Supreme Court Will Review Question of Sovereign Immunity for Taking of Assets in Holocaust

The U.S. Supreme Court yesterday granted review in Republic of Hungary v. Simon, (Docket No. 23-867, certiorari granted 6/24/2024) (Order List), a long-running case in which Holocaust survivors have sued to recover the value of property which Hungary expropriated from them during the Holocaust. At issue is whether the expropriation exception to sovereign immunity under the Foreign Sovereign Immunities Act applies so that the suit can be pursued in American courts. Here the seized assets were liquidated, and the proceeds were placed in the Hungarian treasury.  Under the FSIA, those proceeds must have been used in a commercial activity in the United States in order for U.S. courts to have jurisdiction. At issue in the appeal are questions of who must show that commercial nexus.  The D.C. Circuit below in its 2023 decision (full text) which is on appeal began its opinion as follows:

In 1944, as World War II neared its end, the Hungarian government implemented an accelerated campaign to exterminate its remaining Jewish population. Within a matter of months, the government systematically executed over half a million Jews—roughly two-thirds of the Jewish population in Hungary at the war's outset. This state-perpetrated genocidal campaign ranks among the greatest crimes in human history.

The questions raised by these appeals bear on whether survivors of the Hungarian Holocaust may hale the Hungarian government and its instrumentalities into United States courts to answer for a subset of the wrongs they committed—namely, their confiscation of property from victims of the Holocaust.

The SCOTUSblog case page has links to all the pleadings in the case.

European Court: Romania Violated European Convention When It Reversed Conviction of 2 Nazi War Criminals

In Zăicescu and Fălticineanu v. Romania, (ECHR, April 23, 2024), the European Court of Human Rights in a Chamber Judgment held that Romania had violated the European Convention on Human Rights when, in the late 1990's, it reopened the conviction of two Nazi war criminals and acquitted them of war crimes.  As summarized in a press release issued by the Court:

The applicants stated that they felt humiliated and traumatised because of the revision of historically and judicially established facts that, in their opinion, had amounted to a denial of the ethnically motivated violence of which they had been victims during the Holocaust.

The Court held that that the findings of the Supreme Court of Justice – specifically that only German troops had carried out on the territory of Romania actions against Jews and that R.D. had only followed orders issued by a superior – in the acquittal decisions of 1998 and 1999 had been excuses or efforts to blur responsibility and put blame on another nation for the Holocaust contrary to well established historical facts – all elements of Holocaust denial and distortion.

States that had experienced Nazi horrors could be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis. This obligation formed part of the case at issue, where alleged discriminatory acts had been performed by State authorities.  

As matters of public interest, the authorities should have publicised the retrial proceedings and their outcome. The Court found that, owing to that failure, the applicants had found out about them by accident, which could have caused them to feel vulnerable and humiliated. 

The Court was satisfied that the Government had not provided relevant and sufficient reasons for the revision of historical convictions for crimes connected with the Holocaust. The acquittals had therefore been “excessive” and “not necessary in a democratic society”, leading to a violation of Article 8 read in conjunction with Article 14.

In its opinion, the Court quoted findings of the International Commission on the Holocaust in Romania which concluded in part:

Of all the allies of Nazi Germany, Romania bears the responsibility for the greatest contribution to the extermination of the Jews, outside of Germany itself.

The Court's majority refused however to find violations of Article 3's prohibition on torture and inhuman or degrading treatment because these actions occurred before Romania became a party to the European Convention and indeed before the Convention came into existence. A partially dissenting opinion by two judges argued against this part of the majority's decision.

The two survivors who filed suit had not requested damages.  The Court said in part:

[The applicants] contended that the issue in this case was a matter of principle and that no financial compensation could correlate to the mental harm, humiliation and psychological suffering endured as result of the State’s actions. Under these circumstances, the Court considers that there is no call to award any sum in respect of damage.

The Court did award costs and expenses.

President Speaks at Holocaust Museum's Ceremony

President Biden yesterday spoke for nearly 15 minutes at the U.S. Holocaust Memorial Museum's Annual Days of Remembrance Ceremony. (Full text of remarks.) He said in part:

This ancient hatred of Jews didn’t begin with the Holocaust; it didn’t end with the Holocaust, either, or after — or even after our victory in World War Two.  This hatred continues to lie deep in the hearts of too many people in the world, and it requires our continued vigilance and outspokenness.    

