RUSSIA AND THE STOLEN CHABAD ARCHIVE

Transcription

1 RUSSIA AND THE STOLEN CHABAD ARCHIVE TALYA LEVI* ABSTRACT The unprecedented levels of theft, destruction, and displacement of cultural property during World War II has led the international community to grapple with questions of restitution. Achieving complete restitution remains nearly impossible because much of the affected cultural property is dispersed and hidden throughout the world. Moreover, many governments refuse to return cultural property, even when the rightful owner or heir is known, asserting that such property is justly in their possession as a result of expropriation and nationalization. A prime example of such government action is Russia s decades-long refusal to return to the Jewish Chabad sect an archive of sacred books, manuscripts, and handwritten teachings (collectively, the Archive ) that were seized by the Russians after World War II, and which continue to remain in Russian possession. Despite a ruling in Chabad s favor by the U.S. Court of Appeals for the District of Columbia Circuit, Russia has maintained its position that the United States lacks jurisdiction, and that under Russian law, the Archive has been nationalized and is thus Russian property. This Note argues that Russia is obligated to return the Archive to Chabad because (A) Russian laws on cultural property violate international law; (B) Russia s refusal to return the Archive is contrary to its own public policy with regard to cultural property; and (C) ultimately, the exception set forth for Jewish property requires that Russia return the Archive to Chabad. I. INTRODUCTION II. AGUDAS CHASIDEI CHABAD V.RUSSIAN FEDERATION A. The Archive: A Historical Background B. The Foreign Sovereign Immunities Act: Nine Years of Litigation in the United States III. LEGAL FRAMEWORK APPLICABLE TO THE CHABAD CLAIM * J.D. Candidate 2015, Georgetown University Law Center. B.A. 2012, Political Science, Barnard College, Columbia University. The author thanks Professor Anne-Marie Carstens for her thoughtful guidance and feedback on earlier drafts of this Note, as well as the editors and staff of the Georgetown Journal of International Law for their assistance. The author also thanks her family and friends for their continued support and guidance. Most especially to her parents, who are a constant source of inspiration, and without whom this would have never been possible. 2015, Talya Levi. 915

2 GEORGETOWN JOURNAL OF INTERNATIONAL LAW A. Pre-World War II: Evolution of International Law on Wartime Protection of Cultural Property B. Post World War II: The Allies & Cultural Property Restitution Policies C. The 1990 s: Attempts at a Consensus on Restitution Washington Conference Principles Council of Europe Resolution Terezin Declaration Draft UNESCO Declaration D. Russian Federal Law on Cultural Valuables IV. RUSSIA S OBLIGATION TO RETURN THE ARCHIVE TO CHABAD A. The Russian Federal Law on Cultural Valuables Violates International Law B. Russia s Refusal to Return the Archive is Contrary to Its Own Public Policy C. The Exception Made for Jewish Property Requires a Return of the Archive V. CONCLUSION I. INTRODUCTION Throughout most of history, the pillaging of cultural property was considered an expected consequence of warfare. 1 The accepted international norm was that the cultural property of a defeated enemy was the war trophy of the conqueror. 2 However, by the early twentieth century, the international community had begun to reconsider this norm, going so far as to outlaw pillaging and seizure. 3 Yet the unprecedented breadth and scale of theft, destruction, and displacement of cultural property by the Nazis during World War II flew in the face of this new norm. 4 Millions of archives, works of art, and personal artifacts were plundered and destroyed. Moreover, the Nazis advanced novel ideological, legal, and political arguments to justify these removals; asserting that items of non-aryan culture threatened the purity and 1. Michael J. Bazyler & Seth M. Gerber, Litigating the Pillage of Cultural Property in American Courts: Chabad v. Russian Federation and Lessons Learned, 32 LOY. L.A. INT L & COMP. L. REV. 45, 45 (2010). 2. Wayne Sandholtz, Plunder, Restitution, and International Law, 17 INT L J. CULT. PROP. 147, 148 (2010). 3. Id. at MICHAEL J. KURTZ, AMERICA AND THE RETURN OF NAZI CONTRABAND 12 (Cambridge University Press ed. 2006). 916 [Vol. 46

3 RUSSIA AND THE STOLEN CHABAD ARCHIVE integrity of Aryanism and had to be eliminated along with their owners and creators. 5 The result was the greatest dislocation of cultural property in history. Thus, after the war, the Allied Powers were forced to consider the appropriate restitution of this dislocated cultural property. The Allies goal was complicated by the fact that the property seized and destroyed by the Nazis originated from many different nations and sources, and comprised a wide array of objects, ranging from paintings to scientific collections to Jewish religious artifacts and family heirlooms. 6 Although the Allies acknowledged the need for a new international restitution law, their differing ideologies and interests prevented the formulation of a uniform policy. 7 The result was a patchwork policy in which each Allied government created a policy for the zone it controlled. 8 For example, U.S. and British policy was to return property to the nation from which it was taken, regardless of whether taken by purchase or confiscation. 9 Conquered countries therefore assembled international teams to re-claim their respective items. 10 However, an exception was made for Jewish property. Responsibility for the disposition of such items, regardless of their origin country, was transferred to a Jewish Restitution Successor Organization (JRSO), which distributed objects to their rightful heirs and Jewish communities worldwide. 11 In contrast, the Soviet Union adopted a policy of compensatory restitution under which countries within its republic, such as Russia, could replace their lost or destroyed cultural property by appropriating objects of similar kind and value from the state responsible for the loss and destruction. 12 The Soviets, therefore, established trophy brigades that collected objects throughout Europe, regardless of ownership, as compensation and sent them back to the Soviet Union to store them in cultural institutions and secret depositories. 13 In 1998, the Russian Federation established a legal basis for the policy of Russian compensatory restitution by enacting a law that favored nationalization over the 5. Id. at LYNN H. NICHOLAS, World War II and the Displacement of Art and Cultural Property, in THE SPOILS OF WAR: WORLD WAR II AND ITS AFTERMATH: THE LOSS, REAPPEARANCE, AND RECOVERY OF CULTURAL PROPERTY 39, 44 (Elizabeth Simpson ed., 1997). 7. Michael Kurtz, The Allied Struggle Over Cultural Restitution, , 17 INT L J. CULT. PROP. 177, 189 (2010). 8. NICHOLAS, supra note 6, at Id. 10. Id. 11. Id. 12. Sandholtz, supra note 2, at NICHOLAS, supra note 6, at ] 917

