Liberating the Nazis’ “Last Prisoners of War”: How Citizenship Considerations Can Challenge Recent Supreme Court Decisions on Holocaust Restitution
In February 2021, the Supreme Court decided two cases that threaten to narrow the avenues available to Holocaust survivors looking to obtain restitution for property stolen from them as a part of the larger Nazi genocide. [1] The cases were remanded and are currently being heard by lower courts, where, if argued persuasively, the claimants can salvage a vulnerable avenue of restitution for their stolen property — the “last prisoners of war.” With every tick of the clock, the world is left with fewer living survivors and refugees of the Holocaust who can demand justice from the countries that deprived them of their humanity, rights, and loved ones.
Even in this climate of urgency, securing restitution is a difficult and frustrating process for many survivors seeking justice—the youngest of whom are about eighty years old—and their heirs. Since the end of the Second World War, the United States has demonstrated a commitment to facilitating restitution for the property seized from Jews during the Holocaust. In 1976, Congress enacted the Foreign Sovereign Immunities Act (FSIA) that offered to lighten these burdens by enabling claimants to sue foreign states in U.S. domestic courts, allowing them to avoid exorbitant European court fees in courts that historically tended not to rule in their favor. [2] More recently, the United States convened the 1998 Washington Conference Principles on Nazi-Confiscated Art and enacted the Holocaust Expropriated Art Recovery Act in 2016, both of which promote fair and accessible means of restitution for Nazi-stolen property. [3]
The United States has historically championed national and international efforts to return Nazi-stolen property to its rightful owners. This positive trajectory is jeopardized by the Supreme Court’s flawed interpretation of legislation that discounts historical facts and legal precedent.
The FSIA codified international sovereign immunity law, which protects foreign nations from legal proceedings in U.S. domestic courts. [4] However, Congress outlined potential exceptions in the act, granting U.S. courts jurisdiction over cases “in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state.” [5] This clause, known as the “expropriation exception,” allows U.S. courts to hear cases in which a foreign nation expropriates property tied to the United States, in a manner that violates international law. [6]
The first case to successfully invoke the FSIA expropriations exception as an avenue for restitution against a foreign state was the landmark Republic of Austria v. Altmann (2004) decision. The case was brought by Maria Altmann, a Jewish woman born in Austria who escaped following the country’s annexation by the Nazis in 1939. Upon learning that six valuable paintings previously owned by her family, including Gustav Klimt’s “Portrait of Adele Bloch-Bauer,” were looted by the Nazis and possessed by the Austrian Gallery, Altmann filed a claim against Austria in an American federal court under the expropriation exception of the FSIA. Upon certiorari, Austria argued that the FSIA could not be applied retroactively to events that occurred before its enactment, yet the Supreme Court sided with Altmann, concluding that the wording of the legislation “suggests Congress intended courts to resolve all such claims ‘in conformity with the principles set forth’ in the Act, regardless of when the underlying conduct occurred.” [7] Thus, the Altmann decision opened a new avenue to gain Holocaust restitution.
The legal precedent set in Altmann of the FSIA’s functionality as a tool for restitution in cases of expropriation in violation of international law is currently threatened by two Supreme Court rulings made in 2021. In the first, Republic of Hungary v. Simon (2021), the Supreme Court held that the FSIA, regardless of takings made in violation of international law, cannot grant U.S. courts jurisdiction over foreign matters. The case was brought by Rosalie Simon and other Jewish survivors of the Holocaust against the Republic of Hungary. Simon sought compensation from Hungarian railways for property stolen from them during their deportation to their likely death in the Nazi camps. Hungary, applying the jus cogens (customary) principle of comity, argued that granting U.S. courts jurisdiction over foreign matters posed a risk to peaceable diplomacy. [8] The doctrine of comity, outlined in Hilton v. Guyot (1895) states that comity “in the legal sense, is neither a matter of absolute obligation…nor of mere courtesy and goodwill…But it is the recognition which one national allows within its territory to the legislative, executive or judicial acts of another nation… .” [9] In Simon, the Court argued that employing the FSIA to secure compensation from another sovereign nation undermined the customary practice of giving deference to the legal systems of foreign sovereign nations to limit the jurisdiction of American courts, even in cases of blatant genocide. [10] The majority opinion in Simon is predicated on the prioritization of diplomacy over the commitment of the United States to facilitate compensation for Holocaust survivors, thereby undermining the precedent that deemed the FSIA invokable in cases of restitution.
