Full opinion text
DEBEVOISE, Senior District Judge. TABLE OF CONTENTS I Parties and Proceedings. 10 A. The Degussa Cases...250 B. The Siemens Cases .253 C. Defendants’ Motions .254 II Plaintiffs’ Rationale 255 III Context of the Post-war Treaties.262 IV Agreements Concerning Reparations.265 A. Potsdam Agreement.265 B. Paris Agreement.265 C. Bilateral Peace Treaties.266 D. The Transition Agreement.267 E. The London Debt Agreement.268 F. Soviet and Polish Waivers.269 G. Implementation of the Transition Agreement.269 H. The 2 + 4 Treaty.:.272 V Justiciability of Plaintiffs’ Claims.272 A. Existence of Claims.272 B. Status of Private Claims in Reparation Context.273 C. Effect of Post War Treaties.i.276 D. The German Cases.279 E. Conclusion.281 Plaintiffs in these four class actions have brought these proceedings against two German corporations, Degussa AG and Siemens AG. Degussa is charged with having refined the gold seized from inmates of the Nazi concentration camps with knowledge of its source, with use of slave labor and with having manufactured Zyklon B used in the notorious gas chambers of Auschwitz and other concentration camps. Siemens is charged with having made extensive use of slave laborers furnished to it by the Nazi regime during World War II. Relying on customary international law and the laws of Germany, plaintiffs seek, in the case of Degussa damages or restitution for the gold and other precious metals taken from the victims which Degussa refined for the Nazi Regime and damages on account of the Zyklon B which it provided for use in the gas chambers and, in the case of Siemens and Degussa, compensation for the enforced labor and damages for the oppressive conditions in which they were compelled to live and work. Jurisdiction is asserted under (i) 28 U.S.C. § 1331 on the ground that plaintiffs, United States citizens, assert claims for violation of international treaties, fundamental human rights laws and customary international law, enforceable in this court under federal common law, (ii) 28 U.S.C. § 1332(a) on the ground that there is diversity of citizenship of the parties and the amount in controversy exceeds $75,000 and (iii) 28 U.S.C. § 3167 on the basis of general principles of supplemental jurisdiction. Defendants moved to dismiss on multiple grounds. Consideration of the questions of in personam jurisdiction and forum non conveniens was deferred, and the parties were requested in the first instance to address the various questions going to jus-ticiability and the question whether plaintiffs’ claims are barred by the statute of limitations. I.Parties and Proceedings A. The Degussa Cases: The two cases against Degussa allege substantially the same facts and will be treated in this opinion as if they were a single case. Initially it is necessary to summarize the circumstances of each plaintiff. Reliance will be had upon the allegations of the respective complaints. Each plaintiff is now a United States citizen living in this country. Alice Burger-Fischer was born in 1938 in Czechoslovakia. The Nazis arrested her and her family sending them first to a ghetto and then to the concentration camp at Auschwitz in Poland. At Auschwitz the camp authorities took all of Burger-Fischer’s parents’ and grandmother’s possessions including gold and precious metal jewelry. Burger-Fischer’s grandmother’s younger brother and mother were killed in the Auschwitz gas chambers and her father and younger brother, sent to the Mauthausen concentration camp, died on a death march in March, 1945. Burger-Fischer was sent to the concentration camp at Bergen Belsen where she was stripped of her possessions including her coat with gold and precious metal jewelry sewn into it. She believes that Degussa, knowing the source of the family’s gold and precious metal jewelry, melted it and refined it into marketable purity. Michal Schonberger was born in 1930 in Czechoslovakia. He and his family were deported to various concentration camps, including Auschwitz, Berkenau and Buchenwald where, upon arrival, they were stripped of their gold eyeglasses, gold jewelry and dental gold. He witnessed SS troops pull gold teeth from the mouths of live and dead concentration camp inmates. He believes that Degussa refined the looted gold knowing its source. Goldie Hoffman-Engel was born in Czechoslovakia in 1923. She and her family were arrested and sent to Auschwitz/Berkenau where they were stripped of their possessions, including gold and precious metal jewelry. Hoffman-Engel was forced to work in the crematoria and observed camp officials pulling dental gold from the bodies of the victims. Her entire family except herself and her brother Isaac were killed in the death camp. She believes that Degussa, knowing its source, refined the gold taken from her parents’ teeth and the other seized gold and jewelry. Hester Haszkel was born in Cluj, Romania in 1931. When the Nazis raided her town in 1944 she, her parents and her five siblings were sent to Auschwitz. The were forced to remove and leave their gold jewelry behind. At Auschwitz Haszkel’s entire family was killed. Haszkel had observed the camp personnel searching for and removing gold dental fixtures from the victims’ lifeless bodies. She believes that the gold dental fixtures taken from her parents’ bodies were sent to Degussa to be melted and refined. Michael Vogel was born in Czechoslovakia. In September 1942, the Nazis deported him, his parents, two brothers and two sisters to Auschwitz. His mother and two of his siblings were killed immediately in the gas chambers with Zyklon B. Another brother and sister and his father were forced to perform slave labor and subsequently were killed in the gas chambers. Vogel was stripped of his valuables, including a gold watch upon his arrival at Auschwitz. From 1942 through the fall of 1944 Vogel was forced to work as part of an “Aufraeumungs-Kommando”. As such he was required to search for gold, jewelry, watches and other valuables in the personal belongings taken from deportees upon their arrival at Auschwitz prior to their selection for death or slave labor. He was forced to sort the valuables into different categories and believed they were sent to Degussa for melting and refining. Maria Dorenblat was born in Poland in 1910. Upon her arrival at Auschwitz, camp personnel stripped her of a diamond and gold watch and jewelry. They pried the gold overlays from her mouth. The man she later married, Michael Dorenblat, arrived separately with his first wife and a child. Camp personnel killed the. first wife and child and seized Mr. Dorenblat’s gold watch, gold cufflinks and wedding band and ripped the gold fillings from his mouth. It is alleged that the various gold items were shipped to Degussa for processing. Vernon Rusheen was born in Berlin, Germany in 1924. In 1938 the Nazis required that Jews surrender their valuables and precious metals to the government, which Rusheen’s parents proceeded to do. The family clothing business was “Aryan-ized”, and in February, 1943 the entire family was rounded up, sent to a collection point in Berlin and shipped to Auschwitz. There the family was stripped of its remaining valuables, which Rusheen believes were sent to Degussa for processing. Rusheen’s parents were sent to the gas chambers and killed by Degussa’s Zyklon B. Rusheen himself was forced to perform slave labor at Auschwitz. When he became ill he was sent on a death march from Auschwitz to