A Measure of Justice for Uncompensated French Railroad Deportees during the Holocaust
An agreement (agreement or SNCF agreement) between France and the United States to establish a compensation fund for those Holocaust victims deported from France who were excluded from other French compensation programs entered into force on November 1, 2015. The deadline for filing claims for payments from the fund is May 31, 2016.
A joint statement by the United States and France called the agreement a “measure of justice to help those who suffered the harms of one of history’s darkest eras,” since, as with a number of previous Holocaust settlements, the program cannot hope to provide full compensation. The joint statement summarized the SNCF agreement as follows:
France will provide $60 million in compensation. The United States will administer and distribute this amount to eligible Americans, Israelis and other foreigners and their families who were not entitled to make claims under the existing French program . . . . In turn, the United States will ensure an enduring legal peace for France with regard to Holocaust deportation claims in the United States.
The United States released the text of the agreement, published a fact sheet, announced the commencement of the claims program, and released a claims form.
Between 1940 and 1944, 76,000 persons, of whom more than 10,000 were children or adolescents, were deported from France. Of these, only 2,564 survivors returned, 3 percent of the deportees; the rest perished in Nazi death camps. After the war, the French government declared that the de facto government’s constitutional, legislative, and regulatory acts, including its discriminatory acts, in France from June 16, 1940, until the restoration of the French republic were null and void. It was only in July 1995, that French President Jacques Chirac acknowledged the responsibility of France for the deportation of Jews.
In 1946 and 1948, French laws provided for pensions to person who had been deported for reasons other than a breach of law and who were French nationals both at the time of the war and at the time they made their pension claims. Pensions were also available to nationals of countries that had entered into reciprocity agreements with France (Belgium, the United Kingdom, Poland, and the former Czechoslovakia) and to certain persons covered under 1933 and 1938 refugee conventions. However, persons who did not meet the nationality requirement were excluded.
U.S. Litigation and Legislative Initiatives
In 2000, Raymond Abrams and others brought suit in U.S. federal court against the French national railroad company, the Société Nationale des Chemins de Fer Français (SNCF), seeking compensation for alleged violations of international law arising out of the deportation of Jews and others from France to Nazi death camps during World War II. The court dismissed the case for lack of subject matter jurisdiction based on SNCF’s successful claim of sovereign immunity—SNCF had since the war become government-owned. In 2006, Mathilde Freund and others sued both France and SNCF, arguing that there was jurisdiction based on the expropriation of property of deportees; the case was dismissed on the court’s finding that the facts pled were insufficient to fall within the expropriation exception to immunity under the Foreign Sovereign Immunities Act (FSIA). Efforts in French administrative courts were also unsuccessful. A class action lawsuit challenging the SNCF agreement that is now pending in federal court in Illinois was filed on behalf of persons whose relatives had property taken when they were deported during the Holocaust. The suit alleges that SNCF is not entitled to immunity under the FSIA and that the majority of class members would not benefit under the SNCF agreement.
Since 2003, bills have been introduced in every Congress seeking to withdraw SNCF’s immunity. H.R. 2954 would have provided for jurisdiction of U.S. district courts over actions for damages for personal injury or death arising from deportations between 1942 and 1944 brought by a deportee, or heir or survivor of a deportee, against a railroad that operated the trains on which persons were deported; it would have made any immunity or statute of limitations defense inapplicable. Similar bills were introduced in 2005, 2007, 2009, 2011, and 2013. In addition, there were legislative initiatives in California, Maryland, and New York.
The litigation and legislative initiatives were perceived by France to create serious risks and had potentially serious implications for the SNCF in the United States, where its subsidiaries operate numerous local rail lines and conduct other business activities, with a total value estimated at €850 million. The French considered targeting of the SNCF unjust given that war compensation is the responsibility of the government, that SNCF employees were active in the resistance, and that 2,100 of them were shot or died. The French government thus decided in 2012 to seek a negotiated solution.
The SNCF agreement is a sole executive agreement under U.S. law but was subject to approval by legislation under French law. The French National Assembly Report and French Senate Report that considered the agreement and the French law that approved it, as well as other relevant materials, are available on the Internet.
