The Supreme Court on Monday questioned whether descendants of Holocaust victims should be allowed to sue Germany and Hungary in United States courts.
The cases dealt with whether the Foreign Sovereign Immunities Act, which limits the ways American judges can deliver rulings in expropriation crimes that occurred internationally and without the involvement of anyone from the U.S., bar Holocaust survivors from suing their home countries for decades-old atrocities. Foreign governments cannot usually be sued in U.S. courts, except in rare circumstances, such as acts of terror or property confiscation in instances violating international law.
In the German case, descendants of Jewish art dealers are trying to reclaim an art collection confiscated by the Nazi government and now on display in Berlin. In the Hungarian one, concentration camp survivors are seeking restitution from the government and the state-owned railroad MAV for its compliance in the Holocaust. Both claim that the expropriation that occurred during the Holocaust gives U.S. courts standing to intervene.
The U.S. government backed the German and Hungarian governments in both cases, arguing that to allow either to proceed could open the door for a foreign policy nightmare.
The court, too, was wary of making U.S. judges the arbiters of the World War II-era disputes, fearing that hostile countries might use the opportunity to pay the U.S. the same favor. Justice Steven Breyer cited the German government’s petition, which warned that if the U.S. makes judgments in Holocaust cases, other countries could make judgments on slavery reparations in the U.S. Breyer called this a “fairly strong” argument.
“Look what you’re opening up,” Breyer said in reference to a possible list of cases that could be raised against the U.S. “You can have slavery. You can have systematic discrimination. You can have cruel and inhuman, degrading treatment. I mean, the list goes on and on of what violates international law, and many of them involve property.”
The court also weighed the definition of genocide, specifically with regard to property confiscation. Congress several times has indicated that the expropriation of Jewish wealth under Nazi-influenced regimes was an extension of the Holocaust, a definition that prompted the high court to accept both cases in the first place.
Justice Clarence Thomas reexamined that interpretation, saying that he cannot think of a single instance of genocide where expropriation did not also occur — raising the question of whether the actions accompanying the Holocaust uniquely violated international property laws in a way that merited American involvement. Thomas asked if the survivors were employing a “radical” interpretation of expropriation during genocide, marking a departure from long-held understandings of the term.
Nicholas O’Donnell, the attorney representing descendants of the art dealers in the German case, responded to Thomas’s questions saying that the Holocaust was an exceptional type of genocide that was in many ways defined by the widespread loss and destruction of Jewish property.
“There is no paradigm like the Holocaust,” he said. “There is no second case that fits into the allegations of the Holocaust.”
Both Hungary and Germany warned in their petitions that if the court rules in favor of the Holocaust survivors, the decision would create friction between the U.S. and other countries. Deputy Solicitor General Edwin Kneedler, in arguments for the German case, agreed, adding that while the federal government “deplores” what occurred in the Holocaust, both countries already have methods by which survivors can seek restitution.
The cases are among a number of petitions the court has accepted this term dealing with how much the U.S. can intervene in international expropriation cases. The court last week heard a similar case, in which six former African child slaves said they should be allowed to sue American companies for trading with farms that violated human rights. Here, the federal government sided against the former slaves, saying that allowing their case to be heard could imperil U.S. international relations.
The court is expected to make decisions in all three cases next summer.