The second case heard by the Supreme Court, Federal Republic of Germany v. Philipp (2021), employs a flawed interpretation that discounts critical historical facts to, once again, prevent the application of the FSIA in restitution cases. In Philipp, the petitioners, heirs of Jewish art dealers, sought restitution from Germany for the Guelph Treasure, a collection of medieval relics that they learned was forcibly sold to the Nazis below market value in 1935. Invoking the FSIA expropriations exception, the petitioners argued that the Nazi takings were considered genocidal themselves, and were thus a violation of international law. Although this argument was accepted by the U.S. Appeals Court for D.C., the Supreme Court rejected it upon certiorari. The Philipp Court invoked the “domestic takings rule,” which would bar U.S. interference in instances of domestic takings made by a foreign state in relation to its own citizens. Thus, the Court ruled that the FSIA could not be used to file claims against a foreign nation’s domestic takings. Philipp, along with Simon, was remanded to lower courts to determine whether the art dealers “were not German nationals at the time of the transaction.” [11]
By answering the question posed by the Supreme Court of whether the Jewish petitioners lacked the citizenship of the respective countries, claimants have the opportunity to highlight an argument that had not been focused on in the several year-long spans of these proceedings: that the Jewish petitioners were not citizens of the respective countries at the time of the takings. If made successfully, this argument can abrogate the “domestic takings rule” as the foreign nationals did not take property from their own citizens.
For this argument to succeed, historical evidence must be brought to corroborate their lack of citizenship. As early as 1933 when Hitler was appointed Chancellor, the Nazis denaturalized German citizens whose loyalty to the Reich was doubted, including German Jews of Romanian, Polish, or Russian descent. [12] “Non-Aryans” were barred from employment as civil servants and lawyers, doctors were prohibited from treating non-Jewish patients, and the government claimed the authority to confiscate Jewish assets. [13] With the enactment of the Nuremberg Laws in 1935, German Jews were officially deprived of their rights to citizenship and participation in German society, a principle that was extended to Nazi-annexed territories. [14]
Because the claimants of Simon and Philipp sought restitution for items stolen during the World War II era, it is also necessary to contextualize them in the legal framework of their time by analyzing earlier accepted conceptions of citizenship. Furthermore, because both courts invoked principles of customary international law, including the doctrine of comity and the domestic takings rule, analysis must be broadened to the scope of international law. The first international effort to resolve issues of citizenship was led by the League of Nations in 1930 with the Hague Convention Relating to the Conflict of Nationality Laws. Although it was not signed by the United States, the Convention clarifies European understandings of nationality laws as subject to its alignment “with international conventions, international custom, and the principles of law generally recognised [sic] with regard to nationality.” The Convention, signed by both Germany and Hungary, establishes the contingency of recognizing an individual’s nationality on the state’s respect for international law. Additionally, Article 5 of the Convention specifies that “...a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.” [15] Thus, the Convention recognizes the importance of a connection between an individual and the state for citizenship to be genuine, undermining arguments that apply the “domestic takings rule” to assert that Germany and Hungary expropriated from their own citizenry.
These principles have been recognized and applied in international courts hearing issues surrounding conflicting nationalities. Liechtenstein v. Guatemala (1955), also known as the “Nottebohm case” was the first to recognize the link between resident and state as a pillar of citizenship. [16] In this case, Liechtenstein sought compensation from Guatemala in the International Court of Justice due to actions taken against a Liechtenstein citizen with the surname Nottebohm. The Court ruled that Liechtenstein's claim was inadmissible, as the right of a state to put forward an international claim depends upon the bond of nationality between a state and an individual. Because Nottebohm was found to have only obtained Liechtenstein citizenship because he sought to acquire a neutral wartime status, the link was not found to be genuine, and thus Liechtenstein could not make a claim. This judgment defined nationality as “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests, and sentiments, together with the existence of reciprocal rights and duties,” thereby concluding that mere documentation of citizenship is meaningless without those characteristics. [17] Furthermore, the Nottebohm judgment listed possible factors that could be used to determine nationality, including “the centre [sic] of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.” The Nottebohm case was critical in demonstrating a legal preference for the “real and effective nationality” that exhibits a “genuine link” between resident and state when determining one’s nationality. [18]
This legal preference is also demonstrated in Bavanati v. Iran (1995), which was heard in the Iran-United States Claims Tribunal established to facilitate claims following the Iran Hostage Crisis. The Tribunal found that it lacked jurisdiction over the case, as Bavanati, a dual U.S.-Iran national, could not file a claim as “evidence shows that since 1974 when the claimant moved to Germany, his habitual residence, center of interest, family ties, participation in public life and other attachments have been insufficient to support a finding that Mr. Bavanati’s links to the United States were dominant over his links to Iran …” [19] The judgment, quoting the Nottebohm case, did not find a “genuine link” between Bavanati and Iran. Thus, both the Nottebohm case and Bavanati demonstrate the preference for “effective citizenship,” thereby underscoring the inapplicability of the domestic takings rule, as it cannot be argued that the claimants in Simon and Philipp had a “genuine link” with the countries of residence. [20] They were deprived of participation in public life, and many attempted to emigrate, aware that their country no longer welcomed them as citizens.
