The Holocaust Restitution Movement in Comparative Perspective

The American system thus creates incentives for both attorneys and plaintiffs alike, allowing victims to bring claims more often.6 The great British jurist Lord Denning recognized American courts as the most desirable forum for transnational litigation when he wryly observed in an English court opinion: "As a moth is drawn to light, so is a litigant drawn to the United States.If he can only get his case into their courts, he stands to win a fortune."7 Even so, the stark reality is that, until recently, a Holocaust-era lawsuit would have been summarily dismissed if a victim brought the claim in the United States.8 What made these lawsuits possible was the development of human rights law by U.S. courts over the last two decades.An American court today is more likely to allow a human rights case to proceed forward even if (1) the acts complained of did not occur in the United States and (2) the plaintiff is not American.The recognition of such suits began with the seminal opinion of Filartiga v. Pena, 9 where the Second Circuit of the Court of Appeals held that the Paraguayan father and sister of a victim of state-sanctioned torture and killing committed in Paraguay could sue the perpetrator, a government official, if the perpetrator is found in the United States.10 This decision opened the door to other human rights victims injured abroad to successfully bring suits in the United States.l ' In 1992, Congress confirmed the right of victims of foreign 6.David Irving learned the costly lesson of filing an unsuccessful defamation lawsuit in the U.K. through his lawsuit against Deborah Lipstadt, the American Holocaust scholar, where the court required him to pay Lipstadt's legal fees.In the United States, Irving would only have been required to pay court costs.Marjorie Miller, Historian Loses Libel Suit on Holocaust View, LA TIMEs, April 12, 2000 at A 1l. 7. Smith Kline & French Labs v. Bloch, 2 All E.R. 72, 74 (Eng.1983).8. See, e.g., Kelberine v. Societe Internationale, 363 F.2d 989 (D.C.Cir.1966) (slave labor class action lawsuit brought by a Holocaust survivor against a European corporation dismissed as non-justiciable); Handel v. Artukovic, 60 F. Supp.42 (C.D. Cal.1985) (class action lawsuit brought by Holocaust survivors from Yugoslavia against a former pro-Nazi Croatian official living in the United States dismissed for lack of jurisdiction and also as being time-barred); Princz v. Federal Rep. of Germany, 26 F.3d 66 (D.C.Cir.1994).9. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980).10.The Second Circuit found jurisdiction based upon a long-forgotten law, passed by the first U.S. Congress in 1789, entitled the Alien Torts Claims Act, 28 U.S.C. § 1350 ("ATCA"), which declares that federal district courts shall have jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."The Filartiga court found that state-sanctioned torture is a clear violation of the law of nations, or (using modern terminology) international law, and since the plaintiffs were Paraguayan nationals, as aliens, their claims fell within the ambit of the ATCA.For a treatise discussing the Filartiga case and its aftermath, see generally, THE ALLEN TORTS CLAIM AcT: AN ANALYTICAL ANTHOLOGY (Ralph Steinhardt & Anthony D'Amato eds., 1999).Many of the Holocaust-era lawsuits have relied on the ATCA to establish jurisdiction in United States courts.See, e.g., Sonabend v. Union Bank of Switzerland, No. CV-97-046 (E.D.N.Y. filed Jan. 29, 1997) (class action against Swiss banks where alien plaintiffs assert jurisdiction under the ATCA); Snopczyk v. Volkswagen AG, No. 99-C-0472 (E.D. Wis. filed May 5, 1999) (slave labor lawsuit against VW where alien plaintiffs assert jurisdiction under the ATCA).11.See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (lawsuit against Bosnian Serb warlord, Rodovan Karadzic, brought by victims of Serb atrocities in Bosnia; in August 2000, jury awarded $745 million to plaintiffs); Marcos Estate II, 25 F.3d 467 (9th Cir.1994) (lawsuit against estate of former Philippine dictator Ferdinand Marcos brought by victims of human rights abuses in the Philippines); Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir.1992) (lawsuit against Argentina for human rights abuses during military rule brought by Argentine Jew and his