Dachau on January 14, 1945, along with 6,000 other prisoners, of whom only 300 survived the march. Rush-een performed slave labor at Dachau until liberated in May 1945. Maria Richman was born in Poland in 1922. In 1942, after the 1939 fall of Poland, the Nazi government sent 20 year old Richman, her parents, four grandparents, her great-grandmother, five siblings and more than 170 other family members to Auschwitz. All but Richman and four other members of her family were killed in the gas chambers of Auschwitz through the use of Zyklon B. Upon their arrival at Auschwitz the gold jewelry and other valuables belonging to the members of the family were seized and, Richman believes, were sent to Degussa for processing. Richman herself was forced to perform heavy labor at Auschwitz from 1942 through 1945, sorting through the belongings of the camp’s victims and filling trunks with gold, silver and jewelry which she believes were sent to Degussa for melting. The complaints against Degussa allege that from 1933 to 1945 Degussa, then and now a major German corporation, actively cooperated with the Nazi regime. Part of this cooperation consisted of receiving from the concentration camps, ghettos and other collection points gold taken from the jewelry, precious metal, coins, eyeglasses and teeth of those being persecuted. De-gussa was fully aware of the sources of the gold and nevertheless solicited the business of processing and refining it, an important source of government gold needed to finance prosecution of the war. The complaints further allege that Degussa utilized slave laborers in various of its manufacturing and refining facilities and that it was a principal source of Zyklon B, the agent used in the gas chambers to kill the victims. The plaintiffs in the Burger-Fiseher case seek to represent a class consisting of “all Holocaust victims, their heirs and beneficiaries who, between 1933 and 1945, had then* personal assets, including but not limited to gold taken from jewelry, precious metal coins, eyeglasses and teeth, stolen from them as concentration camp inmates and/or other persecutees of the Nazi regime and its allies.” The plaintiffs in the Vogel case seek to represent a class consisting of “all Holocaust victims and survivors, their heirs and beneficiaries, who were injured as a result of Degussa’s independent conduct in, and participation in the Nazi regime’s systematic practices of (i) looting personal property, including but not limited to gold, jewelry, eyeglasses, watches and dental gold; (ii) using and profiting from slave and/or forced labor; and (iii) manufacturing, marketing, and profiting from the sale to the Nazi regime of Zyklon B, a key component of the Nazi regime’s program of genocide.” The theories of recovery advanced in the Degussa complaints (asserted under international and German law) are civil assault and battery, conversion, unjust enrichment, accounting, violation of human rights and customary international law as evidenced by numerous treaties, conventions, declarations and the like and, conspiracy with the Nazi regime, individual Nazis and other German corporations. The relief sought in each of the Degussa cases is (i) an accounting; (ii) a constructive trust; (iii) restitution of rightfully owned property and the value of slave and/or forced labor; (iv) disgorgement of illicit profits obtained by transacting in looted property and employing slave and/or enforced labor; (v) compensatory damages with interest compounded annually from May 8, 1945, to the present arising out of, among other things, defendant’s liability for transactions in looted property, profits from slave and/or forced labor, and aiding and abetting the murder of millions of deceased family members; (vi) a single award of exemplary or punitive damages, (vii) attorneys fees and (viii) costs of the action. B. The Siemens Cases: The two cases allege substantially the same facts and, like the Degussa cases, will be treated in this opinion as if they were a single case. The complaints set forth the experiences of each plaintiff as an enforced laborer for Siemens. Martha Klein was born in 1922 in Hungary. In August 1944 German troops seized her, forced her to walk to Austria from where she was transported by train to the concentration camp at Ravens-brueck. There Siemens employees selects ed her to work at the Siemens factory in Ravensbreuck. With hundreds of others she was placed in a wooden barracks which lacked light, heat, .insulation from rain, running water or sewage facilities. The inmates slept in three-tiered wooden bunks, four women to a bed. Food consisted of a bowl of watery potato-skin and grass soup each day and a slice of bread twice a week. The inmates were awakened at 4:00 a.m., forced to stand at attention for hours at roll call and assigned heavy labor. At the barracks where Klein was interned with 2,500 other forced laborers there was one latrine and one washroom. She endured these conditions until December 1944 when the women were evacuated. Zelig Preis was born in Poland in 1924. When the German army overran Poland in September, 1939 the country became a major source of slave labor. In 1942 Preis was seized by German troops and transported by cattle car to the Plaszow concentration camp. In July, 1942 Siemens employees selected Preis to work in its Bau-Union plant, an annex to the concentration camp. There he lived in conditions similar to those which Klein endured. Slave laborers were awakened at 5:00 a.m. and required to run to a 6:00 a.m. assembly and roll call. From there they walked six miles to a Siemens construction site where they performed heavy labor for ten to twelve hours. Those who could not keep the pace were beaten, executed on the spot or sent to nearby Auschwitz to be put to death in the gas chambers. Malka Lichtman was born in Czechoslovakia in 1920. In the spring of 1944 she along with many other Jews were evicted from their homes and sent to a ghetto. Seven weeks later she was transported to Auschwitz. After a month at Auschwitz she and about 250 other female prisoners were loaded into trucks which transported them to Nuremberg. There they were forced to work in a Siemens airplane parts factory, living and working in inhumane conditions; Many of Lichtman’s fellow laborers died while under the control of Siemens. The complaints allege that before and during World War II Siemens was a major German corporation manufacturing, among other things, electronics and communications equipment essential to the ability of the Third Reich to wage its war of conquest. The shortage of manpower in Germany became acute and in order to fill the needs of German industry there was developed a system of involuntary forced laborers. These slave laborers were drawn from the conquered nations, Russian prisoners of war and the concentration camps. Organized by the Nazi government, the slave labor program enabled private industry to draw upon a huge pool of potential workers, who were not paid and who lived and worked in abominable conditions. Particularly appalling were the conditions to which the Jewish workers were subjected. It is alleged that Siemens requisitioned for employment in its many plants nearly 100,000 foreign workers, prisoners of war and concentration camp inmates; exploiting them ruthlessly, subjecting them to abuses and ill treatment and profiting greatly from this source of unpaid labor. The plaintiffs in these cases, each