Hugo Princz v. Federal Republic of Germany

WALD, Circuit Judge,

dissenting:

The Holocaust indelibly scarred Hugo Princz. At the outbreak of World War II, Princz, a sixteen-year-old American Jew, found himself trapped in Czechoslovakia and unable to return to the United States. After America formally declared war against Germany, the Nazis seized Princz, his parents, his three brothers, and his sister as enemy aliens. The Nazis refused to exchange the family for German civilians detained by the United States as part of an International Red Cross program, instead forcibly transporting them to the Maidanek concentration camp in Poland, where Princz and two of his brothers were torn from their parents and sister. Princz believes that German officials murdered his parents and sister at the concentration camp in Treblinka; he never saw them again. 1

In May 1942, the Nazis transported Princz and his two brothers to the concentration camp at Auschwitz. There, they stripped Princz of his personal identity — tattooing him with the number “36 707” and requiring him to wear a prisoner’s uniform with “USA” stenciled on the front. The Nazis then “leased” Princz and his brothers to I.G. Far-ben, a German chemical cartel, which enslaved the three brothers at a facility known as Birkenau. During his two years of forced labor at Birkenau and captivity at Auschwitz, Princz was the victim of unrelenting physical, mental, and emotional abuse. After each of his brothers suffered work-related injuries, Princz was subjected to the unimaginable horror of watching officials intentionally starve them to death at the Birkenau “hospital.”

*1177 Bereft of family, Princz was sent to the Warsaw Ghetto for eight months. Princz’s description of the time spent in the ghetto as a “relative respite” gives some indication of the atrocities witnessed by and inflicted upon him during his prior (and subsequent) enslavement and imprisonment. But the monstrosities did not end within Warsaw’s walls. In October 1944, Princz was again transferred to the immediate custody of the Nazis and forced on a death march to Dachau, where he was enslaved as a laborer in the underground Messerschmidt airplane factory. Six months later, when it became clear the Allies would win the war, the Nazis sought to eliminate all evidence of the Holocaust, including the existence of slave laborers. Forced onto a cramped cattle train headed toward a mass execution in the Alps, Princz survived only because of the intervening German surrender. After searching futilely for traces of his family, Princz eventually returned to the United States.

For decades thereafter, using the available international compensation mechanisms, Princz sought unsuccessfully to obtain reparations from Germany for both the loss of his pension and the physical and mental suffering inflicted upon him during the war. Despite its public professions of penitence for the horrors of the Holocaust, however, Germany repeatedly relied on technicalities such as Princz’s citizenship at the time of his enslavement to deny him either a pension or any restitution for his immense suffering. Ironically, had Princz not been an American citizen at the time of the Holocaust, he would have received compensation.

Finally, in March 1992, Princz filed suit in a United States federal district court, basing his claims against Germany on theories of false imprisonment, assault and battery, negligent infliction of emotional distress, and intentional infliction of emotional distress. Princz sought compensatory and punitive damages, as well as the value in quantum meruit of his labor at the I.G. Farben and Messerschmidt plants. The district court denied Germany’s motion to dismiss for lack of subject-matter jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330 , 1602 et seq. (“FSIA” or “Act”), ruling that the FSIA “has no role to play where the claims alleged involve undisputed acts of barbarism committed by a one-time outlaw nation which demonstrated callous disrespect for the humanity of an American citizen, simply because he was Jewish.” Princz v. Federal Republic of Germany, 813 F.Supp. 22, 26 (D.D.C.1992).

