Late Tuesday evening—the day after Memorial Day no less—the United States Office of the Solicitor General filed a brief amicus curiae in our clients’ pending case against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz for restitution of the Guelph Treasure (in German, the Welfenschatz). This brief was in response to the Supreme Court’s invitation in January that the SG file a brief expressing the views of the United States. In an unprecedented abdication of 80 years of leadership redressing Nazi-looted art, the Solicitor General argued that there is no circumstance in which a Nazi-forced sale victimizing a German Jew in the 1930s could constitute a violation of international law such the Foreign Sovereign Immunities Act would confer jurisdiction over either Germany or the SPK. The U.S. government has taken the position that only property claims against non-Germans suffice—even though, of course, the U.S. government has acknowledged in every relevant context since the early 1940s that Jews ceased to be full members of German society on the day Hitler assumed power: January 30, 1933. This is an historic disgrace. Germany has rightly been shamed for minimizing in court over the last five years the genocidal character of its persecution against Jews, but for the United States to do so the day after we rightly honored the hundreds of thousands of Americans who died to defeat Nazi Germany is appalling.
The jurisdictional questions posed by Germany’s petition to the Supreme Court are complicated, which should not obscure what happened on Tuesday. Simply put, Germany has asked the Court to review two questions concerning the 2018 D.C. Circuit Court of Appeals ruling upholding jurisdiction over the SPK: (1) do the allegations of a forced sale of the Welfenschatz in 1935 meet the requirements of the “expropriation exception” of the FSIA (the D.C. Circuit held that they do); and (2) even if so, does the FSIA allow a foreign sovereign to assert prudential exhaustion comity defenses (the D.C. Circuit held that the statute eliminated such defenses). Our clients also filed a conditional cross petition asking that if the Court takes either of Germany’s questions, it also consider the dismissal of Germany as a defendant under the interpretation of the required commercial activity component.
We have covered the decision, and its rationale, before, and need not repeat it here. The comity question is more complex, but boils down to the difference between what is called “adjudicatory comity”—the respect for the judicial or official act of another country (like a final judgment), and “prudential exhaustion”—the idea that a claimant should first go to the courts of the foreign country before suing here. Adjudicatory comity is irrelevant to this case, and the D.C. Circuit held that exhaustion cannot be required under the FSIA. Germany (and the Solicitor General, for many years and not just in our case) disagree. The Supreme Court will decide whether the question requires clarification and the last word, as it should be.
The expropriation exception analysis stands on entirely different footing, however. To qualify for jurisdiction, the claim must “concern rights in property taking in violation of international law,” and the sovereign or instrumentality must be engaged in some level of present-day commercial activity in the United States. Every case to consider the question: against Austria, against Spain, against Hungary, and recently against the Netherlands (Berg v. Kingdom of the Neth., No.: 2:18-cv-3123-BHH, 2020 U.S. Dist. LEXIS 84489, at *4 (D. S.C. Mar. 6, 2020)) has agreed that an art sale forced by a Nazi official is a violation of international law. The D.C. Circuit explained in our case that this flows as a legal proposition in part because—as has been Congressional, Executive, and diplomatic policy for 80 years—the Nazi regime’s art theft was part of the wide effort to destroy Jews’ ability to exist economically. In turn, “All U.S. courts to consider the issue recognize genocide as a violation of customary international law.” Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 675 (7th Cir. 2012). The crimes of genocide include “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” under art. 2(c) of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), Dec. 9, 1948, 78 U.N.T.S. 277.
But let’s back out of the weeds for a moment. The question is really very simple: is a forced sale involving Hermann Goering and attendees of the Wannsee Conference on the one hand and Jewish art dealers on the other hand a violation of international law? Put aside our case entirely here, and assume for the sake of argument that we will fall short in trying to prove that the Welfenschatz transfer was, in fact, a forced sale. But the question before the Supreme Court, and the U.S. brief, assumes that the sale was invalid for the purpose of the discussion. In other words, the United States of America is saying that so long as the victim was a German Jew, an art sale that is indisputably forced can nonetheless never constitute a violation of international law. If applied, this rule would create impunity for a category of Nazi crimes under the very statute (the FSIA) that exist to redress those property claims. The very worst property crimes would be excused from FSIA jurisdiction over property crimes.
The implications of the Solicitor General taking this view can scarcely be overstated. The United States has taken an active role in Holocaust restitution since 1943. With the London Declaration of that year, the Allies announced their intention “to do their utmost to defeat the methods of dispossession practiced by the Governments with which they are at war against the countries and peoples who have been wantonly assaulted and despoiled.” The United States and other Allies reserved their rights to declare property transfers invalid, including “transactions apparently legal in form, even when they purport to be voluntarily effected.” In 1947, the United States and its victorious Allies passed a law, known as Military Government Law No. 59, that provided that transactions involving members of the groups targeted by Germany (principally Jews) were presumptively acts of confiscation and subject to return. At the same time, the heroic work of the men and women of the Monuments, Fine Arts and Archives (MFAA) program (the “Monuments Men”) oversaw the restitution of millions of looted objects to their countries of origin. In 1949, the State Department issued Press Release No. 296, entitled “Jurisdiction of United States Courts Re Suits for Identifiable Property Involved in Nazi Forced Transfers,” which states that “the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.”
Fifty years later, in 1998, the United States reaffirmed its policy of supporting Holocaust-related restitution claims in two important ways. This country hosted the international Washington Conference on Holocaust Era Assets, which resulted in the Washington Principles, and it enacted the Holocaust Victims Redress Act, Public Law No: 105-158 (1998). In 2016, the United States enacted the Foreign Cultural Exchange Jurisdictional Clarification Act, Public Law No: 114-319 (2016) to exclude temporary exhibition loans of cultural objects from “commercial activity” that can satisfy the commercial nexus component of the expropriation exception. Yet while narrowing FSIA jurisdiction, Congress made an explicit exception for claims concerning Nazi-looted art. In other words, in enacting a law that limited the reach of the FSIA expropriation exception, Congress expressly preserved the scope of such claims when they arise out of Nazi confiscation. That same year, the United States enacted the Holocaust Expropriated Art Recovery (HEAR) Act, which expanded the statute of limitations for claims involving art that was confiscated or otherwise misappropriated as part of the Holocaust, and further stated support for U.S.-based lawsuits regarding Holocaust restitution.
On Tuesday the Solicitor General’s office broke faith with that history, the Monuments Men, and with the men and women who fought and died to put a stop to Germany’s genocide. It will be a long time before that stain is removed.