Full opinion text
HAMILTON, Circuit Judge. Holocaust survivors and heirs of other Holocaust victims have sued several Hungarian banks and the Hungarian national railway in a U.S. district court alleging that the banks and the national railway participated in expropriating property from Hungarian Jews who were victims of the Holocaust. These two district court cases have produced nine separate pending appeals and mandamus petitions in this court. In this opinion,- we address the claims against the Hungarian national bank, defendant Magyar Nemzeti Bank (the “national bank”), and the claims against the Hungarian national railway, Magyar Allamvasutak Zrt. (the “national railway”). In separate opinions released today, we address the claims against three other private banks. Plaintiffs’ complaints describe a part of the tragic, historic crimes that were the Holocaust, and in particular the arrest, detention, transport, and murder of Hungarian Jews, starting in large numbers relatively late, in 1944, as Soviet armies were advancing west toward the Third Reich and the countries it dominated, including Hungary. The plaintiffs allege that both the national bank and the national railway played critical roles in the expropriation of Jewish property that was essential to finance the genocide of the Holocaust in Hungary. The plaintiffs suing the railway claim subject-matter jurisdiction under the expropriation exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605(a)(3), and assert eight causes of action: takings in violation of international law, aiding and abetting genocide, complicity in genocide, violations of customary international law, unlawful conversion, unjust enrichment, fraudulent misrepresentation, and accounting. The plaintiffs suing the banks claim subject matter jurisdiction over the national bank under both the expropriation exception, 28 U.S.C. § 1605(a)(3), and the waiver exception, 28 U.S.C. § 1605(a)(1) to the FSIA, and assert six causes of action: genocide, aiding and abetting genocide, bailment, conversion, constructive trust, and accounting. Both sets of plaintiffs seek to have their respective cases certified as class actions — the railway plaintiffs seek to have the national railway be held responsible for damages of approximately $1.25 billion, and the bank plaintiffs seek to have the national bank held jointly and severally responsible with the private bank defendants for damages of approximately $75 billion. The district court denied both the national bank’s and the national railway’s respective motions to dismiss. We conclude that we have appellate jurisdiction over both of these appeals under the collateral order doctrine. We remand the cases to the district court with instructions that both sets of plaintiffs either exhaust any available Hungarian remedies identified by the national bank and national railway or present to the district court a legally compelling reason for their failure to do so. We further direct the district court to allow jurisdictional discovery with respect to whether the national railway is engaged in “commercial activity” in the United States, as required by the expropriation exception to the FSIA. I. Appellate Jurisdiction We turn first to our jurisdiction over these appeals. The appellate jurisdiction story in all of the interlocutory appeals arising from the bank case begins with the national bank, which moved to dismiss for lack of subject-matter jurisdiction based on a defense of sovereign immunity under the FSIA, 28 U.S.C. § 1604. The district court denied the national bank’s motion. Along the same lines, in the railway case, the national railway also moved to dismiss for lack of subject-matter jurisdiction based on a defense of sovereign immunity under the FSIA, 28 U.S.C. § 1604, which was likewise denied by the district court. The national bank and the national railway have appealed the district court’s denials of their respective motions to dismiss. The district court’s denials of the national bank’s and national railway’s motions to dismiss on sovereign immunity grounds are immediately appealable collateral orders so that we have jurisdiction under 28 U.S.C. § 1291. Both the national bank and national railway argue, and we agree, that we also have appellate jurisdiction over their treaty-based defenses because those are part of their immunity defenses under the FSIA. We decline, however, to exercise pendent appellate jurisdiction over the national bank’s statute of limitations defense, which is not inextricably intertwined with the sovereign immunity argument. A. Collateral Order Doctrine As a general rule, the district court must issue a final judgment before an appellate court has jurisdiction to entertain an appeal under 28 U.S.C. § 1291. It is well established, however, that certain types of interlocutory orders denying immunity defenses in civil cases may be appealed immediately under the collateral order doctrine, regardless of whether the denied motion was a motion to dismiss or a motion for summary judgment. Behrens v. Pelletier, 516 U.S. 299, 307, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (“[A]n order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a ‘final’ judgment subject to immediate appeal.”); see also Mitchell v. Forsyth, 472 U.S. 511, 525-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (denial of qualified immunity based on question of law was immediately appealable); Nixon v. Fitzgerald, 457 U.S. 731, 742-43, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (denial of former president’s claim of absolute immunity was immediately appealable). Like qualified or absolute immunity in civil rights lawsuits, sovereign immunity is an immunity from trial and the attendant burdens of litigation. Sovereign immunity reflects the comity or mutual respect that is essential in dealings between sovereign nations. See Republic of Philippines v. Pimentel, 553 U.S. 851, 865, 128 S.Ct. 2180, 171 L.Ed.2d 131 (2008); Dole Food Co. v. Patrickson, 538 U.S. 468, 479, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Based on the reasoning permitting appeals of those other immunity defenses, we and other circuits treat denials of sovereign immunity defenses as appealable collateral orders. Rubin v. Islamic Republic of Iran, 637 F.3d 783, 789-90, 795 (7th Cir.2011) (appeal of discovery order that rejected FSIA immunity defense); World Holdings, LLC v. Federal Republic of Germany, 613 F.3d 1310, 1314 & n. 6 (11th Cir.2010) (appeal of denial of FSIA immunity in suit to enforce pre-World War II German bonds); O’Bryan v. Holy See, 556 F.3d 361, 372 (6th Cir.2009) (appeal of denial of FSIA immunity in case alleging sexual abuse of children by clergy); Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 532 (5th Cir.1992) (appeal of denial of FSIA immunity in breach of contract case); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C.Cir.1990) (appeal of denial of FSIA immunity defense in expropriation case; collecting cases from several circuits); Rush-Presbyterian-St. Luke’s Med. Center v. Hellenic Republic, 877 F.2d 574, 576 n. 2 (7th Cir.1989) (appeal of denial of FSIA immunity based on commercial activities in United States); Segni v. Commercial Office of Spain, 816 F.2d 344, 347 (7th. Cir.1987) (appeal of denial of FSIA immunity defense asserted in breach of contract suit). The plaintiffs in both appeals attempt to avoid this well-established doctrine and practice by arguing that the district court’s orders denying the defendants’ respective motions to dismiss did not “conclusively determine” that the defendants are not entitled to sovereign immunity. The district court found that both groups of plaintiffs had alleged sufficient facts to show at the motion to dismiss stage that the expropriation exception to the FSIA applied to their claims against these defendants. See 28 U.S.C. § 1605(a)(3). The court then wrote in the bank case: “It is premature at this juncture to adjudicate [the national bank’s] denial of the facts alleged.” Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, 807 F.Supp.2d 689, 697 (N.D.Ill.2011). The district court noted that the national bank may, if warranted, raise its arguments regarding the expropriation exception’s nexus requirements again in a motion for summary judgment. Id. In denying the national bank’s request for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), the district court wrote: this Court did not adjudicate [the national bank’s] defense of sovereign immunity under FSIA on the merits. This court denied the motion to dismiss and indicated that the issue was not ripe for adjudication at the motion to dismiss stage because Plaintiffs in opposition to the motion to dismiss argued that the [expropriation] exception under FSIA applies in this case and presented sufficient allegations at the pleadings stage to proceed further in this action at this juncture. The district court reiterated that view in denying the national railway’s motion to dismiss: This court is not adjudicating [the national railway’s] defense of sovereign immunity under FSIA on the merits. This court is denying the motion to dismiss because the FSIA issue is not ripe for adjudication at the motion to dismiss stage. Plaintiffs have presented sufficient allegations at the pleadings stage to proceed further in this action at this juncture. Victims of the Hungarian Holocaust v. Hungarian State Railways, 798 F.Supp.2d 934, 938 (N.D.Ill.2011). Relying on Khorrami v. Rolince, 539 F.3d 782 (7th Cir.2008), both sets of plaintiffs contend that the district court’s disclaimer bars appellate jurisdiction. In Khorrami, the plaintiff filed a Bivens suit against federal agents alleging violations of his constitutional rights. The defendants moved to dismiss on grounds of qualified immunity and failure to state a claim. The district court granted the motion to dismiss for failure to state a claim with respect to all parts of the case except for those relying on the Fifth Amendment, but explicitly declined to rule on the qualified immunity motion. The defendants filed an interlocutory appeal seeking a ruling that qualified immunity applied and that the remainder of the case in any event should have been dismissed. This court found appellate jurisdiction lacking because the district court had not yet issued an order ruling either way on the qualified immunity defense. The lack of a ruling from the district court was not the functional equivalent of a denial of the motion. 539 F.3d at 790. We noted that in that situation, “it is difficult, if not impossible, for an appellate court to intervene.” Id. at 787. Plaintiffs’ reliance on Khorrami is misplaced because the district court here actually ruled on the defendants’ motions to dismiss. It denied them. Although the district court said it had not adjudicated the sovereign immunity defense “on the merits,” the fact remains that the district court denied the defendants’ motions to dismiss. In doing so, it issued the orders that both support appellate jurisdiction in these cases and distinguish these cases from the failure to rule in Khorrami. Our appellate jurisdiction based on the collateral order doctrine extends to the defendants’ immunity defenses based on the Treaty of Peace with Hungary, Feb. 10, 1947, 61 Stat.2065, 41 U.N.T.S. 135 (“1947 Treaty”), and the Agreement Between the Government of the United States of America and the Government of the Hungarian People’s Republic Regarding the Settlement of Claims, U.S.-Hungary, Mar. 6, 1973, 24 U.S.T. 522 (“1973 Agreement”). FSIA immunity is subject to existing international agreements to which the United States was a party at the time of enactment of the FSIA in 1976. 28 U.S.C. § 1604. Any conflict between a treaty and the FSIA immunity provisions, whether toward more or less immunity, is within the treaty exception. See Moore v. United Kingdom, 384 F.3d 1079, 1084-85 (9th Cir.2004). The defendants’ arguments based on the earlier treaties are simply a part of their overall defense of sovereign immunity that we may consider in this appeal. B. Pendent Appellate Jurisdiction To the solid jurisdictional anchor of its sovereign immunity claim, the national bank attempts to hook on its statute of limitations defense, arguing that adjudicating the statute of limitations defense at this time will promote judicial economy. The national bank’s reliance on judicial economy to justify pendent appellate jurisdiction is misplaced. The Supreme Court has rejected this justification. See Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); see also McCarter v. Retirement Plan for Dist. Managers of American Family Ins. Grp., 540 F.3d 649, 653 (7th Cir.2008) (“Swint itself held that a court of appeals had erred in invoking pendent appellate jurisdiction, because ‘judicial economy’ is no warrant for disregarding the statutory final-decision rule.”). We do not have pendent appellate jurisdiction over the national bank’s statute of limitations defense. II. Foreign Sovereign Immunity The parties agree that these defendants, the national bank and national railway of Hungary, are instrumentalities of a foreign sovereign under the FSIA. See 28 U.S.C. § 1603(b). The FSIA is the exclusive basis for exercising jurisdiction over foreign sovereigns in U.S. courts. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-36, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The FSIA was enacted to clarify the confusing situation that had developed after the executive branch had shifted away from a longstanding policy of asserting sovereign immunity on behalf of friendly sovereigns under virtually any circumstances toward a more restrictive approach to immunity, one that allowed U.S. courts to exercise jurisdiction over claims against foreign sovereigns based on their commercial activities, while most courts were still adhering to the broader approach. See Republic of Austria v. Altmann, 541 U.S. 677, 690-91, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004); Verlinden, 461 U.S. at 487-88, 103 S.Ct. 1962. Under the FSIA, a foreign sovereign and its instrumentalities are immune from suit in U.S. courts unless a specific statutory exception applies. 28 U.S.C. § 1604; Samantar v. Yousuf, — U.S. -, 130 S.Ct. 2278, 2285-86, 176 L.Ed.2d 1047 (2010) (holding that an individual foreign official sued for official conduct was not a “foreign state” entitled to immunity from suit under FSIA). The plaintiffs suing the bank argue that two FSIA exceptions provide jurisdiction over their claims: the waiver exception in § 1605(a)(1), and the expropriation exception in § 1605(a)(3) for property taken in violation of international law. The district court relied on the expropriation exception to deny the national bank’s motion to dismiss and did not reach the waiver exception. 