Sunday, March 1, 2009


Translation: I assume responsibility.
So said France's highest administrative court, the Conseil d'Etat, with respect to the arrest, detention and transportation that facilitated the deportation from France to concentration camps in Nazi Germany of 76,000 people, 11,000 of whom were children and fewer than 3000 of whom returned (photo of deportation train at left). In particular, the Conseil recognized that the participation of France in these activities was "did not result from a direct constraint by the occupier." The Conseil's decision was rendered in order to clarify the situation with respect to damages that might be recoverable by family members of persons who died during deportation. There are roughly 400 such cases currently pending before administrative tribunals. Among them is the Lipietz case decided in 2006, which, as IntLawGrrls guest/alumna Vivian Grosswald Curran and I have posted, was inspired by Holocaust litigation against the French railroad under the Alien Tort Statute (having been unsuccessful, some survivors are asking Congress for help). A central issue in both French and US cases is whether the SNCF/France or Germany was responsible for the convoys and/or whether the SNCF adequately proved it acted under duress. The Conseil's recognition of France's responsibility was thus welcomed by "Nazi hunter" Serge Klarsfeld, who, with his wife Beate (couple at right) helped bring to trial Klaus Barbie, Maurice Papon and Paul Touvier, among others. Klarsfeld also felt the Conseil was right in holding that the various measures France has taken since 1945 to indemnify Holocaust victims and their families are sufficient. In other words, the irreparable has already been repaired as much as possible. This may be in keeping with the French tort policy of limiting damages for "moral prejudice," i.e., all forms of irreparable harm, to a minimal, symbolic amount. Indeed, Klarsfeld's son, Arno, seemed to side with those who were unfavorable toward the Lipietz litigation, considering it as exploitating the Holocaust. As I've posted, the younger Klarsfeld helped represent victims or their survivors in the 1999 trial of Maurice Papon for crimes against humanity, but defended the SNCF in ATS litigation in the United States, claiming that the convoys were German, not French -- a position he'll now have to revise.

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