Amicus for the U.S. Supreme Court

The IDPCS helped co-author an Amicus Brief to the U.S. Supreme Court, written by Don Burris (our Founding Father), culminating in a final ruling by SCOTUS in Fed. Republic of Germany v. Philipp, No. 19-351 (U.S. Feb. 3, 2021).

This case concerned Holocaust-era stolen property, including the return of medieval art stolen by the Nazis from Holocaust survivors.

Unfortunately, the Supreme Court unanimously declined to extend jurisdiction over foreign sovereigns, including Germany, under the takings exception of the U.S. Foreign Sovereign Immunities Act. In other words, the Court held that a sovereign's theft of its own citizens' property during a genocide is not in violation of international law. This is a somewhat controversial principle that suggests that a country is free to do anything within its borders as long as it happens to its own citizens.

No such case could go without mentioning Don Burris’ Supreme Court victory in Republic of Austria v. Altmann which has been a leading precedent in all of the expropriation cases in the United States in the 21st century. That case also concerned Nazi-stolen artifacts, including Gustav Klimt’s Woman in Gold painting. That case was distinguishable from Altmann because Ms. Altmann’s ancestor happened to hold a Czech citizenship at the time of the Austrian confiscation of the property by the Nazis. Therefore, that case falls outside the purview of the Phillips decision.

What does this mean for the future of restitution cases when most of the property stolen during the Holocaust has not yet been restituted? What about the Holocaust victims when they were citizens of that government at the time of the expropriation and egregious crimes against humanity occurred? What about other historical genocides like in Armenia or Darfur? Justice Neil Gorsuch appeared to discuss exhaustion of local remedies in the courts of the country where the expropriation occurred. Bilateral investment treaties between the USA and the other countries (if they exist) also can play a role for dispute resolution.

This can definitely be seen as a set-back for victims. But all hope is not lost. Future cases will now heavily rely on fact-specific circumstances and we should have hope that new exceptions will develop over time.