Saturday, February 6, 2021

Justices Turn Blind Eyes to Holocaust Victims

            Nine decades later, many of the grievous wrongs of the Holocaust have yet to be redressed, even imperfectly. Two groups of Holocaust victims went before the Supreme Court in December to ask the justices to open federal courthouse doors to their long-delayed pleas for a measure of justice, but the justices turned blind eyes to both groups in companion decisions issued last week [Feb. 3].

The unanimous decisions in Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon blocked two sets of plaintiffs, with U.S. citizens in both groups, from seeking compensation from the present-day German and Hungarian governments for wrongs inflicted by Germany’s Nazi art-looters and Hungary’s collaborationist wartime regime.

Foreign governments generally enjoy sovereign immunity from private lawsuits in courts of other countries, but a reform-minded Congress adopted significant exceptions to that international law principle in enacting the Foreign Sovereign Immunities Act (FSIA) in 1976. The law provides, in a section codified at 28 U.S.C. §1605(a)(3), that foreign governments can be sued in U.S. courts for “property taken in violation of international law.”

The two cases arose from different contexts. In the German case, the heirs of long-deceased German Jewish art dealers claimed in their lawsuit that Hitler’s art-loving deputy Hermann Goering pressured their ancestors, in the early years of Nazi rule, into selling a collection of medieval relics to Prussia’s cultural foundation at the bargain-basement price of $1.7 million in 1935 dollars.  

In the Hungarian case, fourteen Hungarian-born survivors, now living in the United States, Canada, Australia, and Israel, filed a class action on behalf of all Hungarian survivors seeking compensation for the money and property taken from them as Hungarian officials and employees of the state-owned railway confiscated herded Hungarian Jews by the hundreds of thousands on to trains destined for death camps.

The cases attracted relatively little news coverage even though several Jewish groups and Holocaust survivor organizations filed amicus briefs in October urging the justices to rule in the plaintiffs’ favor and allow their suits to proceed in federal courts. Earlier, however, a group of foreign international law experts, organized by two German-born academics, filed an amicus brief that emphatically rejected any exception to foreign sovereign immunity for international crimes or other “grave breaches” of international law.

The amicus briefs filed in support of the plaintiffs included one on behalf of the American Association of Jewish Lawyers and Jurists, written by Arthur Traldi, a Jewish American lawyer and a former war crimes prosecutor before the International Criminal Court. In his brief, Traldi criticized the foreign scholars for what he called their “myopic and decontextualized analysis” of the case.

In their decision, the U.S. justices were no less myopic. In his sixteen-page opinion for the unanimous Court, Chief Justice John Roberts treated the case only as a jurisprudential exercise in how best to apply international law without creating nettlesome issues for future case. Roberts does not refer, even glancingly, to the moral depravity of Germany’s persecution of Jews even in the Nazis’ early years before the death camps.

Roberts instead emphasized the so-called “domestic takings rule,” which protects a foreign government from suit in another country’s courts for a taking of property from its own citizens. That rule is important to limit outside interference with, for example, a country’s decision to nationalize domestic companies owned by, among others, foreign shareholders.

The Trump administration similarly emphasized the “domestic takings rule” in an amicus brief siding with Germany and Hungary in the two cases. The FSIA’s expropriation exception does not apply, the administration’s lawyers wrote, “when a sovereign has taken property of its own nationals,” not even “in the context of a human rights violation.”

The two cases attracted little news coverage even after the justices heard oral arguments on Dec. 7. The arguments prompted one veteran Court watcher, the Washington Post’s always thoughtful columnist Chuck Lane, to echo concerns that Justice Stephen Breyer raised during the session. As Lane noted in a Dec. 28 column, Breyer worried out loud about the possibility that China might haul the United States into a Chinese court to answer for the wrongs done to Chinese laborers in the 19th century or that Japan might require the United States to answer for the wrongs done to the Japanese Americans interned in concentration camps in the United States during World War II.

Roberts closed his syllogism by writing genocide out of the case altogether. “We need not decide,” he wrote, “whether the sale of the [art dealers’] property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights.”

Breyer’s concerns surfaced in Roberts’ final paragraph. “As a Nation, we would be surprised—and might even initiate reciprocal action—if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States Government years ago,” Roberts wrote. “There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.”

By closing U.S. courts to the plaintiffs’ claims, the Supreme Court deprives them of any likely recourse. Two German commissions found, improbably, that the plaintiffs’ ancestors sold the medieval relics to Goering at a fair market price and not under duress. As for the now dispersed Hungarians, they are unlikely to imagine any realistic chance for redress in their former homeland, now led by the anti-Semitic autocrat Viktor Orban.

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