholar

134 With respect to the Sjoa Foundation, see http://www.stichting-sjoa.nl/.Google Scholar

135 See the Generali Implementation Agreement, 16 Nov. 2000, and the Generali Implementing Organization Agreement, 30 April 2001, respectively available at: http://www.icheic.org/pdf/agreement-generali.pdf and http://www.icheic.org/pdf/agreement-gtf.pdf.Google Scholar

136 See AWZ-Settlement Agreement, 11 July 2003, available at: http://www.icheic.org/pdf/agreement-awz.pdf (concluded among AXA, Winterthur Life Insurance Company, Zurich Life Insurance Company, the WJRO and ICHEIC).Google Scholar

137 Hearings 2003 (note 34), at 140, 144 (Statement of Daniel Kadden).Google Scholar

138 CRT also provided for relaxed standards of proof in its Rules Governing the Claims Resolution Process (as Amended), available at: http://www.crt-ii.org/_pdf/governing_rules_en.pdf. Its rules on valuation referred to ICHEIC's valuation guidelines, see Section 4.2, Amendment to No. 2 Settlement Agreement, 9 Aug. 2000, available at: http://www.swissbankclaims.com/pdfs_Eng/Amendment2.pdf.Google Scholar

139 See Swiss Banks Settlement Fund Distribution Statistics as of November 15, 2007, Holocaust Victim Assets Litigation, CV 96–4849, available at http://www.swissbankclaims.com/Documents_New/11_15_st.pdf (indicating 88 approved and 391 “no match” decisions) (hereinafter Distribution Statistics).Google Scholar

140 See Eizenstat (note 38), at 302; Deposited Assets Class, Holocaust Victim Assets Litigation, CV-96-4849, http://www.swissbankclaims.com/DepositedAssets.aspx.Google Scholar

141 See, e.g., Si Frumkin, Why Won't Those SOBs Give Me My Money? A Survivor's Perspective, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 92, 95 (Michael J. Bazyler & Roger P. Alford eds., 2006).Google Scholar

142 Positive assessment of the role of the class action lawyers, not unexpectedly, comes from those who acted as such. See, e.g., Robert A. Swift, Holocaust Litigation and Human Rights Jurisprudence, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 50, 53 (Michael J. Bazyler & Roger P. Alford eds., 2006); Weiss (note 125), at 103.Google Scholar

143 See Jolie Bell, Maybe Not the Best Solution, But a Solution: The German Foundation Agreement, 6 Cardozo Journal of Conflict Resolution 107, 151 (2004). A result may have been a disproportionate allocation of humanitarian funds for educational and remembrance purposes rather than for health care and social services for elderly and financially needy survivors (20% and 80%, respectively), a problem meanwhile acknowledged, for example, by Stuart Eizenstat. See Eizenstat (note 38), at 303; see also David A. Lash & Mitchell A. Kamin, Poor Justice: Holocaust Restitution and Forgotten, Indigent Survivors, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 315 (Michael J. Bazyler & Roger P. Alford eds., 2006); Thane Rosenbaum, Losing Count, N.Y. Times, 14 June 2007, Section A, 31.Google Scholar

144 See Bell (note 143), at 151–152 (criticizing also this aspect of the Trilateral Agreement). See also Zabludoff (note 25), at 265 (noting that even a proposal to appoint an ombudsman to receive complaints from claimants on the handling of claims bore no fruit).Google Scholar

145 See Chronology: In re Holocaust Victim Assets Litigation, http://www.swissbankclaims.com/Chronology.aspx (June 11, 1999: Initial Questionnaire; September 11, 2000: Statement From Burt Neuborne, Lead Settlement Class Counsel).Google Scholar

146 See Eizenstat (note 16), at 267.Google Scholar

147 See Zabludoff (note 25), at 263. With regard to ICHEIC's secrecy, see also Bazyler (note 14), at 155–156; Hearings 2003 (note 34), at 140, 144 (Statement of Daniel Kadden); id. at 11, 12 (Statement of Rep. Henry A. Waxman).Google Scholar

148 For observers more favorably disposed toward the litigation approach, see Adler & Zumbansen (note 14); Bell (note 143), at 154; Burt Neuborne, A Tale of Two Cities: Administering the Holocaust Settlements in Brooklyn and Berlin, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 60, 77 (Michael J. Bazyler & Roger P. Alford eds., 2006). See also Eizenstat (note 16), at 342 (acknowledging the essential role of the lawsuits for the diplomacy which led to the settlements); Dinah Shelton, Reparations for Historical Injustices, 50 Netherlands International Law Review 289, 303 (2003) (underscoring the value of lawsuits, even where they do not lead to favorable court judgments, in focusing attention on the legitimacy of the asserted claims). For Swiss and German criticism of the Holocaust litigation in American courts, see, e.g., Samuel P. Baumgartner, Human Rights and Civil Litigation in United States Courts: The Holocaust-Era Cases, 80 Washington University Law Quarterly 853 (2002); Burkhard Heß, Entschädigung für NS-Zwangsarbeit vor US-amerikanischen und deutschen Zivilgerichten, 44 Aktiengesellschaft 145, 154 (1999).Google Scholar