After we determined that the district court’s jurisdictional decision was immediately appealable, see Princz v. Federal Republic of Germany, 998 F.2d 1 (D.C.Cir.1993), Princz renewed his pursuit of a diplomatic remedy, and the political branches of the United States government voiced substantial support for his plight. In mid-November 1993, the United States Senate unanimously expressed its hope that President Clinton would raise the matter of reparations for Princz during his January 31, 1994 meeting with German Chancellor Helmut Kohl and “state publicly and unequivocally that the United States will not countenance the continued discriminatory treatment of Hugo Princz in light of the terrible torment he suffered at the hands of the Nazis.” S.Res. 162, 103d Cong., 1st Sess. at 4 (1993). The House of Representatives overwhelmingly passed a similar resolution in late January 1994. See H.Res. 323, 103d Cong., 2d Sess. (1994). Nonetheless, diplomatic channels proved unavailing. When President Clinton raised the issue during the January 31, 1994 meeting, Chancellor Kohl reportedly refused to engage in any discussion of Princz while his case was pending before this court. Moreover, in a diplomatic note to the Department of State, the German government was quick to emphasize that the Chancellor’s silence “is not meant to imply that out of court negotiations are contemplated at a later date.” Note Verbale from the Embassy of the Federal Republic of Germany to the United States Department of State 4 (Feb. 2, 1994).

Due to Germany’s unequivocal refusal to enter into any settlement with Princz, this appeal is his last resort. Contrary to my colleagues, who would deny Princz the opportunity even to present his claims in federal court, I would affirm the district court’s order denying Germany’s motion to dismiss on *1178 grounds of foreign sovereign immunity. I believe that Germany’s treatment of Prinez violated jus cogens norms of the law of nations, and that by engaging in such conduct, Germany implicitly waived its immunity from suit within the meaning of § 1605(a)(1) of the FSIA. Accordingly, in my view, the federal courts have jurisdiction to entertain Princz’s claims.

I. THE FSIA APPLIES

The FSIA, enacted in 1976, is the sole means of obtaining jurisdiction over a foreign state defendant in federal court. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 , 109 S.Ct. 683, 688 , 102 L.Ed.2d 818 (1989). The first inquiry, therefore, is whether the FSIA applies to Princz’s claims, which arose over thirty years before its enactment. While my colleagues articulate several persuasive reasons for applying the FSIA to this case, they do not decide whether it covers the heinous acts alleged here. I think that it does.

The Supreme Court has recently provided the following analytical framework for retro-activity analysis:

[wjhen a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.

Landgraf v. USI Film Prods., — U.S. -, -, 114 S.Ct. 1483, 1505 , 128 L.Ed.2d 229 (1994).

The language and legislative history of the FSIA provide only ambiguous guidance on the retroactivity question. The “henceforth” language of § 1602 2 suggests that courts addressing claims filed after the effective date of the FSIA should apply the Act regardless of whether the underlying challenged conduct occurred before or after its enactment. See Majority Opinion (“Maj. Op.”) at 1170. Nonetheless, several courts have held that the “statutory language and legislative history of the FSIA provide no support for the retroactive application of the Act to transactions occurring before 1952,” the year when the United States adopted the principle of restrictive immunity for commercial transactions. Slade v. United States of Mexico, 617 F.Supp. 351, 357 (D.D.C.1985), aff'd mem. op. 790 F.2d 163 (D.C.Cir.1986), cert. denied, 479 U.S. 1032 , 107 S.Ct. 878 , 93 L.Ed.2d 832 (1987); accord Jackson v. People’s Republic of China, 596 F.Supp. 386, 388 (N.D.Ala.1984), aff'd 794 F.2d 1490 , 1497 (11th Cir.1986), cert. denied, 480 U.S. 917 , 107 S.Ct. 1371 , 94 L.Ed.2d 687 (1987); Carl Marks & Co. v. U.S.S.R., 665 F.Supp. 323, 336-37 (S.D.N.Y.1987), aff'd 841 F.2d 26 (2d Cir.), cert. denied, 487 U.S. 1219 , 108 S.Ct. 2874 , 101 L.Ed.2d 909 (1988). As evidence of the Act’s prospective reach, these courts have focused on both the “henceforth” language of § 1602 and Congress’ decision to delay the effective date of the FSIA for ninety days. See Slade, 617 F.Supp. at 357 ; accord Jackson, 596 F.Supp. at 388 ; Carl Marks & Co., 665 F.Supp. at 336-37 (provision in § 1330(a) that district courts “shall have” jurisdiction over cases specified in §§ 1605 & 1607 indicates prospective application).