807 F.Supp.2d at 697-98. The plaintiffs suing the railway rely solely on the expropriation exception. When evaluating a district court’s conclusions on a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, we review the district court’s legal conclusions de novo. Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381 (7th Cir.2001); Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir.2011) (reviewing district court’s grant of motion to dismiss based on FSIA immunity). Our review of factual matters depends on how the moving party presented those issues and whether the district court resolved disputed factual issues. If the district court resolved disputed factual 'issues, we review those findings for clear error, but if it did not, our review is de novo. E.g., Scott v. Trump Indiana, Inc., 337 F.3d 939, 942 (7th Cir.2003); Rexford Rand Corp. v. Ancel, 58 F.3d 1215, 1218 (7th Cir.1995). A. Waiver of Sovereign Immunity The plaintiffs suing the national bank claim that Hungary implicitly waived its sovereign immunity by stating in its Constitution that “the Republic of Hungary accepts the universally recognized rules and regulations of international law, and harmonizes the internal laws and statutes of the country with the obligations assumed under international law.” The bank plaintiffs argue that sovereign immunity is a creature of the U.S. legal system that Hungary may not use to avoid its own embrace of international law. This waiver argument reaches too broadly. The FSIA waiver exception in § 1605(a)(1) is construed narrowly. Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1150 (7th Cir.2001). In fact, “courts rarely find that a nation has waived its sovereign immunity, particularly with respect to suits brought by third parties, without strong evidence that this is what the foreign state intended.” Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir.1985); see also Argentine Republic, 488 U.S. at 442-43, 109 S.Ct. 683 (“Nor do we see how a foreign state can waive its immunity under § 1605(a)(1) by signing 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.”). Sampson illustrates the point well. In that case, a Holocaust survivor sued Germany for his imprisonment in Nazi concentration camps. The district court dismissed the claims against Germany based on the FSIA. Sampson argued on appeal that Germany had waived its sovereign immunity based on: (1) a letter from the German government stating that the German people are responsible for the past, (2) a letter from the Claims Conference stating that Sampson was eligible to receive compensation payments, and (3) a holding by the German constitutional court regarding the universal and mandatory norms of international law known as jus cogens norms. We held that these statements did not indicate an intent by the state of Germany to be subject to suit in U.S. courts, but “merely demonstrate[d] that Germany recognizes that its actions during World War II constituted violations of jus cogens norms.” 250 F.3d at 1151. Similarly here, the language of the Hungarian Constitution falls far short of expressing an intent by the Republic of Hungary to be subject to suit in U.S. courts. Like the evidence offered in Sampson, the language of the Hungarian Constitution demonstrates Hungary’s recognition and acceptance of international law norms and obligations, but is not a waiver of its sovereign immunity. Section 1605(a)(1) does not apply here. B. The Expropriation Exception The more substantial issues here concern the scope of the expropriation exception to the FSIA. The statute provides: A foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any case — in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.... 28 U.S.C. § 1605(a)(3). To break that down, the expropriation exception defeats sovereign immunity where (1) rights in property are in issue; (2) the property was taken; (3) the taking was in violation of international law; and (4) at least one of the two nexus requirements is satisfied. See Zappia Middle East Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 251 (2d Cir.2000) (laying out four elements of FSIA expropriation exception). The district court found that the plaintiffs’ allegations in both cases were sufficient to rely on the expropriation exception. 807 F.Supp.2d at 697-98 (bank case); 798 F.Supp.2d at 938 (railway case). On appeal, the national bank argues that the plaintiffs’ allegations fail on each element of the expropriation exception. The national railway argues that the plaintiffs’ allegations fail on the “in violation of international law” element and the nexus element. We conclude that the plaintiffs suing the bank have alleged several elements of the expropriation exception but have not sufficiently alleged a violation of international law because they have not exhausted the Hungarian remedies available to them or provided a legally compelling explanation for their failure to do so. With respect to the plaintiffs suing the railway, we conclude both that they have not sufficiently alleged a violation of international law because of their failure to exhaust and that they have not sufficiently alleged that the national railway is engaged in commercial activity in the United States, as required by the nexus element of the expropriation exception. 1. Rights in Property The named plaintiffs in the bank case allege the expropriation of bank accounts and, in one case, a home. The national bank argues that plaintiffs’ claims based on expropriation of bank accounts are not covered by the expropriation exception. We reject the national bank’s arguments on this score, which are built on the faulty premise that the expropriation exception can apply only to a claim by an owner of tangible property. The national bank’s argument finds some support in district court opinions that have held that the “rights in property” element of the expropriation exception is limited to claims for tangible property. See, e.g., Gutch v. Federal Republic of Germany, 444 F.Supp.2d 1, 10 (D.D.C.2006) (“Most courts maintain that the expropriation exception applies only when the property at issue is ‘tangible.’ ”), aff'd mem. on other grounds, 255 Fed.Appx. 524 (D.C.Cir.2007); Sampson v. Federal Republic of Germany, 975 F.Supp. 1108, 1117 (N.D.Ill.1997) (“property” under expropriation exception refers to tangible property), aff'd on other grounds, 250 F.3d 1145 (7th Cir.2001); Hirsh v. State of Israel, 962 F.Supp. 377, 383 (S.D.N.Y.1997) (expropriation exception applies only to the expropriation of tangible property, not to a right to receive payments), aff'd mem., 133 F.3d 907 (2d Cir.1997). The D.C. Circuit reached the opposite conclusion, finding no reason to distinguish between tangible and intangible property for purposes of the FSIA’s expropriation exception to immunity. In Nemariam v. Federal Democratic Republic of Ethiopia, 491 F.3d 470 (D.C.Cir.2007), plaintiffs of Eritrean origin or nationality filed a proposed class action suit under the FSIA against Ethiopia claiming unlawful takings of bank accounts and other property. Id. at 472-73. The district court had dismissed the complaint for lack of subject-matter jurisdiction, finding that a taking of intangible property like a bank account is not covered by the expropriation exception. The D.C. Circuit ultimately affirmed the dismissal on other grounds (discussed below) but rejected the district court’s exclusion of intangible property from “rights in property” under the expropriation exception. 