18 No. 67 JUSTICE ntroduction In the fall of 2020, the American Association of Jewish Lawyers and Jurists (AAJLJ), joined by the International Association of Jewish Lawyers and Jurists (IJL), filed an amicus brief in the U.S. Supreme Court to support the plaintiffs in Hungary v. Simon. The Simon plaintiffs are fourteen Jewish survivors of the Holocaust in Hungary. They survived detention and slave labor in seven different concentration camps, including Auschwitz – where hundreds of thousands of Hungarian Jews were murdered in the summer of 1944. Dozens of the plaintiffs’ own family members were murdered. In addition, their property had methodically and forcefully been taken from them. The plaintiffs sued Hungary and the Hungarian national railroad company, Hungarian State Railways (MÁV), on their own behalf and on behalf of a class of additional victims. Case Background Prior to Nazi Germany’s occupation in March 1944, Hungary passed progressively discriminatory anti-Jewish laws that removed Jews from the social and economic life of the country. Following the Nazi Germany model, Hungary stripped the Jews of their rights as citizens. From March 1944 through 1945, Hungary fully participated in the Final Solution and assisted the Nazis in committing mass murder. U.S. Congressional, State Department, and judicial findings recognize that 500,000 to 600,000 Hungarian Jews were murdered, and only a small fraction of the community survived. Hungary has publicly acknowledged that the Hungarian state bears responsibility for these crimes. In 2009, both Hungary and the U.S. signed the nonbinding Terezin Declaration, which noted the importance of restituting confiscated Jewish property and urged states to make every effort to do so. In 2014, Hungary apologized for its role in the Holocaust. Pronouncements such as these, however, have not resulted in restitution. In the U.S. Court of Appeals for the District of Columbia Circuit ruling, Simon v. Republic of Hungary, 911 F.3d 1172, 1187 (D.C. Cir, 2018), the court noted that Hungary had had over 70 years to provide restitution through a domestic process but had not done so. Since the Nuremberg trials, the U.S. has committed to facilitating justice for Holocaust survivors. One way it has done so is by permitting survivors to sue for restitution in American courts. Three laws are of central significance to restitution cases in general, and Simon in particular. The Foreign Sovereign Immunities Act (FSIA), 28 USC §§ 1601 et seq., holds that other countries are generally immune from being sued in American courts, but affords several exceptions. One relevant exception provides that states are not immune from suit for taking property in violation of international law, otherwise known as the “expropriation exception.” The second is 18 USC § 1901(b), which incorporates the Convention on the Prevention and Punishment of the Crime of Genocide1 into American domestic law. The third is the Holocaust Expropriated Art Recovery Act of 2016.2 In this Act, Congress determined that Nazi takings of Jewish property were“part of their genocidal campaign.” The plaintiffs in Simon asserted that the forceful confiscation of the Jews’ property (“takings”) – much of which occurred when the Jewish owners were targeted Still Unfinished: Hungarian Holocaust Restitution in U.S. Courts* I StephenGreenwald, Arthur Traldi andRhonda Lees * This article was updated October 12, 2021. 1. UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, available at https://www.refworld.org/ docid/3ae6b3ac0.html 2. Holocaust Expropriated Art Recovery (HEAR) Act of 2016, Pub. L. No. 114-308, § 5, 130 Stat. 1524, 1526–28 (2016).
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