4 GEORGETOWN JOURNAL OF INTERNATIONAL LAW return of property. 14 While Russia subsequently returned thousands of items to many Eastern European countries, it continues to retain hundreds of thousands of paintings, sculptures, archives, and items of Jewish property that the trophy brigades removed from Germany and other European countries. 15 The Russian government maintains that such items should remain in Russia as compensation for the millions of items of cultural property seized or destroyed by the Nazis in Soviet territory, even though the rightful owner of the property is known in many cases. 16 Over the last decade, this Russian policy and law of expropriation and nationalization has come into sharp conflict with growing demands from Holocaust survivors and their heirs that their property be returned from museums, galleries, and governments throughout the world. 17 This conflict is exemplified by Russia s position in Agudas Chasidei Chabad of the United States v. Russian Federation. 18 The Chabad case concerns Russia s steadfast refusal to return to the Chabad sect of Judaism a valuable archive of sacred books, manuscripts, and handwritten teachings of the Chabad movement (the Archive ) seized by the Russians from Poland after World War II. 19 Chabad considers this archive to be an essential legacy...of[its founding spiritual leader] himself and integral to the sect s historical, religious, and ethnic identity. 20 However, despite a D.C. District Court default judgment in Chabad s favor and an Order for Contempt of Court, which imposes sanctions of $50,000 per day until Russia hands over the Archive, 21 Russia has maintained its position that U.S. courts lack jurisdiction, and that under Russian law, the Archive has been nationalized and is thus Russian property Sandholtz, supra note 2 at Id. at Id. 17. Michael J. Bazyler & Seth M. Gerber, Chabad v. Russian Federation: A Case Study in the Use of American Courts to Recover Looted Cultural Property, 17 INT L J. CULT. PROP. 361, 362 (2010). 18. See Agudas Chasidei Chabad v. Russian Fed n, 528 F.3d 934, (D.C. Cir. 2008). 19. Id. at Irina Tarsis & Elizabeth Varner, Reviewing the Agudas Chasidei Chabad v. Russian Federation, et al. Dispute, AM. SOC Y OFINT L L. INSIGHTS, Mar. 19, 2014, available at volume/18/issue/8/reviewing-agudas-chasidei-chabad-v-russian-federation-et-al-dispute. 21. Patricia Kennedy Grimsted, Chabad Sacred Texts, Russian-American Art Loans, and a Tall Ship Named Hope : Beyond Cold War over a Restitution Claim?, 18 ART, ANTIQUITY, AND L. 345, 346 (2013). 22. Id. 918 [Vol. 46

5 RUSSIA AND THE STOLEN CHABAD ARCHIVE This Note argues that the holding of the D.C. Circuit is correct and Russia is obligated to return the Archive to Chabad. Section II of this Note provides the historical background to the case, including a discussion of the U.S. litigation. Section III discusses the legal framework applicable to the Chabad case, tracing the evolution of international law on both the protection and restitution of cultural property. Finally, Section IV asserts that Russia is obligated to return the Archive to Chabad given that (A) Russian cultural property law violates international law; (B) Russia s refusal to return the archive is contrary to its own public policy with regard to cultural property; and (C) ultimately, the established exception for Jewish property requires that Russia return the Archive to Chabad. II. AGUDAS CHASIDEI CHABAD V.RUSSIAN FEDERATION The Chabad case involves an ownership dispute between Russia and the Jewish Chabad sect over the so-called Schneerson Collection. 23 The collection has two components: a library of books (the Library ) nationalized during the Bolshevik Revolution, and the Archive, plundered by the Nazi s during World War II, and then seized by the Russians at the end of the war. 24 The Schneerson Collection is both a part of Russian heritage, and integral to the historical, religious, and ethnic identity of Chabad. 25 Therefore, despite a decades-long diplomatic campaign to recover ownership of the collection, and a D.C. Circuit court ruling in Chabad s favor, Russia refuses to cede ownership to Chabad. 26 The Library and the Archive have separate histories, and this Note focuses only on the Archive. However, the history of the Library is discussed briefly due to its relevance to the Archive. A. The Archive: A Historical Background The plaintiff in the Chabad case, Agudas Chasidei Chabad of the United States ( Chabad ), is the worldwide umbrella entity for the Hasidic Jewish sect Chabad-Lubavitch. 27 This 250-year-old Jewish orga- 23. Agudas Chasidei Chabad, 528 F.3d at Id. 25. Giselle Barcia, After Chabad: Enforcement in Cultural Property Disputes, 37 YALE J. INT L L. 463, (2012). 26. Nicholas M. O Donnell, Chabad Library Case and Russian Art Loan Embargo Roil International Waters, BUREAU OF NAT L AFFAIRS, 1, 2-4 (2013), available at files/2013/06/chabad-bloomberg-b pdf. 27. Bazyler & Gerber, supra note 1, at ] 919

