(Corrected Version)

Case No. CV 96-4849 (ERK) (MDG)

(Consolidated with CV 96-5161 and CV 97-461)

Respectfully Submitted to

Special Master Judah Gribetz, Esq.

August 2, 2001

Corrected Version submitted on November 7, 2001

by the

Pink Triangle Coalition

Member Organizations OF THE PINK TRIANGLE COALITION:

Agudah (Association of Gay Men, Lesbians, and Bisexuals in Israel)

European Region of the International Lesbian and Gay Association

Homosexuelle Initiative Vienna

International Association of Lesbian and Gay Children of Holocaust Survivors

International Gay and Lesbian Human Rights Commission

Lesben- und Schwulenverband Deutschland

Mémorial de la Déportation Homosexuelle

Pink Cross, Switzerland

World Congress of Gay, Lesbian, Bisexual, Transgender Jews

Appendices:*

1. Background information from the member organizations of the Pink Triangle Coalition and the Astraea Lesbian Action Foundation

The Pink Triangle Coalition, formalized in February 1998 in Berlin, is an international coalition for coordinating affairs relating to the Nazi persecution of homosexuals. The Pink Triangle Coalition remains the sole international advocacy group for homosexual victims of the Nazis. The mandate of the coalition is two-fold:

Membership in the coalition is limited to international gay and lesbian NGOs and national organizations with particular experience in working on compensation issues or with relationships to the currently existing funds. The following organizations are members of the Pink Triangle Coalition (for more information, see Appendix 1):

Representatives of the Pink Triangle Coalition were officially in attendance at the London Conference on Nazi Gold (1997), and a paper authored by the coalition was published in the official proceedings of the conference. The coalition also sent an official observer to the International Conference on Holocaust Era Assets, held in Washington, D.C. (2000). The coalition has secured allotments from various funds, including U.S. $72,000 in 1999 and U.S. $528,000 in 2000 from the International Nazi Persecutee Relief Fund administered by the United States Department of State.

Pink Cross, a Pink Triangle Coalition member, also was instrumental in securing the equivalent of U.S. $1,300 from the Swiss Humanitarian Fund for each of seven survivors. Altogether, the member organizations of the Pink Triangle Coalition have secured more than U.S. $9,000 for each of the known surviving homosexual victims, as well as cy pres allocations for education and historical research in excess of U.S. $620,000. As with all the victim groups, these amounts represent only a small fraction of the revenues or proceeds transacted through Swiss banks from homosexual slave labor and only a small fraction of the funds likely looted by the Nazis from homosexuals and laundered through Swiss banks.

In February 1998, the Pink Triangle Coalition, together with the Heinrich Böll Foundation, Berlin, convened the Pink Triangle Colloquium, a historic two-day conference in Berlin. The colloquium brought together scholars, homosexual survivors of Nazi persecution, human rights activists, and policy makers to raise awareness and present new documentation about the persecution of homosexual men and women in Nazi Germany. The event drew more than 200 people from Europe and North America.

Established in 1977, the Astraea Lesbian Action Foundation is a U.S.–based public charity with a mandate to advance the economic, political, educational and cultural well-being of lesbians, their families, and their allies working for social justice. Astraea works to educate individuals about money, power, and giving; to expand the community of donors supporting lesbian and gay issues; and to raise funds and distribute them to appropriate organizations, individuals, and projects. Astraea’s programs benefit lesbians, gay men, and all women and girls, both in the United States and internationally, by working to eliminate homophobia, racism, ageism, sexism, heterosexism, economic exploitation, and anti-Semitism.

Astraea’s International Fund for Sexual Minorities was established through a donor-directed grant from the Heinrich Böll Foundation in Germany and through the initial efforts of the International Gay and Lesbian Human Rights Commission. The creation of this fund acknowledges the growing global movement for the human rights of homosexuals and the well-documented need to fight oppression based on sexual orientation and sexual identity. Over the past two-and-a-half decades, the Astraea Foundation has emerged as one of the most recognized foundations in the United States with a substantial international presence working on behalf of sexual minorities.