Following the approach of the United States-German Agreement concerning the Foundation “Remembrance, Responsibility and the Future,” which served as a model for a number of subsequent settlements, and the United States-France Agreement concerning Payments for Certain Losses Suffered During World War II, the SNCF agreement stressed the objective of achieving “legal peace” in an amicable, extrajudicial, and noncontentious manner with respect to the claims covered.
Articles 1 and 3 of the agreement specify which individuals’ claims are covered. The SNCF agreement states in Article 2 its objectives of providing an “exclusive” compensation mechanism for those covered and creating a “binding legal obligation” of the United States to recognize and protect the sovereign immunity of France with regard to Holocaust deportation claims. Article 2 also states the intent for the United States, consistent with its constitutional structure, to “undertake all actions necessary to ensure an enduring legal peace” at all levels of government; Article 5(3) makes this an obligation.
The “all actions necessary” language and the obligation of result obligation in Article 5 of the SNCF agreement are a change from otherwise similar agreements. Both the German Foundation Agreement, Article 2(1), and the French Bank Agreement, Article 2, required the United States to file, in any case brought in U.S. courts for a covered claim, a statement of interest asserting that dismissal of the case would be in the foreign policy interests of the United States. This requirement was extraordinary and controversial within the U.S. executive branch.
Article 5(1) and (2) of the SNCF agreement state that the United States confirms its recognition of the immunities due to France and its officials and require that the United States, with the assistance of the French government if needed, “secure . . . at the earliest possible date, the termination of any pending suits or future suits that may be filed in any court at any level of the United States legal system against France concerning any Holocaust deportation claim.”
The French National Assembly Report identifies three types of potential actions against France: suits in U.S. courts, legislation to amend the Foreign Sovereign Immunities Act, and legislation in U.S. states to impede SNCF activities. The report suggests that the U.S. obligation to take necessary actions entails ensuring, in accordance with its constitutional system, the termination of all pending and future litigation against France (for example, by filing statements of interest) and taking all necessary measures at all governmental levels against legislative initiatives that would violate the letter or spirit of the agreement (for example, by taking a policy position or exercising a veto); the French legislative reports state that this gives the “maximum legal guarantees” taking into account the “separation of powers system in the United States.”
Upon entry into force the French government had to transfer $60 million to the U.S. government, placed in an interest-bearing account for payment of covered claims, under Article 4(1) and (4). The French parliamentary reports indicate that the United States initially considered that the fund needed to be €107 million (for 486 beneficiaries plus a 20 percent margin for potential future claimants; certain claimants’ lawyers had sought $200 million). The reports further say that the $60 million figure took into account the expected number of beneficiaries, which includes not only U.S. nationals; the average disability pension of civilian war victims (€32,000 in 2012); and the prior compensation framework for survivors who had not benefited from the pension regime for seventy years. According to the estimate given to the French negotiators by the U.S. negotiator, the agreed lump sum of $60 million should provide about $100,000 per recipient, which is equal to three years of disability pension under French law. A lump sum payment was decided upon because using the pension scheme found in earlier French agreements would not be suitable in terms of speed or equity, could not be implemented by a single agreement, would not have covered all categories of claimants under the agreement, and would not have been a capped amount. According to the French parliamentary reports, reactions to the compromise of Jewish groups, almost all plaintiffs’ lawyers, and key U.S. legislators have been positive.
The payment to the U.S. government and to any individual under the agreement constitutes the “final, comprehensive and exclusive manner” for addressing the claims in any forum, under Article 4(2) and (3). Further, under Article 5(4), before any individual receives payment under the agreement, that person must execute a notarized document (which is included in an annex to the agreement) that includes a waiver of any right to claim further compensation or relief against France for Holocaust deportation.
The agreement is not an exercise of diplomatic protection: it does not espouse and settle the claims. Espousal would not be feasible since the agreement covers persons who are not U.S. nationals. Rather, the agreement relies on waivers by recipients, on the one hand, and actions by the U.S. government, on the other, to achieve “legal peace.” The French National Assembly Report states that the agreement is not a war reparations agreement between states but rather an agreement providing for compensation to individuals that was negotiated on France’s initiative.
Under Article 6(1), the United States has sole discretion and responsibility for distribution of the lump sum. But under Article 6(2) the distribution must be in accordance with the objectives of the agreement and not be made to persons ineligible under the agreement.