being a United States citizen, are typical of the many thousands who passed into Siemens control. Plaintiff in the Lichtman case seeks to represent a class consisting of “all persons, or their heirs, who were taken from concentration camps or ghettos and forced into slave labor for Siemens”, thus apparently limiting this case to Jewish slave laborers. Plaintiffs in the Klein case seek to represent a broader class consisting of “all persons and the heirs of all persons who were compelled to perform slave labor for Siemens between 1939 and 1945”, thus including in addition to Jewish slave laborers prisoners of war and persons from occupied nations compelled to work in Siemens’ plants. The theories of recovery in the Siemens complaints are violations of customary international law and the laws of nations and, under the laws of Germany, false imprisonment, unjust enrichment and wrongfully causing death. The relief sought in the Siemens cases is (i) an accounting to Siemens’ slave laborers for any profits or economic benefits derived by Siemens or any of its wholly-owned American subsidiaries from the knowing, systematic use of slave labor; (ii) payment to the slave laborers and their heirs the reasonable value of their services to Siemens; (iii) compensatory and punitive damages for Siemens’ knowing use of slave labor and imposing barbaric working and living conditions; (iv) impressing a constructive trust upon all assets owned or controlled by Siemens that are traceable to the systematic use of slave labor, together with reasonable interest thereon; (v) reasonable attorneys’ fees and experts’ fees; and (vi) costs of suit. C. Defendants’ Motions: Degussa moved to dismiss the complaints against it on a number of grounds; (i) the Court lacks personal jurisdiction over Degussa, A.G.; (ii) dismissal is required under the principle of forum non conveniens; (iii) the Court lacks subject matter jurisdiction to adjudicate plaintiffs’ war-related claims because they are within the exclusive province of state-to-state resolution; (iv) the Court should abstain on grounds of international comity; (v) plaintiffs’ claims are barred by any potentially applicable statute of limitations; and (vi) plaintiffs’ claims founded on international law fail because plaintiffs lack a private right of action thereunder. Siemens moved for dismissal on essentially the same grounds as Degussa, and, in addition asserted that Lichtman lacks standing to assert a wrongful death claim. Determination of defendants’ challenge to in personam jurisdiction and their contention that the cases should be dismissed pursuant to the doctrine of forum non conveniens was deferred, and the parties addressed in the first instance the multifaceted issue of justiciability and the question whether plaintiffs’ claims are barred by applicable statutes of limitations. In support of their respective positions the parties filed extensive appendixes containing, among other data, copies of the applicable war-time and post-war treaties and agreements, pertinent opinions of German courts addressing questions concerning reparations for slave labor and persons whose property was seized by the Nazi ■government, and certifications or affidavits of eminent scholars, historians and experts in international and German law. The parties briefed the issues both before and after oral argument on the motions. The critical issue, the resolution of which is dispositive of these cases, is whether in light of post World War II diplomatic history the plaintiff victims, and representatives of victims of the Nazi regime can bring an action in this Court against private German corporations which participated in and profited from the atrocities committed against plaintiffs and those they seek to represent. II. Plaintiffs’ Rationale Plaintiffs’ factual allegations as contained in the pleadings and supporting declarations must be accepted as true. They are totally consistent with the history of the Nazi era and with the record developed during the post-war trials in Nuremberg. In brief Degussa’s and Siemens’s executives were fully aware of the widespread use of slave labor and of the inhumane conditions in which the victims lived and worked. The two corporations were aware that this program was utilized not only to advance the German war effort, but also as part of the Nazi goal of exterminating the entire Jewish community in Germany, in the territories of its allies and in the conquered lands. Degussa was aware of the uses to which the Zyklon B it manufactured would be used in the concentration camps and was aware that the gold it refined was seized from the Jewish people at their places of residence, when they arrived at concentration camps and from their bodies before and after they had been killed. Knowing this Degussa and Siemens voluntarily participated and profited from the use of slave labor and in the case of Degussa, in the manufacture and sale of Zyklon B and the refining of the stolen gold. As plaintiffs’ factual allegations must be accepted, so also must be accepted their statement of substantive law. Defendants’ actions violated customary international law, a law which “results from a general and consistent practice of states followed by them from a sense of legal obligation.” Restatement (Third) of the Foreign Relations Law of the United States, § 102(2) (1987). Plaintiffs have cited numerous treaties, court decisions and United Nations resolutions, not as a source of their substantive rights but rather as evidence of the content of customary international law. Plaintiffs cite the work of the Nuremberg tribunals as a further source of the content of customary international law particularly pertinent to the facts alleged in these cases. There can be little doubt that the acts in which the defendant corporations are alleged to have engaged were and are proscribed by customary international law. Authoritative German scholars have provided declarations establishing that defendants’ alleged conduct violated German civil law in effect at the time they engaged in that conduct. It is plaintiffs’ contention that their individual claims against private German corporations under German civil law and under customary international law never were and never were intended to be subsumed under the series of treaties and agreements concerning reparations which followed the end of World War II. Moreover, plaintiffs contend, even if the nation states negotiating these treaties and agreements intended to subsume plaintiffs’ claims they could not be given effect for the reason that under customary international law as it has developed a private law claim cannot be destroyed by a peace treaty unless the treaty provides an adequate alternative method of compensation. Tracing the diplomatic history of the post-war period plaintiffs challenge the defense contention that their claims were subsumed or intended to be subsumed. They note that the Potsdam Agreement and the Treaty of Paris of 1946 represented an attempt to dismantle Germany’s industrial capabilities by physically transferring the major portion of Germany’s industrial plant to the victors to be used to compensate the victims of Nazi oppression. If implemented, that method of providing reparations would have superseded private claims against private corporations because the assets of the principal corporate wrongdoers would have been seized to compensate the victims. Plaintiffs contend