- The Washington Times - Monday, December 7, 2020

Holocaust survivors and heirs to German Jews went to the U.S. Supreme Court on Monday to argue in a pair of cases that American courts provide avenues for compensation for property and art stolen by the Nazis.

In Germany v. Philipp, U.S. descendants of German Jewish art dealers say their relatives were forced to sell medieval Christian relics at a fraction of their appraised value to associates of Third Reich leader Hermann Goring in the 1930s.

The collection — known as the Guelph Treasure — comprises dozens of jewel-encrusted crucifixes dating to the 17th century eventually became a gift to Adolf Hitler and now sits in the Bode Museum in Berlin, estimated at a value of $250 million.

In Hungary v. Simon, a group of Hungarian Holocaust survivors make a similar plea over claims of stolen property.

Attorneys and the justices debated whether American courts have jurisdiction in Germany and Hungary, given that the defendants are not citizens and the property doesn’t sit in the U.S.

“Let’s say, for example, the controversy concerns a discrete piece of artwork and that piece of artwork is hanging in a gallery in Washington, D.C.,” said Gregory Silbert, attorney for the Hungarian government, addressing questions from Justice Brett M. Kavanaugh. “Then there would be an interest in a U.S. court.”

Attorneys representing the Justice Department supported Germany and Hungary, arguing that under common law doctrines, the cases are best resolved in the respective foreign courts rather than on U.S. soil. A German commission overseeing Nazi-era art theft already has ruled the sale of the Guelph Treasure was fair.

Attorneys for the descendants and survivors, however, argued that past U.S. presidents and Congresses have sought to pave ways through American courts to hold Nazi plunderers accountable.

“I really invite the court to consider the facts of this case, which arise out of the worst atrocities in human history,” said Sarah Harrington, an attorney for the heirs. “It is hard to imagine a more vivid example of property takings that themselves violate international law.”

The justices focused repeatedly on exceptions to the 1976 Foreign Sovereign Immunities Act, which sets the limits as to whether a foreign sovereign country can be sued in American courts. The U.S. Court of Appeals for the D.C. Circuit has ruled the act does not block lawsuits against the German government.

Justice Stephen G. Breyer wondered aloud if foreign plaintiffs might be able to file lawsuits in their own courts against the U.S., noting the thousands of Japanese Americans forced into internment camps during World War II.

“And if we can bring these kinds of actions here, well, so can these other countries do the same and accuse us?” Justice Breyer asked.

Justice Clarence Thomas questioned Jonathan Freiman, who is representing Germany, about the attorney’s assertion that the Foreign Sovereign Immunities Act allows lawsuits over “expropriation,” or the theft of property, but not acts of genocide.

“Just imagine that there’s a campaign of genocide,” Justice Thomas said. “But in conjunction with and a part of that, there’s an effort to take all of the property, including jewelry, art and even the extraction of gold teeth can that be a part of genocide?”

Mr. Freiman said the if the theft were part of a campaign to “destroy” a people, then “it’s unquestionably a genocidal act.” But he disputed whether such theft would be considered genocide under Congress’ intent in the 1976 law.

Monday’s case was heard on the 79th anniversary of Japan’s bombing of Pearl Harbor, prompting the U.S. to enter World War II. The National Archives estimates that 20% of the art in Europe was looted by the Nazis.

• Christopher Vondracek can be reached at cvondracek@washingtontimes.com.

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