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 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 1. Washington Conference Principles 2. Council of Europe Resolution 1205 3. Terezin Declaration 4. 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 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 andJewish 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 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 lackjurisdiction, and that under Russian law, the Archive has been nationalized and is thus Russian property. (22)
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.
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.
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-oldJewish organization, 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 manuscripts from donations received primarily from the United States. (37) This collection became known as the Archive. However, in the mid 1920'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...
Russia and the stolen Chabad archive.
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