6 GEORGETOWN JOURNAL OF INTERNATIONAL LAW nization, founded in Europe and currently based in Brooklyn, follows and teaches the spiritual tenets of Rabbi Israel Baal Shem Tov, and the seven successive generations of spiritual leaders referred to as Rebbes. 28 During the eighteenth century, the Rebbes began to collect writings for the benefit of Chabad members, which consisted of a collection of rare and irreplaceable rabbinic books, archives, and manuscripts on Chabad philosophy, Jewish religious law, prayer, and tradition (the Library ). 29 The Library grew cumulatively under each Rebbe, and by the early twentieth century consisted of more than 12,000 books and 381 manuscripts. 30 These texts were used by the Rebbes as the source materials for their religious teachings. 31 In 1915, with the advancing German invasion of World War I, the fifth Rebbe hid the Library for safekeeping in the courtyard of a Moscow warehouse owned by a wealthy Hasidic businessman. 32 However, during the Russian Revolution of 1917, Bolshevik revolutionaries seized the warehouse, and according to the Russian Federation, the Library was nationalized by two decrees issued in 1919 and 1920 by the Soviet Government. 33 In 1922, the sixth Rebbe submitted an appeal claiming the library as his personal property, and contesting the legality of Soviet nationalization. 34 The appeal was denied, and in 1924, the Library was transferred to the Book Depository of the State Rumiantsev Museum (later known as the V.I. Lenin State Library). 35 The exact scope of the Library s contents remains unknown, and subsequent attempts by the sixth Rebbe to retrieve the Library were rejected. 36 Recognizing there was little chance of retrieving the Library, the sixth Rebbe began to compile a new collection of sacred books and 28. Bazyler & Gerber, supra note 17, at Id. 30. Id. 31. Id. 32. Id. 33. Bazyler & Gerber, supra note 1, at Grimsted, supra note 21, at Id. at Whether or not the Library should be returned to Chabad is beyond the scope of this Note. The distinguishing factor between the Library and the Archive is that the Library never left Russia, while the Archive was brought to Poland. As a result, Russia claims that the Library is an essential part of Russian multi-ethnic heritage. Significantly, the fact that the Library never left Russia raises questions of ownership and jurisdiction that makes its outcome different than that of the Archive. It can be claimed that expropriation of the Library was not a violation of international law because the owner was a national of the taking state. In contrast, the Nazis were the first to confiscate the Archive, and thus the subsequent Soviet confiscation of the Archive after World War II can be considered a violation of international law. 920 [Vol. 46

7 RUSSIA AND THE STOLEN CHABAD ARCHIVE manuscripts from donations received primarily from the United States. 37 This collection became known as the Archive. However, in the mid s, the sixth Rebbe was arrested and condemned to death for anti-revolutionary activities, namely for promoting Jewish activities unauthorized by the new Soviet atheist regime. 38 Ultimately, international pressure forced the Soviets to revoke the death sentence, and the Rebbe was instead exiled to central Russia. 39 From there, the Rebbe took the Archive and went to Warsaw, Poland, where he established a Chabad Yeshiva a central place of textual learning. 40 In September 1939, when the Nazis and Soviet Union each invaded Poland, the U.S. government assisted the Rebbe in escaping to the United States, mainly because of his importance to American Jewry. 41 He was granted immigrant status, and then incorporated the Community of Agudas Chasidei Chabad in Brooklyn, New York, where Chabad s World Headquarters and Central Library are now located. 42 Although the Rebbe escaped from Poland, he was unable to take most of the Archive. Nonetheless, on at least three occasions during World War II, the Rebbe explicitly declared that the books and manuscripts in his possession and those left in Poland belonged to Chabad. 43 First, after fleeing to Warsaw in 1939, the Rebbe wrote to his secretary and librarian in Latvia, explaining that he did not have space for the entire Archive, and requesting that Chabad take them back. 44 In that same year, the Rebbe wrote to Chabad offices in New York, and asked them to petition the American counsel in Warsaw to take over the Archive. 45 Finally, at the end of World War II, the Rebbe requested assistance from the librarian of the Jewish Theological Seminary in New York to locate the Archive, asserting that the Archive was the property of Chabad of America and Chabad Worldwide. 46 At some point during the war, Nazi agents seized the Archive from the Chabad yeshiva in Warsaw, and transported it to a castle in Poland. 47 The castle housed public and private property belonging to 37. Bazyler & Gerber, supra note 17, at Grimsted, supra note 21, at Bazyler & Gerber, supra note 1, at Id. at Id. at Grimsted, supra note 21, at Bazyler & Gerber, supra note 1, at Id. 45. Id. at Id. at Bazyler & Gerber, supra note 17, at ] 921

