The French Trains were on the Wrong Track

Memory can be painful, even extremely painful. The death on March 8, 2014 of 93-year-old Leo Bretholz has evoked memories of a still painful and controversial issue in wartime France. His small role in history and in current lawsuits in Maryland resulted from his action on November 5, 1942 when he leaped from a train carrying him and a thousand other Jews to Auschwitz. That train, number 42 of the convoys taking Jews on the journey to their death, was operated by the French railway company, the Société Nationale des Chemins de fer Français (SNCF).

The facts are clear, but the context is still disputed. During the World War II years between March 27, 1942 and August 1944, the trains of SNCF transported 76,000 Jews in 74 convoys, mostly from the internment camp at Drancy, near Paris, to Nazi extermination camps. Many died on the trains because of the inhuman conditions, with no food, drink, or sanitary facilities. Only about 3,000 survived and returned to France.

It took some years before SNCF, now state owned, to acknowledge and apologize for its role in facilitating the Holocaust by deporting Jews, but it finally did so, first in Florida where the firm was bidding on a $2.6 billion high-speed rail project in the state. On November 4, 2010, the head of SNCF, Guillaume Pepy, expressed his “profound sorrow and regret” for the consequences of its actions during the war.

He was also remorseful in remarks on January 25, 2011 before an audience of deportees and members of the French Jewish community at Bobigny, a place from which 25,000 Jews were sent to their death. He admitted that SNCF had operated trains up to the German border, but explained it did so under Nazi duress. The company, he said, had acted in accordance with the program of the Nazi occupiers and French collaborators. He held that the composition of the trains, the choice of wagons, the times and routes, were all imposed by the Nazis. Pepy echoed the words of President Jacques Chirac that the criminal madness of the Nazi occupier was seconded, not by the whole nation, but by some French people and by the French State (Vichy).

Critics of SNCF have argued that it has a moral and legal obligation to pay reparations. SNCF has recognized its moral responsibility, and the head of SNCF did apologize. However, SNCF’s legal obligation and accountability are less clear, as has been shown in cases brought against SNCF in France and in the U.S.  Two questions have arisen: was SNCF legally responsible for its transportations; and can it be sued in court, if it was a private not a state company, for compensation for harm inflicted on the deportees?

The first problem concerns reparations.  When Mr. Bretholz and others brought a class-action lawsuit against it, SNCF refused, as it had done in previous cases, to make reparations to those affected by its deportations. The company claimed it had acted under coercion by Nazi Germany that controlled the northern half and then the whole of France.  The question was, and remains, whether SNCF was forced to be a cog in the Nazi extermination machine or did it act to some extent on its own.

The second question is a technical one. In 2011 the U.S. Supreme Court declined to review the ruling of a lower court that the issue of SNCF responsibility was outside the jurisdiction of the U.S. The SNCF argued that it is immune from legal action in the U.S. because of the 1976 Foreign Sovereign Immunities Act. This act imposed limits on suits against a foreign sovereign nation or its agents in U.S. courts. To overcome this restriction, the Holocaust Rail Justice Bill was introduced in U.S. Congress in 2013 to enable the courts to hear claims against a railroad, a separate legal entity, on the basis of deportations to Nazi death camps. So far that legislation providing for Holocaust victims to sue SNCF has stalled.

The issue came up again after the SNCF had won rail contracts in Virginia and Massachusetts, and was bidding for contracts in California and Florida. Keolis, a subsidiary of SNCF, then bid on a $6.5 billion contract to build a 16-mile light-rail network in Maryland, one of the biggest government contracts in the state’s history, and even one of the largest public-private arrangements of any transit project in the U.S.  At this point, Holocaust survivors in Maryland opposed consideration of the Keolis bid until the company paid compensation to those who had been deported by its trains. The survivors argued that their taxes should not go to SNCF or its subsidiaries because SNCF had not paid reparations. The Maryland legislature introduced a bill in January 2014 to prevent the SNCF subsidiary from winning the contract until compensation was paid to the survivors.

The problem goes back to the French-German Armistice Agreement of June 1940 and later agreements. The SNCF would operate the railway network while Germany would supervise operations. Priorities, especially transportation demands, had to be consistent with the priorities set by German authorities. The legal question is whether these arrangements should be viewed as technical cooperation or collaboration?

Was SNCF was merely an instrument of the Nazi war machine or an independent agent? The company claims it was coerced rather than responsible for its actions.

However, the Bachelier Report of 1996 showed that not a single protest against the deportation of Jews ever came from the SNCF itself. Only one engineer refused to drive a deportation train: he was not punished, nor did he lose his job. The report did not agree with SNCF’s contention that it did not have any effective autonomy.

However, the issue is complicated by SNCFs relationship to the Vichy Government and with the Nazi Authorities. At first, SNCF merely consulted with Vichy government officials about transportation operations. But after November 1942, the SNCF was run directly by the Vichy Ministry of Transportation. Its autonomy in essence was reduced to daily management.

The Nazis set up a Transportation Division in Paris in July 1940 to supervise rail operations, but in August 1940 control of operations, except in coastal areas, was returned to France. Germans may have observed operations, but they did not run the trains.

German officials did not issue orders, except when absolutely necessary. When deportation of Jews began, Adolf Eichmann was the individual responsible overall. In these decisions Theodor Dannecker, a ranking SS man, was the representative of Eichmann in Paris. Yet it was SNCF that worked out the operational details, especially those concerning the Vel d’Hiv roundup of 13,000 Jews. The deportation convoys were formed and driven by French rail employees. The difficulty in judgment lies in ascertaining the degree of German supervision over the SNCF personnel.

In his testimony on June 26, 2012 to the Senate Committee of the Judiciary, Serge Klarsfeld, the distinguished and honorable hunter of those who had committed war crimes, said that the SNCF had never acted criminally but was obliged by German and Vichy authorities to cooperate regarding both military and civilian trains on French territory. He held, though others strongly disagree, that SNCF did not make a profit from the deportations of Jews.

The issue must be solved on the basis of justice. At present, negotiations appear to have begun between SNCF and the U.S. State Department about reparations to victims of deportations. France has already made some settlements on other issues. Some French banks agreed to reimburse those whose bank accounts had been seized during World War II, and French insurance companies agreed to honor life insurance policies that covered Holocaust victims.

It is now time for SNCF, even if one accepts it was not directly responsible for participation in the Holocaust, to make a fundamental gesture of reconciliation that will offer reparations to the victims and their families for the inhuman crimes in which it was willingly or unwillingly involved.

Michael Curtis is author of Jews, Antisemitism, and the Middle East.