Even though in wartime France, under the Vichy regime headed by Marshal Pétain, people behaved in a manner thought necessary for survival, the issue of legal as well as moral judgment has arisen again in lawsuits involving the actions of the Societé Nationale des Chemins de Fer Français (SNCF), the French railroad system, during World War II. For a long time there was denial and an eerie silence on the part of postwar French authorities in general, and the SNCF in particular, about their participation in the Holocaust. Only on November 4, 2010 did Guillaume Pepy, the present chair of the SNCF, issue a statement that "The Nazis and their French Vichy collaborators directed these terrible actions," and conveyed "profound sorrow and regret for the consequences" of the acts of SNCF. Those acts were the transport in French trains of 76,000 Jews in France to the death camps.
Pepy again spoke on the issue in January 2011 in Bobigny, a suburb of Paris, the depot and transfer point from which 22,000 Jews who had been interned at Drancy were shipped to Auschwitz and other places. He then said "In the name of the SNCF I bow down before the victims, the survivors, the children of those deported, and before the suffering that still lives." He pledged that a memorial would be built at Bobigny to commemorate the victims.
Whether this pledge was sincere or cynical is a matter of judgment particularly in view of the eagerness with which the SNCF has been a bidder to build lucrative high-speed rail projects in Florida and California, where a number of Holocaust survivors still live.
Opposition from Holocaust survivors in these two states has arisen because of the fact that the SNCF has never made any restitution or reparations to the victims. In spite of these recent expressions of regret, the company is still unwilling to provide compensation to survivors for its wartime actions, all of which have been amply documented. From March 27, 1942 to August 17, 1944, in French trains, the SNCF transported 76,000 Jews in 75 convoys from French camps to the death camps. Fewer than 3,000 would return.
Two facts make the participation of the SNCF in the Holocaust even more jarring. One is that the transports continued into August 1944, two months after the Allied landing on D-Day and a week before Paris was liberated. The other is the Germans paid SNCF per head and per kilometer for a third class ticket for the victims who, in fact, were cheated even in this way by being transported, in about 3,000 cattle wagons, each usually containing 50 people. Accounts of those transports indicate that conditions were horrendous: long trips lacking elementary hygiene, and with minimal food and water supplies. The SNCF was well paid for its activities; it even continued to reclaim payments of bills after the liberation.
Did the SNCF have any choice other than to transport the 76,000 Jews to death camps? By an agreement of June 30, 1940, Germany approved the principle of French operation of the French railroads under German supervision. Like other French agencies, the SNCF willingly undertook the services required by the Nazis. Although it did in reality have a margin for manoeuvre and to undercut orders, it ran the transport trains without any secrecy on regular schedules, in full knowledge of the ultimate fate of the Jewish passengers. It never tried to delay a train or to prompt sabotage. Except in a few cases, orders were carried out without protest or resistance. The railcars were disinfected after each deportation and prepared for the next shipment. Senior rail officials accompanied the trains to the French border.
Those officials justified their behavior in two ways. One was that the SNCF was simply applying the laws and rule of the Vichy government. The other was that they were forced to comply with the Nazi demands. These arguments are not only morally putrid and inhumane; they were also refuted -- albeit indirectly: the SNCF was not specifically mentioned by name -- by the French Conseil d'État in February 2009, when it declared that the state, at that time governed by the Vichy government, was responsible for facilitating the deportation of Jews. Both the Vichy government and the SNCF were now seen to have committed crimes against humanity.
The arguments of the SNCF officials are fallacious. Only one SNCF worker, a man named Léon Bronchart, refused on October 31, 1942 to work on a convoy. He was given only a brief suspension for his action; he has been honored by Yad Vashem in Jerusalem as a "righteous gentile." His action showed that acts of courage and refusal to comply with unjust orders were possible without serious punishment.
On the actions of the SNCF, the official, impartial report by Christian Bachelier is devastating. Bachelier found no record of any official protest by SNCF against the deportations. He concluded that, right from the start, representatives of SNCF were involved in the technical details of transport. The SNCF participated in the events following the roundup of 13,000 Jews in Paris on July 16, 1942, 8,000 of whom were held in the Vél d'Hiver cycling stadium, since demolished. The SNCF also managed the transport of these Jews to the camps of the Loiret. In addition, the SNCF managed the transport of Jews from the "free" Vichy area to occupied northern France. The French convoys of these victims, openly and fully listed as part of European railroad scheduling agenda, were formed, routed, and driven by French railroad employees.
