19 Fall 2021 for other genocidal acts, like ghettoization or transport to concentration camps – were part of a plan to impose conditions of life calculated to destroy Hungarian Jews. Such takings were acts of genocide, “in violation of international law,”and thus the plaintiffs asserted that they fell within the expropriation exception to FSIA. The plaintiffs filed their suit in the U.S. District Court for the District of Columbia. Before reaching the Supreme Court, the suit was heard twice in the U.S. Court of Appeals for the District of Columbia Circuit.3 In 2018, the D.C. Circuit Court held that the plaintiffs’ suit could go forward, since the takings of their property were “aimed to deprive Hungarian Jews of the resources needed to survive as a people,”and consequently violated international law and were not shielded by sovereign immunity under FSIA. In July 2020, the Supreme Court granted review on one question: May the district court abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, where former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II, and where the plaintiffs made no attempt to exhaust local Hungarian remedies? AAJLJ and IJL’s Brief Our goal in drafting the Simon amicus brief to the U.S. Supreme Court was to emphasize, and lean heavily into, several specific aspects of the case: the fact that these confiscations were genocidal takings; the singularity of the Holocaust, distinguishing it from other property takings cases where the takings were not connected to such an atrocity; that a genocidal taking should be considered a violation of international law, bringing the taking within the“international law”exception to FSIA’s grant of immunity to foreign states; and that the plaintiffs had been stripped of their status as Hungarian citizens by the time of the takings. We will note below how the court’s assessment of this latter point may prove to be pivotal in a final disposition of the case. We also advanced arguments against any dismissal of the plaintiffs’ claims based on “international comity,” and argued that the U.S. had a specific legal interest in Holocaust restitution. Genocidal Takings Determining whether genocide occurred requires proof that a perpetrator intended to destroy a national, ethnic, racial, or religious group in whole or in substantial part and pursued that intent through acts including the killing of members of the group; the imposition of severe bodily harm and impairment of mental faculties of group members; deliberately creating conditions of life calculated to destroy the group; prevention of births; or transfers of children out of the group and into another group.4 In asserting that these takings created conditions of life calculated and intended to destroy Hungarian Jews as a group, we focused on the scale of the atrocities against the Jews of Hungary committed during the same time when these takings were perpetrated. We noted that the persecutions of Hungary’s Jews began well before the Nazi takeover in March 1944 and included the expropriation of Jewish property and the imposition of forced labor which led to 45,000 to 50,000 deaths. We further noted the “brutal speed” of the obliteration of Hungarian Jews after the Nazi takeover. By July 1944, over 430,000 Jews had been transported to AuschwitzBirkenau, with a death count of over 288,000 in just two months. By the end of 1944, 400,000 Hungarian Jews had been killed in the death camps. We also noted that a finding of genocidal intent was supported by a decision in the de Csepel case by the District of Columbia Federal District Court,5 which held that the systematic discrimination against the Hungarian Jews had de facto stripped all Hungarian Jews of their “citizenship rights,” referencing actions such as prohibiting Jews from employment as civil servants; entering into contracts or owning property; working in a variety of professions; and serving in the armed forces. Our brief asserted that the takings from the plaintiffs and others fulfilled the actus reus of genocide because Hungary imposed conditions of life calculated to physically destroy the Hungarian Jews as a group. We noted that when adjudicating claims that property takings constituted “conditions-of-life” genocide, international courts such as the ICJ examined the facts of such takings, demonstrating that when perpetrators acted with genocidal intent, such takings could qualify.6 3. Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016); Simon v. Republic of Hungary, 911 F.3d 1172 (D.C. Cir. 2018). 4. See supra note 1. 5. de Csepel v. Republic of Hungary, 808 F.Supp.2d 113, 130 (D.D.C. 2011). 6. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015.
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