That hatred was brought to life on October 7th in 2023.  On a sacred Jewish holiday, the terrorist group Hamas unleashed the deadliest day of the Jewish people since the Holocaust.  

Driven by ancient desire to wipeout the Jewish people off the face of the Earth, over 1,200 innocent people — babies, parents, grandparents — slaughtered in their kibbutz, massacred at a musical festival, brutally raped, mutilated, and sexually assaulted.  Thousands more carrying wounds, bullets, and shrapnel from the memory of that terrible day they endured.  Hundreds taken hostage, including survivors of the Shoah.  

Now, here we are, not 75 years later but just seven and a half months later, and people are already forgetting.  They’re already forgetting that Hamas unleased this terror, that it was Hamas that brutalized Israelis, that it was Hamas who took and continues to hold hostages.  I have not forgotten, nor have you, and we will not forget....

Vice President Issues Statement on Yom HaShoah

Today is Yom HaShoah. The White House has posted a Statement from Vice President Harris on Holocaust Remembrance Day (full text).  The Statement says in part:

[I]n recent days in the United States, we have seen hateful rhetoric and harassment against Jews. This is Antisemitism and must be condemned unequivocally. Hate of any kind has no place in our country.

For the Jewish people, the past seven months have evoked the memories—along with fear and anguish—of the Holocaust. So to all the Jewish people around the world, know this: President Joe Biden and I stand with you. We will fight Antisemitism with the full force of the U.S. government, including through the first-ever National Strategy to Counter Antisemitism. We will continue to stand with the people of Israel and its right to defend itself from those that threaten its existence. And we remain committed to Holocaust remembrance and education.

Like many Jewish Americans, my husband Doug has learned the harrowing stories of his family members that perished in the Holocaust. Last year, he traveled to the town where some of them lived in what is now Poland, and heard stories of family members shot and others who were deported to an unknown fate. He walked through the old Jewish Quarter of Krakow. And he visited Auschwitz-Birkenau, and the gas chambers, to bear witness.

President Biden will deliver the keynote address at tomorrow's commemoration at the Capitol Visitors Center, along with Congressional leaders.

UPDATE: On May 3, President Biden issued A Proclamation on Days of Remembrance of the Victims of the Holocaust, 2024 declaring May 5 through May 12 as a week of observance of the Days of Remembrance.  The Proclamation says in part:

I often reflect on memories of sitting around our kitchen table where my father would educate my siblings and me about the horrors of the Holocaust.  Entire families wiped out.  Communities savagely destroyed.  Survivors left with memories and traumas that will never go away — even as the tattoos etched into their skin by the Nazis fade and the number of survivors dwindles.  My dad taught us that silence is complicity — a lesson I have passed down to my children and grandchildren by taking them to the Dachau concentration camp in Germany.

President Issues Statement on International Holocaust Remembrance Day

Today President Biden issued a Statement (full text) calling attention to International Holocaust Remembrance Day which occurs tomorrow (the anniversary of the 1945 liberation of Auschwitz-Birkenau concentration camp by Soviet armed forces). The Statement reads in part:

Tomorrow ... we join nations around the world and pause to mourn one of the darkest chapters in human history, when six million Jews were systematically targeted and murdered by the Nazis and their collaborators in the Holocaust during the 1930s and 1940s. We also grieve the Roma, Sinti, Slavs, people with disabilities, LGBTQI+ individuals, racial minorities, and political dissidents who were abused or killed. And we honor the courage of survivors and the heroism of people who bravely stood up to the Nazis, risking everything to save innocent lives.

This year, the charge to remember the Holocaust, the evil of the Nazis, and the scourge of antisemitism is more pressing than ever. On October 7 Hamas terrorists unleashed pure, unadulterated evil on the people of Israel....

In the aftermath of Hamas’s vicious massacre, we have witnessed an alarming rise of despicable antisemitism at home and abroad that has surfaced painful scars from millennia of hate and genocide of Jewish people. It is unacceptable. We cannot remember all that Jewish survivors of the Holocaust experienced and then stand silently by when Jews are attacked and targeted again today. Without equivocation or exception, we must also forcefully push back against attempts to ignore, deny, distort, and revise history. This includes Holocaust denialism and efforts to minimize the horrors that Hamas perpetrated on October 7, especially its appalling and unforgiveable use of rape and sexual violence to terrorize victims.

