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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