On Monday,
December 6, the United States Supreme Court heard a landmark case which pits
three Jewish families against the Federal Republic of Germany.
The Jewish
families live in California, New Mexico, and London, England. They are the
heirs of prominent Jewish art dealers who were forced to sell their property to
agents of Hermann Goering in 1935. The priceless collection of artwork was in
turn presented to Adolph Hitler as a surprise birthday gift. Today, it sits in
a museum in Berlin with no mention of its history.
Although
foreign governments cannot ordinarily be sued in American courts – and indeed,
Germany contends that the case should be brought to the German legal system –
there are exceptions. The Justices of the Supreme Court heard whether the
Foreign Sovereign Immunities Act (FSIA) of 1976, which establishes U.S.
jurisdiction over claims concerning “rights in property taken in violation of
international law,” applies to the heirs’ claims for restitution. At issue is
whether the property confiscation was a part of the Nazi genocide, thus
violating international law. All lower reviewing courts have sided with the
Jewish families.
With the rise of the Nazi Party in
1933, that
these successful art dealers were Jewish brought them to the attention of
Hermann Goering, who served not only as commander of the Luftwaffe and president
of the Reichstag but also as prime minister of Prussia. Thugs, at the direct
command of Goering, pressured the Jewish art dealers to sell their items at a
fraction of their worth, paid into blocked bank accounts. Some of the owners
had already begun preparations to flee Germany; others followed soon after. Sadly,
one of them never escaped. Fees demanded by Nazi authorities as the escapees
fled were then stripped from the accounts through harsh “flight taxes,” as
described in Gestapo documentation.
Coerced
selling of property was a common tactic of the Third Reich shortly after taking
control. In this case, the Mayor of Frankfurt at the time immediately
personally alerted Hitler about the collection and the Jewish owners.
Yet attorneys
hired by Germany have argued that the transaction was done at the owners’ “free
disposal.” The Supreme Court Justices inquired whether the Jews were “German
nationals” or “stripped of their citizenship.” Attorneys hired by Germany tried
to argue that the stripping of citizenship did not happen until after the
Nuremberg Laws, later that year. But Yad Vashem, the U.S. Holocaust Memorial
Museum, and numerous scholars have made clear what it meant to be a Jew in
Germany in 1935.
Nicholas
O’Donnell, attorney for the Jewish families, stated, “A 1935 transfer from
German Jews to notorious art looter and war criminal Hermann Goering is the
quintessential crime against international law, regardless of Germany’s
Holocaust distortion in defending this case. Congress has been clear for
decades that these crimes offend international law. My clients only want their
day in court to hold Germany to account for keeping this collection that it
does not own.”
This
revisionism of the timeline and nature of the Holocaust immediately drew the
attention of congressmen of both parties. Locally, this included Congressman
Dutch Ruppersberger, who sent an open letter to German Ambassador Emily Haber
saying, “The timeline of the Holocaust is settled and sacred. This has been the
bipartisan position of the United States Congress for a generation.”
Such
agreement among a diverse, bipartisan group of representatives two weeks before
the 2020 election was extraordinary. The letter continued, “We are concerned
that the brief your government has filed has attempted to distinguish the
forced sale of the cultural artwork in question from ‘expropriation’ under
international law.” It expressed further concern that “your government seems to
be arguing that forced sales of art to the Nazi regime do not constitute ‘takings’
at all and that the definition of genocide does not include what happened with
respect to the full elimination of Jews from German economic life starting in
1933….”
Other
bipartisan congressmen weighed in with an amicus brief in support of the Jewish
families. The Agudah and Rabbinical Council of America weighed in as well with
a formal amicus brief. A decision in the case is expected in February.
