Although foreign governments usually cannot be sued in American courts, exceptions for acts of terrorism or acts of property confiscation violating international law have been made.
By Jackson Richman, JNS
The U.S. Supreme Court will hear two cases on Dec. 7 related to the issue of Holocaust restitution.
The court will decide if the United States has the jurisdiction, in accordance with the 1976 Foreign Sovereign Immunities Act, to rule about crimes that happened abroad where there was no American involvement.
Although foreign governments usually cannot be sued in U.S. courts, exceptions for acts of terrorism or acts of property confiscation violating international law have been made in the past. The plaintiffs in both cases, Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon, will seek to have their cases heard based on the latter.
“The Foreign Sovereign Immunity Act gives our courts jurisdiction over lawsuits alleging property was taken in violation of international law—for instance, if the perpetrators took it as part of an effort to deliberately create conditions of life which were calculated to destroy a religious or ethnic minority group, and so violated international law by committing genocide,” Arthur Traldi, who was of counsel in filing a brief on behalf of the American Association of Jewish Lawyers and Jurists in support of the petitioners, told JNS.
“Our courts have jurisdiction as long as there is a sufficient commercial nexus to the United States, whether or not the plaintiffs are United States citizens,” he continued. “The lower courts found a sufficient commercial nexus as to these defendants, and that issue is not on appeal.”
In Federal Republic of Germany v. Philipp, the Supreme Court will hear the case about a German art museum and whether or not a treasure trove known as the “Guelph Treasure” (or “Welfenschatz”) should be returned to the heirs of four Jewish art dealers in Germany.
The dealers have argued that they were forced to sell it to the Nazi-controlled Prussian government in 1935 in what they called a “genocidal taking.”
The collection, worth around $225 million, consists of medieval church relics and was owned by the House of Guelph in 1671 until it was sold to a group of art dealers in 1929. The items currently sit in the Kunstgewerbemuseum (Applied Arts Museum) in Berlin.
‘It cannot defend its action’
In a May 26 filing, then-U.S. Solicitor General Noel Francisco argued that the heirs have failed to make the case—in accordance with the Foreign Sovereign Immunities Act—that the collection was confiscated “in violation of international law” in that the Nazi seizure was domestic. That law includes limitations as to whether a foreign sovereign nation may be sued in U.S. courts, either state or federal.
Francisco also noted that although the 2016 Holocaust Expropriated Art Recovery (HEAR) Act “demonstrates Congress’s concern with art seizures that occurred as part of the Holocaust,” that law doesn’t “create a cause of action in U.S. courts” for the heirs’ case.
Michael Bazyler, a law professor who is an expert on Holocaust restitution and joined a group that filed a brief in support of the plaintiffs, told JNS that “depending on how the justices decide, it will determine the viability of suing European countries that participated in the Holocaust in the United States.”
“The case will also determine the viability of filing suits in American courts for Nazi-looted art against museums, galleries and other private collectors that have such art in their collections, especially art located in Europe,” he said.
Bazyler called for the Supreme Court to “make clear that the Holocaust began in 1933, and reject the specious argument made by Germany and supported by the United States that German Jews had civil rights before the start of World War II and before the beginning of the mass murder that began in 1941.”
Nathan Lewin, national vice president of the National Jewish Commission on Law and Public Affairs, filed a brief in support of the plaintiffs in the case against Germany. He emailed JNS that the Supreme Court “should take judicial notice of the indisputable fact that Jews in Frankfurt Germany (like the owners of the Guelph Treasures who had to capitulate to the proposal made by Hermann Goering through a bank intermediary) were not ‘citizens’ of Germany in June 1935 even though the law that stripped them of citizenship was not enacted until September 1935.”
Lewin went on to claim that “Germany violated international law principles by extorting the Guelph Treasures from individuals who did not have the rights of all other non-Jewish German citizens, and it cannot now defend its action because of the rule supported by the solicitor general that says that the Sovereign Immunities Act would relieve Germany of liability in a U.S. court.”
‘Win something without doing much for others’
In Republic of Hungary v. Simon, the Supreme Court will hear the case of 14 Holocaust survivors—four of whom are naturalized U.S. citizens—suing the Hungarian government and the government-owned railroad for their role in transporting Jews to death camps. They are seeking restitution for the property that was confiscated by the government at that time.