The moral case against SNCF is clear; more in question is the legal argument. The SNCF was formed on January 1,1938 by the consolidation of five privately owned rail companies; the French state owned 51% and subsidized it. During World War II, between 1940 and 1944, it remained a private enterprise, controlled by the Vichy government, but was acquired by the French state only after the war. On December 31, 1982 all assets of the SNCF passed to the state; thus SNCF became a state-owned body without any change to its corporate form.
Up to 2001 the French government and its agencies were immune from prosecution because they, including SNCF, claimed sovereign immunity. This immunity was lifted in 2001 and therefore agencies could be sued. Further, because it is partly state-owned, the SNCF has continued to claim protection under the U.S. 1976 Foreign Sovereign Immunity Act.
Holocaust survivors and descendants of those transported have in recent years, both in France and in the U.S., sought financial compensation as well as SNCF acknowledgment of guilt. A lawsuit was brought in France by Alain Lipietz on behalf of his uncle and his half-brother, who had been transported in 1944 from Toulouse to Drancy, the French antechamber of Auschwitz. In June 2006, the court in Toulouse found the SNCF guilty of collaborating with the Nazis in deporting the two men. Even though both men survived the war, the SNCF was fined 61,000 euros for this act. However, in the Court of Appeals in Bordeaux, in March 2007, the case was dismissed. The case then went to the Conseil d'État, the French administrative court of last resort, which, without commenting on the substantive issues, concluded on December 21, 2007 that it lacked jurisdiction in the matter as the grievance was not a French state issue. Its rationale was that although the SNCF during the war was a mixed enterprise, essentially it was a private company.
After the Lipietz trial hundreds of other survivors filed similar claims. As France has no class-action suits, the SNCF has to answer each claim, which leads to individual lawsuits. Since the decision of the Conseil d'État, however, the French courts are closed to individual suits against SNCF.
In the U.S., a class-action suit (Abrams v. SNCF) was brought on behalf of over 300 survivors. The court held in December 2001 that it lacked jurisdiction because SNCF was an agency or instrumentality of a foreign state protected under the U.S. 1976 law. The plaintiffs appealed, arguing that at the time the actions occurred, the SNCF was not a state agency. But the charges that SNCF had committed war crimes and crimes against humanity were dismissed by the U.S. Court of Appeals for lack of jurisdiction. It held that the "evil actions" of SNCF were not "susceptible to legal redress in U.S. federal court today."
Another lawsuit (Freund v. SNCF), filed in March 2006 by 26 persons who were then joined by 400 others, charged that the SNCF collaborated with the occupation authorities, complied with their instructions and profited from its actions. The main attorney for the plaintiffs, Harriet Tamen, contends that SNCF was an independent commercial and economic entity and therefore can be sued.
There is no French government fund with a finite amount with which to compensate victims. Ms. Tamen contends that the only specific fund was established by French banks -- with no funding from the government -- to make restitution for funds that were taken from Jewish account holders but which were never returned. The lawsuit she is conducting is not against the government but against a privately owned French company alleged to have been involved in war crimes and crimes against humanity. However, the Second Circuit Court of Appeals in September 2010 held that immunity still applied to SNCF.
In all these legal encounters the SNCF has used contradictory, but successful, arguments. In the French case, it argues that the court has no jurisdiction over it because it was a private company. In the U.S., it argues that courts have no jurisdiction over it because it was not a private company but an arm of the French government.
To overcome the obstacles a bill, the Holocaust Rail Victims Justice Act, was introduced in the US Congress in March 2011 to allow US citizens and others to make claims and to take action against railroad companies that had deported them or their relatives to Nazi concentration camps on trains owned or operated by those companies. The bill would waive the claim of the SNCF that it is shielded by foreign sovereignty protection. At this point, August 2012, the bill has not passed.
Some French historians and official Jewish community leaders, including Roger Cukierman , head of CRIF (the official organization of French Jews), and Serge Klarsfeld and his son Arno, have opposed or been neutral to the claims against the SNCF on the grounds that it was acting under duress, under orders, and that it has been more forthright than other French bodies in explaining its wartime activities. But it is difficult to accept this perspective of SNCF in view of the recent statements of Mr. Pepy that "the French and their Vichy collaborators directed these terrible actions." The time is long overdue for reparation to be paid.
Michael Curtis is author of Should Israel Exist? A Sovereign Nation under attack by the International Community.