8 GEORGETOWN JOURNAL OF INTERNATIONAL LAW those deemed enemies of the Reich, such as Jews and socialists. 48 After the Nazi surrender in 1945, Soviet trophy brigades found the Archive and transported it to Moscow to be placed in a top-secret Central State Special Archive, the TsGOA, as compensation for the destruction and displacement of their cultural property by the Nazis. 49 After the War, the sixth Rebbe enlisted the help of the librarian of the Jewish Theological Seminary in locating the missing Archive. 50 However, because the Soviets kept the holdings of the TsGOA secret, Chabad was unable to locate the Archive. 51 In 1999, the trophy holdings in TsGOA became part of the Russian State Military Archive (RSMA). 52 Yet, because the lists of Russian trophy findings, especially those relating to Jewish documents, were neither complete nor public, Chabad researchers were not able to confirm the Archive was being hidden at the RSMA until Upon discovering the Archive s location, Chabad delegation members sent a letter to President Vladimir Putin, the Russian Minister of Foreign Affairs, and the Russian Minister of Culture and Mass Communication, requesting the return of the Archive to Chabad. 54 In response, the acting director of the RSMA prepared a certificate for the Head of the Federal Archive agency confirming that the Archive was 48. Bazyler & Gerber, supra note 1, at Id. at Id. at Bazyler & Gerber, supra note 17, at Bazyler & Gerber, supra note 1, at The contents of the Library were also hidden away and not catalogued among the trophy holdings of the V.I. Lenin State Library, now known as the Russian State Library. In the late 1980s, Chabad was able to identify the Library inside the Lenin Library, and the seventh Rebbe, Rabbi Menachem Schneerson, commenced an effort once again to recover its contents. A five-person delegation was established to secure the return of the Library to Chabad s central library in Brooklyn. In 2000, after the fall of the Soviet Union, the director of Chabad s central library in New York traveled to Moscow and conclusively identified nearly 5,000 books belonging to the Library, though the Russian State Library prohibited him from fully examining the books, and he was not permitted to view any of the manuscripts from the Library. Throughout the 1990s, Chabad engaged in legal action in the Soviet Union and the Russian Courts for the return of the Library. This led to a decades long diplomatic campaign to recover ownership of the Library. Chabad enjoyed initial success in when the Soviet Union collapsed, winning a Russian civil judgment that Chabad was the rightful owner of the Library. However, political forces in the Russian Federation thwarted Chabad s judicial victories when the Deputy Chief State Arbiter reversed the judgment. The Library has remained trapped on Russian soil. For further discussion of the litigation in the Soviet Union and in Russian Courts over the return of the Library see generally Bazyler & Gerber, supra note 1, at 54-63; Bazyler & Gerber, supra note 17, at ; Grimsted, supra note 21, at Bazyler & Gerber, supra note 1, at [Vol. 46

9 RUSSIA AND THE STOLEN CHABAD ARCHIVE received in 1945 as a set of trophy documents, and declaring that it was therefore Russian property. 55 Thus, Chabad s decades-long search to track down the Archive was for naught because Russia had no intention of returning the Archive. B. The Foreign Sovereign Immunities Act: Nine Years of Litigation in the United States Recognizing that it would not gain restitution of the Archive through the Russian courts or through diplomacy, 56 Chabad considered litigation in the United States. 57 However, because the Archive was held by Russian state organizations, the sovereign immunity doctrine shielded these organizations from being sued in foreign courts without the sovereign s consent. 58 Then, in 2004, a U.S. Supreme Court decision, Republic of Austria v. Altmann, 59 offered a potential path forward. 60 Maria Altmann had filed suit in Los Angeles in the U.S. District Court for the Central District of California against the Republic of Austria for the return of several Gustav Klimt paintings that had belonged to her uncle. 61 Altmann argued that the expropriation exception of the Foreign Sovereign Immunities Act of 1976 (FSIA) 62 gave U.S. federal courts jurisdiction over her claims against Austria, the state sponsor of 55. Id. at Prior to litigation in the American courts, several U.S. Presidents, Congress, and the U.S. Helsinki Commission all appealed to Russia for the return of the Schneerson collection to Chabad. For example, throughout the 1990s, Al Gore and a handful of other senators took on the Chabad case as a cause celebre. In 1992, Gore sent a letter signed by 134 members of Congress to Russian President Boris Yeltsin urging him to take the steps necessary to ensure the return of the collection to Chabad. For further discussion of the diplomatic efforts on behalf of Chabad. See generally Bazyler & Gerber, supra note 1, at 60-64; Grimsted, supra note 21, at O Donnell, supra note 26, at U.S.C (1976) (establishing that foreign states are immune from the jurisdiction of U.S. courts). 59. Republic of Austria v. Altmann, 541 U.S. 677 (2004). 60. O Donnell, supra note 26, at Altmann, 541 U.S. at U.S.C 1605(a)(3). A foreign state shall not be immune from the jurisdiction of 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. 2015] 923

