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The first thing Mathilde Freund wants to talk about regarding her lawsuit against the French national railways company for deporting her husband to a Nazi concentration camp isn't money or even justice. It's about the feeling of standing at the railway station and watching the train pull away, knowing that the one you love is on it and not knowing if he's ever coming back.
"People were being pushed into the train like animals, I could not get close enough to find him, or I would have been pushed in like an animal too... The screaming I never will forget," said Freund, 93, sitting in a coffee shop near her apartment on the Upper West Side of New York.
Freund is part of a class action lawsuit in New York, on behalf of more than 600 survivors and their relatives who say their property was stolen from them by France's government-owned railroad, Societe Nationale des Chemins de Fer Francais, when victims were loaded onto trains bound for Nazi-run concentration camps. The total value of the items taken is not known, but they included the kinds of precious items most people would take if they had to leave home with only one suitcase - jewelry, antiques, fur coats and money. The suitcases that were taken from the train's unwilling passengers were piled a meter high on the platform, several survivors interviewed for this article recalled.
As a young bride, Freund fled with her husband from their home in Vienna to Lyon, France. Her husband, who fought in the French army before they were forced to go into hiding when German soldiers arrived, went into town the morning of September 17, 1943, to get food, but he never returned. Freund searched for him, before finally making her way to the railway station in the center of town.
When she got there and saw the people being shoved into railway cars, she was shocked to find that half of the officials pushing people into the cattle cars were not German soldiers, but employees wearing the dark blue uniform of the French national railway company.
Freund's husband, Fritz Freund, was taken to a holding camp in Compeigne in northern France, and then to Buchenwald. She received several postcards from him once he arrived, including one requesting quinine for a malarial infection he contracted while on duty for the French army in Morocco. The last postcard she received came in June 1944. Her husband was killed on January 31, 1945, just three months before the camp was liberated.
More than 70 years later, Freund can still remember the certificate she received from the French government, sent to all families of former French soldiers: "Mort pour la France" - "Dead for France." She takes a pad and writes the phrase so hard the paper almost rips, still visibly angry the country her husband risked his life for as a soldier had helped send him to his death. The day Fritz Freund was taken he was wearing a gold wedding band, a wristwatch and a pocket watch his father had given him, and he had quite a bit of money with him, Freund said.
"I would be glad if I got some [compensation], just to have a little more comfort," said Freund. "The scar is still open, and it still bleeds. I just want that finally justice should be done."
The US Court of Appeals for the Second Circuit in New York heard arguments last week about whether victims and their family members can still recover for this loss, so distant in time and place from the original events. It likely will not release its decision until February at the earliest.
THIS IS THE second time survivors have tried to sue the French railway company for its role in deporting Jews to Nazi concentration camps. The first case against the French government and railway company accused the railroad of participating in crimes against humanity. It went all the way up to the Supreme Court, which sent it back to the lower courts for rehearing. But in 2004, the Supreme Court decided that a 1976 act granting immunity to foreign governments and companies for war crimes could be applied retroactively, meaning the French railway was exempt for its conduct in World War II, and the lawsuit was dismissed.
The current case, for theft of property, tries to take advantage of an exception to the act, which says companies can still be sued for property stolen that is connected with commercial activity in the United States. The case was rejected by a lower court in Manhattan last December, which said US courts do not have jurisdiction because there is no evidence that the property stolen in France during World War II is currently owned or operated by French railways in the US.
This is the wrong interpretation of the law, Isaac Lidsky argued on behalf of the survivors in court last week. The question is not whether the property stolen is now in the United States. It is whether the company which stole it owns land and does business there. Rail Europe, a subsidiary of French national railways, has an office in New York and makes $100 million in profit here, according to financial statements from 1999 provided for the lawsuit.
French railway employees helped German soldiers load Jews onto trains bound for Nazi concentration camps, Andreas Lowenfeld, the lawyer for French railways, acknowledged in court. But no one knows anymore whether the valuables were sold and the money used to fund the railway company, or if instead the suitcases were simply thrown into a warehouse and forgotten about. Moreover, finding out the truth would be almost impossible, Lowenfeld said, given that any employee who was 25 years old at the time would now be 95.
"Congress did not mean for us to be a claims court for the whole world," Lowenfeld added in a phone interview. "The issue of compensation should be left up to the French to decide."
Harriet Tamen, one of the other lawyers for the plaintiffs, disagreed with the argument that American courts are too removed to allow survivors to seek justice for the Holocaust there.
"This is not distant in time for Mathilde Freund, who still remembers every detail of what happened to her. It's not distant in space for the French railway company, which is doing business here every day," said Tamen, from her office in Manhattan.
"They've never denied that they did wrong. They're using [the question of] jurisdiction to dodge responsibility for the past. That's just not acceptable."
If the survivors lose the appeal, their nine-year legal battle, which has already gone once to the Supreme Court, will be all but over. Their only remaining option would be one final appeal to the Supreme Court. They will also lose their last hope of receiving compensation from French railways for its role in shipping 56,400 Jews to concentration camps, less than 3 percent of whom survived.
Many of the victims have already received small handouts of around $1,500 under a French government compensation scheme. But the money provided by the French government does not cover French railways, Lidsky noted. A group of Holocaust survivors also attempted to sue the French government and railway in France, and were awarded $20,000 by a lower court. But French railways appealed their portion of the settlement and won, eliminating any possibility for the victims to receive compensation through the French legal system.
Tamen acknowledged the lawsuit has a political component. Convincing the US court system to send a strong message that war crimes cannot go uncompensated is part of the point, she said.
"There is a collective memory loss in France [about the country's role in the Holocaust]," she said. "France was not an occupied country. It was a collaborationist country."
Tamen, who specializes in corporate, not international, law, was persuaded to take the case because of her belief that France must face this legacy or be doomed to repeat it.
Several of the victims - most of whom are now US citizens - echo her desire to fight what they view as national amnesia in France about the extent to which French citizens cooperated with the Nazis.
"It makes the French feel better to think of themselves as resisters," said Leo Bretholz, who leapt from one of the French trains bound for Auschwitz when he was 21 years old. "But someone had to do the dirty work of cleaning out the cars. They knew nobody ever came back. They just tried to close their eyes and ears."
Although French national railway employees began sabotaging trains as an act of communist protest after Hitler invaded Russia, they never touched a single train bound for the concentration camps.
"The French could have sabotaged our trains, but they didn't," said Abe Dresdner, who was sent to a concentration camp on a French train in 1940, when he was 12. "It was not the French helping the Germans. It was more like the Germans helping the French."
He returned to France for the first time several years ago, but said he's "disgusted" with the unwillingness of the French to acknowledge or apologize for the past.
Even if the survivors win this appeal, their lawyers still have to begin the torturous process of uncovering evidence that is now more than 70 years old, and it will be at least several more years before the case is resolved. Many of the victims, such as Freund, are in their 90s. French national railways has dragged the case out for nearly a decade in hopes the company will never have to pay, several of the victims claimed.
"There is no way it should have taken them 65 years to pay out," Dresdner said. "They're waiting until we're all gone."