491 F.3d at 475-80. The court noted that the tangible/ intangible distinction seemed to have been based on a comment in a House committee report that the expropriation exception was “in no way [to] affect[ ] existing law on the extent to which, if at all, the ‘act of state’ doctrine may be applicable.” H.R.Rep. No. 94-1487, at 20 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6618. This comment was interpreted as requiring that the types of property subject to the expropriation exception parallel the types of property permitted under the act of state doctrine. See Canadian Overseas Ores Ltd. v. Compania de Acero Del Pacifico S.A., 528 F.Supp. 1337, 1346 (S.D.N.Y.1982), aff'd on other grounds, 727 F.2d 274 (2d Cir.1984). Rejecting this reasoning, the D.C. Circuit pointed out that the statutory language of the expropriation exception did not support any distinction between tangible and intangible property. 491 F.3d at 478. The D.C. Circuit also dissected the legislative history and concluded that “ ‘the tangible/intangible characterization of property interests ... is a distinction without a difference’ and ‘is not generally recognized in international, federal, or state law.’ ” 491 F.3d at 478 (alteration in original), quoting West v. Multibanco Comermex, S.A, 807 F.2d 820, 830 (9th Cir.1987) (rejecting tangible/intangible distinction under act of state doctrine). The D.C. Circuit therefore concluded that the expropriation exception could apply to claims for the expropriation of the appellants’ bank accounts, 491 F.3d at 480, though the court later found that the claims were properly dismissed for failure to meet the “owned or operated” prong of the nexus requirement, which we discuss below. Without retracing the details of the argument, suffice it to say that on this issue, we agree with the D.C. Circuit in Nemariam and hold that the “rights in property” element of the FSIA’s expropriation exception applies to both tangible and intangible property. 2. “Taken ” The national bank argues next that even if we agree with Nemariam that rights in intangible property are “rights in property” under the expropriation exception, plaintiffs’ claims fail because the D.C. Circuit found that the bank account proceeds in that case were not “taken” within the meaning of the FSIA. The argument misreads Nemariam. The D.C. Circuit held that the defendant bank in that case did not “own or operate” the allegedly expropriated property, 491 F.3d at 481, and never discussed whether the property was “taken” within the meaning of the expropriation exception. The term “taken” is intended to distinguish between the acts of a sovereign and the acts of a private enterprise. See Zappia Middle East Const. Co., 215 F.3d at 251 (“The term ‘taken’ thus clearly refers to acts of a sovereign, not a private enterprise, that deprive a plaintiff of property without adequate compensation.”). The parties agree that the national bank is an instrumentality of Hungary under the FSIA. Any property expropriated by the national bank would qualify as “taken” and could be subject to the expropriation exception. 3. Violation of International Law The next element of the expropriation exception requires a plaintiff first to allege and ultimately to prove that the expropriation of property was a violation of international law. This element provides the most important and complex problems for us. The national bank advances four arguments as to why the alleged takings could not have violated international law, two of which are also pressed by the national railway. First, both defendants argue that expropriations of property from Hungarian nationals by Hungarian authorities were “domestic takings” that could not violate international law. Second, the national bank argues that U.S. law preempts genocide claims based on customary international law. Third, both defendants argue that the alleged takings were not violations of international law because plaintiffs failed to exhaust available remedies in Hungary. Fourth, the national bank argues that no actionable rights exist under the treaties, charters, or conventions cited in the complaint. We consider these arguments in turn. a. Domestic Takings Plaintiffs allege that the national bank and national railway, instruments of the Hungarian sovereign, expropriated assets from Hungarian nationals pursuant to official decrees, legislation, and actions mandated by the then Hungarian government. Defendants both argue that during World War II, customary international law universally recognized that a sovereign could expropriate the property of its own nationals within its own territory without violating international law. This rule of international law, that a so-called “domestic taking” cannot violate international law, has been recognized and applied in many decisions in U.S. courts. See, e.g., United States v. Belmont, 301 U.S. 324, 332, 57 S.Ct. 758, 81 L.Ed. 1134 (1937) (enforcing international agreement by which United States effectively ratified Soviet Union’s expropriation of Russian corporation’s property: “What another country has done in the way of taking over property of its nationals, and especially of its corporations, is not a matter for judicial consideration here. Such nationals must look to their own government for any redress to which they may be entitled.”); Dreyfus v. Von Finck, 534 F.2d 24, 31 (2d Cir.1976) (“violations of international law do not occur when the aggrieved parties are nationals of the acting state”); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 711 (9th Cir.1992) (“Expropriation by a sovereign state of the property of its own nationals does not implicate settled principles of international law.”), quoting Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1105 (9th Cir.1990); FOGADE v. ENB Revocable Trust, 263 F.3d 1274, 1294 (11th Cir.2001) (“As a rule, when a foreign nation confiscates the property of its own nationals, it does not implicate principles of international law.”); de Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1397 (5th Cir.1985) (“At present, the taking by a state of its national’s property does not contravene the international law of minimum human rights.”); Jafari v. Islamic Republic of Iran, 539 F.Supp. 209, 215 (N.D.Ill.1982) (“Similarly, the ‘law of nations’ does not prohibit a government’s expropriation of the property of its own nationals.”); Wahba v. National Bank of Egypt, 457 F.Supp.2d 721, 731 (E.D.Tex.2006) (“The expropriation exception does not apply, however, to a foreign state’s dealings with property owned by its own nationals.”); see also Restatement (Third) of Foreign Relations Law § 712(1) (1987) (a state is responsible under international law for injury resulting from “a taking by the state of the property of a national of another state ” if taking is not for public purpose, is discriminatory, or is not accompanied by provision for just compensation) (emphasis added). Defendants argue that such “domestic takings” were not a violation of international law in 1944 or today and therefore cannot support a claim under the expropriation exception to FSIA immunity. If we were dealing with claims of only expropriation of property, as was true in almost all of the cited cases, we would agree and would apply the domestic takings exception here. For example, in Chuidian, U.S. courts applied the domestic takings rule and found no violation of international law when officials of the new Aquino government in the Philippines instructed a U.S. bank to dishonor a letter of credit that had been issued in favor of a close associate of former president Marcos. 912 F.2d at 1105, abrogated on other grounds by Samantar v. Yousuf, — U.S. -, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2001). In de Sanchez, the domestic takings rule applied when a new Nicaraguan government placed a stop-payment order on a check issued by the national bank to the wife of a minister in the former government. 770 F.2d at 1395. In FOGADE, the domestic takings rule applied when the Venezuelan government placed a Venezuelan corporation in something akin to a receivership. 263 F.3d at 1294. In Wahba, the domestic takings rule applied when the national bank of Egypt seized the assets of Egyptian citizens who were business partners with government enterprises to retaliate against speculation in cotton markets that harmed Egyptian interests. 457 F.Supp.2d at 731. In Jafari, the domestic takings rule applied to claims that a new Iranian government had expropriated real estate, pensions, and other property from several Iranian citizens. 539 F.Supp. at 215 (“It may be foreign to our way of life and thought, but the fact is that governmental expropriation is not so universally abhorred that its prohibition commands the ‘general assent of civilized nations’ — a prerequisite to incorporation in the ‘law of nations.’ ”) (citation omitted). We do not question these cases applying the domestic takings rule, which recognizes that views among nations differ about private property rights and the role of government, as Judge Shadur noted in Jafari. Actions that might appear to one regime or nation as unfair expropriations might seem to another to be a just remedy for decades or more of exploitation of the poor and downtrodden. We are convinced, though, that the plaintiffs’ allegations about the relationship between genocide and expropriation in the Hungarian Holocaust take these cases outside the domestic takings rule and its foundations. Genocide, the complaints here clearly imply, can be an expensive proposition. Expropriating property from the targets of genocide has the ghoulishly efficient result of both paying for the costs associated with a systematic attempt to murder an entire people and leaving destitute any who manage to survive. The expropriations alleged by plaintiffs in these cases — the freezing of bank accounts, the straw-man control of corporations, the looting of safe deposit boxes and suitcases brought by Jews to the train stations, • and even charging third-class train fares to victims being sent to death camps — should be viewed, at least on the pleadings, as an integral part of the genocidal plan to depopulate Hungary of its Jews. The expropriations thus effectuated genocide in two ways. They funded the transport and murder of Hungarian Jews, and they impoverished those who survived, depriving them of the financial means to reconstitute their lives and former communities. All U.S. courts to consider the issue recognize genocide as a violation of customary international law. See, e.g., Sarei v. Rio Tinto, PLC, 671 F.3d 736, 759 (9th Cir.2011) (“Claims of genocide, therefore, fall within the limited category of claims constituting a violation of internationally accepted norms for [Alien Tort Statute] jurisdiction.”), petition for cert. filed, 80 U.S.L.W. 3335 (U.S. Nov. 23, 2011) (No. 11-649); Flores v. Southern Peru Copper Corp., 414 F.3d 233, 244 n. 18 (2d Cir.2003) (“Customary international law rules proscribing crimes against humanity, including genocide, and war crimes, have been enforceable against individuals since World War II.”); Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir.1995) (“In the aftermath of the atrocities committed during the Second World War, the condemnation of genocide as contrary to international law quickly achieved broad acceptance by the community of nations.”); Siderman de Blake, 965 F.2d at 715 (“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 co-gens.”) (internal citation omitted); TelOren v. Libyan Arab Republic, 726 F.2d 774, 791 n. 20 (D.C.Cir.1984) (Edwards, J., concurring) (“On the basis of international covenants, agreements and declarations, commentators have identified at least four acts that are now subject to unequivocal international condemnation: torture, summary execution, genocide and slavery.”) (citations omitted); Beanal v. Freeport-McMoRan, Inc., 969 F.Supp. 362, 371 (E.D.La.1997) (“Genocide, for example, violates international law, whether undertaken by a state or non-state actor.”), aff'd on other grounds, 197 F.3d 161 (5th Cir.1999); Handel v. Artukovic, 601 F.Supp. 1421, 1428 (C.D.Cal.1985) (“It appears clear that the acts of genocide, torture, enslavement, and religious discrimination alleged in plaintiffs’ complaint constituted violations of the laws of humanity at the time they were committed.”); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 762, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (Breyer, J., concurring in part and concurring in the judgment) (“Today international law will sometimes similarly reflect not only substantive agreement as to certain universally condemned behavior but also procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior. That subset includes torture, genocide, crimes against humanity, and war crimes.”) (internal citation omitted); Restatement (Third) of Foreign Relations Law of the United States § 702 (recognizing genocide as a violation of international law). Genocide also has been criminalized by the international criminal tribunals. See Rome Statute of the International Criminal Court, arts. 5-6; Statute of the International Criminal Tribunal for the former Yugoslavia, art. 4; Statute of the International Criminal Tribunal for Rwanda, art. 2. Genocide has been recognized as a jus cogens norm. As we noted in Sampson, jus cogens norms supported the prosecutions in the Nuremberg trials. 250 F.3d at 1150; see also Siderman de Blake, 965 F.2d at 715 (“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 co-gens.”) (internal citation omitted). On this general point, the “general assent of civilized nations” is well established. The international norm against genocide is specific, universal, and obligatory. Where international law universally condemns the ends, we do not believe the domestic takings rule can be used to require courts to turn a blind eye to the means used to carry out those ends — in this case, widespread expropriation of victims’ property to fund and accomplish the genocide itself. Plaintiffs’ allegations of these expropriations as an integral party of the overall genocidal plan allege violations of international law notwithstanding the domestic takings rule that would apply in most other circumstances. Defendants protest that plaintiffs cannot convert what defendants characterize as “non-actionable domestic takings” claims into genocide-based claims. Such claims, as converted, could proceed, if at all, argues the national bank, only under the FSIA’s non-commercial tort exception for claims for personal injury or death, but that exception cannot apply in these cases because it applies only if the offending conduct occurred in the United States. 28 U.S.C. § 1605(a)(5). We agree with the national bank that plaintiffs cannot bring claims for personal injury or death under the expropriation exception. Plaintiffs’ claims, however, are not for personal injury or death. They are for property expropriated pursuant to and as an integral part of a widespread campaign to deprive Hungarian Jews of their wealth and to fund genocide, a long-recognized violation of international law. We acknowledge that the fact that plaintiffs can seek compensation for taken property but not for taken lives seems anomalous. That anomaly, however, is the product of the statutory limits of the FSIA. The limits on remedies available in U.S. courts do not indicate a deficiency in their claims under substantive international law. Jurisdiction over plaintiffs’ claims is not barred by the domestic takings rule. b. Federal Preemption The national bank next argues that federal law preempts genocide claims based on customary international law. Here, the national bank argues, we may not recognize plaintiffs’ claims of genocide by expropriation because the Genocide Convention Implementation Act of 1987 (the “Proxmire Act”), 18 U.S.C. §§ 1091-93, established a federal statutory framework that precludes such claims by: (1) defining genocide with a list of acts that does not include theft or looting of assets among the culpable activities; and (2) more important to the national bank, expressly disavowing private civil claims. As a general rule, customary international law is not applicable in U.S. courts where a controlling federal statute prescribes different standards. Bradvica v. I.N.S., 128 F.3d 1009, 1014 n. 5 (7th Cir.1997); Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C.Cir.1988). For example, in Enahoro v. Abubakar, Nigerian nationals pled their claims of torture and killing by a former Nigerian head of state as a common law violation of the law of nations under the Alien Tort Statute. 408 F.3d 877 (7th Cir.2005). The defendant argued that because the plaintiffs had not complied with the exhaustion requirement in the Torture Victim Protection Act, their case should be dismissed. Id. at 884. The district court rejected this argument because plaintiffs had pled their case under the Alien Tort Statute and not the Torture Victim Protection Act. The district court found they had no reason to comply with the requirements of the latter act. Id. We rejected this argument, finding that the Torture Victim Protection Act “occupied] the field” such that plaintiffs could not choose to file their torture and extrajudicial killing claims under the Alien Tort Statute when they would have been properly pled under the Torture Victim Protection Act. Id. at 884-85. That is not the case here, however. As the national bank itself repeatedly emphasizes, the claims in the bank case stem from the alleged expropriation of personal property from Hungarian nationals by the Hungarian national bank. The jurisdiction of the Proxmire Act, the statute that the national bank claims preempts the bank plaintiffs’ claims, is explicitly limited to genocide committed either in whole or in part within the United States or, regardless of where the offense is committed, to cases where the alleged offender is a U.S. national, a lawful permanent U.S. resident, a stateless person residing in the United States, or present in the United States. 18 U.S.C. § 1091; see also Sampson, 975 F.Supp. at 1119-20. Because the bank plaintiffs’ claims clearly do not fall within the scope of the Proxmire Act, that statute does not preempt their claims under customary international law. c. Exhaustion of Domestic Remedies Defendants next argue that the alleged expropriation cannot be considered a violation of international law because plaintiffs have not alleged that they have pursued and exhausted domestic remedies in Hungary, the foreign state that is alleged to have caused the injury. This argument presents two separate questions: first, whether the FSIA itself imposes a statutory exhaustion requirement, and second, whether international law requires exhaustion of domestic remedies before plaintiffs can establish a violation. On the statutory exhaustion point, nothing in § 1605(a)(3) suggests that plaintiffs must exhaust domestic Hungarian remedies before bringing suit in the United States. It does not, for example, condition the exception to immunity on a claimant’s having first presented his claim to the courts of the country being sued or to an international tribunal. Defendants have identified no language in the FSIA and no case law indicating that the FSIA contains a statutory exhaustion requirement. The Ninth Circuit and the D.C. Circuit have both held that it does not. See Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1034-37 (9th Cir.2010); Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 948-49 (D.C.Cir.2008). We agree with the Ninth and D.C. Circuits that the FSIA does not contain a statutory exhaustion requirement. Whether a plaintiff must exhaust domestic remedies to assert a claim for expropriation in violation of international law is a different question. Defendants argue that plaintiffs cannot complain that a “taking” has not been fairly compensated (and hence violates international law) unless they first pursue and exhaust any available Hungarian remedies, or at least provide a legally compelling explanation for why they have not done so. Noting that “Hungary is a well-established European state, with a well functioning legal system that operates under established and cognizable rules of law,” the national bank offers a 1992 statute as an example of “the variety of laws that Hungary has enacted to provide compensation to individuals in [plaintiffs’] position.” Plaintiffs respond by arguing that domestic exhaustion is not required by international law. In the alternative, they argue that even if exhaustion is required generally, it should not be required in these cases because both sets of plaintiffs have satisfactorily explained their failure to do so. The international law issue therefore breaks down into two distinct questions. One, does international law require plaintiffs to exhaust domestic remedies before pursuing expropriation claims elsewhere? Two, if exhaustion is required, have plaintiffs exhausted domestic remedies or, in the alternative, have they provided a legally compelling reason for their failure to do so? On the first question, the Supreme Court has suggested that exhaustion of domestic remedies may well be necessary to assert a violation of customary international law, but the Court has not answered the question definitively. In Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n. 21, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), the Court noted that it “would certainly consider” whether claimants must have exhausted domestic or international remedies before asserting a claim in a foreign forum “in an appropriate case.” In another claim involving property expropriated during the Holocaust, Justice Breyer wrote that “a plaintiff may have to show an absence of remedies in the foreign country sufficient to compensate for any taking.” Altmann, 541 U.S. at 714, 124 S.Ct. 2240 (Breyer, J., concurring). We have likewise noted that “[i]t may be that a requirement for exhaustion is itself a basic principle of international law.” Enahoro, 408 F.3d at 886. In fact, the requirement that domestic remedies for expropriation be exhausted before international proceedings may be instituted is “a well-established rule of customary international law” that the United States itself has invoked. Interhandel (Switz v. U.S.), Preliminary Objections, 1959 I.C.J. 6, 26-27 (Mar. 21) (upholding the United States’ Third Preliminary Objection that the Court had no jurisdiction to hear or determine the matters raised by the Swiss Application and Memorial because Interhandel, whose case Switzerland was pressing, had not exhausted the local remedies available to it in U.S. courts); see also American Convention on Human Rights, art. 46, Nov. 22, 1969, 1144 U.N.T.S. 123 (“Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements: That the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law....”); Convention for the Protection of Human Rights and Fundamental Freedoms, art. 26, Nov. 4, 1950, 213 U.N.T.S. 221 (“The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”); Millicom Int’l Cellular, S.A. v. Republic of Costa Rica, 995 F.Supp. 14, 23 (D.D.C.1998); Greenpeace, Inc. (USA) v. State of France, 946 F.Supp. 773, 783 (C.D.Cal.1996); Restatement (Third) of the Foreign Relations Law of the United States § 713 cmt. f (“Under international law, ordinarily a state is not required to consider a claim by another state for an injury to its national until that person has exhausted domestic remedies ... [listing exceptions.]”); Ian Brownlie, Principles of Public International Law 492-501 (7th ed.2008). This rule is based on the idea that the state where the alleged violation occurred should have an opportunity to redress it by its own means, within the framework of its own legal system. Interhandel, 1959 I.C.J. at 26-27; see also Brownlie at 492-93 (listing other practical and political considerations justifying the domestic exhaustion rule). The Interhandel case is helpful for two reasons. First, it lays out the sovereignty and comity concerns underlying the domestic exhaustion rule. Second, it is a case in which the United States requested that an international court refrain from adjudicating a claim because the plaintiffs had not exhausted available U.S. remedies. Comity requires that the United States be prepared to reciprocate. In Interhandel, Switzerland filed with the International Court of Justice an application for interim measures of protection against the United States. In 1942, the U.S. government seized a Swiss subsidiary of Interhandel as enemy property under the Trading with the Enemy Act. The United States contended that the subsidiary was owned by or held for the benefit of a German company and thus was substantially under the control of an enemy corporation. See K.R. Simmonds, The Interhandel Case, 10 Int’l & Comp. L.Q. 495, 496 (1961). Relying upon the provisions of the Trading with the Enemy Act, Interhandel sought relief in the U.S. District Court for the District of Columbia. The suit bounced around the federal courts for years, and litigation was proceeding before the U.S. Supreme Court when the Swiss application and the United States’ Preliminary Objections were submitted to the International Court of Justice. Id. at 501. The United States’ Third Preliminary Objection sought a finding that the International Court of Justice did not have jurisdiction over the Swiss application because Interhandel had not exhausted the local remedies available to it in the U.S. courts. Interhandel, 1959 I.C.J. at 26. In finding that it lacked jurisdiction due to Interhandel’s failure to exhaust available U.S. remedies, the International Court of Justice noted that the domestic exhaustion rule is well established in customary international law, generally being observed in cases where a state has adopted the cause of its national who claims another state violated his rights in violation of international law. Id. at 26-27. The International Court of Justice further found that the domestic exhaustion rule applied with equal force when domestic proceedings were pending and the domestic and international proceedings were designed to obtain the same result. Id. at 27. In Millicom, three corporate entities brought suit in the United States against the Republic of Costa Rica, a Costa Rican instrumentality, and a subsidiary of the Costa Rican instrumentality. The suit alleged unlawful anti-competitive activity and other related misconduct in the Costa Rican cellular services market. 995 F.Supp. at 15. Citing Greenpeace (which in turn cited Interhandel), the district court noted: “As a threshold matter, a claimant cannot complain that a ‘taking’ or other economic injury has not been fairly compensated, and hence violates international law unless the claimant has first pursued and exhausted domestic remedies in the foreign state that is alleged to have caused the injury.” Id. at 23. The court then explained that none of the exceptions recognized in the Restatement applied. Id. Plaintiffs attempt to distinguish Millicom by arguing that case requires plaintiffs to show domestic exhaustion only where efforts to recover “taken” assets are contemporaneous with the taking itself. The district court in Millicom did not, however, indicate that the timing of the plaintiffs’ complaint affected its reasoning. Rather, the Millicom court’s citation to Interhandel seems to indicate that its reasoning was predicated on the comity and reciprocity concerns underpinning the domestic exhaustion rule. Moreover, it would be an odd rule of law if a plaintiff could avoid an exhaustion requirement by simply waiting long enough to bring the claim. As Justice Breyer noted in his concurrence in Altmann, U.S. constitutional law requires a claimant to exhaust available post-deprivation remedies before a state or local government’s taking of property can be deemed a federal constitutional violation. 