149 See Generali II (note 41), at 357 (dismissing multiple claims against Generali in light of American Insurance Association v. Garamendi, 539 U.S. 396 (2003)). For a resumé of the Generali litigation and negative assessment of ICHEIC in this regard, see Kill, Lawrence & Gerstel, Linda, Holocaust-Era Insurance Claims: Legislative, Judicial and Executive Remedies, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 239, 248 (Michael J. Bazyler & Roger P. Alford eds., 2006)Google Scholar

150 See Treaster (note 118) (reporting that Generali agreed to add $35 million more to what it already paid to resolve claims on Holocaust-era policies). See also Generali Settlement (note 118), at 2.Google Scholar

151 See Eizenstat (note 38), at 301.Google Scholar

152 See Distribution Statistics (note 139). Under the Swiss banks settlement, $50 million was allocated for payment of Holocaust-era Swiss insurance claims. By Nov. 2007, eighty-eight claimants had been awarded a total of $1,023,480 by the CRT. See id. Google Scholar

153 Eizenstat (note 38), at 300.Google Scholar

154 See Neuborne (note 148), at 68.Google Scholar

155 See Eizenstat (note 38), at 300.Google Scholar

156 See Kill & Gerstel (note 149), at 242. See also Zabludoff (note 25), at 260 (criticizing ICHEIC's nine-year duration as a failure to meet its mandate). Further comparison may be made with the German Foundation regime under which payments ended in June 2007. This was more than 8 years after announcement by the German government and German companies of their intention to create the Foundation. See http://www.stiftung-evz.de/eng/foundation_remembrance_responsibility_and_future/press_contact_newsletters/press_archive/year_2007/press_release_04_2007_2007_06_11/.Google Scholar

157 See Eizenstat (note 16), at 345 (indicating that this is “a pittance” compared to contingency fees commonly awarded in successful mass injury tort litigation, which can range from 15% to 30% of the total award); see also Neuborne (note 9), at 804. Litigation, however, continued over this issue. See In re Holocaust Victim Assets Litigation, Slip Copy, 2007 WL 805768 (E.D.N.Y. 2007) (containing a report to the District Court on Neuborne's fee as the Lead Settlement Counsel involved in the allocation of German Foundation funds and recommending an amount significantly below that proposed by Neuborne).Google Scholar

158 See Eizenstat (note 38), at 300; ICHEIC, Concluding Meeting (note 98).Google Scholar

159 See Zabludoff (note 25), at 260, 267.Google Scholar

160 Id. at 260. See Treaster, Joseph B., Deal Struck on Claims of Nazi Era, N.Y. Times, 31 Jan. 2007, Section C, 1 (referring to an estimate by Sidney Zabludoff of $18 billion at 2007 rates). While many owners held casualty insurance, they received no indemnities from their insurers following the devastation of Jewish property during the “Kristallnacht” pogrom of Nov. 1938, which entailed total losses of $270 million (estimated at 2003 rates). See Bazyler (note 14), at 114.Google Scholar

161 See Zabludoff (note 25), at 260, 267.Google Scholar

162 See Bell (note 143), at 147–148.Google Scholar

163 See id. at 149.Google Scholar

164 See (note 140) and accompanying text.Google Scholar

165 The CRT, however, did publish a list of 37 names of Holocaust-era insurance policyholders in 2005. See http://www.crt-ii.org/_insurance/faqs_in.phtm.Google Scholar

166 See Kill & Gerstel (note 149), at 242; see also Bazyler (note 14), at 146–153.Google Scholar

167 For criticism that the disclosure of some 350,000 policyholder names under the Trilateral Agreement was “not even close to a disgorgement,” see Bell (note 143), at 150.Google Scholar

168 See Roland Bank, New Programs for Payments to Victims of National Socialist Injustice, 44 German Yearbook of International Law 307, 352 (2001) (submitting, with regard to the Swiss banks settlement, the German Foundation and the Austrian funds for reconciliation and compensation, that “a multinational solution would have been preferable”). Without specifically naming the UNCC as a precedent, Bank, mentions the possibility that the UN could create an international compensation mechanism for “situations involving responsibilities of States and/or companies from different States” for massive violations of human rights. Id., 352.Google Scholar

