Pendas on Ferencz, 'Less than Slaves: Jewish Forced Labor and the Quest for Compensation'

Benjamin B. Ferencz
Devin O. Pendas

Benjamin B. Ferencz. Less than Slaves: Jewish Forced Labor and the Quest for Compensation. Bloomington and Indianapolis: Indiana University Press, 2002. xv + 249 pp. $39.95 (cloth), ISBN 978-0-253-34105-1; $19.95 (paper), ISBN 978-0-253-21530-7.

Reviewed by Devin O. Pendas (Department of History, Boston College) Published on H-German (April, 2005)

Blood from Stones

Although neither revised nor updated, this reprint of Benjamin B. Ferencz's 1979 book on Jewish forced labor under the Third Reich and the attempt by various Jewish organizations to win compensation for former slave laborers from private corporations in West Germany after the war is very welcome. While it does contain a very brief new forward in which Ferencz mentions but does not evaluate in any detail the recent success of former Jewish slave laborers in winning compensation from their erstwhile "employers" in American courts, the core of the book remains unchanged. As such, it serves as a useful reminder that the broader process of Wiedergutmachung, of restitution to Nazi victims, had (and has) a non-governmental dimension in addition to its better-studied governmental dimensions.[1]

This book tells two related stories--as the subtitle indicates. The first is the story of the use of slave labor by German industry during the Third Reich. The second is the story of the dedicated individuals, many of them Jewish lawyers, most of them working for the various interrelated Jewish agencies created to administer the German government's compensation to Jewish victims of the Holocaust, to win compensation from these firms. Anyone expecting an up-to-date scholarly and archivally based history of either will be disappointed, however, for this book is as much a memoir as it is a history. It is a story told very much from the perspective of a participant, for Ferencz was the guiding light behind the efforts to win compensation.

In general, this combination of memoir and history works well in the book. It does mean, however, that the book's use of secondary sources on the issue of slave labor, spotty in the first place and not updated for the reprint, is both limited and out of date.[2] Occasionally, this leads to some debatable interpretations, particularly in the book's brief introduction to the Holocaust, called appropriately enough, a reminder. Ferencz, for instance, claims that there was an explicit secret order to exterminate all Jews, probably in 1939 but certainly no later than summer 1941 (pp. 6-7, 11). At a minimum, this interpretation, a staple at Nuremberg, could no longer be called the consensus view among historians.[3] Similarly, because the story is told largely from an insider's perspective, it tells the reader little about the behind-the-scenes action on the German side of the story or what German business leaders may have thought in private about the demands for reparations. Nonetheless, this limitation does little to undermine the overall value of the book, which is probably better approached as a primary source for the history of efforts to win compensation from German corporations than as a secondary analysis of the use of slave labor.

In this regard, Ferencz is particularly well placed to tell this story. Serving as chief prosecutor at the trial of the Einsatzgruppen leaders at Nuremberg, Ferencz was asked after the trial by various Jewish organizations to help set up and administer compensation to Jewish Nazi victims. As Director General of the Jewish Restitution Successor Organization from 1947 and, after the West German government agreed to pay compensation to Jewish victims in the 1950s, as Director for Germany of the Conference on Jewish Material Claims against Germany and Director of Operations for the United Restitution Organization, Ferencz was centrally involved in the process of Wiedergutmachung. In that capacity, he came into contact with individual survivors seeking restitution from German firms for their use of slave labor and became one of the lead negotiators with several of the firms. Even in those cases where others took the lead in the negotiations, Ferencz remained deeply involved in the efforts. His direct involvement lends the book an immediacy and an anecdotal quality, which is certainly a stylistic, if not always an analytical strength.

Constructed as a series of case studies, the book tells the story of five major firms or conglomerates (I.G. Farben, Krupp, the electric companies AEG, Telefunken, and Siemens, Rheinmetall Berlin A.G., and the Flick concern) and a number of smaller concerns. In each of his case studies, Ferencz intertwines the history of the firm's use of slave labor with that of the efforts by survivor organizations and individual survivors to win compensation after the war. In every case, the efforts to win compensation were complicated by the nature of German civil law and the rulings of the German high court of appeals, the Bundesgerichtshof, as well as by the reluctance of the firms in question to pay compensation. The firms were, according to Ferencz, reluctant to pay due to a combination of moral blindness and a commonsense business fear of open-ended financial obligations. In addition, Ferencz notes the extreme difficulty confronting the Claims Conference, who administered the payouts, in determining who should receive payments when the firms agreed to set up funds for compensation. Since few records survived or were made available, and many survivors were uncertain as to which firms they were actually working for in the camps, it was often extremely difficult to determine whether individual survivors were in fact eligible for compensation. In general, the Claims Conference adopted a cautious strategy in this regard, for fear that an overly generous policy would make additional firms reluctant to make payments in the future, meaning that many deserving victims were doubtlessly turned away empty-handed.

