20 No. 67 JUSTICE In our brief, we rebutted arguments by the defendant and certain amici that granting relief in this case would “open the floodgates” to a deluge of lawsuits under the expropriation exception. We pointed to the high standard of proof required to support a claim of genocide and showed that international courts have ruled that even some massive large-scale killings in other places around the globe, tragic and horrendous though they were, were not genocide per se because they lacked proof of the requisite intent to destroy a protected group as such. In our case, we noted that the U.S. government has explicitly recognized the genocidal nature of the Holocaust, and that the European Court of Human Rights deems the Holocaust a“clearly established historical fact.”7 The United States’ Legal Interest in Holocaust Restitution Our brief indicated that as one of the two largest recipient countries of Holocaust survivor refugees, the U.S. had a particular interest in restitution. We referenced the Conference on Jewish Material Claims Against Germany estimate that 85,000 surviving victims of the Nazis live in the U.S. today, more than in any other country except Israel. We specifically noted the treaty between the U.S. and Hungary signed at the end of the war wherein Hungary pledged to restore property to anyone subjected to confiscation on account of his or her religion, or if restoration was not feasible, to provide fair compensation for such property. This promise was reiterated in the 2009 Terezin declaration (referred to earlier) in which Hungary, and other countries where the Final Solution had been implemented, acknowledged the fact that survivors had not yet received full restitution, but declared that they were fully committed to make full restoration or compensation as soon as possible. We pointed out that despite these promises, the 2020 Justice for Uncompensated Survivors Act Report concluded that Hungary had utterly failed to make restitution and had not even put in place a fair restitution or compensation process or system. With the assistance of the IJL, we contacted lawyers in Hungary who had represented survivors seeking compensation. They supported the plaintiffs’ expert in concluding that survivors had no fair opportunity to seek justice in Hungary, strengthening our argument that the U.S. courts should not invoke international comity and require plaintiffs to first seek restitution in Hungary in this case or in any other. We further showed that the U.S. has enacted multiple laws with the specific purpose of providing a measure of justice for Holocaust survivors while they are still alive; convened the 1998 Washington Conference on Holocaust-era assets which then resulted in the Washington Principles on Nazi-Confiscated Art; signed on to the Terezin Declaration; and established a special envoy for Holocaust Issues. We cited the case of Bernstein v. N.V. Nederlansche-Amerikanaansche StoomvaartsMaatschappij, in which the Second Circuit Court of Appeals allowed a trial court to assess the legal validity of the acts of German officials, despite the“act of state” rule, based on an announcement of federal policy: The policy of the Executive, with respect to claims asserted in the United States for the restitution of identifiable property (or compensation in lieu thereof) lost through force, coercion, or duress as a result of Nazi persecution in German, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.8 We maintained that taken together, this history of American support for the long struggle for restitution and compensation for survivors fully justified U.S. courts adjudicating Simon and other similar cases. Comity Based Abstention We argued that comity-based abstention (sending the plaintiffs back to Hungary for adjudication of their claims) would be wholly inappropriate on several grounds. First, the Supreme Court signaled in a 2014 decision that it was no longer a judicial function for the Court to “weigh and balance” on a case-by case basis “the factors that go into a comity decision.”9 Instead, in FSIA, Congress intended to set immunity standards going forward and fully incorporated comity interests into its clear rules. Second, we noted that in its brief, Hungary had cited – as support for comity – only cases that arose under the Alien Tort Statute (ATS), all of which involved private 7. See e.g. Garaudy v. France (dec.), no. 65831/01, ECHR 2003IX. 8. Bernstein v. N.V. Nederlandsche-Amerikaansche StoomvaartMaatschappij, 210 F.2d 375 (2d. Cir 1954), citing U.S. Department of State Press Release No. 296,“Jurisdiction of United States Courts Re Suits for Identifiable Property Involved in Nazi Forced Transfers,”April 27, 1949. 9. Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134, 146 (2014).
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