The Claims Process
The Department of State announced that, effective November 2, 2015, it would accept claims under the SNCF agreement and that the filing deadline is May 31, 2016. The claims will be processed by the Office of International Claims and Investment Disputes in the State Department’s Office of the Legal Adviser.
The three categories of eligible claimants are deportees who were alive as of November 1, 2015; spouses of deportees alive on that date; and estates of deportees or their spouses who died between 1948 and November 1, 2015. The claim form requires documentation of nationality; documentation of death of the survivor or surviving spouse, if applicable; and, if the claim is filed on behalf of an estate, documentation showing that the person filing is the authorized representative of the estate. The form specifies that a separate release and waiver of all claims against France and the United States and their agencies’ employees by the claimant and his or her heirs or assigns will be required before any payment is made. The form must be notarized and executed under penalty of perjury, and false statements on the form are subject to criminal penalties.
Article 6(4) and (5) require that reasonable steps be taken to provide notice about the claims program to all person who may qualify and to allow them an appropriate amount of time to submit claims. No information has yet been released on how the funds available will be allocated among claimants found by the Office to be eligible.
The United States has had a renewed focus on resolving Holocaust claims since the mid-1990s. It concluded a traditional claims agreement for compensation of U.S. nationals who had been subject to Nazi persecution in 1995. But Holocaust-era claims against Swiss banks, German companies, Austrian companies, and French banks were filed in U.S. courts by many persons who were not U.S. nationals when their claims arose; thus their claims were not espousable by the United States. The defendant companies and their countries sought U.S. government assistance, and, with the agreement of plaintiffs’ counsels and Jewish groups, the United States facilitated arrangements that resolved the claims and afforded the claimants a measure of justice. The new approaches used for these arrangements allowed both U.S. nationals with nonespousable claims and non-nationals to receive payments through nongovernmental partner organizations and through decisions of claims committees.
Some of these arrangements included U.S. sole executive agreements requiring the United States to take steps to achieve termination of pending and future litigation and take other steps to ensure “legal peace.” The SNCF agreement takes the executive agreements that were part of these claims resolutions as a point of departure. And it takes a further step by providing for the United States to collect and adjudicate the claims of non-nationals for Holocaust deportations from France and to distribute the payments.
In view of the decisions in the Abrams and Freud cases, it seems unlikely that the suit pending in Illinois federal district court will succeed. And, since it is reported that most plaintiffs’ attorneys and the key members of Congress who in the past introduced legislation on the topic support the agreement, it appears unlikely that new U.S. legislation will thwart implementation of the agreement.
About the Author: Ronald J. Bettauer, an ASIL member, is a visiting scholar at George Washington University Law School and a former Deputy Legal Adviser at the U.S. Department of State.
 Agreement between the Government of the United States of American and the Government of the French Republic on Compensation for Certain Victims of Holocaust-Related Deportation from France Who Are not Covered by French Programs, U.S.-Fr., Dec. 8, 2014, T.I.A.S. No. 15-1101, [hereinafter U.S.-Fr. Agreement], available at http://www.state.gov/p/eur/rt/hlcst/deportationclaims/index.htm.
 Press Release, U.S. State Dep’t, Joint Statement between the United States and France regarding the Entry into Force of a Bilateral Agreement on the Establishment of a Compensation Fund for Holocaust Victims Deported from France (Nov. 3, 2015), http://www.state.gov/r/pa/prs/ps/2015/11/249122.htm [hereinafter Joint Statement].