that none of the bilateral treaties entered into in the immediate aftermath of World War II waived individual claims for relief. In the first place, hundreds of thousands of slave laborers or other victims of the Nazi regime were stateless persons unable to return to their native lands for such reasons as political oppression in the totalitarian Soviet Union and its satellite countries and residual anti-Semitism in many areas. No state had authority to waive their claims. The waivers of claims contained in the 1947 treaties which were imposed on Nazi Germany’s military allies, could not, according to plaintiffs, have been intended to destroy the legal rights of those who had been victims of Nazi oppression. Thus the treaties with Romania, Bulgaria and Hungary cannot be treated as a waiver of their nationals’ claims against private German corporations. In 1953 the Soviet Union imposed treaties on the German Democratic Republic (East Germany) and Poland which recognized the end of the punitive nature of reparations against Germany. The Soviet Union agreed to end the physical seizure of German property and disclaimed further reparations. Plaintiffs contend that the Soviet Union could not waive the rights of the displaced persons who never returned to the communist world, nor could a treaty with East Germany, constituting a fraction of greater Germany, constitute a waiver of claims against private corporations in a unified Germany. As regards the western allies, the method of providing reparations changed fundamentally. In order to ensure an economically viable West Germany and in order to integrate West Germany into the common western defense against an expansionist Soviet Union, the western allies abandoned seizure of industrial assets. Plaintiffs pass over with little mention the Bonn and Paris Agreements signed in 1952 and 1954 (including the Transition Agreement). Instead plaintiffs find support for recognition of their claims in the February 23, 1953, London Debt Agreement which provided in part: “Consideration of claims arising out of the second World War by countries which were at war with or were occupied by Germany during that war, and by nationals of such countries against the Reich and agencies of the Reich ... shall be deferred until the final settlement of the problem of reparations.” It is plaintiffs’ position that the London Debt Agreement recognizes the existence of individual claims and simply postpones their consideration. It is defendants’ contention that settlement with Germany in the so-called “2 + 4 Treaty” effective March 15, 1991, was a final settlement of the reparation issue. There were no provisions concerning reparations in the 2 + 4 Treaty. From this defendants maintain that the states that are parties to the 2 + 4 Treaty, England, France, the Soviet Union and the United States, have, after conclusion of that agreement, no further claims for themselves and their nationals against the Federal Republic of Germany arising from World War II, and that, viewed in conjunction with the 1952-1954 Bonn and Paris Agreements and the bilateral treaties entered into between 1946 and 1953, all state and private reparation claims against both the Federal German Republic and its private entities such as Degussa or Siemens have been resolved. Plaintiffs advance four answers to defendants’ position; (i) The German Federal Constitutional Court has held that the legal claims of World War II slave laborers were not subsumed by the 2 + 4 Treaty, (ii) Plaintiffs’ private law claims for the disgorgement of unjust profits earned by private corporations at plaintiffs’ expense are not claims for war reparations, and thus could not have been subsumed by the 2 + 4 Treaty, (iii) Legal claims by stateless persons seeking relief from violations of customary international law cannot be subsumed by treaty, as no nation has the power to deal with their claims, (iv) Neither the text, nor the history of the 2 + 4 Treaty manifest an intent to subsume plaintiffs’ claims. The most comprehensive and systematic development of plaintiffs’ contentions is set forth in the declaration of Privatdozent Dr.Dr.jur.habil. Christian Wolf. Dr. Wolf first comments upon the common failure to recognize the different categories of war claims. This results in the present case in applying principles of international and domestic law and cases applying these laws indiscriminately without distinguishing the kinds of cases to which these laws and cases apply. Consequently, according to him, erroneous conclusions have been drawn. Dr. Wolf assumes in his analysis that the class actions involved here are based on German law of tort and unjust enrichment. This is to be distinguished from claims arising under international law, although principles of international law may govern the survivability of claims based on national law. With respect to public international law Dr. Wolf posits four categories of claims: (i) the injured state against the injuring state, (ii) the injured individual against the injuring state, (iii) the injured state against the injuring individual, and (iv) the injured individual against the injuring individual. With respect to public law, Dr. Wolf initially posits two categories of claims: (i) the injured individual against his or her home state and (ii) the injured individual against the injuring state. Finally there is a third category of public law claims which is the category in which plaintiffs’ claims fall, namely, the claim under national civil law of the injured individual against the injuring individuals. It is to this category of claims that Dr. Wolf primarily directs his analysis. He notes that German courts have recognized parallelism of claims and that claims of individuals are separate from claims of the state although they may arise out of the same conduct. Dr. Wolf contrasts the destructive financial consequences to the nation of reparations demanded of the state (which cannot be avoided) with recovery against a private company which, if required, can apply for liquidation. In the first instance the entire economy suffers; in the second instance just an individual corporation suffers. Dealing with the third category of individual public law claims, Dr. Wolf explores the questions (i) whether the violation of the law of war by individual participants in the war will lead to responsibility solely on the part of the government and not on the part of the individual, (ii) whether the declarations of waiver in the 1946 Treaty of Paris as well as the unilateral declaration of waiver of Poland of August 23, 1953, can be interpreted to embrace the third category of private claims, (iii) whether the Peace Treaties of 1947 with Hungary, Romania and Bulgaria validly waive claims of citizens who had opposed the oppressing regime, and (iv) whether such a waiver could be legally valid under public international law and German Constitutional law. Dr. Wolf posits, undoubtedly correctly, that the defendants in these cases, Degus-sa and Siemens, violated fundamental human rights laws by their utilization of slave/forced labor. He also states that slavery and involuntary servitude have been prohibited in Germany since 1871 and that § 234 of the German Criminal Code prohibits slavery and involuntary servitude under penalty of imprisonment. He assumes that plaintiffs have claims under § 611, § 823 and § 812 of the German Civil Code. Thus any discussion of waiver must