The US supreme court is wrestling with the vexed question of whether art and other property stolen by the Nazis from Jews in Germany and Hungary can be recovered or recouped through the US courts.
On Monday, the nine justices heard oral arguments in two cases.
One case related to a group of 14 Holocaust survivors from Hungary, some of whom are now US citizens. The plaintiffs are seeking compensation from Hungary’s state railway company for property that was taken from them and their families as they were being transported to Auschwitz and other concentration camps.
The other case has been brought by the heirs of a consortium of German Jewish art dealers who bought the Welfenschatz, the Guelph Treasure of medieval Christian art. About half of the collection of valuable crucifixes and altars was acquired by Prussia, with enthusiastic backing from Adolf Hitler, at a knocked-down price in 1935.
Today, several of the pieces are displayed at the Museum of Decorative Arts in Berlin.
The heirs, including two US citizens Gerald Stiebel and Jed Leiber, argue in Germany v Philipp that the sale was forced on their relatives as part of the Nazi persecution of the Jews. Having failed to recover the collection – now valued at at least $250m – through German channels, they opened a lawsuit in federal court in Washington, arguing that the artworks were stolen from their families in violation of international law.
Both cases will test the limits of the jurisdiction of US courts in the handling of claims that directly target foreign governments. In general, sovereign states are immune from lawsuits heard by US courts.
But in 1976 Congress introduced a law known as the Foreign Sovereign Immunities Act (FSIA) that created an exception to such immunity in cases in which property is taken “in violation of international law”.
In oral arguments heard over the telephone because of the pandemic, lawyers representing the German and Hungarian governments argued that the case should be dismissed because it was taking the FSIA exception too far. They warned that if the supreme court allows the reach of US courts to expand in this way, it could risk friction in foreign relations and provoke retaliatory action against the US.
Several of the justices – from both the majority conservative and liberal wings of the supreme court – indicated on Monday that they were uneasy about restricting the jurisdiction of US courts in these cases. The chief justice, John Roberts, challenged the argument put forward by Germany that Congress intended the FSIA exception to relate to Soviet expropriations of property and not Nazi genocide.
Clarence Thomas put a similar point more bluntly. “Just imagine there’s a campaign of genocide and as part of that there’s an effort to take all the property including jewellery, art and even the extraction of gold teeth. You could go down the list of the awful things that were done.”
Germany disputes that the Guelph Treasure was sold under duress as part of the Nazi genocide. It claims that the reduced sale price of the artworks was a result of deflation from the Great Depression.
One of the contentious elements of Monday’s cases is that the Trump administration has backed both Germany and Hungary in calling for the suits to be thrown out of court. In a brief supporting Germany, the acting US solicitor general Jeffrey Wall argued that Nazi theft of property from Jews amounted to “domestic takings” by a government of the property of its own citizens, and therefore was not covered by the international law exception which only relates to foreign nationals.
That reading of the law has been hotly contested.
A decision in both the German and Hungarian cases is likely by the end of June.
