45 Winter 2026 he United States Congress codified the internationally recognized principle of foreign sovereign immunity, namely, that a sovereign state is generally immune from litigation in the courts of another sovereign state, in the Foreign Sovereign Immunities Act of 1976 (“FSIA”). Congress also enacted exceptions, one of which denies immunity to a foreign state in cases where it allegedly violated international law in taking property.1 This is known as the “expropriation exception.” In the Hungarian Holocaust Litigation, the Supreme Court of the United States2 and the District of Columbia Circuit Court of Appeals3 drastically narrowed this exception in two distinct ways. The Supreme Court misapplied concepts pertinent to tangible property to the very different context of money, which is intangible property. As a result, the Court held that Holocaust victims could not trace their illegally confiscated property to Hungary’s later commercial transactions in the United States,4 thereby making Hungary immune from lawsuits in the U.S. for those Holocaust expropriations. Additionally, while international law forbids property expropriation, it is subject to the “domestic takings rule,” by which “what a country does to property belonging to its own citizens within its own borders is not the subject of international law.”5 Because Hungary stripped the Jews of all rights and deported many of them out of the country to Auschwitz and other Nazi camps, they became de facto stateless persons. Yet the D.C. Circuit included Jews who had been Hungarian nationals before the Holocaust within the domestic takings rule as Hungary’s “own citizens,” and upheld Hungary’s immunity as to their claims.6 The Supreme Court refused the plaintiffs’ petition to review this ruling.7 Accordingly, when the litigation reached the Supreme Court on Hungary’s petition, only those Jews who were nationals of other states when Hungary took their property could assert a violation of international law. Congress can and should correct these two mistakes that, contrary to Congress’s purpose in enacting the FSIA, effectively foreclose recovery in most cases of expropriation. The Hungarian Holocaust Litigation When it appeared that Hungary would surrender to the advancing Red Army, Germany invaded Hungary in March 1944. Almost immediately, the Holocaust descended upon the Jews there.8 Most of the Jews outside Budapest were rounded up into ghettos. Within a few months, “over 560,000 Hungarian Jews — out of a pre-War population of nearly 825,000—had perished”; the majority of them had been stuffed into cattle cars, shipped to Nazi death and slave-labor camps outside Hungary, and murdered.9 Hungarian Holocaust Litigation in the U.S. Courts David H. Weinstein 1. The FSIA creates both immunity from suits in federal and state courts, and federal-court jurisdiction when the foreign state lacks immunity under the Act. See 28 U.S.C. §§ 1330(a), 1604-1607. 2. Republic of Hungary v. Simon, 604 U.S. 115 (2025). 3. Simon v. Republic of Hungary, 77 F.4th 1077 (D.C. Cir. 2023), cert. denied sub nom. Friedman v. Republic of Hungary, 144 S.Ct. 2686 (2024). 4. The plaintiffs sued both Hungary and its national railroad, an instrumentality of the state. The distinction between them is not pertinent to the issues addressed here, so with one exception, both are referred to here as “Hungary.” 5. Federal Republic of Germany v. Philipp, 592 U.S. 169, 176 (2021). 6. Simon v. Republic of Hungary, 77 F.4th 1077, 1098 (D.C. Cir. 2023). 7. Supra note 3. 8. Hungary’s de jure antisemitism was independent of and actually antedated the Nazis’ 1933 rise to power in Germany. See Hungarian Law XXV, Numerus Clausus Law, September 1920, restricting the number of Jews admitted to higher education. In August 1941, well before the 1944 German invasion, Hungary deported thousands of Jews from Hungarian-occupied Czechoslovakia, delivering them to the Nazis who summarily murdered them. 9. Simon v. Republic of Hungary, 812 F.3d 127, 134 (D.C. Cir. 2016). T
RkJQdWJsaXNoZXIy MjgzNzA=