The Supreme Court is set to decide if victims of anti-Semitic persecution can sue Germany and Hungary for World War II-era crimes.
The cases, both scheduled for Monday arguments, raise the thorny question of whether U.S. courts can make rulings about crimes that occurred internationally, with no American involvement. The court this term is addressing a series of such cases, despite the opposition of the Trump administration, which argues that wrapping up the United States in international litigation could create a foreign policy nightmare.
Foreign governments cannot usually be sued in U.S. courts, except under certain circumstances, such as acts of terror or acts of property confiscation violating international law. Plaintiffs in the German and Hungarian cases argue that their suits should be heard on the basis of the latter circumstance.
The German case, Germany v. Philipp, arose in response to a 1935 incident where Nazi officials forced Jewish art dealers to sell to the government a collection of Prussian religious items at a heavily discounted price. The heirs of the dealers, some of whom are American citizens, are suing Germany to reclaim the collection, which is currently in a Berlin museum.
The Hungarian case, Hungary v. Simon, is similar. Fourteen Holocaust survivors, four of whom are naturalized American citizens, are suing the government and the government-owned railroad for participating in the shipping of Jews to death camps. They are seeking restitution for the property that the government confiscated at that time.
The D.C. Court of Appeals, in 2018, approved Hungary to move forward, stating that Hungary’s “genocidal expropriation” of Jewish wealth in World War II violated international law and made the U.S. the proper venue for the case. That year, the court approved Germany for similar reasons, calling Nazi art-looting an extension of the Holocaust.
Germany and Hungary pushed back separately, each saying that the U.S.’s own checkered history with human rights puts the country at risk of incurring similar lawsuits against itself should the court allow the cases to move forward. Referencing the current national debate over reparations for slavery, attorneys for Hungary said that it is just as improper for a Hungarian court to deliver rulings on the antebellum South as it is for a U.S. court to involve itself in Nazi-era atrocities.
“No one seriously believes … that a Hungarian judge, applying domestic Hungarian law, should decide these sensitive issues and impose liability on the United States,” attorneys wrote in their brief. “For the same reasons, a U.S. court should not adjudicate this case against Hungary.”
Attorneys in the Solicitor General’s office concurred, noting that while the U.S. “deplores” the actions of the German and Hungarian governments in the Holocaust, it believes that allowing domestic courts to intervene in either case would “undermine” the justice due to victims and threaten post-war European harmony. Instead, the federal government argued, plaintiffs should attempt to win their cases in German and Hungarian courts.
Attorneys for Germany made a similar argument, writing in their petition that if the case moves forward, it will destabilize “longstanding understandings of foreign sovereign immunity and international comity,” risk “endangering U.S. foreign relations,” and invite “foreign states to allow suits against the U.S. in their courts for this nation’s own historical wrongs.”
The Supreme Court on Tuesday 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. The federal government also sided against the plaintiffs, warning that hearing the case could open the U.S. to increased international litigation.