169 See (notes 7 and 8).Google Scholar

170 According to the UNCC, more than 2.6 million claims of individuals, corporations, and governments, were submitted by nearly 100 governments, as well as international organizations, where individuals were unable to have claims submitted by governments. Approximately $368 billion in compensation was sought. See http://www2.unog.ch/uncc/theclaims.htm. Determinations on the merits of some 2.5 million eligible claims of individuals which were deemed more urgent were made from 1991 to 1996, with payment of awards for these categories of claims completed in 2000. See David D. Caron & Brian Morris, The UN Compensation Commission: Practical Justice, not Retribution, 13 European Journal of International Law 183, 187–188 (2002) (asserting that “[this] first phase of the UNCC's work is one of the most significant and underreported success stories of the United Nations”). In comparison, the German Foundation paid out about € 4.37 billion to 1.66 million former forced and slave laborers between 2000 and 2007. See http://www.stiftung-evz.de/eng/foundation_remembrance_responsibility_and_future/press_contact_newsletters/press_archive/year_2007/press_release_04_2007_2007_06_11/. Under the ICHEIC process, 48,000 claimants were awarded $306.24 million by the time it ended in March 2007.Google Scholar

171 See Danio Campanelli, The United Nations Compensation Commission (UNCC): Reflections on Its Judicial Character, 4 The Law and Practice of International Courts and Tribunals 107, 112 (2005).Google Scholar

172 See id. at 139.Google Scholar

173 For an overview and analysis of the claims categories, processing modalities and institutional aspects of the UNCC, see Norbert Wühler, United Nations Compensation Commission, in Encyclopedia of Public International Law, Vol. IV, 1068 (R. Bernhardt ed., 2000); See Dinah Shelton, Remedies in International Human Rights Law (2005, 2nd ed.) 404–412.Google Scholar

174 See Caron & Morris (note 170), at 196–197 (denying that, because of the diversion of oil revenues for funding of awards made by the UNCC and the relation between the UNCC and the oil-for-food program imposed on Iraq by the Security Council, the UNCC constituted a disguised sanctions device).Google Scholar

175 For an exposition of the classical regime concerning reparations, see Shelton (note 173), at 50–103.Google Scholar

176 See Heidy Rombouts, Pietro Sardaro & Stef Vandeginste, The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights, in Out of the Ashes: Reparation for Victims of Gross and Systematic Violations of Human Rights Violations 418 (K. De Feyter, S. Parmentier, M. Bossuyt & P. Lemmens eds., 2005) (erroneously placing ICHEIC in the same category); Norbert Wühler, The United Nations Compensation Commission, in State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights 228 (Albrecht Randelzhofer & Christian Tomuschat eds., 1999).Google Scholar

177 See Tomuschat (note 127), at 589.Google Scholar

178 See Eizenstat (note 16), at 269.Google Scholar

179 The US government “would not [agree to] take a formal legal position barring U.S. citizens from their own courts.” Id. Google Scholar

180 See Eizenstat (note 16), at 353.Google Scholar

181 See Joseph B. Treaster, Appeals Court Extends Time for Suit on Holocaust Insurance Payments, N.Y. Times, 3 Oct. 2007, Section C, 4 (referring to the Generali Settlement). See also, Treaster (notes 118 and 150); In re Assicurazioni Generali S.p.A. Holocaust Ins., Slip Copy, 2007 WL 3129894 (S.D.N.Y., 26 Oct. 2007).Google Scholar

182 See Bell (note 143), at 144 (noting that the German Foundation Agreement has been seen as providing a neat diplomatic way of removing an irritant to US-German relations). The objection that the Generali Settlement (note 118) initially approved by a lower Federal court in Feb. 2007 amounted to a “cover up” by failing to require full disclosure of policyholders’ names, see Rosenbaum, Losing Count (note 143), could be lodged with respect to ICHEIC as well. Rosenbaum notes elsewhere the absence of “a true and complete accounting” in the Holocaust compensation cases, and that the “pillaging enterprises, in most cases, purchased the silence of history for a few pennies on the dollar, thereby exploiting the unfortunate conspiracy of time.” See Thane Rosenbaum, The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right 76 (2006).Google Scholar

183 See (note 62) and accompanying text.Google Scholar

184 Allianz AG of Germany, the second largest insurance company in the world and owner of over 30 American subsidiaries, was said to have collected $6.2 billion in premiums in the US in 1996. See Bazyler (note 14), at 112.Google Scholar

185 See (note 63).Google Scholar

186 See Eizenstat (note 16), at 268; Kent (note 16), at 211.Google Scholar

187 As in a shell game, observers are likely to be distracted by appearances, losing track of the primary object of their interest. Understanding the true nature of ICHEIC requires one to “follow the money.” Most of ICHEIC's funding came from the German Foundation. Half of the $5 billion fund administrated by the German Foundation was contributed by the German government, while the other half came from German industry. German industry received an approximate 40% tax deduction on its contribution. In other words, German taxpayers rather than German corporations footed about two-thirds of the bill – an additional reason for describing ICHEIC as a semi-public entity. See Bazyler (note 14), at 88, 100; Deborah Sturman, Germany's Reexamination of Its Past through the Lens of the Holocaust Litigation, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 215, 223 (Michael J. Bazyler & Roger P. Alford eds., 2006).Google Scholar

188 But see Rosenbaum (note 182), at 77 (identifying the central flaw in the various Holocaust compensation arrangements as a failure to provide the “moral remedy of having the story of atrocity [and pillaging] told and the historical truth revealed”).Google Scholar