10 GEORGETOWN JOURNAL OF INTERNATIONAL LAW the Belvedere Museum where the paintings hung. 63 Under this exception, the plaintiff has to show an object was taken in violation of international law, and that the agency or instrumentality holding the disputed and illegally taken property is engaged in commercial activity in the United States. 64 To satisfy the FSIA requirement, 65 Altmann contended the paintings were taken in violation of international law, that Austria was engaged in commercial activities in the United States, and that the FSIA should be applied retroactively to wartime claims. 66 The Supreme Court agreed and remanded the case back to Los Angeles for litigation. 67 The parties ultimately agreed to arbitrate in Austria, where Altman won and the paintings were delivered to her. 68 Relying on Altmann, in 2004, Chabad filed suit in the same U.S. District Court in California seeking recovery of Chabad s entire collection of sacred books and manuscripts being held in Russia, including the Library and Archive. 69 Chabad named as defendants the Russian Federation, the Russian Ministry of Culture, the Russian Library, and the RSMA (collectively the Russia Defendants ). 70 Like the plaintiffs in Altmann, Chabad brought its claim under the expropriation exception 71 to the FSIA. 72 The Russian Defendants moved to dismiss the lawsuit on procedural grounds, arguing that U.S. courts lacked jurisdiction to hear the case. 73 The defendants specifically claimed sovereign immunity protection under the FSIA, arguing that Chabad could neither establish that property was taken in violation of international law nor owned by an agency engaged in commercial activity in the United States. 74 The Russian Defendants further argued that even if jurisdiction existed under the FSIA, the act of state doctrine 75 barred 63. Altmann, 541 U.S. at U.S.C 1605(a)(3). 65. Id. 66. Altmann, 541 U.S. at O Donnell, supra note 26, at Id. 69. Bazyler & Gerber, supra note 1, at Id U.S.C 1605(a)(3). 72. Bazyler & Gerber, supra note 1, at Agudas Chasidei Chabad v. Russian Fed n, 466 F. Supp. 2d 6, 10 (D.D.C. 2006). 74. Id. 75. Id. at 25. The Act of State Doctrine is a judicial doctrine under which U.S. Courts, despite possessing jurisdiction over a case, will decline to hear the case on grounds of judicial prudence, since the hearing of the case might negatively impact the foreign relations of the United States. 924 [Vol. 46

11 RUSSIA AND THE STOLEN CHABAD ARCHIVE the suit, 76 and that because Russian courts provided an adequate forum to hear the dispute, the case should also be dismissed under the doctrine of forum non conveniens. 77 In July of 2005, after initial proceedings in the California U.S. District Court, the judge could not establish California as an appropriate venue under the FSIA, and refused to rule on the Defendants Motion to Dismiss. The Chabad case was thus transferred to the U.S. District Court in Washington, D.C. 78 There, the district court denied Russia s motion, in part, and granted it in part. 79 With respect to the Library, the court granted Russia s motion to dismiss Chabad s Library claim because, according to the court, the taking of the Library did not violate international law because it was taken by a state from its own citizens. 80 Regarding the Archive, the court held that the Nazi taking of the Archive clearly violated international law, and that the subsequent 1945 Soviet seizure and appropriation of the Archive from its Nazi captors as spoils of war was also a taking in violation of international law. 81 Furthermore, the court held that the sixth Rebbe s correspondences between 1939 and 1947 established that even before he was forced to leave the Archive in Poland, the Rebbe considered the property to be held in trust for the benefit of the Chabad community. 82 Because each side gained only a partial victory, both Chabad and the Russian Defendants appealed. 83 In 2008, the U.S. Court of Appeals for the D.C. Circuit concluded that Chabad had, in fact, carried its jurisdictional burden as to both expropriations, and handed Chabad a complete victory. 84 The case was remanded to the district court to proceed to the merits. 85 However, rather than proceed, the Russian Defendants informed the court that they would cease to litigate the matter in the United States. 86 In 2010, the district court entered a default judgment against the Russian Defendants, ordering the immediate return of the complete 76. Id. at Id. at 27. Forum non conveniens is a judicial doctrine under which the trial judge has the discretion to dismiss the case in favor of a more adequate and convenient foreign forum. 78. Grimsted, supra note 21, at Agudas Chasidei Chabad, 466 F. Supp. 2d at Id. at Id. at Id. at Grimsted, supra note 21, at Agudas Chasidei Chabad v. Russian Fed n, 528 F.3d 934, 955 (D.C. Cir. 2008). 85. Id. at Grimsted, supra note 21, at ] 925

12 GEORGETOWN JOURNAL OF INTERNATIONAL LAW Library and Archive to Chabad. 87 Having terminated their participation, the Russian Defendants did not return the collection or respond to the judgment. 88 In 2011, the Russian Defendants reaffirmed to the court that they did not consider themselves bound by the judgment, and announced that they would no longer extend any loans of Russian cultural artifacts to the United States for fear of their seizure to enforce the Chabad judgment. 89 Since the judgment has been entered, Chabad has repeatedly asked the court to sanction the Russian government. 90 In 2013, despite insistence from the U.S. government not to sanction Russia, claiming it could hurt diplomatic relations, the district court imposed a fine of $50,000 per day on the Russian government until the judgment is obeyed. 91 Presently, Russia has accumulated nearly $8 million in debt from the sanctions, and the future of the Library and the Archive remains unclear. 92 III. LEGAL FRAMEWORK APPLICABLE TO THE CHABAD CLAIM The Chabad case serves as a prime example of how more than fifty years after the end of World War II there is still no global agreement on how to address the restitution of cultural valuables displaced or destroyed by war. Without a uniform international law on restitution of cultural property, plaintiffs such as Chabad are left without a means to ensure their property is returned. However, despite the lack of such uniformity, the past two centuries have seen the continued development of international legal rules that prohibit the seizure or destruction of cultural property during wartime and govern their return. 93 It is against the backdrop of these accepted legal norms that Russia should be judged. 87. Id. 88. O Donnell, supra note 26, at Id. 90. Id. at Agudas Chasidei Chabad v. Russian Fed n, 915 F. Supp. 2d 148, 150 (D.D.C. 2013). 92. Grimsted, supra note 21, at See Lawrence M. Kaye, Laws in Force at the Dawn of World War II: International Conventions and National Laws, in THE SPOILS OF WAR: WORLD WAR II AND ITS AFTERMATH: THE LOSS, REAPPEARANCE, AND RECOVERY OF CULTURAL PROPERTY 100 (Elizabeth Simpson ed., 1997). 926 [Vol. 46

