The Experience of the Holocaust Cases
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Description
It has been almost 60 years since Nuremberg. While an international consensus now exists that tyrants who violate core provisions of customary international law by committing genocide and crimes against humanity should be tried before an international criminal tribunal, we have only just begun to think about how to deal with the aiders and abettors who make a tidy profit by turning the victims into slave labourers, or by selling guns, poison gas and barbed wire to the genocidal tyrants. While I do not believe that criminalizing economic support for tyrants is useful or appropriate unless the economic support is purposefully aimed at advancing a tyrant's genocidal enterprise, the law cannot simply ignore economic aiders and abettors. No tyrant has ever succeeded in enslaving or exterminating a victim population without the economic support of ordinary citizens who profit from the criminal enterprise. At a minimum, therefore, it is crucial to develop a transnational consensus that economic aiders and abettors of great evil hold their ill-gotten gains in constructive trust for the victims. The major obstacle to the evolution of such an international consensus is not substantive. Although most of us agree that economic aiders and abettors of genocide and crimes against humanity should not be permitted to enrich themselves unjustly at the expense of the victims, we lack a transnational procedural consensus on how to impose and enforce a civil liability designed to recapture the unjust profits for the benefit of the victims. Since 1996, I have been involved in litigating cases against Swiss banks and German corporations in United States courts seeking to recover unjust profits on behalf of Holocaust victims. The causes of action arose in Europe more than 50 years ago during the Nazi era. More than 80 per cent of the surviving victims reside outside the United States. The defendants are Swiss or German corporations. None of the acts underlying the claims took place in the United States. The cases are governed by Swiss, German or customary international law. Why should a U.S. judge be empowered to resolve them? Could there be a clearer example of aiding and abetting American judicial imperialism? After due consultation with counsel, I plead guilty, but offer a plea in mitigation. While a U.S. court provided only a second- or third-best forum, pending the emergence of credible procedures in alternative fora, the U.S. court was the only game in town.
Source Publication
Common Law, Civil Law and the Future of Categories
Source Editors/Authors
Janet Walker, Oscar G. Chase
Publication Date
2010
Recommended Citation
Neuborne, Burt, "The Experience of the Holocaust Cases" (2010). Faculty Chapters. 1350.
https://gretchen.law.nyu.edu/fac-chapt/1350