In 2000, the Astraea Foundation partnered with the Pink Triangle Coalition by serving as the coalition’s fiscal sponsor and distributor of the U.S. $528,000 awarded to the coalition by the United States Department of State from the International Nazi Persecutee Relief Fund. The Astraea Foundation has distributed the following funds consistent with the Pink Triangle Coalition’s proposal to the Department of State:

With regard to the present suit, the proposal hereby submitted for a cy pres allocation supercedes the proposal submitted on February 29, 2000, by ILGA-Europe on behalf of the Pink Triangle Coalition. The coalition withdraws its previous proposal to establish an autonomous foundation. Instead, the coalition now proposes to continue its relationship with the Astraea Foundation, which will serve as the coalition’s fiscal sponsor. Together, the Pink Triangle Coalition and the Astraea Foundation will establish and administer a fund to execute the goals outlined in this document.

The nature of the Nazi persecution of homosexuals, the Nazi regime’s destruction of its records, and the continued state-sponsored persecution of homosexuals after World War II necessarily make incomplete any account of assets looted from homosexual individuals and groups by the Nazis and of funds generated by homosexual slave laborers under the Nazi regime. Because of these powerful extenuating circumstances, the majority of homosexuals who were persecuted by the Nazis have not been located and will probably never be found or accounted for. For this reason, based on the available documents and historical research, the Pink Triangle Coalition believes that a cy pres allocation in the amount of one percent of the common funds is warranted.

Although historians have not yet determined the exact scope of each of the anti-homosexual measures implemented by the Nazi state, it is nonetheless clear that homosexuals as a class suffered severe and extensive harm during the period 1933-1945 as a result of the policies and practices of the regime. As an overarching goal, the Nazis specifically sought to suppress all private homosexual conduct and all public expression of homosexual culture and community in Germany and the annexed territories.

Because the Nazi persecution of homosexuals was distinct in its methods, range and severity, the harm suffered by homosexuals under the Nazi regime differed markedly from that caused by the oppression of homosexuals in Germany in the pre- and post-Nazi periods—and from that in other Western countries during the Nazi period. This harm resulted not only in the loss of intangible assets such as liberty and peace of mind, but also in losses of financial assets and of real and personal property held by persecuted homosexual individuals and groups. The harm suffered by homosexuals as a class as a result of the anti-homosexual policies and practices of the Nazis can be identified at several specific levels, each of them involving economic harm, as well:

The harm suffered by homosexuals as individuals and as a class affected not only the immediate victims, but also their families, friends, and other loved ones, as well as their legal heirs. In addition, this harm severely affected subsequent generations of homosexuals by depriving them of cultural assets and community, by erasing public memory, and by interrupting the heritage of social change that had developed in the pre-Nazi era.

From their early public statements about homosexuality in the late 1920s, through their assumption of power in 1933, and until their defeat in 1945, the Nazis attempted to systematically "eradicate homosexuality from the German nation" by outlawing, stigmatizing, and persecuting expressions of homosexuality. The Nazi regime’s campaign to eradicate homosexuality began with the destruction of research centers, cultural resources, business establishments, communications media, and community organizations throughout Germany. It led to the arrest and imprisonment of approximately 50,000 homosexual men, the deportation of 5,000 to 15,000 homosexual men to slave labor and concentration camps, the subjection of an undetermined number of homosexual male internees to heinous medical experiments, and finally the outright murder of an estimated 3,000 to 9,000 homosexual men identified and interned as such.