13 RUSSIA AND THE STOLEN CHABAD ARCHIVE A. Pre-World War II: Evolution of International Law on Wartime Protection of Cultural Property The concept of special protection for cultural property first emerged in Europe during the eighteenth century. 94 Most notably, Vattel s treatise, The Law of Nations, laid out the basic principle that [f]or whatever cause a country is ravaged, we ought to spare those edifices which do honor to human society... such as temples, tombs, public buildings, and all works of remarkable beauty During the nineteenth century, as interest in art became more widespread and market prices for artwork soared, people began to recognize national cultural heritage as the irreplaceable patrimony of a nation. 96 This belief, coupled with increasingly destructive wartime technologies, created great anxiety about the fate of art and other cultural property during war. 97 The aftermath of the Napoleonic Wars marked the first time that the condemnation of looting of cultural property during war, and the corresponding principle that plundered property should be returned to its country of origin, was addressed at an international level. 98 The nations that were allied against Napoleon ordered the return of cultural property, and emphasized that Napoleon s systematic looting of cultural property was contrary to justice and the rules of modern warfare. 99 The earliest known attempt to codify the principles of protecting cultural property was the Lieber Code of 1863, promulgated during the U.S. Civil War. 100 The Code was designed to protect cultural, educational, and charitable property from looting and destruction. 101 The Lieber Code greatly influenced international thinking on protecting cultural property and led to the 1874 Brussels Conference, the first international attempt to codify rules in this area. 102 The resulting Brussels Declaration prohibited wartime pillaging of enemy property except for military reasons, and specifically condemned the seizure or destruction of cultural and educational property, whether publicly or 94. Id. at Id. 96. Id. 97. Id. 98. Id. 99. Id Id.; Alan Marchisotto, The Protection of Art in Transnational Law,7VAND.J.TRANSNAT L L. 689, 695 (1974) KURTZ, supra note 4, at Kaye, supra note 93, at ] 927

14 GEORGETOWN JOURNAL OF INTERNATIONAL LAW privately owned. 103 While never ratified, the Brussels Declaration included principles that would shape future developments of international law. In the late nineteenth and early twentieth centuries, the international community moved to formalize international norms for the wartime protection and restitution of cultural patrimony. 104 Nearly forty countries, including the major European and non-european powers, came together in 1889 and again in 1907 to adopt the Hague Convention, a series of international agreements that sought to govern conduct during war. 105 Most significantly, the Convention s articles included essential statements on the protection of property in international law. 106 The key protections forbid pillaging, 107 as well as any seizure of, destruction or wilful damage done to institutions [dedicated to religion, charity and education, or the arts and sciences] or historic monuments, [and] works of art and science. 108 According to the Convention, such property should be afforded similar treatment to private property. 109 These provisions, taken together, afford protection from looting and destruction during wartime to virtually every kind of cultural property. 110 In the event these provisions are breached, the Convention permits the filing of legal proceedings and the seeking of monetary compensation from those deemed violators. 111 Despite international efforts to adopt additional international agreements to protect cultural property, when World War II commenced, the 1899 and 1907 Hague Conventions were the only comprehensive 103. KURTZ, supra note 4, at 7; Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 Aug. 1874, available at [hereinafter Brussels Declaration] Sandholtz, supra note 2, at Kaye, supra note 93, at Id Convention (IV) Respecting the Laws and Customs of War on Land art. 47, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631. [hereinafter Hague Convention] Id. art Id Kaye, supra note 93, at 102. While terms for the restitution of cultural property confiscated during wartime were not specifically laid out in the convention, such terms were regularly included in peace treaties entered into after World War I. See, e.g., Treaty of Peace between the Allied and Associated Powers and Austria, Sept. 10, 1919, 11 Martens Nouveau Recueil (ser. 3) 691 (Treaty of Germain); Treaty of Peace Between the Allied and Associated Powers and Germany, June 28, 1919, 2 Bevans 43 (Treaty of Versailles) Kaye, supra note 93, at [Vol. 46

