SCOTUS should allow survivors’ claims to be heard

Last week, the Supreme Court heard arguments on whether United States federal courts can hear cases for property damages brought by survivors of genocide against foreign nations that have committed systematic crimes that violate the fundamental laws of human decency. 

The lawsuits were brought by Holocaust survivors in two separate cases in the federal district court in the District of Columbia. 

In Republic of Hungary v. Simon, et al, 14 survivors, four of whom are American citizens, sued Hungary and its national railroad. During 1944, the Hungarian railroad transported hundreds of thousands of Hungarian Jews to Nazi death camps. In the aftermath of the Second World War, the railroad has flourished as an artery for transportation in Hungary. This case was filed as a class action seeking compensation for the “wholesale plunder” of property owned by survivors prior to their deportation.

The second case is Federal Republic of Germany v. Simon. This case was filed by Holocaust survivors who claim they are owed just compensation for a coerced sale at a discount price of a fabulous collection of Christian religious artifacts known in German as the “Welfenschatz” or Guelph Treasure. Today’s market value of the treasure has been estimated at $250 million. It is undisputed that the Nazi warlord Hermann Göring negotiated a sale of the collection for about 35 percent of its market value in 1935. The artifacts were depicted in the film, “The Monuments Men.” Göring, a notorious hoarder of fine arts, delighted in going through the motions of sham negotiations. He solicited sales prices of countless Jewish art dealers and owners but bought at a huge discount. He took full advantage of the Holocaust’s pressures on Jewish art dealers and collectors.

Göring gave the valuables to Hitler as a surprise present, one of many gifts he bestowed on Hitler to maintain his position in the Third Reich. The 42 remaining pieces of the Guelph Treasure are presently housed in the Museum of Decorative Art in Berlin.

Hungary and Germany have asked the Supreme Court, and lower courts, to dismiss all claims of Holocaust survivors by invoking the Foreign Sovereign Immunities Act. As a general rule, this law provides that foreign governments are immune from suit in American courts. 

However, lawyers for the Holocaust claimants argued that an exception to the general rule applies where property has been expropriated “in violation of international law.” The crime of genocide clearly violates international law. One form of genocide recognized under international law is the systematic confiscation of the property of a religious group, ethnic group or cultural minority. If the Supreme Court rules in their favor, the claimants cases will be returned to the trial court where they will have the opportunity to prove their claims. 

Two different panels of judges of the federal Court of Appeals for the District of Columbia ruled that the systematic financial exploitation of Jews in both cases was a form of genocide, illegal under international law. Based on these findings, the Court of Appeals ruled that the separate cases against Hungary and Germany should proceed at the trial court level and claimants in both cases should be provided an opportunity to prove their cases.

Curiously, the Trump administration filed briefs and argued that claims in both cases should be dismissed because of our national interest in protecting international comity, or harmony, in international relations; that is, the United States should respect the rights of Hungary and Germany to determine these matters, and, in return, those nations should respect the exclusive role of American courts to decide disputes of our own citizens.

In understanding the background of these cases, it is vital to remember that a primary motive of the Holocaust was the Nazis’ systematic stripping of wealth and property from Europe’s Jews. As Edwin Black, the eminent historian, proved in his chilling account of the extent of the Nazis’ organizational skills, IBM produced special punch cards for the Nazis so that they could collect detailed data on the financial holdings of virtually all of Europe’s Jews. Then, with brutal efficiency, Hitler’s Reich proceeded to confiscate property of Jews, from their precious treasures, like the Guelph Treasure, down to their eyeglasses and gold fillings.

At its core, the Supreme Court must decide if Hermann Göring’s coerced purchase of the Guelph Treasure for a fraction of its value was part of Nazi Germany’s genocide of the Jews. The High Court may also decide if cases arising from genocide may be heard in American courts.

At oral argument last week, the justices, through their questions, appeared wary of the many ripple effects of a favorable ruling for the claimants. Once American courts open their doors to cases claiming horrific property damages because of genocide, a flood of new cases could emerge.

The Supreme Court should open the door wide enough for the claims against Hungary and Germany to be determined in American courts. A German government agency determined that Göring’s purchase of the Guelph Treasure was “a voluntary, fair-market transaction.” Such a finding is inconsistent with American norms of justice, and the Supreme Court should carefully craft a narrow exception to allow these cases to be determined on their merits.

A version of this editorial appeared in the Jewish Herald-Voice. It is reprinted with permission.

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