Jeremy Rabkin, a constitutional and international law professor at the Antonin Scalia Law School at George Mason University, told JNS that because questions surround the jurisdictional aspect, even if the plaintiffs win in any or both of the cases, they would be sent back to the lower courts for years of litigation in which the petitioners could lose and not get restitution.
On the other hand, in the case against Germany, the victims could “negotiate a compromise settlement” that would probably include “a stipulation that Germany does not regard the payment (for this case) as acknowledging liability for similar cases later on,” explained Rabkin. “So the plaintiffs can win something without doing much for others in their situation.”
In the case against Hungary, he said the “justices are likely to be very wary of letting this go forward”; doing so could raise foreign-policy problems at a time when we’re all supposed to be welcoming a return of improved U.S.-European relations.”
Rabkin cautioned that if the case against Hungary goes forward, it could set a precedent for cases in U.S. courts against other countries. “The trend of Supreme Court rulings over the last 20 years has been rather cautious toward transnational litigation, in part because justices recognize the foreign-policy complications,” he noted.
‘Likely to be deployed against Israel’
The World Jewish Congress, Holocaust Survivors Foundation USA, along with other groups and individuals, filed amici curiae briefs in support of the victims in both cases. An amici curiae brief was also filed on behalf of a group of members of the U.S. House of Representatives in support of the victims in both cases.
Traldi remarked that “the United States has worked around the world for decades to give Holocaust survivors and their heirs a chance to realize their moral rights to restitution for the mass thefts that were part of the Shoah. Congress has found restitution is in our national interest. Preserving access to American courts for survivors and their heirs is a vital part of that process.”
Rabkin said that while “everyone feels sympathy for Holocaust victims,” he warned that the precedents surrounding the cases “are likely to be deployed next against Israel.”
“Arab claimants will say the [Israel Defense Forces] destroyed their homes—or the Irgun did in 1947—and Israel needs to compensate them,” he said. “They will say they have no more chance of getting a fair hearing in Israeli courts than Hungarian refugees in Hungarian courts.”
In an email, Rabkin also warned that Arab petitioners will say “it’s all connected to genocide or enough so to justify property compensation claims. And there’s [no] statute of limitations, so no reason not to dredge up claims from the 1940s … as the U.S. Supreme Court has just agreed is proper,” although he predicted that the court likely won’t rule in favor of the plaintiffs in the cases that will be heard on Monday.
Stuart Eizenstat, a longtime diplomat who has made the issue of Holocaust restitution part of his life’s work, said contrary to Rabkin’s claim, that while the cases won’t cause Arab plaintiffs to sue the Jewish state, instead of using the power of the Supreme Court, it’s best to have governments like that of the United States use their power in leveraging foreign governments and entities to give Holocaust-era restitution.
One example he cited was that in 2014, as special advisor for Holocaust issues in the U.S. State Department, a position he still holds, he got a French railway company, SNCF, to give $60 million in compensation to Holocaust survivors deported by the railway during the Nazi takeover of France.
In 1998, while serving in the U.S. State Department, Eizenstat got a Swiss bank to give out $1.25 billion in claims to Holocaust survivors.
“All of these were done because of the reputational damage that would’ve been done to the companies if they hadn’t settled, and because the U.S. government chose to make it a priority, and to elevate the issues and to insist that justice be done quite apart from the legal technicalities,” he told JNS. “So what could happen [in the Supreme Court cases] is the same thing, trying to find ways in which these can be mediated.”
Were the plaintiffs to win, while it would ultimately be up to Hungary and Germany in their respective cases to issue restitution, neither country would want to ignore the highest court in the United States, stated Eizenstat, who declined to take a position on the cases due to his current role in the Trump administration.
On an interesting note, Lewin’s brief includes a biblical quote in the original Hebrew.
From Kings I (“Melachim Alef” in Hebrew), it challenges what Lewin called “Germany chutzpah in taking this issue to the Supreme Court by quoting what Elijah said to King Ahab after Ahab’s Queen Jezebel had arranged to murder Naboth so that Ahab could seize Naboth’s vineyard. … ‘Have you murdered and also inherited?’ ”