Gary Fitleberg, May 5, 2005

The Holocaust, Pope and Vatican are part of the darkest period of history. It’s a story that remains in the shadows of the passing of Pope John Paul II, who was instrumental in reconciliation between the Catholic Church and Jewish religion.

Twenty four WWII concentration camp survivors will get another chance in Alperin v. Vatican Bank, 03-15208, to prove that the Vatican Bank and a Catholic religious order illegally profited from the Holocaust.

A split panel of the 9th U.S. Circuit Court of Appeals revived part of a 1999 lawsuit alleging that the Vatican bank, along with several unnamed private banks and the Franciscan Order, accepted valuables stolen by the Nazi-backed Ustasha regime in Croatia and turned them unto cash.

A San Francisco judge dismissed the lawsuit on the grounds that it involved political issues that could not be properly decided by a court.

Two of the three judges, sitting on the Court of Appeals, concluded that some of the Holocaust survivor’s claims can be decided without intruding on U.S. foreign policy.

Judge Margaret Mckeon wrote, "Although the parties have multiple procedural and substantive challenges to overcome down the road, they are entitled to their day -- or years -- in court on the justiciable claims."

The panel of judges upheld the dismissal of broad human rights allegations that the Vatican Bank assisted the war objectives of the Ustasha. However, the panel’s majority reinstated several claims to lost and looted property, including conversion, unjust enrichment and a demand for restitution.

The case provides a rare opportunity for the court to address head-on a legal theory known as the political question doctrine, which basically holds that courts should not interfere with the executive branch’s authority over foreign relations.

During the 1990’s, a flurry of legal activity over Holocaust-era claims, some courts have decided to skirt the political question doctrine while others have concluded it doesn’t apply. Many were dismissed in their entirety while others continue to linger on and on while the defendants stall to bide time so they will not have to pay even one penny.

Circuit Judge McKeon and a senior district judge from northern Illinois, Milton Shadur, concluded that the court’s involvement in the Ustasha case is especially important for the very reason that the State Department has declined to intervene.

Circuit Judge McKeon wrote, "In the landscape before us, this lawsuit is the only game in town with respect to claimed looting and profiteering by the Vatican Bank. No ongoing government negotiations, agreements or settlements are on the horizon."

Senior Circuit Judge Stephen Trott dissented, saying he agrees with District Judge Maxine Chesney that the lawsuit "unmistakably and inextricably raises issues that our Constitution commits to the legislative and executive branches of our government."

Trott described McKeon’s opinion as "well meaning and well-intentioned," but warned against transforming federal courts into "international tribunals." Trott warned, "The majority opinion sends our district judges on a crusade for which they are not equipped and which is doomed to failure."

Paul Vallone of San Francisco, a defense lawyer representing the Franciscan Order, said the dismissal of the war-related claims makes the lawsuit much less likely to succeed. Vallone noted that the plaintiffs face an uphill battle because they haven’t been able to identify which property was stolen or who it was stolen from.

Pope John Paul II’s recent successor to the throne in the Vatican - Pope Benedict XVI -- is a somewhat controversial and dubious figure as far as religious leaders are concerned.

Whereas Pope John Paul II, was in those in opposition to the German occupation of Poland, the new Pope Benedict XVI was once had membership in the Hitler youth movement.

Pope John Paul II made a visit to Israel and the Holocaust Memorial Museum Yad Vashem as well as the "Wailing Wall" to show solidarity and support of Israel during his tenure as the guiding light of the Christian faith. In 1986, John Paul II was the first pope to visit a synagogue.

Alarming is the fact that an acknowledged former NAZI German Soldier would be elected to lead as the prestigious Pope on behalf of the Christian faith

Ratzinger was six years old when Adolf Hitler came to power in 1933. He was briefly a member of the Hitler Youth and served in a German Army anti-aircraft unit during World War Two.

Ratzinger's father, who was a police officer in Bavaria, opposed the Nazis and his efforts to restrain Hitler's "Brown Shirts" in his jurisdiction forced the Ratzinger family to move homes a number of times.

Ratzinger's father left the police force in 1937 and the family moved to a staunchly Catholic city in the Bavaria region. Joseph Ratzinger joined the Hitler Youth at the age of 14, shortly after Nazi authorities made membership in the organization mandatory. However, he shortly left the Hitler Youth to study in a Catholic seminary.

Two years later, Ratzinger was drafted into a German anti-aircraft unit defending a BMW factory that manufactured airplane engines. The factory made use of forced labor from the Dachau concentration camp.

Ratzinger claims he never once fired a weapon and says his rifle was not even loaded during the period of his service.

He was sent by the German army to Hungary where he lay tank traps and witnessed how Jews were send to death camps. Ratzinger fled the German army in April 1944 and spent a number of weeks in a prisoner of war camp.

He and his brother, a retired priest, claimed they were unable to oppose the Nazis.

Although it is certainly possible his weapon was unloaded it is certainly not probable during WWII.

Time will tell. We’ll see.

The jury is still out on the Holocaust, Pope and Vatican. You be the judge!

Gary Fitleberg is a Political Analyst specializing in International Relations with emphasis on Middle East affairs.

Copyright © 2005 Gary Fitleberg