During its twelve years in power, the Nazi regime implemented and pursued a staggering array of increasingly repressive anti-homosexual measures. The following are but a few examples:

The legal justification for the Nazi persecution of homosexuals came from a nationalist law called §175 of the Penal Code, which was first enacted in 1871, the year of German unification and the foundation of the Second Reich. The law, amended and expanded in scope by the Nazis in 1935, considered male homosexual acts and sex acts between humans and animals as equivalent crimes:

Although numerous attempts were made to decriminalize private, consenting male homosexual acts in Germany before the Nazi rise to power, the law was not successfully repealed until 1969. Since 1896, for example, Magnus Hirschfeld—the Jewish cofounder of the Scientific Humanitarian Committee, the first homosexual rights organization in the world—had been publishing books and pamphlets that sought to explain homosexuality as a harmless, inborn variation of human biology and had been lobbying on that basis for the repeal of §175. In 1898, the Scientific Humanitarian Committee petitioned the Reichstag to strike §175 from the German Penal Code.

In October 1929, largely due to the lobbying efforts of Hirschfeld and his organization, the Criminal Code Committee of the Reichstag recommended to the full body that §175 be repealed and that consenting adults be granted exemption from legal restriction and punishment regarding homosexual relations. The Nazi Party, however, issued a vitriolic counter-argument in their official party publication, the Völkischer Beobachter. Combining anti-Semitism with homophobia, they directed their response at Hirschfeld:

Less than two years after taking power in 1933, the Nazis significantly expanded the scope of §175 to include virtually any putative sex act between men, including touching and looking, as well as emotional or expressive acts such as hugging. These acts now were punishable by penal servitude of up to ten years and/or imprisonment.

According to a Nazi government report, "Survey by the Reich Statistical Bureau of Sentences for Unnatural Sex Acts in Violation of §175, 175a, 175b," nearly 50,000 convictions were handed down under the provisions of §175 during the Nazi regime. The following chart represents a year-by-year breakdown:

There is no way of knowing precisely the total number of homosexuals targeted by the Nazis actually, and, hence, the per-case dollar amounts of assets taken from persecutees that passed through Swiss banks or other entities cannot be determined with precision. This adds further merit to the Pink Triangle Coalition’s cy pres proposal of a one percent allocation of the funds under consideration.

There can be no doubt that all of those convicted under §175 and §129—and indeed all homosexuals who lived under the threat of Nazi persecution—were potentially subject to blackmail by Nazi officials, looting of personal and corporate property, and enslavement for the purposes of profiteering by the Nazi state or Nazi controlled entities. We can surmise that assets looted from homosexual victims and funds generated through the slave labor of homosexuals were laundered by the Nazis through the Swiss banks in a way consistent with the regime’s laundering of assets seized from other persecuted individuals and groups.

When questioned regarding its position on §175 by the Scientific Humanitarian Committee in May 1928, the Nazi Party articulated a very clear platform on homosexuality:

After the expansion of penalties under §175 in 1935, Himmler spoke triumphantly about the purity of the German nation:

This position is particularly evident in the Nazi propaganda of the purity of the family, the Aryan race, and reproductive politics. In a widely-circulated propaganda poster created by the Reich Committee for the Health of the Nation, the heterosexual family is shown to mirror the health of the German nation (see reproduction below).

"The right choice of mate is the precondition for a worthy and happy relationship. In your choice lies the fate of your race and the fate of the nation."

In considering the Pink Triangle Coalition’s request for a cy pres allocation of one percent of the common funds, it is essential to take into account the context of Nazi persecution of homosexual men and women in Germany and the annexed territories. An understanding of the scope of individual and communal assets that homosexuals had created prior to 1933 provides a basis for estimating the magnitude of the holdings seized by the Nazi state and laundered in whole or part through Swiss bank accounts.

These businesses, organizations and territories made it possible for homosexuals to socialize in an environment free of prejudice, to form bonds of love and friendship, to create supportive social structures, and to build a common culture. From the foundation of these assets, an incredibly rich homosexual cultural and political life flowered in Germany in the first decades of the twentieth century. By the 1920s, dozens of books and periodicals targeting the homosexual market were appearing each year, with some publishing houses specializing in such material; a homosexual theater troupe was staging shows in Berlin; and openly homosexual men and women were leading successful careers as cabaret performers, writers and visual artists, their work often dealing with homosexual themes.