address the dual question whether there was a purported waiver of plaintiffs’ claims under customary international law and whether there was a purported waiver of plaintiffs’ claims under German law. With respect to the February 19, 1947, peace treaties which the Allies concluded with Hungary, Romania and Bulgaria, former allies of the Nazi Regime, Dr. Wolf appears to recognize that the language of the treaties, read literally, would constitute a waiver of the nationals of these countries against Germany and German nationals such as Degussa and Siemens: “Romania/Hungary/Bulgaria waives on its own behalf and on behalf of Romanian/Hungarian/Bulgarian nationals all claims against Germany" and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1,1939. This waiver is deemed to include debts, all intergovernmental claims in respect to arrangements entered into in the course of the war and all claims for loss and damage during the war.” Dr. Wolf urges that there should be a departure from the literal language of the treaties with Romania, Hungary and Bulgaria, stating “I conclude that the underlying purpose of the peace treaties gives rise to some doubts as to whether the claims of citizens who had opposed the oppressing regime should have been covered by the declarations of waiver of Hungary, Romania and Bulgaria in the Peace Treaties of 1947.” Wolf Declaration at 64. He finds room in the language of the treaties for a narrowing interpretation. The “nationals” referred to in the treaties could be construed not to cover those who opposed or were victims of the Nazi regime. The phrase “during the war” “leaves a certain leeway for interpretation and the possibility to restrain the meaning so as to encompass only claims held by former war enemies, i.e. the state itself and its ‘usual’ citizens, not, however, those citizens opposing the enemy” Id. at 63. Dr. Wolf also addresses the Polish declaration of waiver of August 23, 1957, and the Soviet Union’s declaration of waiver of August 23,1953. The Polish declaration stated in part: “Regard being had to the fact that Germany has complied with her obligations to effect reparations to a substantial extent already and that an improvement of Germany’s economic situation is in the interest of her own peaceful development, the government of the People’s Republic of Poland has taken the decision with effect from January 1, 1954 to waive all claims of reparation.” The Soviet Union’s declaration stated: “In agreement with the government of the People’s Republic of Poland (with regard to her share in reparations), the Soviet government states that with effect from January 1, 1954 she will completely terminate her drawing of reparations from the German Democratic Republic, whether in the form of delivery of goods or in any other form. The German Democratic Republic is, therefore, released from her obligation to effect payment of reparations, outstanding after January 1, 1954, which, in accordance with the declarations of the Soviet government of May 15, 1950 concerning the reductions of reparation to be effected by Germany to the Soviet Union, amount to 2537 million dollars, calculated with respect to world prices as in 1938.” Seeking to determine whether the term “reparation” as used in the Polish and Soviet declarations included the claims of slave laborers, Dr. Wolf recognized that the word had its origin in the post World War I Treaty of Versailles which incorporated claims of forced laborers in the notion o'f reparations: “Damages inflicted upon private persons during the war may be included as a head of damage in the state claim for reparations. Thus, in the annexure to Art. 232(2) of the Treaty of Versailles the damages of private persons resulting from acts of cruelty, violence and maltreatment were included in the claim for reparations, mentioning also injuries to life and health suffered by forced laborers.” Id. at 67. Given this meaning the reparations waiver of the Polish and Soviet governments would include claims on account of forced labor. Dr. Wolf states, however, that the nature of the World War II forced labor claims is entirely different from the post World War I forced labor claims. The latter arose from the typical war situation. The former, on the other hand, arose from a program separate and apart from the German war effort; they were a component of the racial ideology and policies of persecution of the Nazi regime. As such, World War II forced labor claims should not be included in the term “reparations” as used in the Polish and Soviet declarations of waiver. Elaborating on this point, Dr. Wolf stated: “If one considers the notion of ‘reparation’ as in relation to World War I and realizes that it also included damages inflicted upon private persons as a consequence of forced labor, it does not necessarily follow from that after World War II all claims of forced laborers were included in the reparation claim. This draws from the fact that the World War II and the accompanying acts of war must be clearly distinguished from the unprecedented acts of extermination of the Nazi regime based on racial motives. The mere temporal coincidence of racial persecution and acts of war cannot lead to the conclusion that these racial acts of persecution constitute typical acts of war and therefore the damages arising out of these acts are covered by the reparation claims. The indirect connection does not justify viewing these damages as war damages. The term ‘reparation’ must then be understood in its traditional meaning of compensation for war damages as they have always occurred in the past excluding the injustice specific to World War II flowing from racial and ideological persecution under the Nazi regime.” Id. at 69. Dr. Wolf finds confirmation of his position in the Transition Agreement of 1954. He notes that the question of “reparations” is dealt with in Part VI of the agreement and Part IV deals with compensation for persons who were injured in their life, body, health, liberty, property and patrimony or their economic progress for reasons of political connection, race, belief or ideology. Dr. Wolf also notes that German courts considering forced labor claims have ruled that the word “reparation” used in the August 1953 Polish and Soviet declarations is different from compensation for injustices in a broader moral sense. Dr. Wolfs conclusion with respect to the Polish and Soviet declarations is: “I arrive at the conclusion that the nature of ‘reparation’ must be regarded from the background of the Second World War and the Nazi regime. In this war, injuries were inflicted solely for racial and ideological reasons and far exceeding the scope of atrocities usually occurring during the war. As the damages arising out of these acts cannot be considered to be typical war damages, the notion of Wiedergutma-chung’ (to make good) emerged which limited the scope of the notion of ‘reparation.’ I conclude that the waivers of Poland and the former Soviet Union do not bar the claims of former forced laborers which were persecuted for reasons of race, religion, political connection or ideology by the Nazi regime.” Id. at 74. Dr. Wolf notes the provisions of the 1953 London Debt Agreement which, he asserts, were incorporated into German national law by statute on August 24, 1953. Of particular pertinence, of course, is Art. 5(2) which provides that “[cjonsideration of claims arising out of the second World War by countries which were at war with, or were occupied by Germany during that war, and by nationals of such countries, against the Reich and agencies of the Reich ... shall be deferred until the final settlement of the problem of reparation.” Dr. Wolf does not address the interpretive problems of these provisions. Do the “claims arising out of the second World War” include private claims, such as plaintiffs’ claims, against private corporations under international law and/or German municipal law? Are private corporations such as Degussa and Siemens “agencies of the Reich”? What constitutes a “final settlement of the problem of reparation”? Is the term “claim” to be understood as excluding compensation for “the unprecedented acts of extermination of the Nazi regime based on racial motives”? With respect to the London Debt Agreement Dr. Wolf states simply: “In Art. 5(2) and (3) of the London Debt Agreement, a legal condition is established: As long as no final settlement of the question of reparations is reached, those claims are suspended. I will not deal with the legal effect of this moratorium on private claims arising out of forced labor in further detail, as the generally held view in German literature and court decisions is that the 2 + 4 Treaty finally following reunification disposes of the question of reparations. As a result, the condition provided for in Art. 5(2), (3) of the LDT is now fulfilled. Foreign forced laborers therefore may nowadays approach’German courts to enforce their, until now, suspended claims.” Id. at 76-77. Pertinent to Dr. Wolfs subsequent discussion of the validity of any waiver of private claims under municipal law is Art. 5(4) of the London Debt Agreement. It provides that: “Claims against Germany or German nationals by countries which were, before 1st September, 1939, incorporated in, or which were on or after 1st September, 1939 allied to the Reich [such as Romania, Bulgaria and Hungary] and of nationals of such countries [such as a number of the plaintiffs], arising out of obligations undertaken or rights acquired between the date of incorporation (or, in the case of countries allied to the Reich, 1st September, 1939) and 8th May, 1945, shall be dealt with in accordance with the provisions made or to be made in the relevant treaties [such as the 1947 treaties with Romania, Bulgaria and Hungary].” It is unnecessary to summarize in detail Dr. Wolfs conclusion that under international law more than one state can regulate the question of tort claims arising out of forced labor, including the question whether such claims have been waived. Under the “genuine link principle” a state that is sufficiently connected to the facts to be regulated may adjudicate a claim. There is no exclusive right of a home state to declare a binding waiver affecting a private claim under local municipal law. This principle is true generally and particularly true in the case of claims for compensation arising out of a violation of fundamental human rights. Since the United States is sufficiently connected to World War II claims, Dr. Wolf invites this court to address three questions: (i) Are the laws of Romania, Hungary and Bulgaria applicable according to the rules of the law of conflicts of the United States? (ii) Is the waiver legally binding according to the laws of Hungary, Bulgaria and Romania? and (iii) If binding under the laws of these nations, would such a waiver violate “the order public”, the fundamental laws of human rights? Finally, Dr. Wolf assumes (without accepting) the validity of the various waiver provisions and presents his opinion that the waiver of private rights asserted under municipal law would violate both the German Constitution and public international law. Art. 5(4) of the London Debt Agreement provided, in effect, that the war time claims of nationals of German allies would be dealt with in accordance with the provisions of the peace treaties with German allies. The peace treaties with Romania, Bulgaria and Hungary waive the claims of their nationals against Germany and its nationals. Literally construed this would constitute a waiver on behalf of the plaintiffs in the instant cases who were nationals of one of those states at the time they were subjected to the violation of their rights under international law and under German law. Germany by statute incorporated the London Debt Agreement and thus accepted the waiver of Romania, Bulgaria and Hungary. Art. 3 of the German Constitution states: (1) Everyone is equal before the law (3) Nobody may be discriminated against or be treated preferentially on the ground of his gender, his descent, his role, his language, his ethnical and social origin, his belief, his religion, or political ideology. Nobody may be discriminated against on the ground of disability. Dr. Wolf states that “in terms of German constitutional law, not only Germans but all persons are entitled to the right provided for in Art. 3. To whomsoever acts of state may relate, therefore, they are subject to the equality provision. It is not necessary that the person affected, whether German or foreign national, be physically present on German territory and that the unequal treatment occurs on German territory. The participation of Germany in the waiver of Romania, Hungary and Bulgaria therefore can be measured against German constitutional law.” Id. at 95-96. Dr. Wolf reviews several German court decisions which bear upon but do not resolve definitively the question whether German adoption of the Romanian, Bulgarian and Hungarian waiver provisions via acceptance of Art. 5(4) of the London Debt Agreement violated Art. 3 of the German Constitution. Nevertheless, he concludes that: “I think that there can be no doubt that the waiver violates the German Constitutional standard. In order to decide on the validity of the waiver, I must be aware of the underlying facts of the claim: The plaintiffs have, as I assume, suffered unspeakable grief and have been violated in their fundamental human rights. The civil responsibility of the defendants shall provide for a compensation for these human rights violations.... Taking this into account, a regulation which excludes a group of persons from the remedies available to the normal person for a violation of human rights, only for reason of citizenship, must be regarded as unconstitutional” Id. at 102-103. Apart from German constitutional law, Dr. Wolf addresses the question whether the waiver of the claims of forced laborers from Romania, Bulgaria and Hungary was valid under public international law. He referred to the evolving concept of human rights developed after World War II in reaction to the atrocities committed by the Nazi regime. He cited the many declarations and conventions entered into by members of the international community and its organizations, to many of which Germany is a party. Dr. Wolf further characterized the core of rights reflected in these documents as having existed and having been recognized before World War II. stating: “along with liberty, equality is the most important principle embracing and inspiring the concept of human rights.... It follows from this, that the protection of human rights at the relevant time may not be described as rudimentary, particularly as far as the principle of equality is concerned. Therefore, I am of the opinion that Germany, participating in the declaration of waiver, had to observe the principle of equality under public