Jen Gramer: Marrus’s Some Measure of Justice- What Do We Want from Reparations?

2008.11.24-25 - Michael Marrus - Some Measure of JusticeMichael R. Marrus, Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s (Madison: University of Wisconsin Press, 2009)

Nearly four years ago, Ta-Nehisi Coates published “The Case for Reparations” in The Atlantic. The piece was met with both acclaim and derision. Many lauded Coates’s demand to address and make right the blemish of slavery in American history, a call centered not on “long-dead enslaved black people, but actual living African Americans who’d been wronged, well within living memory.”[1] Others criticized Coates’s proposal for its lack of specificity, though his original article explicitly called out red-lining and housing discrimination as practices that could be rectified monetarily in the present. In a follow-up article two years later, Coates addressed these criticisms, many of which originated from his own colleagues and intellectual sparring partners on the left, including David Frum and Kevin Drum, who lamented Coates’s careful “tap-dance” around the topic of concrete restitution, noting that few people today deny that black wealth and labor had been exploited by whites for centuries. Coates refuted the claim that few in the U.S. live in denial of the history of plunder on which the country’s wealth is built, noting that the statistic that 75 percent of all Americans opposed reparations for slavery implied something much more insidious than a confusion over the practicalities and semantics of restitution. Rather, it revealed an American belief that the legacies of slavery and Jim Crow were “minor factors” or “no factors at all” in the present-day wealth gap.[2] This most recent call for reparations to atone for the United States’ dark history of slavery exposed an American public still not ready to grapple with its past, and underlined the ways in which the crimes of a country’s past, even when temporarily sublimated by a larger narrative of progress, always haunt and disturb the present.

The call for financial reparations for an historical atrocity, especially one whose violent legacy casts a shadow far beyond the “cessation” of that atrocity, is neither new nor uncontested, a fact that Michael R. Marrus examines in Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s (University of Wisconsin Press, 2009). Marrus is a renowned Holocaust historian and legal expert in his own right, perhaps best known for his collaboration with Robert Paxton on Vichy France and the Jews (1981), which famously argued against the narrative of ubiquitous French resistance claimed by Charles de Gaulle in the years following World War II. Some Measure of Justice is Marrus’s attempt as an historian with legal training to bring together and deconstruct the relationship between history and law in terms of the movement for Holocaust reparations and restitution of the past fifteen years.

Marrus concedes early in his book that the case of the Holocaust is singular, and that it is common for the public to understand it as somehow outside of the scope of history, beyond human comprehension, a horrific anomaly, a categorization that is of course still debated by historians. I bring Coates and Marrus together to emphasize how differently Americans think about the historical ramifications of slavery and the Holocaust; while Coates’s article was met with controversy, the general approval of Holocaust restitution is axiomatic among the general public, both in Germany and the United States. (Though when it comes to the memory of America’s own sins during World War II, namely Japanese internment, historical blindness still applies, as shown by an embarrassing encounter earlier this week between U.S. Interior Secretary Ryan Zinke and a Congresswoman whose relatives were detained in an internment camp during World War II.) Marrus also points out that some public intellectuals and commentators, including Charles Krauthammer and the late Christopher Hitchens, have disparaged the quest for Holocaust reparations as “profiteering,” a reckless exercise to extort money and nonexistent justice using unseemly political tactics. Yet these critiques have historically been met with much louder and more forceful counter-critiques from not only individuals, but also companies and entire governments.

Marrus ends his study with the question of whether German reparations for the Holocaust can become a model for future cases of restitution, or whether, like the Holocaust itself, its restitution campaign arose in circumstances that are unlikely to be replicated.  Both Coates and Marrus (implicitly in the case of Coates, and explicitly for Marrus) confront the troubling nexus of history and law: while history and historians operate in shades of grey, balking at simplistic narratives of complex realities, the law can be “a rather blunt instrument that sometimes gets the history wrong.”[3] Like Coates, Marrus also addresses the contentious topic of money in regards to atoning for historical sins: while the axiom “it’s not about the money” often figures into litigation about restitution, financial compensation is, of course, a crucial aspect of the subject. Ultimately, both land on a simple but essential truth: while there is unlikely to ever be “anything like adequate restitution” for the horrors of the Holocaust and slavery, reparations and restitution are more about the present than the past. For “some measure of justice” to be enacted, we must have some mechanisms – litigious and memorial – available.[4] In his study, Marrus also nicely differentiates between reparations and restitution. While the former denotes an “arguably impossible” effort to repair wrongs that were done, the latter, at least as Marrus defines it, refers to an act of “making good…for any loss or injury.”[5] In this way, the notion of reparations is one bound to the confluence of history and memory, while restitution lies more accessibly at a nexus of history and legality.