The closing of the FSIA as a path for restitution that resulted from Simon and Philipp can be challenged by focusing on abrogating the domestic takings clause by underlining the lack of a “genuine link” between the claimants and their countries of residence. Jews who considered themselves Germans, Hungarians, or Austrians could no longer do so once they were deprived of their rights as citizens. Their countries betrayed them, and the United States’ retraction of its commitment to delivering justice to Holocaust survivors threatens to do the same. As fewer Holocaust survivors remain in our world to seek justice, it is critical to consider how avenues of restitution can be broadened by the law, not narrowed. It is time to bring these “last prisoners of war” home.
Edited by Daniella Sapone
[1] Christoph Kreutzmüller and Jonathan R. Zatlin, Dispossession: Plundering German Jewry, 1933-1953 (Ann Arbor: University of Michigan Press, 2020), 263.
[2] Burt Neuborne, “Preliminary Reflections on Aspects of Holocaust—Era Litigation in American Courts,” Washington University Law Review 80, no. 3 (2002): 830.
[3] “Washington Conference Principles on Nazi-Confiscated Art,” U.S. Department of State, December 3, 1998. https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/.
[4 ] 28 U.S.C. § 1605 (1976)
[5] 28 U.S.C. § 1605(a) (1976)
[6 ] 28 U.S.C. § 1605 (1976)
[7] Republic of Austria v. Altman, 541 U.S. 677 (2004).
[8] Republic of Hungary, et al., Petitioners v. Rosalie Simon, et al., 592 U.S. ____ (2021).
[9] Hilton v. Guyot - 159 U.S. 113, 16 S. Ct. 139 (1895).
[10] William S. Dodge, “International Comity in American Law,” Columbia Law Review 115, no. 8, (December 2015), https://columbialawreview.org/content/international-comity-in-american-law/.
[11] Federal Republic of Germany v. Philipp, 592 U.S. ___, 4 (2021).
[12] Jeremy Black, The Holocaust: History and Memory, (Bloomington and Indianapolis: Indiana University Press, 2016): 20.
[13] Black, The Holocaust: History and Memory, 21.
[14] Black, The Holocaust: History and Memory, 22.
[15] Rosalie Simon, et al., v. Republic of Hungary, et al. (2021), 57.
[16] “Convention on Certain Questions Relating to the Conflict of Nationality Law,” April 13, 1930, League of Nations, Treaty Series vol. 179, p. 89, No. 4137, https://www.refworld.org/docid/3ae6b3b00.html.
[17] Liechtenstein v. Guatemala, 49 AM.J. INT’L L. 396 (1955), https://www.icj-cij.org/public/files/case-related/18/018-19550406-JUD-01-00-EN.pdf.
[18] Liechtenstein v. Guatemala, 22.
[19] Parviz Sadigh Bavanati v. The Government of the Islamic Republic of Iran, IUSCT Case No. 296 (1995), https://jusmundi.com/en/document/decision/en-parviz-sadigh-bavanati-v-the-government-of-the-islamic-republic-of-iran-award-award-no-564-296-2-wednesday-17th-may-1995.
[20] Philipp v. Stiftung Preussischer Kulturbesitz, No. CV 15-00266 (CKK), 2022 WL 3681348 (D.D.C. Aug. 25, 2022)