The US Supreme Court on Wednesday ruled unanimously against the heirs of Jewish art dealers Sammy Rosenberg, Isaak Rosenbaum, Julius Falk Goldschmidt, and Zacharias Hackenbroch from Frankfurt, who sought to sue Germany in US courts to retrieve the Guelph Treasure, worth about $260 million, which they say the dealers were forced to sell to the Nazis for half their value.
In 1929, a consortium of German-Jewish art dealers purchased for 7.5 million Reichsmarks the Welfenschatz, a.k.a. Guelph Treasure, only to be forced later by agents of Hermann Goering to give it up so the Reichsmarschall could personally present it as a gift to Hitler, according to the Jewish heirs.
The consortium received 4.25 million Reichsmarks—a little more than half the value of the treasure in 1935, from the German government, as part of the Nazis’ campaign to strip Germany’s Jews of their possessions.
In 2008 the heirs of the Jewish art dealers launched a case for restitution in Germany, but in 2014 the Limbach Commission, an advisory body to the German government, ruled that the case did not meet the criteria for a forced sale due to Nazi persecution.
Then the Prussian Cultural Heritage Foundation (SPK), a German government financed and supported foundation that currently has the Guelph Treasure in its possession, claimed there was “no evidence that it was given to Hitler,” and that “the Guelph Treasure has always been held by the museum since the purchase in 1935,” which the SPK claims was “not a forced sale due to Nazi persecution.”
In other words, Holocaust denial, but for a lot of money.
In February 2015, just days before Germany declared the collection a national cultural treasure, which meant it could not leave the country without explicit permission from Germany’s culture minister, the heirs to the Jewish art dealers sued Germany and the Bode Museum—formerly the Kaiser-Friedrich-Museum in Berlin—in United States District Court for the District of Columbia, under the Holocaust Expropriated Art Recovery Act, which allows the heirs of victims of the Nazis to file restitution claims in US courts.
In 2018, the Court of Appeals for the DC Circuit ruled that US courts have jurisdiction over the claim under the Foreign Sovereign Immunities Act of 1976 (FSIA). The appellate court rejected Germany’s arguments that US courts lack jurisdiction and that Germany’s treatment of its Jews in the 1930s should be immune from judicial scrutiny.
The FSIA is the same law that provided access to US courts for Maria Altmann in her case against Austria that ultimately resulted in the restitution of Gustav Klimt’s “Portrait of Adele Bloch-Bauer,” and other paintings sold under duress to Nazis.
The question for the Supreme Court justices was whether the lawsuit against the German institutions harboring Jewish-owned works of art was prohibited under the 1976 Foreign Sovereign Immunities Act, which limits lawsuits by US citizens in US courts against foreign countries. The law has some exceptions, including the retrieval of property in cases “in which rights in property taken in violation of international law are in issue.”.
Section 221 of the Antiterrorism and Effective Death Penalty Act of 1996 added an exception for US victims of terrorism, for any government designated by the State Department as a state sponsor of terrorism. And the Flatow Amendment—named after lawyer Stephen Flatow who fought to sue Iran over the suicide bombing that killed his daughter Alisa in 1995, was also added in 1996, making foreign countries responsible for such attacks liable in court.
The appeals court had ruled that the heirs could invoke the exception because the artworks had been taken by force as part of an ongoing act of genocide, relying on a provision of the law that says sovereign immunity does not apply in cases in which human rights are violated.
But Chief Justice John G. Roberts Jr., writing for the court, ruled that the exception did not apply in a case of a foreign government being accused of robbing its own citizens—in effect endowing the Nazi government with a whole new legitimacy. Roberts said the appeals court had read the exception too broadly, saying: “We need not decide whether the sale of the consortium’s property was an act of genocide because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights.”
“We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property,” the chief justice stated, possibly shutting down many future claims of Jewish victims against Germany.
Chief Justice Roberts also warned that a broad reading of the exception in the law could invite lawsuits against the United States in foreign courts, writing: “As a nation, we would be surprised — and might even initiate reciprocal action — if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States government years ago. […] There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.”
And this, ladies and gentlemen, is where the dog is buried, as the Israeli adage puts it so eloquently.