In the absence of any express congressional intent on the retroactivity issue, the next question is whether applying the FSIA would “impair rights a party possessed when he acted,” Landgraf , — U.S. at -, 114 S.Ct. at 1505 , i.e., whether in 1942-45 Germany would have been entitled to immunity for imprisoning and enslaving Prinez. Germany argues that in the 1940s our courts would not have allowed a sovereign to be sued absent its consent. The Supreme Court, however, has emphasized a different practice: deference by the courts to the case-by-case for *1179 eign policy determinations of the executive branch. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 , 103 S.Ct. 1962, 1967-68 , 76 L.Ed.2d 81 (1983); see, e.g., Ex Parte Peru, 318 U.S. 578, 587-89 , 63 S.Ct. 793, 799-800 , 87 L.Ed. 1014 (1943) (ordering district court to relinquish in rem jurisdiction over Peruvian-owned vessel where Department of State recognized and allowed immunity of Peru); Mexico v. Hoffman, 324 U.S. 30, 36 , 65 S.Ct. 530, 533 , 89 L.Ed. 729 (1945) (exercising in rem jurisdiction in absence of State Department certification of immunity or evidence that the United States would customarily recognize immunity); see also Edward D. Re, Human Rights, Domestic Courts, and Effective Remedies, 67 St. John’s L.Rev. 581, 583 (1993) (before 1952 executive branch would decide whether to espouse claims of injured citizens). As Chief Justice Stone remarked, “[i]t is ... not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.” Hoffman, 324 U.S. at 35 , 65 S.Ct. at 533 . The operative question, then, is whether the executive branch would have recommended immunity for perpetrators of the Holocaust. The intuitive answer is no.

In the mid-1940s, Germany could not, even in its wildest dreams, have expected the executive branch of the United States, as a matter of grace and comity, to suggest immunity for its enslavement and confinement (in three concentration camps) of an American citizen during the Holocaust. The outcome of the Nuremberg trials provides a clear signal that the international community, and particularly the United States — one of the four nations that established the Nuremberg Tribunal — would not have supported a broad enough immunity to shroud the atrocities committed during the Holocaust. Indeed, the Nuremberg Tribunal denied the German defendants’ claims of official immunity because in the eyes of the international community Germany as a whole was owed no immunity: “[h]e who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under International Law.” The Nuremberg Decision, 6 F.R.D. 69 , 110 (1946). Clearly, had the question been put to them, the United States executive branch would have opted to deny Germany’s claims to immunity for the crimes alleged in this case. Cf. Bernstein v. N.V. Nederlandsche-Amerikaansche, 210 F.2d 375, 376 (2d Cir.1954) (allowing district court to pass on validity of acts of officials of German government due to State Department letter “reliev[ing] American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials”). Accordingly, because the FSIA infringes upon no rights held by Germany at the time it enslaved and imprisoned Princz, it applies to this case. See Bradley v. Richmond School Bd., 416 U.S. 696, 711 , 94 S.Ct. 2006, 2016 , 40 L.Ed.2d 476 (1974) (“a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice”). Germany wduld suffer no inequity from this result, but a contrary conclusion would indeed be manifestly unjust to Princz.

II. IMPLIED WAIVER EXCEPTION TO FOREIGN SOVEREIGN IMMUNITY

The FSIA sets forth a general rule of foreign sovereign immunity followed by several exceptions. Jurisdiction lies whenever a litigant’s claims fall within one of the statutory exceptions. One of these exceptions to immunity, the implied waiver exception, provides that a foreign state shall not be immune in any case in which the state “has waived its immunity either explicitly or by implication.” 28 U.S.C. § 1605 (a)(1) (1988). Because I believe that Germany implicitly waived its immunity by engaging in the barbaric conduct alleged in this case, I disagree with my colleagues’ conclusion that none of the FSIA exceptions to foreign sovereign immunity apply.

Germany waived its sovereign immunity by violating the jus cogens norms of international law condemning enslavement and genocide. A jus cogens norm, also known as a “peremptory norm” of international law, “is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subse *1180 quent norm of general international law having the same character.” Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 332; see also 1 Restatement (Third) of Foreign Relations Law § 102, cmt. k & Reporter’s Note 6 (1987) [hereinafter Restatement (Third) ] (adopting Vienna Convention’s definition of jus cogens). Jus cogens norms are a select and narrow subset of the norms recognized as customary international law. See Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 940 (D.C.Cir.1988) [hereinafter CUSCLIN ]. Sitting atop the hierarchy of international law, jus cogens norms enjoy the greatest clout, preempting both conflicting treaties and customary international law. See Restatement (Third) § 102, cmt. k (international agreements which violate jus cogens norms are void); see also United States v. Alfried Krupp, IX Trials of War Criminals Before The Nuernberg [sic] Military Tribunals Under Control Council Law No. 10 at 1395 (1950) (finding agreement between Germany and France authorizing use of French prisoners of war in German armament industry void under law of nations).

One need not pause long before concluding that the international community’s denunciation of both genocide and slavery are accepted norms of customary international law and, in particular, are jus cogens norms. The Restatement (Third) of Foreign Relations Law defines customary international law as the “general and consistent practice of states followed by them from a sense of legal obligation.” 1 Restatement (Third) § 102(2). To ascertain customary international law, judges resort to “the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators.” The Paquete Habana, 175 U.S. 677, 700 , 20 S.Ct. 290, 299 , 44 L.Ed. 320 (1900). These same tools are used to determine whether a norm of customary international law has attained the special status of a jus cogens norm. See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1812 , 123 L.Ed.2d 444 (1993). A jus cogens norm exists if the international community recognizes the norm as so fundamental that it is “nonderogable.” See CUSCLIN, 859 F.2d at 940 . While commentators may disagree on the exact scope of all jus cogens norms, there is universal consensus on the existence of norms against genocide and enslavement. See, e.g., Siderman, 965 F.2d at 715 (deeming rights against genocide and enslavement universal and fundamental); CUSCLIN, 859 F.2d at 942 (noting “universal disapprobation” aroused by slavery or genocide); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 , 791 n. 20 (D.C.Cir.1984) (Edwards, J., concurring) (describing genocide and slavery as “heinous actions — each of which violates definable, universal and obligatory norms”), cert. denied, 470 U.S. 1003 , 105 S.Ct. 1354 , 84 L.Ed.2d 377 (1985); Convention to Suppress the Slave Trade and Slavery, Sept. 25, 1926, 46 Stat. 2183 , T.S. No. 778, 60 L.N.T.S. 253 (ratified by United States); Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 7, 1948, 78 U.N.T.S. 277 (ratified by United States); see also 2 Restatement (Third) § 702(a) & (b), cmt. n (classifying norms against genocide and slavery as jus cogens norms); Advisory Opinion, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28) (“the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation”); Adam C. Belsky et al., Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 77 Cal.L.Rev. 365, 389 (1989) [hereinafter Implied Waiver ] (concluding that prohibition of slavery and genocide falls within category of jus cogens norms necessary to protect minimum standards of public order). What could be more fundamental than an individual’s right to be free from the infliction of cruel and sadistic terrors designed with the sole purpose of destroying the individual’s psyche and person because of the national, ethnic, racial, or religious community to which he belongs? What could be more elementary than a prohibition against eviscerating a person’s human dignity by thrusting him into the shackles of slavery? Germany clearly violated jus cogens norms by forcibly extracting labor *1181 from Princz at the I.G. Farben and Messerschmidt factories and by subjecting him to unconscionable physical and mental abuse at the Auschwitz and Dachau concentration camps.

The international consensus endorsing the existence and force of jus cogens norms solidified in the aftermath of World War II. “The universal and fundamental rights of human beings identified by Nuremberg— rights against genocide, enslavement, and other inhumane acts — are the direct ancestors of the universal and fundamental norms recognized as jus cogens.” Siderman, 965 F.2d at 715 (citations omitted). After the Nuremberg war crimes trials, the General Assembly of the United Nations unanimously approved a resolution affirming “the principles of international law recognized by the Charter of the Nürnberg [sic] Tribunal and the judgment of the Tribunal.” Affirmation of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal, G.A. Res. 95(I), U.N. GAOR, 1st Sess., at 188, U.N. Doc. A/236 (1947). One of the United States prosecutors at the Nuremberg trials described these principles, known as the “Nuremberg Principles,” as “an international legal force to be reckoned with.” Telford Taylor, The Anatomy Of The Nuremberg Trials: A Personal Memoir 4 (1992). The Nuremberg Principles crystallized the pre-existing international condemnation of persecution and enslavement of civilians on the basis of race or religious belief, with the wideseale atrocities committed by Hitler’s Germany driving home the concept that certain fundamental rights may never be transgressed under international law. See Steven Fogelson, The Nuremberg Legacy: An Unfulfilled Promise, 63 S.Cal.L.Rev. 833, 868 (1990); see also Siderman, 965 F.2d at 715 (“The legitimacy of the Nuremberg prosecutions rested not on the consent of the Axis Powers and individual defendants, but on the nature of the acts they committed:, acts that the laws of all civilized nations define as criminal.”).

The principle of nonderogable peremptory norms evolved due to the perception that conformance to certain fundamental principles by all states is absolutely essential to the survival of the international community. See Belsky, Implied Waiver, 77 Cal.L.Rev. at 387. Were the conscience of the international community to permit derogation from these norms, ordered society as we know it would cease. Thus, to preserve the international order, states must abdicate any “right” to ignore or violate such norms. As the German Supreme Constitutional Court has explained, jus cogens norms áre those that “are indispensable to the existence of the law of nations as an international legal order, and the observance of which can be required by all members of the international community.” Comment, Jus Dispositivum and Jus Cogens in International Law: In the Light of a Recent Decision of the German Supreme Constitutional Court, 60 Am.J.Int’l L. 511, 513 (1966) (emphasis added). Unlike general rules of customary international law (jus dis-positivum), jus cogens norms are binding upon all nations; where as states are not constricted by customary international law norms to which they continuously object, jus cogens norms do not depend on the consent of any individual state for their validity. See David F. Klein, A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts, 13 Yale J. Int’l L. 332, 351 (1988) [hereinafter Customary International Law ]. Therefore, jus co-gens norms have significant implications for the law of sovereign immunity, which hinges on the notion that a state’s consent to suit is a necessary prerequisite to another state’s exercise of jurisdiction.

To illuminate the intersection between jus cogens norms and the theory of foreign sovereign immunity, it is useful to begin by examining the evolution of the immunity doctrine. Granting a foreign sovereign immunity from jurisdiction has always been a matter of grace and comity, and is not required by the United States Constitution. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 , 103 S.Ct. 1962, 1967-68 , 76 L.Ed.2d 81 (1983). The Supreme Court first broached the question of foreign sovereign immunity in 1812, when it stated that states enjoy “exclusive and absolute” jurisdiction over their own territory. The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 136 , 3 L.Ed. 287 (1812). While Justice Mar *1182 shall’s seminal opinion is most often cited for the proposition that foreign sovereigns enjoy virtually absolute immunity from suit in United States courts, see, e.g., Verlinden, 461 U.S. at 486 , 103 S.Ct. at 1967-68 , the decision in fact focused on the exceptions to exclusive territorial jurisdiction, which stem from a state’s explicit or implicit consent to be intruded upon. See The Schooner Exchange, 11 U.S. (7 Cranch) at 136-42 , 3 L.Ed. 287 . Such consent derives from the interest in interstate relations, “which humanity dictates and its wants require.” Id. at 136 , 3 L.Ed. 287 . Even in the early nineteenth century, therefore, states recognized that, to facilitate international relations, they must on occasion allow infringements on their exclusive territorial jurisdiction.

Prior to the Nuremberg trials, the positivist theory of international law governed state sovereignty, and a state’s treatment of its own citizens was considered immune from the dictates of international law. See Anthony D’Amato, What Does Tel-Oren Tell Lawyers? Judge Bork’s Concept of the Law of Nations is Seriously Mistaken, 79 Am. J.Int’l L. 92, 104 (1985); see also Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 , 2555 (1991) (Nuremberg trials “represented a radical innovation in international law” because previously international law had not imposed criminal penalties on a state’s treatment of its own citizens). At Nuremberg, however, the four victorious powers of World War II tried German officials for “crimes against humanity,” which included “murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during the war,” even if the victims were German nationals. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, Aug. 8, 1945, pt. II, art. 6, 59 Stat. 1544,1547 (“Nuremberg Charter”). The Nuremberg trials thus permanently eroded any notion that the mantle of sovereign immunity could serve to cloak an act that constitutes a “crime against humanity,” even if that act is confined within the borders of a single sovereign state.

Because the Nuremberg Charter’s definition of “crimes against humanity” includes what are now termed jus cogens norms, a state is never entitled to immunity for any act that contravenes a jus cogens norm, regardless of where or against whom that act was perpetrated. The rise of jus cogens norms limits state sovereignty “in the sense that the ‘general will’ of the international community of states, and other actors, will take precedence over the individual wills of states to order their relations.” Mary Ellen Turpel & Phillipe Sands, Peremptory International Law and Sovereignty: Some Questions, 3 Conn.J.Int’l L. 364, 365 (1988). Jus cogens norms are by definition nonderogable, and thus when a state.thumbs its nose at such a norm, in effect overriding the collective will of the entire international community, the state cannot be performing a sovereign act entitled to immunity. When the Nazis tore off Princz’s clothes, exchanged them for a prison uniform and a tattoo, shoved him behind the spiked barbed wire fences of Auschwitz and Dachau, and sold him to the German armament industry as fodder for their wartime labor operation, Germany rescinded any claim under international law to immunity from this court’s jurisdiction. See Belsky, Implied Waiver, 77 Cal.L.Rev. at 396.

The exercise of jurisdiction over the Nazi officials at Nuremberg was by no means a single aberration in international law. Under the principle of universal jurisdiction, for certain offenses (including, but not limited to, jus cogens violations) a state can exercise jurisdiction over an offender in custody even if that state has neither a territorial link to the offense nor any connection to the nationality of the victim or offender. See 1 Restatement (Third) § 404, cmt. a & Reporter’s Note 1. While it is rare for a nation to exercise universal jurisdiction, Israel asserted jurisdiction under such a theory, among others, when it abducted Adolf Eichmann, the chief executioner of Hitler’s “final solution,” from Argentina and prosecuted him in Israel. See Attorney General of Israel v. Eichmann, 36 Int’l L.Rep. 277 (Sup.Ct. Israel 1962). The most recent example of a prescription of jurisdiction by the interna *1183 tional community over jus cogens violations carried out within the confines of a state’s own territory is the United Nations’ Statute of the International War Crimes Tribunal for the former Yugoslavia (“Statute”). Enacted as a response to the appalling atrocities committed against civilians caught in the brutal conflict in the former Yugoslavia, the Statute vests the War Crimes Tribunal with jurisdiction over, inter alia, crimes against humanity and genocide committed in the territory of the former Yugoslavia since January 1,1993. See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. SCOR, U.N. Doc. S/25704, art. 1, at 36 (1993). The Statute contains absolutely no indication that foreign sovereign immunity could provide a valid defense to the exercise of the tribunal’s jurisdiction. Thus the clear import of international law is to disavow a foreign sovereign’s claims to immunity where that sovereign is accused of violating universally accepted norms of conduct essential to the preservation of the international order. In other words, under international law, a state waives its right to sovereign immunity when it transgresses a jus cogens norm.

It is a well-established canon of statutory construction that, because “[international law is part of our law,” Paquete Habana, 175 U.S. at 700 , 20 S.Ct. at 299 , we must, wherever possible, interpret United States law consistently with international law. See The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 , 2 L.Ed. 208 (1804) (“an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”); MacLeod v. United States, 229 U.S. 416, 434 , 33 S.Ct. 955, 961 , 57 L.Ed. 1260 (1913) (statutes should be construed consistently with American obligations under international law); see also Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir.1980) (U.S. courts bound by the law of nations). Indeed, the legislative history of the FSIA indicates that Congress intended the Act to create “a statutory regime which incorporates standards recognized under international law.” H.R.Rep. No. 1487, 94th Cong., 2d Sess. at 14 (1976). The only way to reconcile the FSIA’s presumption of foreign sovereign immunity with international law is to interpret § 1605(a)(1) of the Act as encompassing the principle that a foreign state implicitly waives its right to sovereign immunity in United States courts by violating jus cogens norms.

Construing § 1605(a)(1) to include as an implied waiver a foreign state’s breach of a jus cogens norm is not at odds with the language and legislative history of the FSIA, which supply scant guidance as to the provision’s meaning. The 1976 House Report lists two examples of implicit waivers which, at the time of the Report, had been recognized by United States courts: (1) where a foreign state has agreed to arbitration in another country; and (2) where a foreign state has agreed that the law of a particular country should govern a contract. See H.R.Rep. No. 1487, 94th Cong., 2d Sess. 18 (1976). In addition, the Judiciary Committee suggested one more example — “where a foreign state has filed a responsive pleading in an action without raising the defense of sovereign immunity.” Id. This list is neither exclusive nor exhaustive, however, and courts are by no means constrained to these three examples of implied waiver. In Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 722 (9th Cir.1992), for example, the Ninth Circuit concluded that where a foreign state attempts to use the courts of the United States to facilitate the persecution of an individual, it has implicitly waived its claim to immunity from suit for such conduct. 3 Cf. Amerada Hess, 488 U.S. at 442-43 , 109 S.Ct. at 692-93 (no waiver under § 1605(a)(1) where foreign state signed an international agreement containing no mention of a waiver of immunity to suit in the United States or even the availability of a cause of action in *1184 the United States). Nothing in the legislative history of § 1605(a)(1) forecloses a finding that a state implicitly waives immunity when it transgresses one of the few universally accepted norms known as jus cogens.

Moreover, I disagree with my colleagues that the “jus cogens theory of implied waiver is incompatible with the intentionality requirement implicit in § 1605(a)(1).” Maj. Op. at 1174. The implicit intentionality requirement stems from several decisions that have limited the implied waiver exception to cases in which the foreign sovereign “contemplated” the involvement of United States courts. See, e.g., Seetransport Wiking Trader v. Navimpex Centrala, 989 F.2d 572, 578-79 (2d Cir.1993) (finding implicit waiver where defendant was an agency or instrumentality of a foreign state signatory to the Convention on the Recognition and Enforcement of Arbi-tral Awards and therefore must have contemplated enforcement actions in other signatory states, including the United States); Siderman, 965 F.2d at 721-22 (finding implicit waiver where foreign state defendant “not only envisioned United States court participation in its persecution of the [plaintiffs], but by its actions deliberately implicated our courts in that persecution”); cf. Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 378 (7th Cir.1985) (no implicit waiver where no reason to conclude that foreign sovereign anticipated that international agreements to which it was a signatory would be enforced in U.S. courts). In inflicting theretofore unimaginable atrocities on innocent civilians during the Holocaust, Germany could not have helped but realize that it might one day be held accountable for its heinous actions by any other state, including the United States. See supra § I. The magnitude of the acts put the perpetrators on notice that they were violating “principles common to the major legal systems of the world.” Report to the President from Robert H. Jackson, Chief Counsel for the United States in the Prosecution of Axis War Criminals, reprinted in 39 Am.J.Int’l L. 178, 186 (Supp.1945). Adhering to such principles, now termed jus cogens norms, 4 is an obligation erga omnes — an obligation of the state toward the international community as a whole —see Barcelona Traction Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 4, 32 at ¶ 33 (Feb. 5), and by abdicating its responsibility to act in accordance with such norms, Germany consciously waived its right to any and all sovereign immunity.

Furthermore, a finding that Germany implicitly waived its immunity in this ease is faithful to the primary rationale for the narrow construction of § 1605(a)(1) — preventing judicial interference with the notions of grace and comity that underlie the FSLA. See Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 445 (D.C.Cir.1990); see also Seetransport Wiking, 989 F.2d at 577 (broad interpretation of § 1605(a)(1) would “vastly increase the jurisdiction of the federal courts over matters involving sensitive foreign relations”). An exercise of jurisdiction over a foreign state for claims of genocide and enslavement does not awaken traditional comity concerns, particularly where, as here, both of the political branches of government have voiced strong support for the plaintiff.

In the absence of any indication that Congress intended to exclude from the scope of § 1605(a)(1) the concept that a foreign state waives its immunity by breaching a peremptory norm of international law, I believe that the only way to interpret the FSIA in accordance with international law is to construe the Act to encompass an implied waiver ex *1185 ception for jus cogens violations. Congress did not intend to thwart the opportunity of an American victim of the Holocaust to have his claims heard by the United States judicial system. Because I cannot agree that the FSIA requires us to slam the door in the face of Hugo Princz, I dissent. 5

. At this stage, we may not question Princz's rendition of the horrors he suffered. In reviewing a motion to dismiss based in part on Federal Rule of Civil Procedure 12(b)(6), we must accept all of the plaintiff's allegations in the complaint as trae. See Moore v. Agency for Int'l Dev't, 994 F.2d 874, 875 (D.C.Cir.1993).

. Section 1602 provides that "[c]laims of foreign states to immunity should henceforth be decided by courts of the United States and the States in conformity with the principles set forth in this chapter.” 28 U.S.C. § 1602 (1988) (emphasis added).

. I disagree, however, with the Siderman court’s finding that the Supreme Court’s approach in Amerada Hess, 488 U.S. at 436 , 109 S.Ct. at 689 , constrained it to hold that because the FSIA does not specifically provide for an exception to immunity when a state violates a jus cogens norm, such a violation cannot confer jurisdiction under the FSIA. Siderman, 965 F.2d at 718-19 . The Ninth Circuit failed to recognize that when a state transgresses a jus cogens norm, it does bring itself within the confines of an exception to the FSIA — the implied waiver exception.

. Although the jus cogens terminology gained new coinage after World War II and the Nuremberg trials, at the time of the war the norms prohibiting genocide and enslavement were already universally accepted as nonderogable. See Klein, Customary International Law, 13 Yale J. Int'l L. at 340 ("Long before Hitler came to power, the international community had been unanimous in considering acts such as those perpetrated by the Nazis to be criminal.”).

. I of course hazard no opinion on the substantive validity of Germany’s nonjurisdictional defenses and the ultimate availability of monetary relief for Princz. Because we found that the district court’s finding of subject-matter jurisdiction was immediately appealable, the merits of this case are not before us.