The United States Supreme Court.
NEW YORK -Jewish organizations and a group of Holocaust scholars have submitted briefs asking the Supreme Court to uphold a decision that would allow heirs to property stolen by the Nazis to have their cases heard in American courts. In addition to ruling on two long-litigated cases, the decision could have broad repercussions for Holocaust restitution in general, as it could give claimants an additional recourse to pressure recalcitrant owners and countries on claims.
The higher profile of the two cases in question was brought by heirs of owners of a multi-million-dollar art trove, known as the Guelph Treasure or Welfenschatz, against the German government. After a German commission dismissed a claim that the works had been sold under duress from the Nazi regime, the claimants took their case to U.S. courts.
Lawyers for the Prussian Cultural Heritage Foundation, which oversees Berlin’s Bode Museum, where the collection is on display, have argued that the doctrine of “sovereign immunity” protects them from litigation in a foreign legal system.
The case is joined with another years-old battle of a group of descendants of a Hungarian Holocaust survivor against the Hungarian government over property that was seized during and after the Second World War. Both cases have been bundled together and are set to be heard by the Justices on December 7.
At issue is the scope of the Foreign Sovereign Immunities Act of 1976 (FSIA), a law designed to keep disputes with foreign governments out of U.S. courts.
In 2017, the United States District Court for the District of Columbia ruled that the group claiming the Guelph Treasure could pursue their claims in American courts, saying that the FSIA does not apply since the property in question was seized as part of a genocidal plan against the Jewish People, hence covered by an exception for matters linked to violations of human rights and international law.
The ruling has been appealed by the German government, which argues that such an exception does not apply to actions taken by a country against its own citizens, which the plaintiff’s ancestors were at the time the treasure was transferred to the Nazis. Germany’s claim is being supported by the U.S. government, which argues that opening too wide a loophole in FISA could create impasses to foreign policy.
A brief submitted on behalf of the National Jewish Commission on Law and Public Affairs (COLPA) umbrella organization, authored by attorney Nathan Lewin, focuses largely on the point that in Nazi Germany, the Jewish owners of the Welfenschatz had been largely stripped of their status as citizens and lacked the protections of their own nation’s legal system.
“Once one acknowledges that Jews residing in Frankfurt in June 1935 were not citizens of Germany because, unlike non-Jewish citizens, Jews were legally unable to obtain ‘redress’ for governmental takings of their property, the decision of the district court, affirmed by the court of appeals, should be affirmed regardless of the resolution of the legal issue presented by the petition for certiorari and argued in the briefs of Germany and the Solicitor General,” says the brief.
The COLPA brief’s line of reasoning is backed up by a separate brief filed by a group of Holocaust scholars who seek “to correct misimpressions in other briefs filed in this case relating to how the Holocaust developed in Germany.”
Submitted on behalf of eight internationally recognized experts on the Holocaust, their brief focuses on the historical backdrop against which the treasure was sold.
“German Jews, including the Consortium members, ceased to possess the full and equal rights of German nationals — and were viewed and treated increasingly as aliens and strangers in their own land,” reads the brief. “Jewish businesses and assets were targeted for forced sale at less than full value. Property theft and appropriation were not tangential or opportunistic in the Nazi program.”
The German government contends that the Welfenschatz’s transfer was conducted as part of a legitimate sale since the owners were paid for the goods. Plaintiffs counter that the transfer was coerced and that their antecedents received a fraction of the fair market value. The scholars quote several studies showing a pattern of such coerced transfers from Jews following the Nazi’s rise to power and paint the phenomenon as part of a plan that led to and accompanied genocide.
“Market manipulation and forced sales also were common in the German art market between 1933 and 1935. In the words of Raul Hilberg, such transfers occurred ‘in pursuance of “voluntary” agreements between Jewish sellers and German buyers’…The word “voluntary” belongs in quotation marks because no sale of Jewish property under the Nazi regime was voluntary in the sense of a freely negotiated contract in a free society.’”
The Guelph Treasure includes dozens of gilded and jeweled reliquary art from the 11th to 15th centuries that belonged to Prussian aristocrats from the House of Brunswick. In 1929, the Duke of Brunswick sold off the collection, with 82 items going to a consortium of Jewish art dealers — Saemy Rosenberg, Isaak Rosenbaum, Julius Falk, Arthur Goldschmidt and Zacharias Hackenbroch.
Over the next few years, the pieces were displayed throughout Europe and America, and many were gradually sold off to museums and private collectors.
In 1935, the remaining 40 items were sold to a German Bank acting as an agent for the Prussian State, which at that time was led by Herman Goering, who, in addition to his positions as commander of the Luftwaffe and president of the Reichstag, served as the region’s prime minister.
In 2008, a group of descendants of members of the consortium advanced a claim that the owners had been forced into the sale by the Nazi regime as part of a plan hatched by Goering and Adolf Hitler to “save the Welfenschatz.” Furthermore, they claimed that the money was never fully accessible to the dealers as much of it was claimed by the state in “flight taxes” — duties set up to strip Jews and others who fled Nazi Germany of their wealth. Some estimates put the collection’s present-day value at $250 million.
In 2012, a German commission that deals with Holocaust-era claims issued a non-binding advisory that the sale was not “coerced” and did not recommend return of the Guelph Treasure to the claimants.
In 2015, three of the descendants, Jed Leiber, Alan Philipp and Gerald Stiebel, filed their complaint in U.S. courts, eventually leading to their Appeals Court victory.
Beyond the cases in question, the prospect of the descendants of Holocaust survivors being able to advance claims against foreign nations could begin a new era in attempts to reclaim property seized by Nazis and their collaborators and later re-appropriated. This could be especially true for those who have attempted such claims in nations like Poland, which has long gained a bad reputation for the impasses its legal system presents to restoring property to the heirs of its pre-war owners.
Noting that the broader issue before the courts focuses not on Holocaust reparations but on the boundaries of the FISA, the U.S. government has expressed sympathy for the plaintiffs’ cause, but warned of what it sees as the deleterious effects of them succeeding in court.
“The court of appeals’ interpretation would force courts to make sensitive foreign-policy determinations regarding the existence and scope of a genocide or other human-rights violation merely to assess jurisdiction. Such determinations would not only give courts a role in foreign affairs far beyond what Congress (or the Constitution) intended, it would also place the United States at odds with consistent international practice, under which a sovereign’s immunity is not disturbed even in the face of alleged human-rights violations abroad.”
COLPA’s brief, however, insists that Germany’s actions in 1935 fall comfortably outside the parameters of the FISA, and insists that it is the court’s moral obligation to see that the matter is righted.
In their brief, they quote a verse from Sefer Melachim I (21:19): “Have you murdered and also inherited?” And they add, “Elijah’s remonstrance applies, we submit, to Germany.”