 The agreement, a fact sheet, the claim form (DS-7713 dated July 2015), and frequently asked questions are available at Commencement of Holocaust Deportation Claims Program Under U.S.-France Agreement, U.S. Dep’t of State, http://www.state.gov/p/eur/rt/hlcst/deportationclaims/index.htm (last visited Feb. 18, 2016). The agreement text released by the United States failed to reflect changes to the text agree to by the French and U.S. governments in a June 2015 exchange of notes. French Senate Report No. 584, Annex 13 (July 1, 2015) [hereinafter French Senate Report], available at www.senat.fr/rap/l14-584/l14-584.html. See also id. at 25–26, 28–29. The changes did not affect the substance of the agreement. Rather, in the preamble and Article 1(3), the notes agreed to change “Vichy Government” with “de facto government claiming to be the ‘government of the French State’” and to correct the spelling of the word “sceau” in the French-language text. The French note characterized these as corrections of errors under Article 79(1) and (4) of the Vienna Convention on the Law of Treaties, such that the corrected text would be the text ab initio. While clearly the spelling mistake was an “error,” the replacement of the “Vichy Government” by new language was a change (not an error) requested during the consideration of the agreement by the French National Assembly. French National Assembly Report No. 2875, 20–21, 33–34 (June 17, 2015), [hereinafter French National Assembly Report] available at www.assemblee-nationale.fr/14/rapports/r2875.asp. The replacement is more properly characterized as an agreed change in an authenticated agreement text prior to its entry into force in accordance with Article 10(a) of the Vienna Convention. While the French government and both houses of the French parliament believed only the revised text of the agreement would be published, the U.S. government only released the unrevised text upon entry into force in November 2015, did not release the exchange of notes, and as of early 2016 had not released the agreed revised text. The French published only the revised version of the text.
 The facts set out in this section are drawn from French National Assembly Report, supra note 3, at 7–14 and French Senate Report, supra note 3, at 9–14.
 Abrams v. Société Nationale des Chemis de Fer Français, 175 F. Supp. 2d 423 (E.D.N.Y. 2001), aff’d, 389 F.3d 61 (2d Cir. 2002), cert. denied, 544 U.S. 975 (2005).
 Freund v. Republic of France, 592 F. Supp. 2d 540 (S.D.N.Y. 2008), aff’d, 391 Fed. Appx. 939 (2d Cir. 2010), cert. denied, 132 S. Ct. 96 (2011).
 Société Nationale des Chemis de Fer Français v. Georges Lipietz, Administrative Court of Appeal of Bordeaux, Judgment of March 27, 2007 (Case No. 06BX01570) (reversing Lipietz et al v. Prefect of Haute-Garonne and the Sociètè Nationale des Chemins de Fer Français, Second Chamber, Administrative Tribunal for Toulouse, Judgment of June 6, 2006, Case No. 0104248), aff’d, Conseil d’Etat, Judgment of Dec. 21, 2007 (Case No. 305966). See Vivian Grosswald Curran, Recent French Legal Developments Concerning a War-Time Arrest and Imprisonment Case, 25 Maryland J. Int’l L. 264 (2010); Vivian Grosswald Curran, Globalization, Legal Transnationalization and Crimes Against Humanity: The Lipietz Case, 56 Am. J. Comp. L. 353 (2008).
 Scalin v. SNCF, Case 1:15-cv-03362 (N.D. Ill. Apr. 16, 2015). See Joint Statement, supra note 24.
 H.R. 2954, 108th Cong. (2003).
 H.R. 474, 109th Cong. (2005); H.R. 3713, 110th Cong. (2007); S. 3462, 110th Cong. (2008); H.R. 4237, 111th Cong. (2009); S.28, 111th Cong. (2009); H.R. 1193, 112th Cong. (2011); S. 634, 112th Cong. (2011); H.R. 1505, 113th Cong. (2013); S. 1393, 113th Cong. (2013). A hearing on the 2011 bill was held before the Senate Judiciary Committee on June 20, 2012. See Holocaust-Era Claims in the 21st Century: Hearing on H.R. 1193 Before the S. Comm. on the Judiciary, 112th Cong. (2011), available at www.judiciary.senate.gov/meetings/location-change__holocaust-era-claims-in-the-21st-century.
 French Senate Report, supra note 3, at 16; French National Assembly Report, supra note 3, at 18-19. According to the reports, in 2010 bill in California seeking to require SNFC to disclose its archives was vetoed by the Governor; a similar bill was introduced in Florida but not pursued; and in 2014 a bill was to be introduced in New York.
 French National Assembly Report, supra note 3, at 17–19; French Senate Report, supra note 3, at 15.
 French Senate Report, supra note 3, at 16.
 Id. at 16–17.
 Id. at 17.