However, the atmosphere for homosexuals in Germany was never entirely welcoming. With the tumultuous political, social and economic climate in Weimar Germany, precursors of the anti-homosexual policies of the Nazi regime began to appear in the late 1920s. In 1926, for example, the so-called Protection of Youth from Obscene Publications Act was passed, significantly dismantling freedom of the press for homosexuals. The law was used to actively restrict the public sale of lesbian and gay periodicals, regardless of cultural, political, or scientific value. Die Freundin, a lesbian magazine, was banned entirely in 1928, and other cultural publications such as Garçonne were barely available to the public.

On January 30, 1933, Hitler was named Chancellor of Germany, and in less than a month, all homosexual organizations and remaining pro-homosexual periodicals were outlawed. This attack on the public culture of homosexual men and women had devastating effects. It marked the defeat of homosexual political reform in Germany, as well as the complete suppression of venues for political dissent and cultural diversity. By outlawing the Scientific Humanitarian Committee and the League for Human Rights, the Nazi government effectively crushed all emancipatory discourses in matters of sexuality. Raids and public denunciations forced many outspoken homosexual activists into silence. Others prudently fled into exile, among them Magnus Hirschfeld, who settled in France.

Soon after, Hitler himself ordered the arrest of homosexual men within the ranks of the Nazi Party, referring to them as "pigs." Hitler clearly demonstrated his will to systematize the state-sanctioned persecution of homosexuals in a memorandum directed to the SA:

In addition to the Nazis’ widespread campaign to suppress the public culture of lesbians, historians have recently discovered archival sources that attest to the fact that in at least a few cases, lesbians were deported to concentration camps specifically because of their sexuality. In documenting the internment of lesbians, Claudia Schoppmann, the leading scholar in this field, also has shown the difficulty of research into this part of history, since lesbian prisoners did not fit under the Nazi category of "homosexual," which was reserved exclusively for men. Schoppmann writes:

In the concentration camps, lesbians interned as such were sometimes marked with a black triangle, designating "asocial" people, or a green triangle, designating common criminals. A number of reports also exist that show that the SS forced lesbians into prostitution in certain concentration camp brothels. Schoppmann writes:

Historians generally agree that between 1933 and 1945 at least 50,000 homosexual men were convicted and imprisoned under §175. Of these, 5,000 to 15,000 were deported to concentration camps. Approximately 60 percent of those deported were killed—and most, if not all, were forced to perform slave labor in the camps where they were interned or in affiliated enterprises. As with the other groups who were persecuted by the Nazis, homosexuals who were imprisoned and interned were blackmailed by Nazi officials, had their assets looted by the Nazis, and were subjected to slave labor for profiteering. Following the historical trends of other persecuted groups, the assets taken from homosexuals and the monies gleaned through homosexual slave labor were undoubtedly funneled in part to Switzerland and diverted into Swiss banks.

Already by the end of 1935, thousands of homosexual men had been rounded up and sent to detention centers and prison camps throughout Germany. Reports of sadistic torture of homosexuals were widespread at the Lichtenberg concentration camp and the Kolumbia-Haus prison beginning in June 1935. The Dachau concentration camp received its first homosexual male internees no later than 1934, and Sachsenhausen and Buchenwald began receiving homosexual men as early as 1936. In 1939, large numbers of homosexual men were deported to the concentration and forced-labor camp of Mauthausen in Austria.

The Pink Triangle Coalition estimates that as many as 15,000 homosexuals qualify under Slave Labor Class I because they were forced to perform work, for little or no payment, for entities under the auspices of the Nazi regime. As was the case with the other victim classes, revenues generated by the Nazis through slave labor were transacted through Switzerland and secured in Swiss banks.