international law.” Id. at 104-105. Dr. Wolf summarized his conclusions as follows: In the peace treaties a waiver of claims is declared. This waiver is not binding for the deciding court. I have elaborated in section (C) that one must distinguish between the claims under international public law (first level) and the claims under municipal law (third level). A waiver on the public international law level would not simultaneously be a waiver on the level of municipal law. I have shown that the claims of the plaintiffs are not interfered with by any rule of the international law of warfare. I have examined that the waiver declared in the peace treaties cannot be understood so as to cover also the claims under municipal civil law arising out of forced labour. In the last section I have finally proved that a waiver declared on the level of international law could not have more authority than a waiver declared under the municipal laws. According to the German law of conflicts such a waiver under municipal law could not govern the case because this waiver would escape control by the order public. Furthermore, the waiver violates German Constitutional law, particularly the principle of equality. Id. at 105. The foregoing is a summary of plaintiffs’ arguments that their private claims against Degussa and Siemans, private German corporations, survive the various agreements which sought to end the state of war with Germany and her allies and to deal with the question of reparations. III. Context of the Post-War Treaties The submissions of the parties, particularly Dr. Wolfs declaration and the affidavit of Charles W. Sydnor, Jr., Ph.D., contain references to the context in which plaintiffs’ claims arose and the context in which the post-war treaties were negotiated. This context bears importantly upon the question whether plaintiffs’ claims are justiciable in this court. The Nazi regime was preeminently a regime of aggression and conquest. In March 1938, by threat of force, it accomplished the Anschluss with Austria, incorporating that nation into Nazi Germany. In September 1938 at Munich Hitler won control of Czech Sudetenland, leaving Czechoslovakia militarily defenseless. The dismemberment of that nation was completed on March 15, 1939, when German troops marched into Bohemia and Moravia, occupied secessionist Slovakia and awarded Ruthenia to German’s ally Hungary. On March 23 Germany forced Lithuania to surrender the city of Memel. On September 1, 1939, World War II began when, protected by the Nazi-Soviet Pact, the Nazi armies invaded and proceeded to crush Poland. England and France declared war on Germany. The Soviet Union seized the half of Poland the Nazi-Soviet Pact had allocated to it, occupied the Baltic nations of Lithuania, Latvia and Estonia, and later invaded Finland. Its eastern front secured by its pact with the Soviet Union, the Nazi armies turned to the west, first invading Denmark and Norway and in the spring of 1940 falling upon Belgium, the Netherlands and France, crushing all resistance. Northern France was placed under German occupation; the puppet Vichy government controlled southern France and French North African possessions. Germany’s ally, Italy, had previously conquered Albania and attacked but failed to subdue Greece. In the spring of 1941 Germany overwhelmed Yugoslavia and Greece, captured Crete and moved sizea-ble forces to join the Italian military units in North Africa, threatening Cairo and the Suez Canal. Having conquered or being allied with all of western Europe except Switzerland, Sweden and the British Isles, the Nazi armies turned east once more. On June 22, 1941, they launched Operation Barbarossa, a massive attack on Germany’s erstwhile ally the Soviet Union, driving north through the Baltic countries to the outskirts of Leningrad, pushing due west to the vicinity of Moscow, and in the south occupying the Ukraine and moving on to the Caucasus. To support this massive military effort required total mobilization of German industry, resulting in the creation of the ultimate military-industrial complex. Every significant industrial concern participated in and no doubt profited from its role in the war effort. The demands on German industry increased after the tide of battle turned, as the Soviet Union’s armies counterattacked, pushing the German armies back towards the German frontier, as the western allies invaded northern Africa, Sicily, Italy and northern and then southern France and as German cities, industries and military facilities came under increasingly heavy daytime and nighttime bombing. From almost the outset Nazi Germany was short of labor and to supply both agricultural and industrial needs drew upon the occupied nations as sources of forced or slave labor. These laborers first came from the conquered western European countries and later from the vast territories overrun in the east. As described in a recent German law review article which plaintiffs submitted after the hearing on the motions: The exact number of forced laborers utilized in agriculture and industry is unknown. It is generally assumed that 14 million forced laborers were deported into the German Reich. The utilization of forced labor in German industry drastically increased after 1942. At that time, it was clear that an increasingly large portion of the German labor force was being drafted into the German military, and that foreign labor would be required to replace German laborers. At first, the labor force was recruited from the western neighboring states. The growing demand for laborers quickly made the forced labor of workers from Poland and Russia necessary. These people were at the bottom of the “Racist Hierarchy”. Many of the Poles and Ostarbeiter [Eastern Workers] were violently wrenched from their home countries without even the opportunity to bring any personal goods or appropriate clothing. Lutz Frauendorf, Compensation for Nazi Forced Labor, A Contemporary Problem, J. for Legal Pol’y, Tuebingen, Jan. 1999. In addition, as described in plaintiffs’ papers, many Jews sent to the concentration camps were selected as slave laborers and designated to work for German industrial concerns, living and working in the abominable conditions recounted in the complaints in these actions. Simultaneously with these wars of conquest and later during the defense against Soviet and Allied counter assault, Nazi Germany pursued its diabolical program to destroy the entire Jewish community of Europe. The submissions in these cases set forth the sequence of events. Harassment of Jews began well before the commencement of hostilities through segregation, exclusion from professions and business, the November 1938 “Week of Broken Glass”, seizure of Jewish businesses and assets, the Nuremberg Laws. At least as early as the June 1941 invasion of the Soviet Union the decision had been made to physically annihilate the Jewish population. The plans for Barbarossa included special tasks for the Reichs-fuehrer SS headed by Heinrich Himmler. Rounding up and killing the Jewish people in the conquered territories in the East was to be accomplished by four Einsatz-gruppen, A, B, C and D, special units which were to move directly behind the advancing armies. See United States v. Kungys, 571 F.Supp. 1104, 1108-14 (D.N.J.1983), rev’d, 793 F.2d 516 (3d Cir.1986), rev’d, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). These units first sought to feed on