FSIA Precludes Suit Against Hungary for Property Confiscated from Its Jewish Population In Holocaust

In Simon v. Republic of Hungary, (DC Cir., Aug. 8, 2023), in a case on remand from the Supreme Court, the Court of Appeals for the D.C. Circuit held that under the Foreign Sovereign Immunities Act, the government of Hungary may not be sued in United States Courts for taking of property from its own nationals. The court said in part:

In 1944, as World War II neared its end, the Hungarian government implemented an accelerated campaign to exterminate its remaining Jewish population. Within a matter of months, the government systematically executed over half a million Jews—roughly two-thirds of the Jewish population in Hungary at the war’s outset. This state-perpetrated genocidal campaign ranks among the greatest crimes in human history.

The questions raised by these appeals bear on whether survivors of the Hungarian Holocaust may hale the Hungarian government and its instrumentalities into United States courts to answer for a subset of the wrongs they committed—namely, their confiscation of property from victims of the Holocaust. The plaintiffs invoke the Foreign Sovereign Immunities Act’s expropriation exception as a means to pierce the Hungarian state’s sovereign immunity and assert jurisdiction in federal district court. Defendants object that the exception is inapplicable....

Cognizant of the Supreme Court’s recent holding that “a country’s alleged taking of property from its own nationals” generally falls outside the scope of the Foreign Sovereign Immunities Act’s expropriation exception ..., the plaintiffs in these suits assert they were not Hungarian nationals at the time of the takings at issue. They instead claim that they were either stateless or Czechoslovakian nationals. The district court dismissed the claims of the plaintiffs asserting statelessness but concluded that most of the plaintiffs asserting Czechoslovakian nationality could proceed. 

We largely affirm. Like the district court, we conclude that the plaintiffs claiming statelessness ... have not made out a recognized claim within a Foreign Sovereign Immunities Act exception....

We likewise affirm the district court’s denial of the defendants’ motions to dismiss the claims of some of the plaintiffs asserting Czechoslovakian nationality, with a few exceptions....

Judge Randolph dissented as to the plaintiffs claiming Czechoslovakian nationality.

 

Biden Announces Appointments to Holocaust Memorial Council

On Wednesday, President Biden announced the names of ten individuals whom he intends to appoint to the 68-member Holocaust Memorial Council. The President appoints 55 of the members. Presidential appointees serve five-year terms. Among the ten new appointees are Ted Deutch who is CEO of the American Jewish Committee; Rabbi Michael Beals who is rabbi of a congregation in President Biden's home town of Wilmington, Delaware; and Jonathan Lavine who is co-managing partner of Bain Capital.

President Biden Issues Yom HaShoah Proclamation

President Biden yesterday evening at the start of Yom Hashoah issued A Proclamation on Days Of Remembrance Of Victims Of The Holocaust, 2023 (full text). It reads in part:

During Yom HaShoah and throughout these days of remembrance, we mourn the six million Jews who were murdered during the horror of the Holocaust — as well as the millions of Roma and Sinti, Slavs, disabled persons, LGBTQI+ individuals, and political dissidents who were murdered at the hands of the Nazis and their collaborators.  Together with courageous survivors, descendants of victims, and people around the world, we renew our solemn vow:  “never again.”...

Hate must have no safe harbor in America or anywhere else.  Today and always, we make our message clear:  Evil will not win.  Hate will not prevail.  And the violence of antisemitism will not be the story of our time.  Together, we can ensure that “never again” is a promise we keep....

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 16 through April 23, 2023, as a week of observance of the Days of Remembrance of Victims of the Holocaust, and I call upon the people of the United States to observe this week and pause to remember victims and survivors of the Holocaust.

