It has been a year since the U.S. District Court for the District of Columbia instituted a fine of $50,000 per day against the Russian Federation, the Russian Ministry of Culture and Mass Communications, the Russian State Library, and the Russian State Military Archive until they comply with a 2010 judgment to return the library of Menachem Schneerson, the late charismatic leader of the worldwide Chabad Lubavitch movement, to the movement in Brooklyn, New York. And in that year, the Russian defendants have neither obeyed the original judgment, nor paid the fine. The plaintiffs have now returned to court asking for an interim money judgment for the cumulative amount—$14,750,000—a judgment that could in theory be executed on other assets.
This development matters because there are several FSIA-based art restitution cases pending against foreign governments. As we have noted before, Russia’s intransigence in this case threatens the vitality of the results that could come out of those proceedings. Those claimants will no doubt watch the court’s treatement of this request with keen interest. It also bears on the more than three-year-old embargo by Russia against loans to the United States of cultural artifacts.
To recap the case history: in 2005, Agudas Chasei Chabad (a constituent institution in Brooklyn, New York of the worldwide movement) sued the defendants in Washington, DC seeking the return of the collection of books and other objects of interest to the Chabad-Lubavitch movement and teachings (the Library). By the early twentieth century, the Library included thousands of religious books, manuscripts and other documents. One portion of the Library was seized in 1917 by the emerging Bolshevik government from a warehouse in which the Fifth Rebbe had placed it for safekeeping in the face of the advancing German army during the First World War as the Tsarist regime collapsed. The Russian State Library (where those objects ended up after the dust settled) rejected the Fifth, and then the Sixth Rebbe’s pleas for their return in the 1920s. Over the next twenty years, the Sixth Rebbe moved from Russian/Soviet territory to Latvia to Poland, from which he fled upon the invasion by Germany in 1939. The remaining portions of the Library still in his possession were left behind, collected by the German army, and ultimately captured by the Soviet Union at the end of the war. That portion is currently held by the Russian State Military Archive. The Sixth Rebbe survived the war and settled in the United States, where he and his followers have been attempting to retrieve the Library ever since. They, and the then-Seventh Rebbe (who died in 1994 without an official successor) achieved initial success in 1991-92 as the Soviet Union collapsed, but political forces in the nascent Russian Federation apparently thwarted their early judicial victories.
The defendants argued that they were entitled to sovereign immunity, that is, the right for nations and states or their “instrumentalities” to be free from judicial suit without their consent, regardless of their underlying conduct. The plaintiffs countered that the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603 (the FSIA), abrogates that immunity. Specifically, the FSIA mandates that a foreign state is not immune from suit in any case “in which rights in property taken in violation of international law are in issue” when the property is claimed by a foreign instrumentality that is also engaged in commercial activity within the United States.
The Court of Appeals for the D.C. Circuit affirmed (in 2010) that the Russian defendants are not immune from suit because the Library was taken in violation of international law (particularly with respect to the initial victory in Russian court in 1991 that was overruled by executive action).
Rather than defend the case back in the trial court, however, the Russian defendants filed a “Statement with Respect to Further Participation,” informing the Court that they simply would not participate further in proceedings in a court that they claimed had no jurisdiction over them. The District Court promptly entered a default judgment against them, ordering the immediate return of the Library to the plaintiffs on July 30, 2010. Having simply terminated their participation, however, the Russian defendants neither did so, nor even responded to the judgment. For the remainder of that year, the plaintiffs provided the District Court with various updates, mostly relating to their efforts to serve the default judgment on the Russian defendants in compliance with applicable international procedure. The Russian defendants did sent a letter directly to the Court in January, 2011 (in Russian), reiterating that they did not consider themselves bound by the judgment.
Before last year’s fine, the plaintiffs repeatedly asked the Court to sanction the defendants. The United States, interestingly enough, asked the Court not to sanction the defendants, claiming it could hurt diplomatic relations and upset efforts at a diplomatic resolution, efforts that were, frankly, difficult to perceive. In any event, the judge instituted the fine.
Since then, the only response from Russia has been the announcement that some of the library had been moved to a Jewish museum in Moscow, followed by a preemptive declaration that that transfer somehow settled things. The plaintiffs, of course, disagree.