A US Court of Appeal has upheld the right of the heirs of victims of Nazi looting to seek the restitution of treasured artefacts worth US$250-300 million (£200-240 million).

Known as the Guelph Treasure, or ‘Welfenschatz’ the artefacts include several pieces of 11th-15th century jewelled and gilded reliquary art. In March 2017, the US District Court for the District of Columbia held Germany could not claim immunity from suit over the return of the treasure under the US Foreign Sovereign Immunities Act. The Act prohibits lawsuits from being filed against other countries except where the government takes property in violation of international law. Now the US Court of Appeals for the D.C. Circuit has upheld the right of the heirs to the Guelph Treasure to sue for the return of the trove.

The claimants descend from a consortium of Jewish art dealers who were allegedly forced to transfer their precious collection to Nazi deputy Hermann Göring for a fraction of its value in 1935. Though they filed their original claim against both the Federal Republic of Germany and the state-run Prussian Cultural Heritage Foundation (the Stiftung Preussischer Kulturbesitz, or SPK), Germany was dismissed as a defendant. It is now down to the SPK to prove the 1935 transaction was legitimate and done at the owners’ free disposal.

The SPK argued the following points:

  • The US courts lack jurisdiction to scrutinise the actions of the Nazi regime;
  • Germany’s treatment of its Jewish population in the Second World War should be immune from the scrutiny of US courts under the US Foreign Sovereign Immunities Act, because its persecution of Jews in the 1930s was not a crime against international law; and
  • Even if Germany was not immune, US courts should abstain from interfering out of respect for “international comity” or until the heirs pursue the case in German court.

The claimants submitted:

  • They have a right to seek restitution in the US courts for the value of the Guelph Treasure; and
  • Nazi spoliation of Jewish property constituted a crime against international law.

The US Court of Appeals rejected the SPK’s submissions. In its view, the systematic seizure of Jewish property under the Nazi regime together with other economic pressures such as the boycotting of Jewish businesses amounted to an international criminal act. The Court said the Nazis “‘dr[ove] Jews out of their ability to make a living,’… and thereby, in the words of the Genocide Convention, ‘inflict[ed] . . . conditions of life calculated to bring about [a group’s] physical destruction in whole or’—at the very least—’in part,’”.

In response to Germany’s appeal to ‘international comity’, the Court held the heirs to the treasure were not limited to seeking a remedy in German court. It further reiterated that domestic restitution claims such as this one were not to be rejected by US courts. In keeping with the Washington Principles on Nazi Confiscated Art, the US “far from adopting… an ‘express federal policy’… of disfavoring domestic litigation of Nazi-era art-looting claims… has repeatedly made clear that it favors such litigation.”

In response to the Court of Appeals’ ruling, lawyer for the claimants, Nicholas M. O’Donnell, said it “confirmed that Germany’s persecution of Jews is the quintessential crime against international law. Germany stands shamed today for its effort to revise the history of early Nazi repression and pretend that it takes this question seriously”.