541 U.S. at 714, 124 S.Ct. 2240 (Breyer, J., concurring), citing City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 721, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999), and Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1, 10, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984). “A federal court, moreover, cannot entertain a takings claim under § 1983 unless or until the complaining landowner has been denied an adequate post-deprivation remedy.” City of Monterey, 526 U.S. at 721, 119 S.Ct. 1624. These claims of takings of property in violation of international law are similar enough to expect claimants in these plaintiffs’ situations either to pursue and exhaust domestic remedies in Hungary or to show convincingly that such remedies are clearly a sham or inadequate or that their application is unreasonably prolonged. See Restatement (Third) of the Foreign Relations Law of the United States § 713 cmt. f. We hope we are not misunderstood. We do not mean to suggest that Hungary had in place meaningful remedies at the time of the Holocaust or during more than 40 years of Communist government after the war. But plaintiffs are pursuing their claims now, more than 65 years after the expropriations took place and after Hungary has had more than 20 years of government not dominated by the Soviet Union. Now is the relevant time for evaluating the adequacy of domestic remedies. As we consider this exhaustion issue, we cannot overlook the comity and reciprocity between sovereign nations that dominate international law. The plaintiffs suing the railway seek a judgment from a U.S. court ordering the national railway to pay plaintiffs as much as $1.25 billion. The plaintiffs suing the bank seek as much as $75 billion. The sum of damages sought by plaintiffs would amount to nearly 40 percent of Hungary’s annual gross domestic product in 2011. Divided among Hungary’s current population of 10 million people, that is more than $7500 per person. We should consider how the United States would react if a foreign court ordered the U.S. Treasury or the Federal Reserve Bank to pay a group of plaintiffs 40 percent of U.S. annual gross domestic product, which would be roughly $6 trillion, or $20,000 for every resident in the United States. And consider further the reaction if such an order were based on events that happened generations ago in the United States itself, without any effort to secure just compensation through U.S. courts. If U.S. courts are ready to exercise jurisdiction to right wrongs all over the world, including those of past generations, we should not complain if other countries’ courts decide to do the same. Hungary, a modern republic and member of the European Union, deserves a chance to address these claims. That is not to say that U.S. courts have no place in this sort of case. If plaintiffs choose to pursue their claims in Hungary but find the way barred by inaction or hostility, the U.S. courts may be available to consider their claims. But Hungary should first have the opportunity to address these alleged takings, by its own means and under its own legal system, before a U.S. court steps in to resolve claims against a part of the Hungarian national government for these actions taken in Hungary so long ago. We now turn to whether there is a legally compelling reason for plaintiffs’ failure to exhaust Hungarian remedies, such that the domestic exhaustion rule should not bar their claims. Plaintiffs advance three arguments on this point. First, plaintiffs argue that defendants’ denial of their factual allegations means that Hungary denies responsibility for their claims. Next, plaintiffs argue that any potential remedies in Hungary are inadequate, pointing out that the Constitutional Court of Hungary ruled in 1993 that Hungary had never fully complied with its obligation to make reparations under the 1973 Agreement. Last, they argue that any Hungarian remedy that might exist now has been unreasonably prolonged, as most of the claimants are surviving family members and Hungary still has not moved to compensate these plaintiffs or to set up procedures for such compensation. These arguments are based on the Restatement (Third) of the Foreign Relations Law of the United States § 713, comment f, which addresses state-to-state claims, where a state brings a claim on behalf of its own nationals. These arguments are not persuasive. Plaintiffs cite defendants’ decisions to defend themselves against this litigation as evidence that Hungary as a sovereign is denying responsibility for plaintiffs’ claims. The argument proves too much, for it would excuse use of domestic remedies in any case that is actually contested. Switzerland raised the same objection in Interhandel, arguing that the domestic exhaustion rule did not apply because it was the U.S. government, as opposed to a subsidiary, that had taken the action against Interhandel. The International Court of Justice rejected the argument, attaching “decisive importance” to the fact that the law of the United States made available adequate remedies for the defense of the rights that Interhandel felt had been violated. 1959 I.C.J. at 27. We agree. Defendants’ decisions to defend themselves rather than to settle or concede is not tantamount to a decision by Hungary, in its sovereign capacity, to deny plaintiffs’ claims. Plaintiffs cite no legislation, executive statement, or case law indicating that the Hungarian government denies these events or would refuse to entertain claims for losses related to the Holocaust. If U.S. courts implementing procedures established by U.S. law can provide adequate remedies against the U.S. government itself, comity suggests that other nations are entitled to similar opportunities to address claims against their agencies. Nor does the Constitutional Court’s 1993 ruling convince us that there is or was no adequate remedy available to plaintiffs in Hungary. Nearly 20 years have passed since that ruling. In that time Hungary has adopted a new constitution and become a member of both the European Union and NATO. Its legal system operates under established rules of law. The fact that the Constitutional Court was able and willing to rule that Hungary never fully complied with its obligations to make reparations under the 1973 Agreement suggests that Hungary has a functional and independent judiciary. These facts all point to Hungary’s apparent ability to provide an adequate remedy to plaintiffs, whether under a statute specifically enacted to remedy Holocaust-era injuries or under a general takings statute. As for plaintiffs’ argument that any presently available remedy was unreasonably prolonged, we must recall that plaintiffs themselves waited until 2010 to file their complaints in the United States. The German Foundation and the Austrian General Settlement Fund, two international settlements created for the benefit of Holocaust victims, were finalized in 2000 and 2001, respectively. Whether Hungary’s 1992 compensation statute is, as plaintiffs claim, inadequate is a separate question from whether it was unreasonably prolonged. For purposes of this case, we think it was not unreasonably prolonged. It was enacted nearly a decade before the German Foundation or the Austrian General Settlement Fund were created, and almost 20 years before plaintiffs filed the complaints in these cases. Plaintiffs have not shown that any presently available remedy was unreasonably prolonged. In short, there is no reason for U.S. courts to take up these claims without a persuasive showing that Hungarian law is unresponsive. We acknowledge, however, that plaintiffs offer some powerful emotional reasons against requiring exhaustion of domestic remedies. As survivors of the effort of an earlier Hungarian government to exterminate them or their loved ones, plaintiffs have an understandable fear and reluctance to trust a Hungarian forum