Jurisdiction Under the Foreign Sovereign Immunities Act for Nazi War Crimes of Plunder and Expropriation

Abstract

The United States follows the restrictive view of sovereign immunity which does not automatically immunize a foreign sovereign from suit arising from actions of the sovereign nation or its instrumentalities that are equated with the actions of parties as opposed to public actions of a sovereign. Within that definition of conduct are actions involving the taking of property in violation of international law or that amount to commercial dealings, such as buying, selling and lending, that are equivalent to the commercial activity of private parties. The restrictive theory of sovereign immunity has been practiced by a number of sovereign nations since the early part of the twentieth century, but the question exists as to when the United States first officially announced its adherence to the restrictive doctrine. Many courts and scholars have traced the official adoption to what has come to be called the Tate Letter in 1952. In fact, there is a fundamental misconception in the present jurisprudence of certain United States courts that the Tate Letter effected a complete turnabout from system of absolute sovereign immunity to one of restrictive sovereign immunity. This reading simply is unsupported by the cases. It is my position that the principles of the restrictive theory were adopted and applied by United States courts early in the Nineteenth Century, starting with three landmark decisions of the Marshall court, and only for a brief period from 1926 to 1938 did the United States Supreme Court send a mixed message concerning the absolute theory of sovereign immunity that contrasted with the more restrictive message being espoused by the State Department and executive branch during the same period. Courts currently are addressing the question of the propriety of the exercise of jurisdiction under the Foreign Sovereign Immunities Act (FSIA) for claims arising from war crimes that arose prior to the effective date of the statute, January 1, 1977, and prior to the Tate Letter in 1952. Part of what is at stake is jurisdiction over wartime plunder and expropriation claims arising from the conduct of the German belligerent forces and their agents and instrumentalities during the Holocaust and in World War II that violated international law. Claims have been brought in United States courts for recovery of stolen art work, as well as confiscated real and personal property. There is a circuit split among the United States Courts of Appeals regarding the exercise of jurisdiction under the FSIA for claims arising prior to 1952, several of which involve World War II era war crimes. The lines are drawn around four issues regarding the application of the FSIA: first, whether the FSIA is a jurisdictional statute, allocating or affirming the power of courts to hear certain cases without regard to whether the conduct, causes of action, and substantive defenses to the action arose prior to its effective date or prior to 1952; second, whether the FSIA is a procedural statute that applies to actions arising from operative facts that occurred before the effective date of the statute and before 1952 because it does not affect antecedent rights of the parties and thus is not retroactive; third, if the application of the FSIA to pre-enactment conduct or to conduct predating the 1952 announcement of the United State's adherence to the restrictive theory of sovereign immunity does in fact affect substantive rights of state parties, namely rights to sovereign immunity under U.S. law, whether the retroactive application of the statute was clearly indicated and intended by Congress based on the language and design of the FSIA; and fourth, whether the conduct of the Nazi regime and its agencies and instrumentalities in World War II should have defeated the expectations of these state parties that they would receive immunity from prosecution in foreign courts, thus refuting the claim that retroactive application of the FSIA actually violates substantive rights under customary international law. This article will address each of these issues regarding the application of jurisdiction under the FSIA to World War II and other pre-1952 war crimes including claims involving expropriation and plunder of personal property, and will conclude that none of these issues prevents the exercise of jurisdiction under the FSIA for resolution of these claims in United States courts.