Homosexuals interned as such are known to have been deported, forced into slave labor, and murdered at all of the following concentration camps: Auschwitz, Bergen-Belsen, Buchenwald, Dachau, Demblin, Dora, Emsland, Flossenbürg, Gross Rosen, Mauthausen, Natzweiler, Nieborowitz, Neuengamme, Ravensbrück, Sachsenhausen, and Stuhm, as well as scores of ancillary camps. The following testimonies and statistics give representative accounts of the treatment of male homosexual internees in some of the major concentration camps:

Buchenwald. After October 1938, homosexual prisoners were sent to do quarry work in the punishment battalion. In the summer of 1942, homosexual prisoners worked with other prisoners in the war industry. In 1944, homosexuals worked in centers producing V-2 weapons in the Dora out-camp near Nordhausen. For the years that statistics are available, 1938 through February 1945, about a thousand homosexuals were interned at Buchenwald. Many also were deported from Buchenwald to other concentration camps, including Bergen-Belsen, Dachau, Dora, Gross Rosen, Lublin, Mauthausen, Natzweiler, Neuengamme, Ravensbrück, and Sachsenhausen. Finally, an unknown number died after being castrated and/or subjected to other medical experiments intended to "cure" their homosexuality.

The following report from spring 1945 tells of the situation of homosexuals at Buchenwald. It indicates that homosexuals both labored for the war industry and were targeted for mass murder:

Jaroslav Bartl, a survivor from Buchenwald, testified in 1962 about the conditions of slave labor for homosexuals in Buchenwald:

Sachsenhausen, Flossenbürg, Neuengamme, and Gross Rosen. Several thousand homosexuals are known to have been interned at these camps, and according to reports by prisoners and the SS, hundreds were killed every year. Although documentation is incomplete, about 600 homosexuals were killed in Sachsenhausen alone between 1940 and the middle of 1943. Hundreds more died in the camp before 1940 and after 1943; many more were killed on a death march ordered by the SS when the camp was evacuated in 1945. Of all the homosexual male internees killed at Sachsenhausen, the names of just 300 are now known.

Josef Kohout, a survivor who recounted his story in the first book-length testimony of a homosexual in the Nazi concentration camps, published in 1972, describes the slave labor at the Klinkerwerk, a clay quarry and brick-works affiliated with the Sachsenhausen concentration camp in early 1940:

Kohout was transferred to Flossenbürg on May 15, 1940. He tells of the work that homosexuals were assigned at that concentration camp:

Emsland. At least 2,000 homosexual men are believed to have been interned at this forced labor camp; about two-thirds left the camp by discharge, transfer, or death. More than half of the homosexual internees came from major cities like Berlin and Hamburg. In the camp, prisoners worked as slave laborers for major Nazi building projects, including the construction of systems of drainage and sewage. Historical testimonies place the percentage of homosexuals at forced labor camps like Emsland between 20 percent and 50 percent.

Photograph of prisoners working in the Emsland concentration camp.

Schirmeck-Vorbrüch. Pierre Seel, a French homosexual survivor who remained silent about his experiences for forty years, tells of the work schedule at the concentration camp of Schirmeck-Vorbrüch in the French province of Alsace which was annexed by the Nazis:

In a recent interview with historian Klaus Müller of the United States Holocaust Memorial Museum, a survivor who protects his privacy by using the pseudonym "Heinz F." makes clear the intense personal pain that invisibility and social stigma imposed on homosexual men who managed to survive deportation to the Nazi concentration camps:

The Pink Triangle Coalition’s request for a cy pres allocation finds further justification in light of the continuing persecution of homosexuals after World War II in Germany and Austria. The ongoing legal and social persecution of homosexuals after the defeat of the Nazis made it particularly difficult for survivors of Nazi persecution to come forward. In an article published in a privately distributed newsletter in 1958 under the pseudonym "Bert Micha," a homosexual man who survived seven years in the Nazi concentration camps, summarized the post-war situation in the following words: