Amicus Curiae Brief — Princz v. Federal Republic of Germany

MOTION FILED No.94-909 = 2

pes | 9 1954 In THE

Supreme Court of the United States

OCTOBER TERM, 1994

HuGo PRINCZ,

‘ Petitioner,

THE FEDERAL REPUBLIC OF GERMANY,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF OF THE ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH, THE INTERNATIONAL ASSOCIATION

OF JEWISH LAWYERS AND JURISTS (AMERICAN

SECTION) AND THE NATIONAL JEWISH COMMUNITY

RELATIONS ADVISORY COUNCIL AS AMICI CURIAE

IN SUPPORT OF PETITIONER

Of Counsel: CHARLES M. ROSENBERG *

RUTH LANSNER DAVID M. LEVINE

JILL KAHN MELTZER DEBORAH A. MILLET

ANTI-DEFAMATION LEAGUE BENESCH, FRIEDLANDER,

823 United Nations Plaza COPLAN & ARONOFF

New York, NY 10017-3560 2300 BP America Building

200 Public Square

barra em Cleveland, OH 44114-2378

HELDON H. KLEIN (216) 363-4500

THE INTERNATIONAL

ASSOCIATION OF JEWISH

LAWYERS AND JURISTS

P.O. Box 65269

Washington, DC 20035

BARRY E. UNGAR

MANN, UNGAR & SPEcTOR, P.A.

1709 Spruce Street

Philadelphia, PA 19103

THE NATIONAL JEWISH

COMMUNITY RELATIONS

ADVISORY COUNCIL

433 Park Avenue South

New York, NY 10016

December 19, 1994 * Counsel of Record

Counsel for Amici Curiae

WILSON - Epes PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

The Anti-Defamation League of B'nai B'rith (“ADL”),’

The International Association of Jewish Lawyers and

Jurists (American Section) ( “IAJLJ”),?. and The

National Jewish Community Relations Advisory Council

(“NJCRAC”)* (collectively “the Amici”), by their under-

signed counsel, respectfully move for leave to file the

attached brief as amici curiae in support of the Petition

for Writ of Certiorari. The Amici have requested and

obtained the written consent to file this brief from Peti-

tioner, Hugo Princz. Consent from The Federal Republic

of Germany, Respondent, was requested but refused.* Cor-

respondence documenting the respective positions of the

Parties has been filed with the Clerk.

The Petition seeks review of the decision of the United

States Court of Appeals for the District of Columbia Cir-

cuit that the district court lacked subject matter jurisdic-

tion in this case pursuant to the Foreign Sovereign Im-

munities Act of 1976 (“FSIA”)

The subject of this litigation involves the most heinous

acts of discrimination, barbarism, degradation, and mass

‘ADL is a private not-for-profit corporation, incorporated in

the District of Columbia. Its address is 823 United Nations

Plaza, New York, NY 10017.

2IAJLJ is a private not-for profit corporation, incorporated in

the District of Columbia. Its address is P.O. Box 65269, Wash-

ington DC 20035.

* NJCRAC is a private not-for-profit corporation, incorporated

in New York. Its address is 433 Park Avenue South, New York,

NY 10016.

* Respondent previously consented to ADL and IAJLJ jointly

filing a brief amici curiae when this case was before the United

States Court of Appeals for the District of Columbia Circuit.

ADL and IAJLJ are baffled as to why Respondent would now

reverse its position entirely and deny consent here. Perhaps Re-

spondent will file an objection to this motion Stating its reasons for

denying consent.

* 28 U.S.C. $§ 1330, 1391(f), 1602-1611.

murder of Jews ever committed—the Holocaust. More-

over, the case concerns the enslavement and barbaric

treatment of a Jewish American by the German govern-.

ment during World War II.

As national humanitarian organizations, the Amici

share a common interest in protecting the human rights

of all persons, and in particular, individuals who are in

the religious or ethnic minority. This case raises, for the

organized Jewish community, two issues that are central

to its consciousness, and to the Amici’s collective mission:

the Holocaust and the protection of the rights of individ-

uals, in this case an American who was enslaved by a

foreign government and who seeks redress in our courts.

The interests and activities of the Amici enable them to

provide this Court with an important perspective that

extends beyond that of the parties, and to address more

broadly the far-reaching implications that the appellate

court’s ruling may have on the rights of all Americans.

SWAT hE Cont A MANIC

Specifically, the Amici have a substantial interest in

this litigation for several reasons.

First, since its founding in 1913, ADL has endeavored

to advance goodwill and mutual understanding among all

Americans, to combat prejudice and to secure human rights

for all individuals. ADL desires to participate in this case

particularly in furtherance of its charter mandate “to

secure justice and fair treatment of all citizens alike and

to put an end forever to unjust and unfair discrimination

against and ridicule of any sect or body of citizens.” The

events giving rise to this lawsuit, and the salient legal

issues, fall squarely within the defined interests of ADL.

IAJLJ is a membership organization consisting of attor-

neys and judges in more than 32 countries around the

world. Its founder was retired Justice Haim Cohn of the

Supreme Court of Israel, and its Honorary President, until

his death, was former Justice Arthur J. Goldberg. IAJLJ’s

American Section was organized in 1983 by members of

the American Jewish legal community to defend Jewish

interests and human rights in the United States and

TT

abroad. In fulfillment of its mission, IAJLJ works to

safeguard the civil and human rights of Jews, minority

groups and victims of oppression everywhere; sponsors

educational programs on topical legal issues; promotes

the study of Jewish law and ethics through law school

courses, seminars, and publications; and uses its official

international status as a United Nations Nongovernmental

Organization to provide diplomatic and legal assistance

to Jews around the world.

IAJLJ’s interest in this case is to provide the Court with

a full and clear picture of the events and conditions giving

rise to Mr. Princz’s claims, and to demonstrate that the

courts of the United States indeed have the power to ad-

judicate his claims against The Federal Republic of Ger-

many. Among IAJLJ’s concerns has been the identifica-

tion and legal prosecution of those who participated in the

genocide of the Jewish people during World War II.

NJCRAC is the national planning and coordinating

body for Jewish community relations and public policy in

the United States. As an umbrella organization, NJCRAC

comprises thirteen national agencies and 117 community

organizations, representing approximately 200 local com-

munities throughout the United States. NJCRAC’s na-

tional member organizations include: American Jewish

Committee, American Jewish Congress, Anti-Defamation

League, B’nai B’rith, Hadassah, Jewish Labor Committee,

Jewish War Veterans of the U.S.A., National Council of

Jewish Women, Union of American Hebrew Congrega-

tions, Union of Orthodox Jewish Congregations of Amer-

ica, United Synagogue of Conservative Judaism, Women’s

League for Conservative Judaism, and Women’s American

ORT.

NJCRAC’s mandate, since its founding in 1944, has been

to work to secure the civil rights and civil liberties of all

Americans, particularly those who are members of minor-

ity and religious groups, and not exclusively Jewish

Americans. NJCRAC has filed and participated in nu-

merous amicus briefs in a broad range of civil liberties

and civil rights cases.

Second, ADL and IAJLJ have been involved in this

litigation since mid-1993. ADL and IAJLJ (along with

other interested individuals) filed a brief amici curiae in

this case when it was before the United States Court of

Appeals for the District of Columbia Circuit. Princz v.

Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir.

1994).

Third, the Amici are experienced in and have been

committed to furthering their interests by filing amicus

briefs in other cases that have dealt with issues similar

to those raised in this litigation. For example, ADL filed

a brief on the merits in Siderman de Blake v. Repubiic

of Argentina, 965 F.2d 699 (9th Cir. 1992), cert. denied,

113 S. Ct. 1812 (1993). IAJLJ filed an amicus brief

in Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993)

(amicus brief in support of motion for rehearing en banc),

cert denied, Rison v. Demjanjuk, 115 S. Ct. 295 (1994),

which similarly dealt with German atrocities committed

in the Holocaust.

The Amici are very familiar with the questions involved

in this litigation and have reason to believe that one sig-

nificant legal question may not be fully addressed by Peti-

tioner. Additional briefing would assist this Court in de-

termining whether Germany has waived implicitly what-

ever sovereign immunity it might otherwise have had by

committing actions so lawless against an American, that

the conduct: (1) violated the most fundamental and

universally accepted norms of international law known as

jus cogens; and (2) was the basis for international crim-

inal prosecutions of German government officials.* Ac-

cordingly, the Amici wish to argue that the “implied

ON CN CNR RRR IRIE OF EF

In convening a tribunal at Nuremberg in the mid-1940’s to

punish German government officials as war criminals, the executive

branch of our government confirmed that Germany waived its sov-

ereign immunity by committing these atrocious acts. The Amici

wish to highlight the significance of the Nuremberg prosecutions in

the context of the “implied waiver” argument, and in so doing, to

demonstrate that under these circumstances, the courts of this

nation are not closed to an American citizen who has been law-

lessly victimized by a foreign state.

a eT ET Te |

waiver” provision of the FSIA (28 U.S.C. § 1605(a)(1))

confers subject matter jurisdiction in this case.

The FSIA’s implied waiver provision evidences a Con-

gressional intent to ensure that the courts of this country

remain open to Americans who have been victimized by

a foreign state in violation of the most basic elements of

international law. Given the frequency with which Ameri-

cans travel abroad, and the instability of foreign govern-

ments, the scope of the legal safeguards against brutal

victimization by foreign states is clearly an issue of enor-

mous national importance.

The Amici have a longstanding commitment to safe-

guarding the civil rights of all Americans, and have an

abiding interest in the welfare of all Jewish Americans,

including Hugo Princz. For these reasons, and those set

forth in the attached brief, the Amici respectfully request

leave to file a brief amici curiae.

Respectfully submitted,

Of Counsel: CHARLES M. ROSENBERG *

RUTH LANSNER DAVID M. LEVINE

JILL KAHN MELTZER DEBORAH A. MILLET

ANTI-DEFAMATION LEAGUE BENESCH, FRIEDLANDER,

823 United Nations Plaza COPLAN & ARONOFF

New York, NY 10017-3560 2300 BP America Building

200 Public Square

NATHAN LEWIN Cleveland, OH 44114-2378

SHELDON H. KLEIN (216) 363-4500

THE INTERNATIONAL

ASSOCIATION OF JEWISH

LAWYERS AND JURISTS

P.O. Box 65269

Washington, DC 20035

BARRY E. UNGAR

MANN, UNGAR & SPEcTOR, P.A.

1709 Spruce Street

Philadelphia, PA 19103

THE NATIONAL JEWISH

COMMUNITY RELATIONS

ADVISORY COUNCIL

433 Park Avenue South

New York, NY 10016

Counsel for Amici Curiae

December 19, 1994 * Counsel of Record

nee Pore Nertmen te

QUESTION PRESENTED

Whether The Federal Republic of Germany waived

its sovereign immunity by implication under section

1605(a)(1) of the Foreign Sovereign Immunities Act of

1976 by committing against an American actions so law-

less that the conduct: (1) violated the most fundamental

and universally accepted norms of international law; and

(2) was the basis for the criminal prosecution and execu-

tion of German government officials as war criminals by

an international tribunal comprising the United States and

other nations?

(i)

TABLE OF CONTENTS

QUESTION PHBE ED n...ii.n.isnc.casesscsccesetasscrsstestersceres

TAM GW GAAS BIR BAUD ei aticcseassnsnansatecccnncidvesssoncessioce

INTEREST OF THE AMICI CURIAE .............................

STATEMENT OF THE CASE ................. icicles

REASONS FOR GRANTING THE WRIT ................

I.

II.

BECAUSE DECISIONS INTERPRETING THE

FOREIGN SOVEREICN IMMUNITIES ACT

CAN HAVE A SERIOUS IMPACT ON USS.

RELATIONS WITH FOREIGN STATES, RE-

VIEW BY THIS COURT IS PARTICULARLY

Pg y |g |: _ EIE EA NEON > SDT

THIS COURT SHOULD ENUNCIATE A

LEGAL STANDARD APPLICABLE TO “NON-

TRANSACTIONAL” WAIVERS UNDER THE

PER icncocinnyees snsechapnatanieinianintannninniviatgliaidbiniivestittle

Ill. THE APPELLATE COURT’S INTERPRETA-

IV.

TION OF THE FSIA AFFECTS MORE THAN

THE LITIGANTS, AND MAY AFFECT

AMERICANS WHO TRAVEL ABROAD ....... os

A REVERSAL WOULD BE CONSISTENT

WITH THE ACTION OF OUR EXECUTIVE

BRANCH AT NUREMBERG ........0000000000000000....

I ibaa cosine cecistintreninanennenntainiasrennemeinsnearieioevsinions

(iii)

Page

iv

TABLE OF AUTHORITIES

Cases: Page

Argentine Republic v. Amerada Hess Shipping

Cor, SEB UT, GE CADP nsvececccesisccccceseecccsctsscone 4, 6,7

Drexel Burnham Lambert Group, Inc. v. Commit-

tee of Receivers for Galadari, 12 F.3d 317 (2d

Cir. 1998), cert. denied, 114 S.Ct. 1644 (1994)... 5

Eckert Int'l Inc. v. Government of the Sovereign

Democratic Republic of Fiji, 32 F.3d 77 (4th Cir.

BPUED sesisacasiassinbhichcciachcaitabpnnediicbcspaihseiianaadihgh suid nied siete 5

Foremost-McKesson Inc. v. Islamic Republic of

Iran, 905 F.2d 488 (D.C. Cir. 1990) -...0000000000002... 5

Frolova v. Union of Soviet Socialist Republics, 761

pe F FF, Be ee ene ereeaerre 5

Joseph v. Office of Consulate Gen. of Nigeria, 830

F.2d 1018 (9th Cir. 1987), cert. denied, 485 U.S.

I MMIII cmeschisasdicienlaxts nitions cock tadinionieliatiniaid tes 5

McCalden v. California Library Ass’n, 955 F.2d

1214 (9th Cir. 1990), cert. denied, 112 S.Ct. 2306

5. ARS ESES, Sel SEALE Peon pe OA, RCO a CO eee 11

Murray v. The Charming Betsy, 6 U.S. (2 Cranch)

a 8

Princz v. Federal Republic of Germany, 26 F.3d

1166 (D.C. Cir. 1994), reprinted in the Petition

for Writ of Certiorari, Appendix C (Pet. Cert.

BE. GU. sivatabceinstinices pcasaiitianbiatigeiiininietneinerieanel passim

Republic of Argentina v. Weltover, Inc., 112 S.Ct.

| IES os Gee Bt eee. er 4

Rodriguez v. Transnave Inc., 8 F.3d 284 (5th Cir.

SNENIIE :u<cisinsdeiicepiaadandicsinlgstatiaiiaat Aiea Seis ete 5

Saudi Arabia v. Nelson, 113 S.Ct. 1471 (1993). .... 4

Siderman de Blake v. Republic of Argentina, 965

F.2d 699 (9th Cir. 1992), cert. denied, 113 S. Ct.

Ee ME iether ential nianhl ect paeieicintistnldiiienoemned 5

United States v. Goering, 6 F.R.D. 69 (1946) ....10, 11, 12

Verdinden B.V. v. Central Bank of Nigeria, 461

Re I I hac hetedercccelenicea itd sessds Sercnentebea etic cite enanlben 4

Victory Transp., Inc. v. Comisaria General de

Abastecimientos y Transportes, 3386 F.2d 354

(2d Cir. 1964), cert. denied, 381 U.S. 934

NII Siissdiscicch ectesh sAuiticodenla encircle ucgiitoetivn: Waniesins sScdpanacinkes 10

v

TABLE OF AUTHORITIES—Continued

Page

West v. Multibanco Comermex, S.A., 807 F.2d 820

(9th Cir.), cert. denied, 482 U.S. 906 (1987) ....--- 11

Statutes:

Foreign Sovereign Immunities Act of 1976

28 U.S.C. § 1605 (a) (1) -----------eseeerseceeeeeseseneeterenens passim

Legislative Materials:

H.R. Rep. No. 1487, 94th Cong., 2d Sess., 12, re-

printed in 1976 U.S.C.C.A.N. (90 Stat. 2891)

NE nome voncaancecnresmonerisesonarsonsnssositornsntenenntnmnnnarenee tees 8

Law Review:

Stefan Riesenfeld, Jus Dispositivum and Jus Cog-

ens in International Law: In the Light of a Re-

cent Decision of the German Supreme Constitu-

tional Court, 60 Am. J. Int’l 511 (S. Riesenfeld

trans. 1966) ......-.-.-<-s-censnensesnsnsecesecenassenensacenonsosesetes 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-909

HuGo PRINCZ,

- Petitioner,

THE FEDERAL REPUBLIC OF GERMANY,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH, THE INTERNATIONAL ASSOCIATION

OF JEWISH LAWYERS AND JURISTS (AMERICAN

SECTION) AND THE NATIONAL JEWISH COMMUNITY

RELATIONS ADVISORY COUNCIL AS AMICI CURIAE

IN SUPPORT OF PETITIONER

The Anti-Defamation League of B’nai B’rith (“ADL”),

The International Association of Jewish Lawyers and

Jurists (American Section) (“IAJLJ”), and The Na-

tional Jewish Community Relations Advisory Council

(“NJCRAC”) (collectively, “the Amici”), respectfully sub-

mit this brief amici curiae contingent upon the granting

of the accompanying motion for leave. The brief supports

the Petition for a Writ of Certiorari filed in this case by

Petitioner, Hugo Princz, and urges reversal of the appel-

late court’s decision below.

2

INTEREST OF THE AMICI CURIAE

As more fully described in the accompanying Motion

for Leave to File Brief Amici Curiae, the Amici have

a substantial interest in this litigation.

Each of the Amici has endeavored to advance goodwill

and mutual understanding among all Americans, to com-

bat prejudice, and to secure human rights for all indi-

viduals. Although deeply committed to fighting against

the defamation of Jews, the mission of each of the Amici

is broader and secular. In this case, the Amici wish to

vindicate the rights of all Americans who unfortunately

may become the prey of an outlaw foreign nation.

The subject of this litigation involves heinous acts coni-

mitted by a foreign government against the Jewish people

—the Holocaust. Moreover, the case concerns the official,

government sanctioned enslavement and barbaric treat-

ment of a Jewish American by the German government

during World War II. The ultimate question presented,

when simplified to its essence is: do the courts of the

United States have the power to adjudicate civil claims

asserted by an American citizen against an outlaw foreign

State that enslaved and tortured him, and killed millions

of other people solely because of their religion or eth-

nicity, all clearly in violation of the most fundamental

and universally recognized norms of international law

known as jus cogens?

The Amici’s interest in this case is to support Mr.

Princz’s petition. The Amici’s interest is also to demon-

Strate that when a foreign state commits actions against

an American that are so lawless as to violate fundamental

and universally accepted norms of international law, the

courts of the United States indeed have jurisdiction to

hear civil claims arising from such actions, and the For-

eign Sovereign Immunities Act of 1976 (the “FSIA”)

does not immunize the foreign state from suit.

3

ADL and IAJLJ argued below, and all of the Amici

wish to argue in this Court, that the “implied waiver”

provision of the FSIA (28 U.S.C. § 1605(a){1)) confers

subject matter jurisdiction upon a federal district court

in this case. The Federal Republic of Germany waived

implicitly whatever sovereign immunity it might other-

wise have had under the FSIA by violating the jus cogens

norms of the law of nations. When a foreign state violates

these fundamental requirements of a civilized world, it

thereby waives its right to be treated as a sovereign.

These issues were addressed at length in both the opinion

of the appellate court filed by Circuit Judge Douglas Gins-

burg and in the dissenting opinion filed by Circuit Judge

Patricia Wald. Indeed, Judge Wald’s dissenting opinion

largely accepted the arguments and theories advanced by

ADL and IAJLJ concerning an implied waiver under

§ 1605(a)(1).

The Amici have a demonstrated interest in this case,

and believe strongly that this Court should grant the

Petition for Writ of Certiorari.

STATEMENT OF THE CASE

The Amici adopt the Statement in the Petition for

Writ of Certiorari.

4

REASONS FOR GRANTING THE WRIT

There are several reasons why this Court should grant

the Petition for Writ of Certiorari. These reasons, taken

together, demonstrate that this case is of great national

significance, weighing heavily in favor of review.

I, BECAUSE DECISIONS INTERPRETING THE FOR-

EIGN SOVEREIGN IMMUNITIES ACT CAN HAVE

A SERIOUS IMPACT ON U.S. RELATIONS WITH

FOREIGN STATES, REVIEW BY THIS COURT IS

PARTICULARLY APPROPRIATE.

The manner in which the federal courts interpret and

implement the FSIA can impact relations between the

United States and foreign states. Apparently for this rea-

son, this Court has on several occasions rendered deci-

sions interpreting provisions of the FSIA. For example,

in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.

480, 486 (1983), this Court stated that sovereign im-

munity exists as “a matter of grace-and comity on the

part of the United States, and [is] not a restriction im-

posed by the Constitution.” More recently, this Court

confirmed in Argentine Republic v. Amerada Hess Ship-

ping Corp., 488 U.S. 428, 434 n.1. (1989) that sovereign

immunity has never been a right held by a foreign state,

but instead is a privilege “granted” by the United States to

foreign states. As such, this Court has been careful to

clarify problems arising in defining the precise scope of

this statutory grant of foreign sovereign immunity. See

Republic of Argentina v. Weltover, Inc., 112 S.Ct. 2160

(1992); Saudi Arabia v. Nelson, 113 S.Ct. 1471 (1993).

Congress enacted a comprehensive scheme for ju-

dicial determinations of questions of foreign sovereign

immunity. This Court is the proper body to interpret the

FSIA definitively in this important case that can affect

relations between our government and a foreign state.

5

II. THIS COURT SHOULD ENUNCIATE A LEGAL

STANDARD APPLICABLE TO “NON-TRANSAC-

TIONAL” WAIVERS UNDER THE FSIA.

As a general rule, a foreign state is entitled to im-

munity under the FSIA unless an exception thereunder

applies. One such exception is when “the foreign state

has waived its immunity either explicitly or by implica-

tion”. 28 U.S.C. § 1605(a)(1). To date, federal court

decisions interpreting this provision have been restricted to

Situations where the foreign state allegedly waived im-

munity by implication in a negotiated contract,’ in the

course of a lawsuit,’ or by some other act directly im-

plicating the United States courts * (collectively referred

1 See, e.g., Eckert Int’l Inc. v. Government of the Sovereign

Demographic Republic of Fiji, 32 F.8d 77 (4th Cir. 1994) (govern-

ment of Fiji implicitly waived sovereign immunity by entering into

& contract containing a choice of law provision requiring the agree-

ment to be construed and interpreted according to Virginia law) ;

Joseph v. Office of Consulate Gen. of Nigeria, 830 F.2d 1018 (9th

Cir. 1987), cert. denied, 485 U.S. 905 (1988) (implied waiver

premised on agreement by parties that U.S. Courts may be involved

in disputes arising pursuant to the contract, regardless of whether

that contract explicitly identified the governing law).

2 See, e.g., Drexel Burnham Lambert Group, Inc. v. Committee

of Receivers for Galadari, 12 F.3d 317 (2d Cir. 1993), cert. denied,

114 S.Ct. 1644 (1994) (no waiver of immunity by affirmatively

answering complaint) ; Rodriguez v. Transnave Inc., 8 F.3d 284

(Sth Cir. 1993) (participation in litigation, two year delay in urg-

ing motion to dismiss on grounds of sovereign immunity, and

removal by foreign sovereign did not constitute waiver of sovereign

immunity) ; Foremost-McKesson Inc. v. Islamic Republic of Iran,

905 F.2d 438 (D.C. Cir. 1990) (no waiver of immunity when

sovereign did not respond substantively to any averments or pose

any defenses to claims, but argued merely for change of forum) ;

Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th

Cir. 1985) (USSR did not waive its immunity by failing to defend

the action because there was no conscious decision to take part in

the action nor a failure to raise sovereign immunity despite the

opportunity to do so).

* See, e.g., Siderman de Blake v. Republic of Argentina, 965

F.2d 699 (9th Cir. 1992), cert. denied, 113 8. Ct. 1812 (1$93).

6

to herein as “transactional waivers”). The instant case,

however, presents this Court with an opportunity to advise

the lower courts as to how to interpret the FSIA waiver

provision in cases involving what might be characterized

as a “non-transactional” implied waiver—cases where the

implicit waiver arises from the unlawful conduct that gives

rise to the claim itself, and not from some transaction

capable of signalling the foreign state’s willingness to be

sued in U.S. courts.

The appellate court below, relying in part on several

transactional waiver cases, held very broadly that “an

implied waiver depends upon the foreign government hav-

ing at some point indicated its amenability to suit.” Princz

v. Federal Republic of Germany, 26 F.3d 1166, 1174

(D.C. Cir. 1994) reprinted in the Petition for Writ of

Certiorari, Appendix C (Pet. Cert. App. C) page 3a, 19a.

The appellate court went on to state that “Mr. Princz does

not maintain, however, that either the present government

of Germany or the predecessor government of the Third

Reich actually indicated, even implicitly, a willingness to

waive immunity for actions arising out of the Nazi atroci-

ties.” Jd.; Pet. Cert. App. C at 19a (emphasis added).

The court characterized this standard as “the intention-

ality requirement implicit in § 1605(a)(1)”. Jd.; Pet.

Cert. App. C at 19a.

There are no reported cases that address directly

whether jus cogens violations can constitute an implied

waiver under § 1605(a)(1) of the FSIA. This Court in

Amerada Hess found no waiver of sovereign immunity

under § 1605(a)(1) where the foreign state defendant

had signed an international agreement “that contains no

mention of a waiver of immunity to suit in United States

courts or even the availability of a cause of action in the

United States.” 488 U.S. at 442-43. Like all of the other

“transactional” waiver cases, the waiver in Amerada Hess

was not based on the conduct giving rise to the cause

J

of action. Amerada Hess also did not involve violations

of the peremptory norms of international law.

This Court in Amerada Hess apparently endorsed the

view that a foreign state may still be entitled to sovereign

immunity, even where the state has violated international

law. In Amerada Hess the violation involved one nation’s

wartime bombing of a neutral commercial oil tanker. As

offensive as this conduct may have been, the violation of

international law was not of the compelling jus cogens

variety. Unfortunately, as Amerada Hess Suggests, there

are many lawless acts that a foreign state, particularly in

wartime, can commit with immunity from later civil litiga-

tion in our courts.

The horrific conduct that Mr. Princz alleges here, how-

ever, is completely outside that protection and continues at

least one narrow category of conduct that can never be

carried out with impunity against an American. Amerada

Hess did not deal with state-sponsored genocide, slavery

and religious persecution. Nor did the United States have

a substantial interest in adjudicating that case, which in-

volved claims by a foreign corporation against another

foreign state. This Court did not consider (and our re-

search has failed to locate a case where it has considered )

whether jus cogens violations committed against an Amer-

ican citizen could constitute an implied waiver under

§ 1605(a)(1) of the FSIA.

The appellate court in this case, apparently lacking a

suitable alternative to the standards enunciated in the trans-

actional waiver cases, evaluated this non-transactional

waiver case using the same standards by which it would

have evaluated a transactional waiver. Appropriate judi-

cial standards do exist, however, for the evaluation of such

an implicit waiver, and the “intentionality requirement”

apparently derived in the transactional waiver cases is

simply inapposite.

There is nothing in the FSIA’s legislative history

indicating that Congress intended to confer immunity on

8

flagrant violators of fundamental norms of international

law known as jus cogens, unless the outlaw foreign nation

actually evinced its amenability to the civil jurisdiction of

our courts, particularly where the victim is an American.

Rather, Congress intended that “claims by foreign states

to sovereign immunity are best made by the judiciary

on the basis of a statutory regime which incorporates

standards recognized under international law.” H.R. Rep.

No. 1487, 94th Cong., 2d Sess. 12, 14, reprinted in

1976 U.S.C.C.A.N. (90 Stat. 2891) 6604, 6613 (em-

phasis added). The appellate court’s extraordinarily

narrow interpretation of the FSIA’s implied waiver provi-

sion runs counter to the longstanding cannon of statutory

construction that “an act of congress ought never to be

construed to violate the law of nations, if any other possi-

ble construction remains.” Murray v. The Charming Betsy,

6 U.S. (2 Cranch) 64, 118 (1804). While the appellate

court’s construction of § 1605(a)(1) does not per se

violate international law, it is clearly inconsistent with it

because the court granted an immunity that the interna-

tional community as a whole has denied.

This Court should interpret the FSIA in such a way as

to harmonize it with international law. The dissent below

clearly and correctly stated:

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 encom-

passing the principle that a foreign state implicitly

waives its right to sovereign immunity in United

States courts by violating jus cogens norms.

Princz, 26 F.3d at 1183; Pet. Cert. App. C at 39a.

9

Ill. THE APPELLATE COURT’S INTERPRETATION

OF THE FSIA AFFECTS MORE THAN THE LITI-

GANTS, AND MAY AFFECT AMERICANS WHO

TRAVEL ABROAD. ;

The appellate court’s decision affects the rights of any

American who may fall victim to uncivilized acts of bar-

barism committed by a foreign state abroad. Under the

appellate court’s decision, absent some “intentional” waiver

by the foreign state, our courts are automatically closed to

an American who seeks civil remedies under those circum-

stances. Given the frequency with which Americans travel

abroad, and are therefore at risk of being injured by the

actions of a foreign state, the appellate court’s narrow

reading of the implied waiver provision unnecessarily re-

moves a possible deterrent to the type of barbaric acts to

which Mr. Princz was subjected. Reversal of the appellate

court’s decision (and adoption instead of the dissent’s

reasoned interpretation of the FSIA) would serve to pro-

tect Americans abroad. A reversal would inform the in-

ternational community that in the United States courts,

there are real consequences for the most serious violations

of international law where the victim is an American.

The protection of Americans abroad is a matter of enor-

mous national importance, and militates in favor of re-

view here.

IV. A REVERSAL WOULD BE CONSISTENT WITH

THE ACTION OF OUR EXECUTIVE BRANCH AT

NUREMBERG.

Review and reversal by this Court would furnish an

interpretation of the FSIA’s implied waiver provision that

is consistent with the prior actions and the express wishes

of our executive branch. At the close of World War Il,

and immediately following Germany’s unconditional sur-

render, our executive branch and the governments of our

allies brought German officials to justice for precisely the

same offenses that gave rise to Mr. Princz’s claims here.

The United States and its allies convened, on German

soil, an international judicial tribunal for this purpose.

The Nuremberg Charter and the subsequent trial and ex-

10

ecution of major German war criminals confirmed that,

as far as our executive branch was concerned, German

officials could not assert the sovereign immunity of the

German state to shield themselves from prosecution for

crimes of war and crimes against humanity. The Nurem-

berg tribunal’s decision * expressly rejected the defense of

immunity raised by the German officials and government

organizations.

The rationale behind The Nuremberg Decision was

simple and compelling—he who commits heinous interna-

tional crimes, even when doing so pursuant to the author-

ity and orders of the state, is not shielded from liability

if the state, in authorizing the action, has violated the

most fundamental norms of international law. The de-

fendants at Nuremberg were not immune from suit be-

cause Germany was not immune from suit. The Nurem-

berg Decision is consistent with the traditional basis for

sovereign immunity recognized by our courts—namely

that sovereign immunity is viewed as a privilege, and

reserved on the grounds of grace and comity, only for

nations that respect basic and universally recognized

dictates of international conduct. See Victory Transp.,

Inc. v. Comisaria General de Abastecimientos y Trans-

portes, 336 F.2d 354 (2d Cir. 1964), cert. denied, 381

U.S. 934 (1965).

Because Germany engaged in lawless and inhumane

conduct far beyond that which might have been permissi-

ble even for a nation at war, The Nuremberg Decision

rendered Germany hostis humani generis, “ an enemy of

all mankind.” Because of this conduct itself—which in-

cluded slavery, torture, religious persecution and genocide

—Germany was held to have forfeited whatever sovereign

immunity it might otherwise have had for those specific

acts committed in that time.

Similarly, the FSIA’s implied waiver provision appears

to be “based upon the general presumption that states

4 United States v. Goering, 6 F.R.D. 69 (1946) (“The Nurem-

berg Decision”).

11

abide by international law and, hence, violations of inter-

national law are not ‘sovereign’ acts.” Cf. West v. Multi-

banco Comermex, S.A., 807 F.2d 820, 826 (9th Cir.),

cert. denied, 482 U.S. 906 (1987) This is the central

principle that enabled the United States and other gov-

ernments to try, convict and execute German govern-

ment officials on German soil—notwithstanding any no-

tion of sovereign immunity. It is this same principle that

should govern the interpretation of § 1605(a)(1) here

as well.

The history of German atrocities during World War II

is well documented in The Nuremberg Decision. Millions

of Jews, like Mr. Princz’s family, were captured, tortured

and systematically slaughtered by the German government.

For example, the commandant of Auschwitz from May,

1940 to December 1, 1943, testified that during this

period at Auschwitz alone, approximately 2,500,000 peo-

ple were exterminated and another 500,000 died of

starvation and disease. The Nuremberg Decision, 6

F.R.D. at 129. Mr. Princz and two of his brothers were

enslaved at Auschwitz—only Mr. Princz survived. Adolph

Eichmann, who was in charge of the German plan to

“liquidate” the Jews, “estimated that the policy pursued

resulted in the killing of 6,000,000 Jews, of which

4,000,000 were killed in the extermination institutions.”

Id. at 130.5 Mr. Princz was the sole member of his fam-

ily to survive the Holocaust.

The Nuremberg tribunal found that the conduct giving

rise to Mr. Princz’s claims here constituted “war crimes”

and “crimes against humanity,” as defined in Article 6

5 While the Amici believe that a court could properly take judi-

cial notice of the Nuremberg tribunal’s factual findings, these

specific facts bear repeating here because they are admissions of

German officials. Unfortunately, there are individuals and organi-

zations, commonly known as “Holocaust Revisionists” or “Holo-

caust Deniers,” that still believe the Holocaust never happened,

and is instead, a fabrication by Jewish groups. See McCalden v.

California Library Ass’n, 955 F.2d 1214, 1221, 1230-31 (9th Cir.

1990), cert. denied, 112 S. Ct. 2306 (1992).

12

of the Nuremberg Charter. Jd. at 77-78. The tribunal

also confirmed that its Charter was “the expression of

international law existing at the time of its creation,” id.

at 107, reflecting “customs and practices of states which

gradually obtained universal recognition.” Jd. at 109.

Germany’s conduct was accurately characterized as being

“in complete disregard of the elementary dictates of hu-

manity.” Jd. at 113. The documented atrocities against

the Jewish people were “part and parcel” of German

policy, id. at 128, demonstrating quite clearly that the

German government was “a soulless regime.” /d. at 118.

Germany’s steadfast assertion of sovereign immunity in

the Princz case similarly reflects a cold and callous dis-

regard for the human dignity of perhaps the only Amer-

ican survivor of the Nazi concentration-camps.

Mr. Princz has alleged that Germany persecuted him on

religious grounds, enslaved him, and subjected him to

inhumane treatment in German concentration camps. Ger-

many simply murdered his other family members. All of

the above-described conduct giving rise to Mr. Princz’s

claims violated the jus cogens or “peremptory norms” °

of international law.

Interestingly, the German Federal] Constitutional Court de-

scribed “peremptory norms” as follows:

The quality of such peremptory norms [jus cogens] may be

attributed only to such legal rules as are firmly rooted in the

legal conviction of the community of nations and are indis-

pensable to the existence of the law of nations as an inter-

national legal order and the observance of which can be re-

quired by all members of the international community.

Judgment of Apr. 7, 1965, Bundesverfassungsgericht, BVerfGE,

W. Ger., quoted in Stefan Riesenfeld, 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, 518 (S. Riesenfeld trans. 1966).

Germany’s assertion of sovereign immunity in the Princz case

flies in the face of its own apparent judicial recognition that cer-

tain conduct is so dispicable and universally denounced by the

entire civilized world that other nations can sanction the offending

nation for that conduct.

13

CONCLUSION

The Amici believe that the United States courts have

a compelling interest in adjudicating legitimate civil claims

brought by an American citizen against Germany arising

from unspeakable violations of the most basic and univer-

sally recognized standards of international law. As an

American, Mr. Princz deserves his day in an American

court, and § 1605(a)(1) of the FSIA provides a basis

for jurisdiction here. By its abhorrent conduct, Germany

forfeited whatever immunity it might otherwise have had.

For each and all of these reasons, this Court should

grant review. The appellate court’s split decision raises

issues of great national importance beyond the narrower

interests of the litigants. This is why the Amici have

asked for leave to file this brief, and why this Court should

grant the Petition for Writ of Certiorari.

Respectfully submitted,

Of Counsel: CHARLES M. ROSENBERG *

RuTH LANSNER DAVID M. LEVINE

JmLL KAHN MELTZER DEBORAH A. MILLET

ANTI-DEFAMATION LEAGUE BENESCH, FRIEDLANDER,

823 United Nations Plaza CoPLAN & ARONOFF

New York, NY 10017-3560 2300 BP America Building

200 Public Square

NATHAN LEWIN

SHELDON H. KLEIN

THE INTERNATIONAL

ASSOCIATION OF JEWISH

LAWYERS AND JURISTS

P.O. Box 65269

Washington, DC 20035

BARRY E. UNGAR

MANN, UNGAR & SPECTOR, P.A.

1709 Spruce Street

Philadelphia, PA 19103

THE NATIONAL JEWISH

COMMUNITY RELATIONS

ADVISORY COUNCIL

422 Park Avenue South

New York, NY 10016

December 19, 1994 * Counsel of Record

Cleveland, OH 44114-2378

(216) 363-4500

Counsel for Amici Curiae