Wednesday, March 7, 2012

Possible Contempt Sanctions Against Russia over Jewish Archives

An important new development in the Chabad v. Russian Federation case.  Contempt sanctions against Russia for failing to comply with a court order to hand over the historical Jewish archive and library (often called the Schneerson Collection) may be forthcoming.

The plaintiff Chabad (a religious organization whose full title is above) requested in a filing on Monday that the U.S. District Court in D.C. hold the Russian Federation (along with the Russian State Library and the Russian State Military Archive) in contempt. Chabad also asked the court to "issue a significant daily or weekly monetary sanction" against Russia for "refusing to comply with the Court's judgment."

The U.S. case began in late 2004, but the larger controversy has been going on for decades. Since this is the first significant event in the case during the life of this blog, some very brief (and unavoidably oversimplified) background:

At issue is both a Library dating back to 1772 that "consists of more than 12,000 books and 381 manuscripts" and also an Archive consisting of "over 25,000 pages of handwritten teachings, correspondence, and other records."  The Library, which had been stored in a private warehouse in Moscow, came into Russian possession following the 1917 Bolshevik Revolution.  The Archive was seized in Poland by the Nazis following their 1939 invasion and moved to a "Gestapo-controlled castle in Germany."  In 1945, as described by the court, "the Archive was taken by the Soviet Army as German 'trophy documents' or 'war booty'" and transferred to the Russian State Military Archive.

A taste of the subsequent history as briefly summarized in an earlier court opinion (cites omitted):
Though remaining in Soviet possession through much of the 20th century, in the early 1990s a series of rulings by Soviet tribunals determined that the Library and Archive were not the national property of the Soviet Union and ordered that the collections be returned to plaintiff. Before the return could be accomplished, however, the Soviet Union was dissolved and the new Russian Federation nullified the prior orders. As a result, both the Library and the Archive remained in Russian possession.
In the ongoing U.S. case, Judge Lamberth held in 2006 both that Nazi Germany's seizure of the Archive, as private property, "clearly violated international law" and that "the Soviet Army's 1945 seizure and appropriation of the Archive from its Nazi captors as spoils of war was also a taking in violation of international law," conclusions which allowed the court to assert jurisdiction over the Russian Federation (which would otherwise enjoy sovereign immunity).  Judge Lamberth initially held that the same did not apply to the Library, but that ruling was later overturned by the D.C. Circuit.  The Russian government argued (see Russian Embassy submission beginning on p. 60) that the collections constitute an inalienable part of its cultural heritage.

In 2009, with the substantive dispute over the disposition of both the Archive and Library finally before the court, the Russian Federation suddenly informed the court that its further participation in the case was "fundamentally incompatible with its rights as a sovereign nation" and asserted that "this Court has no authority to enter Orders with respect to the property owned by the Russian Federation . . . and the Russian Federation will not consider any such Orders to be binding on it."

Judge Lamberth therefore eventually entered a default judgment against the Russian entities in July 2010, ordering:

After Russia failed to comply, Judge Lamberth issued an additional order in July 2011 asking Russia to show cause why it should not be held in contempt and provided a final 60 days for compliance. When the 60 days expired, Chabad voluntarily sought delays of court enforcement (here and here) in order to "create an atmosphere conducive to settlement negotiations."  According to Monday's filing, however, attempts at settlement were unsuccessful:
Chabad has made a good faith effort to negotiate with Defendants, including multiple meetings at the Russian Embassy in Washington, D.C.  Unfortunately, Defendants have not complied with the Court's judgment. Nor have Defendant's agreed to return any portion of the Collection as a result of diplomatic efforts or the foreign sovereign's generosity. On January 13, 2012 Russian Culture Minister Alexander Avdeyev announced at a press conference that "A constructive dialogue over the Schneerson Library will be possible only after the U.S. court reverses its decision and the claimant withdraws its lawsuit." Defendants' position is unacceptable.
Chabad, in short, has invited Judge Lamberth to act on his earlier threat to impose contempt sanctions, which, given Russia's continued nonresponse to the court's orders, is now more than ripe.  Aside from a piece in the Blog of Legal Times, I haven't seen any other press on this new development.  Something tells me that will change if, and when, Judge Lamberth lowers the hammer.

For a much more in-depth background on the case and the history of the controversy see Michael J. Bazler and Seth M. Gerber, "Litigating the Pillage of Cultural Property in American Courts: Chabad v. Russian Federation and Lessons Learned," 32 Loyola L.A. Int'l & Comp. Law Rev. 45 (2010), available in full-text here.