A Swiss court allows Gypsies' Holocaust lawsuit to proceed
Case questions role of corporate giant IBM in World War II
By Anita Ramasastry
Special to CNN.com
(FindLaw) -- In late June, a Swiss appeals court decided that a group of five Gypsies could sue IBM in Switzerland. Previously, a lower court had dismissed the case on the ground that it lacked jurisdiction -- deeming IBM's Geneva office only an "antenna," and not its European headquarters. But the appeals court held that jurisdiction was proper.
The Gypsies allege that IBM had a role in facilitating the Holocaust. Specifically, they allege that IBM helped the Nazis commit mass murder, by providing them with punch card machines and computer technology that resulted in the coding, tracking and killing of Gypsies.
To find that jurisdiction was proper, the Swiss court had to find a connection to Switzerland. It did so -- pointing out that "IBM's complicity through material or intellectual assistance to the criminal acts of the Nazis during World War II via its Geneva office cannot be ruled out," and "a significant body of evidence indicat[es] that the Geneva office could have been aware that it was assisting these acts."
While the case has yet to be proven, the court's decision is an important step in extending human rights litigation beyond the borders of the United States. This is one of the few times (if not the first) that an action relating to alleged human rights violations by a private corporation during the World War II is being brought outside of the United States.
The Geneva case is the first Holocaust-related action against IBM in Europe. The case is significant for this reason, and also because it is one of the few efforts in recent memory to provide reparations directly to the Gypsy community -- in specific recognition of its suffering due to the Holocaust.
A Gypsy organization and an American best seller
In December 2000, the Gypsy International Recognition and Compensation Action association (GIRCA) was founded in Switzerland. GIRCA's mission is to seek reparations for the Gypsy community for the death of hundreds of thousands of Gypsies by the Nazis during the World War II.
In 2001, U.S. author Edwin Black published his best selling book, IBM and the Holocaust. In the book, Black claimed that IBM punch-card machines enabled the Nazis to make their killing operations more efficient. For example, Black said the punch-card machines were used to codify information about people sent to concentration camps. The number 12 designated a Gypsy inmate, while Jews were indicated by the number 8. The code D4 meant a prisoner had been killed.
In 2002, inspired by Black's book, GIRCA filed a lawsuit in Geneva's Court of First Instance against IBM. GIRCA selected Switzerland for its lawsuit because IBM's wartime European headquarters were located there. .
The plaintiffs in the case are four Gypsies from Germany and France, and one Polish-born Swedish Gypsy. All five plaintiffs were orphaned in the Holocaust after losing family members in death camps.
There are only five plaintiffs because in Switzerland, class actions are not permitted. But if the plaintiffs win, their lawyers claim that would pave the way for Gypsy organizations to demand approximately $12 billion in damages.
At least 600,000 Gypsies perished in the Holocaust. And the Gypsies themselves put the figure higher than that -- at over one million. In addition, GIRCA estimates that the number of Gypsies whose parents died in the death camps, or during forced labor, is around 300,000.
Although there have been many recent efforts to provide compensation to Holocaust victims, the Gypsy community is often reported to have received much less in the way of restitution and reparations than others. GIRCA's lawyer, Henri-Philippe Sambuc, says the various recent Holocaust compensation funds -- such as those organized by the Swiss banks and German industry -- have often given Gypsies a much smaller percentage than that to which they were entitled.
Is IBM responsible for the use of its machines?
The suit alleges that IBM aided and abetted the mass slaughter of gypsies by knowingly allowing the Nazis to use its punch-card Hollerith tabulating machines to code, track and identify Gypsy victims.
The Gypsies' suit will turn on whether IBM was responsible for the way its machines were used during the Holocaust. IBM has consistently denied that it was.
During World War II, IBM's German subsidiary was Deutsche Hollerith Maschinen GmbH (Dehomag). (In 1945, Dehomag became IBM Germany.) Dehomag was centrally involved in helping to automate Hitler's Holocaust through its punch card system.
IBM says that by this time this occurred, the Nazis had already taken over Dehomag -- so that IBM had no control over operations there, or over how Nazis used IBM machines.
But the GIRCA plaintiffs maintain that IBM's Geneva office continued to coordinate European trade with the Nazis, based on orders from the company's global headquarters in New York.
Legal claims, and requests for moral reparations
The case bridges the territory between law and morality -- as the complaint shows. The GIRCA plaintiffs are suing IBM for "moral reparation" and $20,000 in damages. And the complaint accuses IBM of "moral wrongdoing" resulting in the death of Gypsies.
Plaintiffs allege that IBM was an accomplice to the Nazi's actions. As I discussed in a prior column, similar theories of corporate responsibility have been advanced in Alien Tort Claims Act suits in U.S. federal courts. But it is interesting to see this argument raised, now, in a court outside the U.S.
The Swiss appeals court found the accomplice claim to be actionable. It wrote:
"It does not appear inconsistent to conclude that the respondent (IBM) facilitated the task of the Nazis in their committing of crimes against humanity -- acts which were counted and codified by IBM machines."
The U.S. class action against IBM was dropped
Interestingly, there has already been a U.S. class-action suit relating to the allegations about IBM and the Holocaust. In February 2001, an ATCA claim was filed in U.S. federal court against IBM for allegedly providing the punch card technology that facilitated the Holocaust, and for covering up Dehomag's activities. But in April 2001, that same lawsuit was dropped.
Lawyers said they feared proceeding with the suit would slow down payments from a special German Holocaust fund created to compensate forced laborers and others who had suffered due to the Nazi persecution. German companies had asked for a release from further legal actions before contributing to the fund.
In the end, IBM's German division paid $3 million into the fund, but made clear it was not admitting liability with its contribution.
The U.S. should not be the only forum for such cases
The Swiss court's decision to allow a case to proceed is a heartening sign to the human rights community. The United States should not be the only forum available to plaintiffs. It is often geographically remote from the place where the harm occurred.
Moreover, other countries, too, have a strong interest in remedying human violations. And now, the Swiss court's ruling has signaled that a European court is also willing to hear claims relating to serious human rights violations.
In the United States, the Alien Tort Claims Act (ATCA) has been an important tool in the fight to provide Holocaust victims and their heirs with reparations. But it is also important that other courts provide for a forum for redress as well -- both for World War II and other past wrongs, and also for more contemporary human rights violations.
Anita Ramasastry, a FindLaw columnist, is an associate professor of Law at the University of Washington School of Law in Seattle, Washington, and a director of the Shidler Center for Law, Commerce & Technology.