Supreme Court: FSIA Shields Germany From Suit Over Nazi Takings of German-Jewish Property

Yesterday in Federal Republic of Germany v. Philipp, (Sup. Ct., Feb. 3, 2021), the U.S Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) precludes plaintiffs from filing suit in U.S. courts to recover for Jewish property taken by the Nazi government from German nationals.  Plaintiffs sued over the Nazi government's coercing a consortium of German Jewish art dealers to sell an art collection to Prussia at a one-third of its value. The FSIA provides that foreign countries, with certain exceptions, are immune from suit in U.S. courts.  Plaintiffs contended that the exception for cases  "in which rights in property taken in violation of international law are in issue" should apply because the coerced sale of their property was an act of genocide.

 A unanimous Supreme Court rejected plaintiffs' argument on two grounds. First it held that the exception for property taken in violation of international law does not include expropriation of property from a country's own nationals. Second it held that the exception for property taken in violation of international law does not apply to property taken in violation of international human rights law, saying in part: 

We need not decide whether the sale of the consortium’s 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. We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property.

The Court yesterday also remanded Republic of Hungary v. Simon, (Sup. Ct., Feb. 3, 2021), for further consideration in light of tis decision in Germany v. Philipp. That case is a class action claim for property taken by the Hungarian government from Hungarian Jews during the Holocaust.

SCOTUSblog discusses the decisions.

Supreme Court Hears Arguments On Suits Over Nazi Confiscation of Jewish-Owned Property

The U.S. Supreme Court today heard oral arguments in two cases involving suits to recover the value of Jewish-owned property confiscated by governments in Hungary and Germany during World War II. In Republic of Hungary v. Simon (links to transcript and audio of full oral arguments), the Court was asked to decide on whether principles of international comity could be invoked by the district court to abstain from deciding the case under the Foreign Sovereign Immunities Act. The case was brought by surviving Hungarian nationals seeking to recover on behalf of a worldwide class the value of property taken from them during the Holocaust.

In an amicus brief, the United States government argued:

The United States has a paramount interest in ensuring that its foreign partners establish appropriate domestic redress and compensation mechanisms for Holocaust victims, and therefore seeks to prevent litigation in U.S. courts that could undermine that objective.

SCOTUSblog case page has links to all the filing in the case. 

In Federal Republic of Germany v. Philipp (links to transcript and audio of full oral arguments), the Court, in addition to the comity question, is asked to decide whether the expropriation exception to sovereign immunity in the Foreign Sovereign Immunities Act covers the taking of property in the Holocaust in violation of human rights provisions of international law. The suit seeks recovery for the forced sale at a fraction of its actual value of a collection of medieval reliquary art that had been purchased in 1929 by a consortium of Jewish art dealers in Germany.

SCOTUSblog case page has links to all the filing in the case.

AP reports on the arguments in both cases.

Nazi Symbols On 75-Year Old POW Gravestones In VA Cemeteries Raise Protests

Yesterday, bipartisan leadership of the House Veterans Affairs and Appropriations Committees wrote the Secretary of Veterans Affairs (full text of letter) demanding removal or alterations to the gravestones of three World War II German POW's in VA cemeteries.  According to the Military Times earlier this month:

At issue are three grave sites at two VA cemeteries: Fort Sam Houston National Cemetery in Texas and Fort Douglas Post Cemetery in Utah. Both were used to inter dozens of unclaimed remains of enemy troops following World War II.

While most of the foreign troops’ grave markers list only names and dates of death, the three in question are also engraved with with a swastika in the center of an iron cross and in inscription in German which reads “He died far from his home for the Führer, people and fatherland.”...

Veteran Affairs officials in a statement said the headstones date back to the 1940s. Army officials oversaw both cemeteries at the time and approved the inscriptions and inclusion of the swastika.

“The National Historic Preservation Act of 1966 assigns stewardship responsibilities to federal agencies, including VA and Army, to protect historic resources, including those that recognize divisive historical figures or events,” National Cemetery Administration spokesman Les' Melnyk said in response to questions about the graves.

“For this reason, VA will continue to preserve these headstones, like every past administration has.”

Military Religious Freedom Foundation which originally called attention to the gravestones has background and further information.