Today Is International Holocaust Remembrance Day

Today is International Holocaust Remembrance Day marking the 78th anniversary of the liberation of the Auschwitz-Birkenau Nazi concentration camp. The commemorative day was established by United Nations General Assembly Resolution 60/7, adopted by the General Assembly in 2005.  A European Union press release describes the EU's commemoration activities. U.S. President Joe Biden issued a Statement (full text) marking the day.  He said in part:

Sadly, we have seen over and over again that hate never goes away. It only hides—waiting to reemerge whenever it is given just a little bit of oxygen. And today, across our country, we are seeing swastikas on cars, antisemitic banners on bridges, verbal and physical attacks against Jewish businesses and Jewish Americans – even Holocaust denialism. It’s vile. It goes against everything we value as Americans. And each of us must speak out against this poison. Together, we must affirm, over and over, that hate has no safe harbor in America. 

Today Is International Holocaust Remembrance Day

Today is International Holocaust Remembrance Day as designated by United Nations Resolution 60/7 (full text), adopted by the General Assembly in 2005.  January 27 is the anniversary of the liberation of Auschwitz-Birkenau. Yesterday, President Biden announced the names of 12 individuals he intends to appoint to the United States Holocaust Memorial Council.  As chair, he will appoint Stuart Eizenstat.

U.N. Adopts Resolution Condemning Holocaust Denial

The United Nations General Assembly yesterday adopted by consensus a Resolution (full text) that condemns Holocaust denial or distortion. The Resolution, among other things, calls attention to the role of social media in spreading disinformation and misinformation. A United Nations press release announcing the Resolution points out:

The vote comes on the same day, 80 years ago, during the Wansee Conference, when top Nazi officials discussed and coordinated the genocide of the Jewish people, establishing the system of Nazi death camps.

According to The Hill, Iran "disassociated" from the Resolution.

Biden Issues Holocaust Remembrance Proclamation

Today President Biden issued a Proclamation (full text) designating April 4 through April 11 as Days of Remembrance of Victims of the Holocaust.  The Proclamation reads in part:

On Yom HaShoah — Holocaust Remembrance Day — we stand in solidarity with the Jewish people in America, Israel, and around the world to remember and reflect on the horrors of the Holocaust. An estimated six million Jews perished alongside millions of other innocent victims — Roma and Sinti, Slavs, disabled persons, LGBTQ+ individuals, and others — systematically murdered by the Nazis and their collaborators in one of the cruelest and most heinous campaigns in human history....

I remember learning about the horrors of the Holocaust from my father when I was growing up, and I have sought to impart that history to my own children and grandchildren in turn. I have taken them on separate visits to Dachau, so that they could see for themselves what happened there, and to impress on them the urgency to speak out whenever they witness anti-Semitism or any form of ethnic and religious hatred, racism, homophobia, or xenophobia. The legacy of the Holocaust must always remind us that silence in the face of such bigotry is complicity — remembering, as Rabbi Abraham Joshua Heschel wrote, that there are moments when “indifference to evil is worse than evil itself.”

Today Is International Holocaust Remembrance Day

In a formal resolution adopted in 2005 (full text), the United Nations General Assembly designated January 27 each year as International Holocaust Remembrance Day. That date is the anniversary of the 1945 liberation of Auschwitz-Birkenau. The United Nations has posted a calendar of events that will mark this year's commemoration.  The United States Holocaust Museum will also be streaming programming to mark the day.

UPDATE: President Biden also issued a statement (full text), saying in part:

Today, we join together with people from nations around the world to commemorate International Holocaust Remembrance Day by remembering the 6 million Jews, as well as the Roma and Sinti, Slavs, disabled persons, LGBTQ+ individuals, and many others, who were murdered by the Nazis and their collaborators during the Shoah. We must never forget the truth of what happened across Europe or brush aside the horrors inflicted on our fellow humans because of the doctrines of hatred and division....

The United States will continue to champion justice for Holocaust survivors and their heirs. We are committed to helping build a world in which the lessons of the Holocaust are taught and in which all human lives are valued.

Facebook Will Ban Holocaust Denial

Yesterday Facebook CEO Mark Zuckerberg announced that Facebook is updating its hate speech policy to ban Holocaust denial on its platform. He said in part:

[W]ith rising anti-Semitism, we're expanding our policy to prohibit any content that denies or distorts the Holocaust...

I've struggled with the tension between standing for free expression and the harm caused by minimizing or denying the horror of the Holocaust. My own thinking has evolved as I've seen data showing an increase in anti-Semitic violence, as have our wider policies on hate speech.

NPR has more on the decision.