15 RUSSIA AND THE STOLEN CHABAD ARCHIVE multilateral international agreements dealing with the wartime protection of cultural property that were in effect. 112 B. Post World War II: The Allies & Cultural Property Restitution Policies During World War II, Europe experienced the greatest theft, loss, and displacement of cultural property in history. 113 Even during the early stages of the war, the Allies denounced the Nazis as plunderers and violators of international rules. 114 This mass plundering and looting triggered another cycle of international norm development, as the Allied governments debated postwar restitution and reparation policies to address Nazi confiscations. 115 When the war ended, the four occupation powers France, the United Kingdom, the United States, and the Soviet Union attempted to negotiate an international agreement on restitution. 116 All the occupying powers agreed on a policy of external restitution, i.e. restitution of property taken from German occupied territories. 117 Under this policy, identifiable cultural property was to be returned to the government of the territory from where it was taken, with that government being responsible for restitution to the rightful owner. 118 This policy moved ahead by general agreement, but it was a massive undertaking in practice, and the Allies did not agree on common procedures and mechanisms to carry it out. 119 While the allies reached a general agreement on the broad policy of external restitution, they could not agree on a policy of restitution-inkind, 120 i.e. whether Germany would have to replace works that were lost or destroyed by providing comparable works from its own collec The Hague Convention caused individual countries to adopt national laws protecting cultural property within their borders, and prevented the unauthorized export to other nations during the early 1900 s. These national laws, unlike international law, could not prevent the pillaging of cultural property by invading armies. However, they demonstrate how important the protection and preservation of each nation s cultural property and cultural heritage had become by the start of World War II. Id Patricia Kennedy Grimsted, Introduction, 17 INT L J. CULT. PROP. 139 (2010) Sandholtz, supra note 2, at Id. at ANNE-MARIE CARSTENS, World War II-Era Art Restitution, Art, Artifacts & Cultural Property Law, 62 (unpublished manuscript) (on file with the Georgetown Journal of International Law) Id Id Sandholtz, supra note 2, at 160; see Kurtz, supra note This is sometimes called war reparations. CARSTENS, supra note 116, at ] 929

16 GEORGETOWN JOURNAL OF INTERNATIONAL LAW tions. 121 Despite initial disagreement between the allies, the United States, France, and the United Kingdom ultimately decided against a policy of restitution-in-kind for the Germans. 122 Stalin, however, was a strong proponent of such a policy and established a trophy administration and a corresponding museum. 123 Under his orders, Soviet military authorities, aided by Russian art and museum experts, removed thousands of items from Germany as trophies of war, making little effort to distinguish between German property and cultural objects looted by the Nazis from other countries, many of which were Russian allies. 124 C. The 1990 s: Attempts at a Consensus on Restitution In the mid-1990 s, there was a sudden renewed interest in the fate of cultural property that had been confiscated by the Nazis but never restituted to their rightful owners. 125 This renewed interest resulted from an amalgam of factors, including the discovery of Russia s secret repositories of cultural property taken from Germany; the declassification of many postwar government records; the new wave of lawsuits seeking restitution of previously unrestituted works; and the growing centrality of the Holocaust in the public consciousness. 126 In response to this renewed interest, the international community once again came together to tackle the issue of restitution, resulting in three soft law instruments and a draft instrument: the 1998 Washington Conference Principles on Nazi Confiscated Art (Washington Conference Principles), the 1999 Council of Europe Resolution 1205 on Looted Jewish Cultural Property (Council of Europe Resolution 1205), the 2009 Terezin Declaration of Holocaust Era Assets and Related Issues (Terezin Declaration), and the Draft UNESCO Declaration of Principles Relating to Cultural Objects Displaced in Connection with the Second World War (Draft UNESCO Declaration). 127 As soft law and draft instruments, they do not create any legal obligation; however, they influence the continued development of international and domes Sandholtz, supra note 2, at 160, Id. at 160, Patricia Kennedy Grimsted, Legalizing Compensation and the Spoils of War: The Russian Law on Displaced Cultural Valuables and the Manipulation of Historical Memory, 17 INT L J. CULT. PROP. 217, 281 (2010) Kurtz, supra note 7, at CARSTENS, supra note 116, at Id Id. 930 [Vol. 46

17 RUSSIA AND THE STOLEN CHABAD ARCHIVE tic law in this area, and governments who adopt or express support for these instruments are generally expected to abide by them Washington Conference Principles In 1998, the U.S. Department of State and the U.S. Holocaust Memorial Museum co-hosted the Washington Conference on Holocaust- Era Assets, which was attended by representatives of forty-four countries and thirteen non-governmental organizations (NGOs). 129 The conference adopted and endorsed the Washington Conference Principles on Nazi Confiscated Art, the first major instrument in decades to promote a resolution for World War II-era art restitution claims. 130 The Washington Conference Principles emphasized the need to do more to identify and publicize Nazi confiscated art, and to encourage prewar owners and their heirs to make restitution claims. 131 Moreover, in light of the discovery of the secret depositories in Russia, the Principles stated that relevant records and archives should be open and accessible to researchers in order to facilitate the finding and identification of displaced property. 132 Most significantly, the Principles add a moral dimension to the concept of restitution by calling on signatories to take steps to achieve just and fair solutions in the case of any Nazi confiscated items not previously restituted, whether or not the prewar owner or their heir could be identified. 133 After the conference, several European countries established restitution commissions to help resolve disputes over Nazi confiscated art Council of Europe Resolution 1205 Following the Washington Conference, in 1999 the Council of Europe, comprised of forty-seven member states, adopted Resolution 1205 on Looted Jewish Cultural Property. 135 The Resolution urged the restitution of looted Jewish property and identified legislative changes 128. Id Id Id Id U.S. DEP T OF STATE, WASHINGTON CONFERENCE ON HOLOCAUST-ERA ASSETS, Nov. 30-Dec. 30, 1998, Principles on Nazi Confiscated Art, available at [hereinafter Washington Conference Principles] CARSTENS, supra note 116, at Id. at Eur. Consult. Ass., Resolution 1205 on Looted Jewish Cultural Property, Doc. No (Nov. 4, 1999) [hereinafter Resolution 1205]. 2015] 931

