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Supreme Court Weighs Fate of Medieval Art Collection Allegedly Extorted by Nazis

A crucifix that is a part of the Guelph Treasure / Tobias Schwarz/AFP via Getty Images
• December 7, 2020 5:30 pm

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The Supreme Court will decide the fate of a dazzling art collection the Nazis allegedly extorted from German Jews.

Descendants of the art dealers told the Court Monday that their ancestors sold the collection, called the Guelph Treasure, well below market value in 1935 because of Nazi persecution. The heirs want to sue Germany in U.S. courts, and the justices must decide whether the case can proceed.

The disputes come at a sensitive time in U.S. foreign policy.  The Trump administration is supporting the German government in Monday's case and the Hungarian government in a companion case involving a railroad company that ferried Jews to concentration camps. President Trump has openly feuded with Germany over security assistance, energy, and trade, while Hungary's populist government can expect cooler relations with Washington once President-elect Joe Biden takes office. The Justice Department warned that foreign governments may allow similar lawsuits to be brought against the U.S. if the plaintiffs prevail.

The Guelph Treasure is on display at the Museum of Decorative Arts in Berlin. Experts peg its value at about $250 million. It includes 12th century statuettes cast in gold and ivory, a crucifix adorned with gems, and reliquaries recovered during the crusades. A Jewish-owned consortium sold 42 pieces from the collection to a German bank in 1935 for one third of its original value. The bank acquired the pieces on behalf of Nazi leader Hermann Göring, who in turn presented the treasure to Hitler. The plaintiffs want to recover those pieces, or collect restitution.

The museum "investigated the history of the sale and determined that it was a voluntary, fair-market transaction," lawyers for the German government told the justices in legal papers. A tribunal specializing in disputes over Nazi-looted art agreed, citing the Great Depression's effect on the global art market.

A group of Holocaust historians filed their own legal papers arguing the museum is viewing things through rose-colored glasses. They note the Nazis successfully excluded Jews from the art trade in the 1930s and had massively curtailed their social and economic rights by the time of the sale.

"This period is inextricably related to the genocide we call the Holocaust," the brief reads. "To depict prevailing conditions at the time of the [Guelph Treasure] sale as allowing Jewish sellers to stand on equal negotiating footing with non-Jewish buyers is an affront to the historical record."

Foreign countries are immune from most lawsuits in U.S. courts. There is an exception, however, for cases involving property "taken in violation of international law." Genocide is a violation of international law, and seizing property from Jews was a key feature of the Holocaust, the plaintiffs say. Justice Clarence Thomas noted that the Nazis took jewelry, spectacles, and gold teeth from prisoners sent to concentration camps.

"Can that taking be a part of genocide, not separate from genocide?" he asked Jonathan Freiman, a lawyer representing the German government.

Germany argues the exception only applies when a state takes property from another country's citizens. Monday's case, involving German citizens and the German government, is a domestic issue.

"Only foreign takings implicate the concerns of the international legal system," lawyers for Germany wrote in a legal brief.

The Justice Department said it's in the U.S. interest to stick with that understanding of sovereign immunity. Otherwise, it warned, foreign courts will allow lawsuits against the U.S. for war crimes or the seizure of Native American property. Judge Gregory Katsas predicted as much in dissent after the U.S. Court of Appeals for the D.C. Circuit said the case against Germany could go forward.

"Imagine how the United States would react if a European trial court undertook to adjudicate a claim for tens of billions of dollars for property losses suffered by a class of American victims of slavery or systemic racial discrimination," Katsas wrote.

The High Court was sympathetic to the plaintiffs, but several conservative justices sounded concerns that U.S. courts will wind up adjudicating human-rights violations from all over the world involving loss of property. Freiman seized on that concern, warning that federal judges will be transformed into "new world courts, judging the nations of the world for alleged violations of international human rights," if the plaintiffs prevail.

A decision in Monday's cases, No. 18-1447 Hungary v. Simon and No. 19-351 Germany v. Philipp, is expected by June 2021.