widespread anti-Semi-tism and incite local populations to kill the Jews in their midst. When the Germans were unable to incite anti-Jewish pogroms, or when local killing had run its course, the German units themselves carried out mass killings on a gigantic scale. The complaints and other documentation in the present cases refer extensively to the method of killing more commonly used in the western nations which Germany had occupied, in countries allied with Germany and in Germany itself. Shipped in railroad boxcars Jews from these areas were taken to the concentration camps. There some were pulled out to serve as forced laborers, but the rest, by the millions, died or were killed. All this could not have taken place without the participation of major elements of German industry. The firms receiving slave laborers must have known the origins of these workers. Degussa must have known the use to which its Zyklon B was being put and the sources of much of the gold which it was refining for the German authorities. The zeal with which the program of extermination was being carried out is illustrated by the death marches which took place as Soviet and western Allied troops approached the death camps. Rather than permitting the remaining Jews to be liberated, the camp authorities often forced them to march to areas deemed less threatened by the enemy. Many of the marchers died or were killed en route. Only with the final collapse of Nazi Germany in the spring of 1945 was the program of extermination brought to an end. In anticipation of the defeat of Nazi Germany the Soviet Union and the three principal western allies, the United States, Great Britain and France had agreed to the partition of Germany into four zones and the division of Berlin into four sectors, each to be occupied and controlled by one of the four powers. At the outset the four powers had agreed that Germany’s industrial base would be dismantled and turned over to the victorious powers. This would serve two purposes — reparations for the enormous losses which Nazi Germany had inflicted upon its victims and a means to ensure that Germany would never again have an economic base which would permit it to mount another war. At the end of the war Germany lay in ruins. Much of its territory had been fought over by the Soviet Union and the armies of the western allies. It had been subjected to relentless bombing. As described in the affidavit of Dr. Sydnor: The destruction of the Nazi tyranny and the end of Hitler required a world at arms — an Allied coalition in a life-and-death struggle that commanded the expenditure of humankind’s greatest sacrifices in blood and treasure. When the conquering Anglo-American and Soviet armies forced the unconditional surrender of all Nazi forces, they imposed peace upon an exhausted devastated and completely shattered Germany in May 1945. í}í ^ For most of the period between 1945 and 1953, there was no German government and there were no German corporations that existed in any kind of form or possessed any measure of assets sufficient to compensate those they had victimized- In 1946, Germany’s industrial and corporate infrastructure lay in ruins; it was not substantially rebuilt until after 1958. Until 1948 and the introduction of the Marshall Plan, Germany and central Europe were in a state of desperate economic collapse. The Russians had stripped most of the surviving industrial plant and productive capacity out of their eastern zone. Germany was not alone in its desolation. The war had been fought in vast territories of the Soviet Union. Similarly combat had raged in northern France, Belgium and the Netherlands. In addition to physical destruction the economies of the western allies were in tatters. Another development soon surfaced. The Soviet Union, instead of allowing free elections in the nations which its armies had occupied, established iron control over these nations, creating puppet communist governments as instruments of its control. Thus Poland, Bulgaria, Rumania, Hungary, Czechoslovakia, Yugoslavia and Albania entered the orbit of the Soviet Union. In the Balkans only Greece, occupied by British troops, remained free of Soviet control. To protect Greece from Soviet domination it was necessary for the United States in 1947 to assume a virtually bankrupt Britain’s protective role. Thus was born the Truman Doctrine providing aid to Greece and Turkey. The Soviet Union sought to extend its power into western Europe through the vehicle of local Communist parties. These parties owed their allegiance to the Soviet Union and had great numerical and political strength in France and Italy. Their influence increased with the deprivation and economic misery which prevailed in those countries in the years after the war. The United States Marshall Plan, proposed in 1947, was designed to jump start European recovery. The Soviet Union and its satellites rejected this aid but it became a vehicle of Western European economic recovery, increasing economic and political integration and unity in the face of the threat from the east. It was soon recognized that economic recovery of the three western zones of Germany was critical to the recovery of the rest of western Europe and that a military defense of western Europe was impossible without the participation of West Germany. Under these circumstances there occurred a fundamental change on the part of the western allies towards their defeated foe. Instead of reducing Germany to a pastoral condition, the German economy, including its industries, was to be revived through the Marshall Plan and by other means. Assurance that Germany was never again to become an aggressor nation was to be obtained by integration of Germany into a strong European community of nations. West Germany was authorized to develop military strength, integrated with the armed forces of NATO. While these fundamental changes took place the Soviet Union developed its own atom bomb in 1947; in January 1948 Czechoslovakia’s western oriented foreign minister was either defenestrated or fell to his death, anticipating February’s Red Army supported coup imposing a pro-communist government upon Czechoslovakia; on June 24, 1948, the Soviet Union blockaded access to western Berlin, leading to the Berlin airlift; in June 1950 the Soviet Union’s ally North Korea invaded South Korea, precipitating the Korean War; meanwhile the Soviet Union’s armed strength, nuclear and missile capability and submarine fleet expanded. It was against this backdrop that the negotiation of the various reparations agreements took place. IY. Agreements Concerning Reparations A. Potsdam Agreement: At the Potsdam Conference in the summer of 1945, following the unconditional surrender of the Third Reich in April, the heads of state of the United States, the United Kingdom and the Soviet Union agreed to a reparations formula which implemented the Mor-genthau Plan, ie., the creation of a nonindustrial, pastoral Germany. The formula was designed to extract reparations from Germany, reduce its ability to remili-tarize, but at the same time leave sufficient “resources to enable the German people to subsist without external assistance.” Protocol of the Proceedings, Berlin (Potsdam) Conference, August 2, 1945, 3 Bevans 1207, Art. (B)(111). Reparation claims were to be satisfied by the allocation to the parties to the Potsdam Agreement of specified percentages of industrial capital equipment and shar