In terms of the legal technicalities, the prospects for class action civil suits by survivors in German courts hinged on three issues: first, whether the plaintiffs could sufficiently prove both that they had worked for the firm in question and that the firm in question had not been compelled to use slave labor by the Nazi regime, second, whether the claims filed in the 1950s were not too late, having missed the filing deadline, where there were conflicting rulings from lower courts as to whether the statute of limitations expired in 1951 or 1957 (p. 131), and finally, whether ultimately, none of this mattered because the claims of the 1950s and early 1960s were in fact being filed too early, since any civil settlement would have to await a final peace treaty formally ending the war, since the use of slave labor had been primarily a governmental, rather than a civil legal matter. While the history of class action litigation is complicated, the upshot was that all civil cases in German courts were ultimately dismissed. In 1963, the matter was finally resolved by the German Supreme Court, which held that class action claims for compensation for slave labor were "dismissed as being unfounded at this time," holding that such claims were in the nature of reparations claims and would have to await a final peace settlement before being litigated (p. 132). Even before this final defeat, however, German firms seemed confident, according to Ferencz, that they had little to fear from civil suits, given the generally hostile reception such suits found in German civil courts.

As a consequence of this judicial animosity, the Claims Conference was largely thrown back on the power of moral suasion and political pressure to try to win compensation for the Jewish victims of slave labor. Lacking the stick of litigation, the carrot of moral persuasion proved to be a limited tool but one that, combined with the threat of bad publicity, especially in the United States, did convince the majority of the most important firms to make payments, if often quite limited in relation to the initial requests. Even the firms that eventually made payments did so reluctantly, however, and frequently demanded that the payments be kept secret, for fear of generating additional claims against them. The firms in question generally viewed these claims as a form of blackmail and, in every case, "tried to minimize the number of claims and to do as little as they could rather than as much as they could" (p. 189). This stinginess was compounded by the acute moral blindness of German business leaders after the war, as evinced particularly in their adamant refusal to take even moral responsibility for the use of slave labor, generally insisting, as did Siemens, for example, that their payments were "based on 'moral contemplations' but not 'moral obligations'" (p. 121). This silence, insists Ferencz, should not be taken as a sign of shame, a tacit recognition of culpability, because, "in the words of Friedrich Flick, 'You will never convince us'" (p. 193).

All in all, this book tells the story of great courage and determination by survivors and their allies to try to compel German companies to make at least partial amends for the use of slave labor during the war. Yet it is also a story of an equally determined refusal to see that past honestly, to own up to it, and to voluntarily try to make it right. As such, whatever its limitations as a historical analysis, it will undoubtedly continue to serve as a valuable starting point for thinking about the efforts to make good again the harm done during the Third Reich.


[1]. See, for example, Ludolf Herbst and Constantin Groschler, eds., Wiedergutmachung in der Bundesrepublik Deutschland (Munich: R. Oldenburg Verlag, 1989); Hans Günter Hockerts and Christiane Kuller, eds., Nach der Verfolgung: Wiedergutmachung nationalsozialistischen Unrechts in Deutschland? (Göttingen: Wallstein, 2003); and Susanna Schrafstetter, "The Diplomacy of Wiedergutmachung: Memory, the Cold War, and the Western European Victims of Nazism, 1956-1964," Holocaust and Genocide Studies 17 (2003): pp. 459-479.

[2]. Missing, for example, are Ulrich Herbert, Hitler's Foreign Workers: Enforced Labor in Germany under the Third Reich (Cambridge and New York: Cambridge University Press, 1997), and Jochen August, Herrenmensch und Arbeitsvölker: Ausländische Arbeiter und Deutsche 1939-1945 (Berlin: Rothbuch Verlag, 1986). Also missing are the numerous local studies of the use of slave labor. See, for example, Helmut Bräutigam, Fremdarbeiter in Brandenburg in der NS-Zeit: Dokumentation zum 'Ausländereinsatz' im früheren Regierungsbezirk Potsdam 1939 bis 1945 (Potsdam: RAA Brandenburg, 1996); Martin Pabst, "Auch vor aussergewöhnlichen Massnahmen ist nicht zurückzuschrecken": Die Fremdarbeiter im Kreis Merseberg während des II. Weltkrieges: Eine Dokumentation (Halle: Projekt Verlag, 1997); or Marcus Weidner, Nur Gräber als Spuren: Das Leben und Sterben von Kriegsgefangenen und "Fremdarbeitern" in Münster während der Kriegszeit, 1939-1945 (Münster: Westfälisches Dampfboot, 1984).

[3]. For an up-to-date summary of the debates surrounding the decision for the Final Solution, see Christopher Browning, "Nazi Policy: Decisions for the Final Solution" in Browning, Nazi Policy, Jewish Workers, German Killers (Cambridge and New York: Cambridge University Press, 2000), pp. 26-57.

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