Executive Agreements

• Author: International Law Group

The Nazi Government of Germany seized the value or proceeds of many Jewish life insurance policies issued before and during the World War II. In the post-war period, even a policy which had eluded confiscation was likely to be dishonored. European insurers in general either denied a policy's existence or claimed it had lapsed because of unpaid premiums.

In addition, the German Government was unable or unwilling to furnish heirs with death certificates or equivalent documentation of the policyholder's death. While the government and the insurance companies argue about their relative responsibilities, the fact is that the proceeds of many insurance policies issued to Jews before and during the war were either transmitted to the Third Reich or never paid at all.

These confiscations and frustrations of claims fell under the heading of reparations, a main focus of Allied post-war diplomacy.

Finally, the Allies settled the duty of restitution to victims of Nazi persecution on the new West German Government. As a result, that Government not only passed restitution laws but also signed agreements with other countries to redress their nationals. Despite payments of more than DM100 billion as of 2000, however, many claimants and certain types of claims remained uncompensated.

After German reunification, class actions for restitution flowed into United States courts. The defendants were companies that had done business in Germany during the Nazi period. Complaints by defendant companies and their governments persuaded the U.S. Government to step in and try to resolve the matters. Negotiations at the national level led to the Agreement Concerning the Foundation "Remembrance, Responsibility and the Future," 39 I.L.M. 1298 (2000) (German Foundation Agreement or GFA). In it, Germany agreed to establish a foundation funded with DM 10 billion to compensate the companies' victims during the Nazi era. The Government and German companies contributed equally to the fund.

On his part, the U. S. President agreed that, whenever anyone sued a German company on a Holocaust-era claim in an American court, the U.S. Government would take two steps. First it would file a statement with the court declaring that it would be in the U.S.'s foreign policy interests for the GFA to be the sole provider of both forum and remedy for such claims. Secondly, the federal government would undertake to persuade state and local governments to respect the GFA as the only apparatus for...