The problem of what exactly constitutes “making good” forms a primary line of inquiry in Some Measure of Justice, and is a question Marrus himself seems hesitant to answer definitively. He does note that while pecuniary restitution is a vital element of “making good,” victims of the Holocaust ultimately seek remembrance and, importantly, honor: “It is not…that the survivors crave the limelight…it is rather that claimants have been seeking, through the honor accorded them, what is in fact impossible in the real world we inhabit: to undo the persistent scandal of their victimization, the persistent humiliation associated with the degraded circumstances under which they were persecuted and murdered, and the sense of abandonment that followed them even in the postwar period.”[6] Marrus brings characteristic shades of grey to this question of restitution, noting that seeking a restoration of honor and respect through restitution is often a quixotic endeavor, explaining why many victims do not ultimately share the same sense of success about the outcomes of their legal battles as the lawyers and governments that helped wage the fight. Nonetheless, as he poignantly concludes, the fact that there can “never be anything like adequate restitution” for victims of the Holocaust should not stop us (lawyers, governments, companies) from advocating for those in the present who have either been mistreated in the reparations process since 1945, or who continue to make legal claims related to relatives’ suffering during the Holocaust.  This framework could prove instructive for future questions of righting historical wrongs. Historical reparations, or a re-establishment of the conditions that prevailed before the wrong was committed, may be impossible, a quest to “make good” is not, and should not be, futile. Marrus’s conclusion seems, for lack of a better word, inconclusive, but his instruction that we keep trying is both compassionate and confrontational: we can never just let the past be, because it is always in the present.

Marrus focuses his study on the mid-1990s. It was then that the Swiss banking community, under pressure first from American courts and President Clinton, and then the entire international community, finally awakened from its slumber to address its role in mishandling and exploiting Jewish accounts, including storing stolen gold in its vaults, leading up to, during, and after the Holocaust. Prior to this moment, most Nazi-era claims were filed against German corporations on behalf of both Jewish and non-Jewish war survivors who had been forced into slave labor for private corporations under the Third Reich. (This trend reached its peak in 1998 with an incredible lawsuit against Ford and its German subsidiary, later expanded to include the familiar titans of German industry: Siemens, Daimler Benz, Volkswagen, Hugo Boss, and Bayer.) European insurance companies took the next hit, though here the wrongdoing became more difficult to measure. In the end, financial restitution was achieved in the form of $306 million in payouts to 48,000 Holocaust survivors and their heirs. None of this would have been possible, Marrus convincingly argues, without the “overheated” atmosphere of American high-stakes, high-payout class action litigation in the mid-1990s. This context was a foil to the slow-moving Wiedergutmachung of the American military administration and West German state following the end of the war. (East Germany did not recognize any distinct obligation of restitution to the Jewish victims of the Holocaust.) Furthermore, the West German government under Konrad Adenauer made clear that payments to Jewish victims of the Holocaust as codified in the Luxembourg Agreement of 1952 were for material losses, not compensation for the moral wrongs endured. Ultimately, it was the end of the Cold War that brought with it new research opportunities with the opening of archives, feeding into the boom of reparations and restitution litigation in the 1990s, and coinciding with a new “consciousness of the Holocaust”.[7]

Had the book been published five years later, Marrus also would have had more to discuss in terms of art restitution, though he addresses the topic strongly in a series of case studies. The topic of art restitution has, of course, been in the public eye in Europe again since the 1990s, most notably in the case of a recently discovered plundered art collection in Munich worth several million dollars. Even more recent, the Louvre decided earlier this year to display “orphaned” art looted by the Nazis and returned to France, with little effort to research the provenance of the paintings or return them to the heirs of their original owners. Both of these cases raise questions that Marrus only hints at in his chapter on art restitution, including, importantly, the role of the illicit art “collector,” whether that collector is a German who profited from the Nazi art scene or a world-renowned museum profiting from the exhibition of orphaned paintings. These questions may be beyond the scope of Marrus’s study, though the problem of who continues to profit from material goods stolen from victims of the Holocaust will not disappear anytime soon. Marrus also does not confront the complex issue of art restitution to non-Jewish victims of the Third Reich, perhaps for good reason within the framework of his book, though it also has the potential to reveal further shades of grey within the tension-filled framework of history and the law.

In the end, Marrus’s short but exhaustive study offers more questions than answers. This is not a critique, but a compliment. Marrus focuses on fifteen years of Holocaust restitution and his insights and questions are of much broader interest, as Ta-Nehisi Coates can attest. Hannah Arendt famously argued the inability of “juristic concepts” to confront matters as morally catastrophic as genocide and the Holocaust (and perhaps, if we can extrapolate, slavery). What then, precisely, is wanted from restitution and reparations? Is it money, or something more? Is something more even possible? And if it is not, should we keep trying, nonetheless? These questions will only grow more urgent until nations, governments, corporations, and people confront more thoroughly the crimes of the past.

[1] Ta-Nehisi Coates, “The Case for Considering Reparations,” The Atlantic, January 27, 2016, https://www.theatlantic.com/politics/archive/2016/01/tanehisi-coates-reparations/427041/.
[2] Ibid.
[3] Marrus, Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s (Madison: University of Wisconsin Press, 2009), ix.
[4] Marrus, 137.
[5] Marrus, 6.
[6] Marrus, 132.
[7] Marrus, 79.

Jen GramerJennifer Gramer is a PhD candidate in the History Department at the University of Wisconsin-Madison specializing in modern Germany. Her research focuses on the afterlife of art, architecture, and cultural relics relating to Nazism in post-1945 Germany, and how memories and treatment of these physical objects by governmental and cultural institutions have shaped the concept of “coming to terms with the past” (Vergangenheitsbewältigung) in both postwar and post-unification Germany. In her dissertation project, she looks to understand “coming to terms with the past” not as a process limited to Germany, but rather as a dialectic between Germany and the United States. This project further addresses how the treatment of Nazi-era artwork by the United States in the postwar period has shaped this process.

Leave a Reply