Presidential Message On International Holocaust Remembrance Day

Yesterday the White House issued a Presidential Message on International Holocaust Remembrance Day, 2020. (Full text). It says in part:

This year’s annual observance of International Holocaust Remembrance Day is especially moving as we commemorate the 75th anniversary of the liberation of Auschwitz....

Unfortunately, there are still Jewish men, women, and children who face persecution and discrimination today.  To fight the rise of anti-Semitism in the United States, I issued an Executive Order in December of 2019 that will help combat racist, anti-Semitic discrimination.  Anti-Semitism will never be tolerated, and this action bolsters my Administration’s efforts to create a culture of respect that deeply values the dignity in every human life.

Pence Speaks At World Holocaust Forum

Vice President Mike Pence spoke yesterday at the Fifth World Holocaust Forum in Jerusalem. (Full text of remarks.) The event, held at Yad Vashem, marked the 75th anniversary of the liberation of Auschwitz.  The vice-president said in part:

Through pogroms, persecutions, and expulsions in the ghettos, and finally, even through the death camps, the Jewish people clung to an ancient promise that He would “never leave you or forsake you” and that he would leave this people to inherit the land that he swore to your ancestors that he would give them.

And so, today, as we bear witness to the strength and the resilience and the faith of the Jewish people, so too we bear witness to God’s faithfulness to the Jewish people.

UPDATE: On Jan. 24, President Trump issued a Proclamation on National Day Of Remembrance Of The 75th Anniversary Of The Liberation Of Auschwitz, 2020.

European Court Says Conviction For Holocaust Denial Does Not Violate Free Speech Rights

In Pastors v. Germany, (ECHR, Oct. 3, 2019), the European Court of Human Rights in a chamber judgment rejected claims by the chairman of the National Democratic Party of Germany that his criminal conviction for a speech he gave in the Land Parliament of Mecklenburg-Western Pomerania violated his free expression rights under Art. 10 of the European Convention on Human Rights.  Pastors was convicted of defamation and violating the memory of the dead for language in his speech denying the existence of the Holocaust.  The court said in part:

In the present case, the applicant intentionally stated untruths in order to defame the Jews and the persecution that they had suffered during the Second World War. Reiterating that it has always been sensitive to the historical context of the High Contracting Party concerned when reviewing whether there exists a pressing social need for interference with rights under the Convention and that, in the light of their historical role and experience, States that have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis ..., the Court therefore considers that the applicant’s impugned statements affected the dignity of the Jews to the point that they justified a criminal-law response. Even though the applicant’s sentence of eight months’ imprisonment, suspended on probation, was not insignificant, the Court considers that the domestic authorities adduced relevant and sufficient reasons and did not overstep their margin of appreciation. The interference was therefore proportionate to the legitimate aim pursued and was thus “necessary in a democratic society”.

... In these circumstances the Court finds that there is no appearance of a violation of Article 10 of the Convention. Accordingly the complaint must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The court also issued a press release summarizing the decision.

Today Is International Holocaust Remembrance Day

Today-- January 27-- is the date designated by the United Nations as International Holocaust Remembrance Day. The date is the anniversary of the liberation in 1945 of the Auschwitz-Birkenau concentration and extermination camp.

British Musician On Trial For Holocaust Revsionist YouTube Postings

Press Association reported yesterday on the trial in Britain of musician Alison Chabloz who is charged with sending grossly offensive Holocaust Revisionist material on a public communications network.  Chabloz, who is being tried in the Westminster Magistrates’ Court, is charged with 5 counts growing out of her posting on YouTube of videos of three songs she wrote.  Chaboz's attorney is raising a free speech defense. The judge's verdict will be handed down on May 25.  Meanwhile Chaboz is out on bail.

Trump Issues Proclamation On Holocaust Remembrance

Today is Yom Hashoah (Holocaust  Remembrance Day).  Yesterday President Trump issued a Proclamation (full text) asking the people of the United States:

to observe the Days of Remembrance of Victims of the Holocaust, April 12 through April 19, 2018, and the solemn anniversary of the liberation of Nazi death camps, with appropriate study, prayers and commemoration, and to honor the memory of the victims of the Holocaust and Nazi persecution by internalizing the lessons of this atrocity so that it is never repeated.