Supreme Court wary of having U.S. judges decide Nazi-era claims of forced art sales

 In this Jan. 9, 2014, file photo, a medieval Cross, part of the Welfenschatz, is displayed at the Bode Museum in Berlin.
A medieval cross, part of the Guelph Treasure, or Welfenschatz, is displayed at the Bode Museum in Berlin.
(Markus Schreiber / Associated Press)

The Supreme Court justices on Monday sounded wary of authorizing U.S. courts to decide Holocaust-era claims brought by Jewish survivors or their heirs, voicing concern that it might open the doors to a flood of lawsuits filed in the U.S. against foreign governments accused of atrocities or injustices that occurred abroad.

The court weighed how to handle two pending lawsuits. In one, the heirs of three Jewish art dealers are suing Germany and its state museum for what they describe as a forced sale of the Guelph Treasure to the Nazi regime in 1935. In the other, a handful of Holocaust survivors sued the Hungarian state railroad for taking all their possessions before shipping them in rail cars to Nazi death camps.

In both cases, the court has to rule whether these claims may be tried before a federal judge or dismissed because Germany and Hungary have a “sovereign immunity” from being sued in the United States.


“When a complaint alleges that foreign parties harmed other foreign parties in a foreign country,” the court should dismiss the suit and tell the plaintiffs to sue in the country that harmed them, Gregory Silbert, a New York lawyer representing Hungary, told the justices in Hungary vs. Simon.

He said that as a matter of diplomatic relations, countries have agreed that they will not sue each other in courts. And this principle was put into federal law in the Foreign Sovereign Immunities Act of 1976.

But the federal appeals court in Washington refused to dismiss the suits, ruling that sovereign immunity does not shield foreign countries for an “expropriation” of property that violates international law — in this instance, as part of a campaign of genocide.

“Consider the facts of this case which arise out of the worst atrocities in human history,” said Sarah Harrington, a Washington lawyer for the Hungarian plaintiffs. “Here Hungary took everything the plaintiffs owned, including possessions necessary to survive, such as shelter, clothing and medicine, and the undisputed purpose of Hungary’s takings was to bring about the physical destruction of Jews in Hungary. That is genocide.”

She said many of the survivors were never treated as Hungarian citizens. And she said Hungary, unlike other countries in Europe, has not responded to claims arising out of the Holocaust.

In the second argument, a lawyer representing Germany argued that Congress in 1976 meant to allow suits against Communist states that were “engaging in widespread expropriation of property from American nationals.” But that exception was narrow and applied only to property taken by a government and owned by foreigners, not citizens, said Jonathan Freiman, an attorney from New Haven, Conn.


But several justices raised issues with making that distinction. Justice Neil M. Gorsuch pointed out that “the Jewish victims of the Holocaust were deemed noncitizens, stripped of their citizenship.”

Through most of the argument, the justices sounded uncertain as to how they would decide. They commented that they were reluctant to open the door broadly to claims involving foreign atrocities but were not firmly settled on the legal basis for throwing out these two suits.

Boston attorney Nicholas O’Donnell, representing the heirs to the Jewish art dealers, argued that Jews were targeted as soon as the Nazis took power and could not protect themselves under German law.

“The Nazis deemed German Jews to be non-German, aliens outside of the rule of law, at the moment the regime began on Jan. 30, 1933, and took their property because of who they were,” he told the court in Federal Republic of Germany vs. Philipp.

But most of the justices sounded skeptical of allowing that suit to proceed.

Last week, the court sounded a similar theme when hearing suits over whether chocolate companies based in the U.S. or with operations here, including Nestlé, can be sued in federal court based on allegations that children were brutalized at cocoa plantations in West Africa. Lawyers said the companies were not aware of the abuse and had no role in it.