 The French law approving the agreement is Loi n° 2015-892 du 23 juillet 2015 autorisant l'approbation de l'accord entre le Gouvernement de la République française et le Gouvernement des Etats-Unis d'Amérique sur l'indemnisation de certaines victimes de la Shoah déportées depuis la France, non couvertes par des programmes français [Law 2015-892 of July 23, 2015 Authorizing the Approval of the Agreement between the Government of the French Republic and the Government of the United States of America on the Compensation of Some Holocaust Victims Deported from France not Covered by French Programs] J.O., July 24, 2015, p. 12585, available at http://www.legifrance.gouv.fr/eli/loi/2015/7/23/MAEJ1503437L/jo/texte.
 United States-German Agreement concerning the Foundation “Remembrance, Responsibility and the Future,” July 17, 2000, U.S.-Ger., T.I.A.S. 13104, 2130 U.N.T.S. 249 (entered into force Oct. 19, 2000) [hereinafter German Foundation Agreement].
 Agreement between the Government of the United States of America and the Government of France Concerning Payments for Certain Losses Suffered During World War II, Jan. 18, 2001, U.S.-Fr., , T.I.A.S. 01-205, 2156 U.N.T.S. 281, as amended May 30 and 31, 2002, February 21, 2006 (entered into force February 5, 2001) [hereinafter French Bank Agreement].
 French National Assembly Report, supra note 3, at 22.
 Id.; French Senate Report, supra note 3, at 22.
 French National Assembly Report, supra note 3, at 24–25; French Senate Report, supra note 3, at 19–21.
 French National Assembly Report, supra note 3, at 25; French Senate Report, supra note 3, at 26.
 French National Assembly Report, supra note 3, at 23–24; French Senate Report, supra note 3, at 19–20.
 French National Assembly Report, supra note 3, at 28; French Senate Report, supra note 3, at 24–25. According to the reports, after it was signed the agreement was welcomed by the Anti-Defamation League, the American Jewish Committee, the Simon Wiesenthal Center, Senator Chuck Schumer, Representative Carolyn Mahoney, the chairman of the House Foreign Affairs Committee, the French Jewish community, and all but one of the plaintiffs’ lawyers, who objected on the ground that French nationals were excluded and brought the Scalin case. Scalin, Case 1:15-cv-03362.
 For a review of the requirements for espousal, see Ronald Bettauer, Settlement of the Claims of Individuals by their Countries, 3 Korean J. Int’l & Comp. L. 3 (2015).
 The German Foundation Agreement similarly relied on waivers. See German Foundation Agreement, supra note 17, Annex A, ¶ 14.
 French National Assembly Report, supra note 3, at 26.
 Commencement of Holocaust Deportation Claims Program Under U.S.-France Agreement, U.S. Dep’t of State, http://www.state.gov/p/eur/rt/hlcst/deportationclaims/index.htm (last visited Feb. 16, 2016).
 This Office has in the past collected and, on occasion, adjudicated claims, as part of claims settlements or other claims processes, but normally it has only done this for claims of U.S. nationals. It has dealt with claims of foreign nationals against the Department of State and against the United States, and was involved in the negotiation of previous Holocaust settlements, such as the German Foundation Agreement and French Bank Agreement, but this is likely the first time it has handled a claims program involving claims of foreign nationals against a foreign entity.
 Statement of Claim, Form DS-7713 dated July 2015, U.S. Dep’t of State, available at http://www.state.gov/documents/organization/249134.pdf. The Federal Register notices under the Paperwork Reduction Act for the information collection in the form are at 80 FR 22604 (Apr. 15, 2015) and 80 FR 37352 (June 30, 2015).
 Agreement between the United States and Germany Concerning Final Benefits to Certain United States Nationals Who Were Victims of National Socialist Measures of Persecution, Sept. 19, 1995, U.S.-Ger., T.I.A.S. 13019 (supplemented by exchange of notes of Jan. 25, 1999). See Ronald Bettauer, Introductory Note to Germany-United States: Agreement Concerning Final Benefits to Certain United States Nationals Who Were Victims of National Socialist Measures of Persecution, 35 I.L.M. 193 (1996).
 See R. Bettauer, The Role of the United States Government in Recent Holocaust Claims Resolution, 20 Berkeley J. Int’l L. 1 (2002).
 See, e.g., German Foundation Agreement, supra note 17, Annex A, ¶¶ 1, 11.