By Jeanette Friedman
Sometimes serious matters cannot be reduced to mere sound bites or black and white. Complicated issues should be examined carefully before an action is taken. One of those things is HR1746, a bill now before the House Committee on Banking and Financial Services. This bill, the Holocaust Insurance Accountability Act, will allow survivors to sue insurance companies that are withholding payments on policies dating back to the Holocaust Era. If passed, Congress will essentially disavow the International Commission on Holocaust Era Insurance Claims (ICHEIC) agreement.
Established in 1998, ICHEIC was created as the outcome of an international agreement signed by officials from the United States Department of State, the German government, other European countries, Israel and Jewish organizations. It also involved U.S. state insurance regulators, European insurance companies, and the European Economic Commission. It was chaired by former U.S. Secretary of State Lawrence Eagleburger, whose leadership was sought precisely because of his well-earned ethical standing.
ICHEIC worked with 75 European insurance companies and â€œpartner entitiesâ€ on a voluntary basis and resolved more than 90,000 claims. As a result of its efforts, $306 million went to 48,000+ Holocaust survivors, their heirs and families of victims, often with little or no documentation to prove their cases. More than $169 million in additional funds was also secured to benefit needy Holocaust survivors worldwide. And when ICHEIC concluded operations in 2007, individual Holocaust survivors who were dissatisfied with the process clearly could pursue legal action against insurance companies.
HR 1746 seeks to abrogate all that ICHEIC accomplished. True, ICHIEC was flawedâ€”as internal conflicts between survivors, diplomats and industry executives persisted throughout the commissionâ€™s existence. Nevertheless, ICHEIC did what it could to get funds, and quickly, to as many survivors as possible. (See www.icheic.org for details of the process.)
The key word is quickly. Those who signed the agreement tried to put money into the hands of those who passed agreed upon criteria, into the hands of poor survivors, and to the agencies serving them around the worldâ€”from the Americas to Australia, from Israel to the FSU. The idea was to avoid lawsuitsâ€”which can take insufferable lengths of time, are prohibitively expensive, and promise little in return. While lawsuits slowly wended their way through the courts, survivors were dying at alarming rates. Impoverished survivors were dying even more quickly than that. In Israel, the former Soviet Union, Florida and New York, there were hundreds of thousands of aging survivors who needed help immediately, not years in the future. ICHEIC got the money to them for the promise of legal peace.
Klaus Scharioth, the German ambassador to the United States, wrote to the late Congressman Tom Lantos, a Holocaust survivor and chair of the House International Relations committee: â€œAt ICHEIC’s final session on 20 March 2007 there was overall agreement that German insurers have fulfilled all obligations under the ICHEIC trilatÂ¬eral agreement and have therefore deserved permanent and all-embracing legal peace.â€
He noted that the German Government acknowledges without qualification Germany’s historical responsibility for the Holocaust and Holocaust survivors. He pointed out there are â€œsignifiÂ¬cant legal hurdles posed by the federal rules [in the U.S. and Germany] of evidence for claims brought in court.â€ The hurdles didnâ€™t apply to the ICHEIC process, since many claimants did not have to produce documents and other evidence to get claims processed. Scharioth added that in court actions against insurance companies, one could not guarantee success and that voluntary agreements, such as ICHEIC, helped Holocaust survivors whose claims would not stand up in court.
The letter reiterated that â€œClaimants with sufficient documentation can still file their claims with the insurance companies concerned, as insurers promised to continue processing these claimsâ€”and apply ICHEIC standards in their decisionsâ€”even after the ICHEIC process has been conÂ¬cluded.â€
But HR 1746 demands that insurance companies seeking to do business in the United States reveal all their records from 1933 through 1945. It exacts penalties and damages for those companies failing to comply. The bill mandates the creation of a Holocaust Insurance Registry to be maintained by the federal Archivist. (The Congressional Budget Office estimates the cost of creating and maintaining the registry would be tens of millions of U.S. taxpayer dollars.)
HR 1746 will hurt Holocaust survivors around the world, as Scharioth explained to Lantos.
â€œEven if the legislation currently under discussion should clear the way for a few surÂ¬vivors to win large sums in court, it would certainly jeopardize the possibility of comÂ¬pensating large numbers of Holocaust survivors through voluntary contributions, for example, by industry. Indeed, turning away from the principle of legal peace after voluntary compensation has been paid, would make it much harder to convince indusÂ¬try not only in Germany, but anywhere in the world [to cooperate]â€¦. HR 1746, in our opinion, is contrary to good faithâ€¦Negotiation can help Holocaust surviÂ¬vors in a better and more timely manner than litigation ever could. Should HR 1746â€¦become law, it would likely be impossible to enlist the support of any GerÂ¬man company for similar projects in the futureâ€¦.Hence, HR 1746 would do nothing to improve the lot of the majority of Holocaust survivors, but would at the same time jeopardize future agreements that would really serve to benefit Holocaust survivors in dire need of helpâ€¦.â€
Secretary of State Eagleburger, former Deputy Secretary of State Stuart Eizenstat and signatories of the trilateral agreements agree. They are concerned that no one will come to the table to negotiate the expansion of categories under which Holocaust survivors receive funding. In short, by reneging on the ICHEIC agreements, by creating a federal agency to become part of the litigious process against agencies that have so far, admittedly begrudgingly, opened their coffers to afford some survivor relief, all the participants in the agreements will no longer be viable partners for any future negotiations.
Considering the history of survivor litigation, the scandals concerning the handling of survivor funds, the news of some attorneys involved in such litigation being convicted of malfeasance, the last thing the U.S. and the Jewish community need is to further such a state of affairs at Holocaust survivorsâ€™ expense. Lawsuits, especially class-action suits, can take years to resolve, and then no one sees much money except the lawyers. Do the survivors really have the time?
Survivors in need have to have their needs fulfilled now. If Congress wants to initiate legislation that will cost millions of taxpayer dollars to enforce, why not expend those millions on behalf of Holocaust survivors now? Why not guarantee health care and economic sustenance instead of law suits?
The proponents of this bill say that if you are against this bill, you are against the Holocaust survivors. They paint a picture in black and white. Perhaps the many shades of gray involved here might warrant a closer look.