18 GEORGETOWN JOURNAL OF INTERNATIONAL LAW to facilitate such restitution. 136 The Resolution echoed the moral arguments of the Washington Conference Principles and emphasized restitution of such looted property to its original owners or their heirs or countries is a significant way of enabling the reconstitution of the place of Jewish culture in Europe itself. 137 Moreover, like the Washington Conference Principles, the Resolution addressed the recent discovery of secret Russian depositories of looted property by calling for the removal of all impediments to access of relevant information in government or public archives Terezin Declaration In 2009, the government of the Czech Republic, in collaboration with six other Czech institutions and organizations, 139 sponsored a follow-up conference in Terezin, Prague, to assess the international progress on restitution since the Washington Conference. 140 The Prague Conference, attended by representative of forty-six countries, adopted the Terezin Declaration. 141 The Declaration affirmed the need to strengthen and sustain research, identification and restitution efforts in order to ensure just and fair solutions, and to further the goal of the Washington Conference Principles. 142 In particular, it called on states to increase their commitment to provenance research and explicitly added that governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property. 143 The Declaration also emphasized the importance of restitution of Judaica and Jewish cultural property, even where the original owners or their heirs could not be identified, stating: we encourage and support efforts to identity and catalogue these items...and to consider a 136. CARSTENS, supra note 116, at Resolution 1205, supra note Id These organizations include the Academy of Sciences Documentation Centre of Property Transfers of Cultural Assets of WW II Victims, the Tereziìn Memorial, the Federation of Jewish Communities, the Jewish Museum in Prague, the Institute of Jewish Studies at the Charles University in Prague, and the Forum 2000 Foundation CARSTENS, supra note 116, at Id Terezin Declaration of Holocaust Era Assets and Related Issues, June 30, 2009, available at [hereinafter Terezin Declaration] Id. 932 [Vol. 46

19 RUSSIA AND THE STOLEN CHABAD ARCHIVE voluntary international registration of Torah scrolls and other Judaica objects...we encourage measures that will ensure their protection...and will facilitate the circulation and display of such Judaica internationally by adequate and agreed upon solutions Draft UNESCO Declaration In response to the growing interest in restitution, UNESCO attempted to adopt a soft law instrument regarding World War II-era art restitution. 145 UNESCO believed that the passing of instruments, such as the Washington Conference Principles and the Terezin Declaration, suggested growing international consensus on this issue. 146 In 2005, at its General Conference, UNESCO adopted a resolution stating the subject of cultural objects displaced in connection with the Second World War should be the subject of a standard-setting instrument in the form of a non-binding Declaration of Principles. 147 The focus of the resolution was to provide general guidance for bilateral and multilateral inter-state negotiations. 148 Subsequently, in 2009, an intergovernmental committee of experts produced the Draft UNESCO Declaration. 149 However, the draft declaration was never adopted, because UNESCO could not reach the required consensus for its adoption. 150 In particular, strong objections from Poland, Russia, and Turkey kept it from being adopted, as written amendments proposed by these countries, asserting their right to claim cultural property as war reparations, were not approved. 151 Thus, despite a developing norm and customary obligation to facilitate just and fair solutions in World War II-era art restitution cases, the international community has still failed to establish a concrete and accepted policy for restitution in World War II-era cases Id CARSTENS, supra note 116, at See UNESCO Draft of the Declaration of Principle Relation to Cultural Objects Displaced in Connection with the Second World War, Doc. 35C/24, at 3-4 (July 31, 2009), available at [hereinafter UNESCO Draft] Id. at Id. at Id.; CARSTENS, supra note 116, at CARSTENS, supra note 116, at UNESCO Draft, supra note 146, at 2; CARSTENS, supra note 116, at ] 933

20 GEORGETOWN JOURNAL OF INTERNATIONAL LAW D. Russian Federal Law on Cultural Valuables Given that much of the renewed interest in restitution policies resulted from the discovery of Russia s secret depositories of World War II cultural property, Russia has faced unique pressure to join the international community s restitution effort. 152 However, unlike the rest of the international community, Russia believes it has a legal right under an asserted doctrine of compensatory restitution to confiscate and nationalize all or most of the cultural items that came into possession of the Soviet Union after the war. 153 According to Russia, this property serves as replacements of cultural items lost and compensation for the mass destruction caused by the Nazis in the Soviet Union. 154 In 1998, in an effort to establish a legal basis for this position, Russia passed the Russian Federal Law on Cultural Valuables. 155 The preamble lays out the Russian legal rationale for retaining ownership of the displaced objects, stating they constitute partial compensation for the damage caused to cultural property of the Russian federation as a result of the plunder and destruction by Germany. 156 The law makes no distinction among archives, libraries, and art, and provides only minimal possibilities for return of cultural property to those who fought against the Axis powers and were victims of the Nazi regime. 157 The law also does not allow private citizens to submit claims directly to the Russian government for the return of cultural valuables, requiring instead that claims be brought by a foreign government acting on their behalf. 158 While none of the other World War II Allies have recognized this Russian right or asserted their own right to compensatory restitution, Russia claims that this law is rooted in international law as it existed during and immediately after World War II. 159 One could argue that even if the Russian legal position is untenable, Russia should not be required to return the Archive given the complexity of this issue. For example, one could make the claim that without a 152. See Grimsted, supra note 123, at Grimsted, supra note 113, at Sandholtz, supra note 2, at Federal Law of April 15, 1998, On Cultural Valuables Displaced to the USSR as a Result of the Second World War and Located on the Territory of the Russian Federation, no. 64-FZ [hereinafter Russian Federal Law] Id. preamble Id Sandholtz, supra note 2, at Id. 934 [Vol. 46