Not since the Cold War, it seems, have strained diplomatic relations between the U.S. and Russia spilled over into the public arena with such ferocity—only this time the war is over art and two collections of religious books.
The art wars were triggered by the private agenda of Chabad, a Jewish sect seeking religious books and manuscripts possessed by Russia. In 2004, Chabad brought suit as the successors to earlier owners of these pieces and claimed to be their rightful owner. Russia instituted an embargo on art loans to U.S. museums after Brooklyn-based Chabad obtained a default judgment in July 2010 from the District Court in Washington, D.C. Russia had walked out on the proceedings, claiming no U.S. court has jurisdiction over it.
Last week, the Metropolitan Museum of Art turned up the heat in this standoff another notch when it confirmed its decision not to send 35 works by fashion designer Paul Poiret to the Moscow Kremlin Museum for an upcoming exhibition there. The Met’s chief spokesperson, Harold Holzer, said the museum was acting in response to Moscow’s recent cancellation of loans to the Met as part of Russia’s now year-long embargo.
Bruce W. Bean, who headed top law firm Clifford Chance’s Moscow office and now teaches at Michigan State University, told The Observer that because it was obtained on default, that judgment, which orders Russia to turn over the collections to Chabad, is “unenforceable” in Russia.
Chabad has said it wants to enforce the judgment by attaching Russian property as “leverage” to get Russia to surrender the collections.
How would attachment work as “leverage” when a plaintiff is seeking specific property? The Observer asked legal experts. Howard Spiegler of art law powerhouse Herrick Feinstein said he didn’t know. “Enforcement” is when “you haven’t gotten back property but want this instead,” he said.
Louis M. Solomon, head of international litigation at Cadwalader Wickersham & Taft, questions whether Chabad has the right to attach Russia’s property at all. “If you have a judgment for monetary damages, then you can seize property. If the property is money, you can take it. If the property is not money, you can convert it” to money. Chabad is “not entitled to” attach assets as leverage, he said.
Mikhail Shvydkoy, Russia’s presidential envoy for international cultural cooperation, went on record in March as saying the embargo would last until Chabad’s claim is resolved.
Russia’s embargo has been widely derided—it’s “a phony stunt,” according to Charles A. Goldstein, counsel to the Commission for Art Recovery, an organization that specializes in art restitution—though the court hearing the case stated last month that Russia’s fear that Chabad would seize its art to enforce the judgment was not “unfounded.”
Russia has a history of fierce nationalism, especially when it comes to what it considers threats to its patrimony, something discussions of the case and the embargo have ignored. When Mr. Shvydkoy was culture minister, he was threatened with criminal prosecution in Russia for agreeing to return some art to Germany that had been taken during the Second World War. The art stayed in Russia.
This attitude is a reality Chabad sometimes “failed to take into account,” Patricia Kennedy Grimsted, of Harvard’s Davis Center for Russian and Eurasian Studies, said.
Neither side comes out looking especially good. During a Chabad-organized protest in Russia demanding the books be surrendered, some of its members were reportedly attacked, and the international legal community has long expressed outrage over Russia’s retention of cultural objects taken from others. But neither is Chabad a stranger to extremism—it has pursued its cause, provocatively, through litigation rather than what insiders say could be partial settlement through payment of money, albeit as a de facto bribe. The group’s efforts, Dr. Grimsted has suggested, have played a part in the passage of Russian legislation making it more difficult for others to make claims.
After 20 years, despite steady U.S. diplomatic support, Chabad’s efforts have yielded little: almost all the books and manuscripts are still in Russia, and its default judgment is of dubious value.
Reports have generally obscured, as has Chabad, that it is seeking two separate scholarly collections. One is of Jewish books; it’s referred to as the “library” and was nationalized shortly after the Russian Revolution because it was created in and remained in what was then the post-Revolution U.S.S.R.
The other collection, referred to as the “archive,” is a private one belonging to a rabbi who had to leave it behind in Warsaw when he fled the Nazis in 1939. The archive was first seized by the Nazis and then, after Soviet soldiers conquered the Nazi-controlled territory, seized again as spoils of war by the U.S.S.R in 1945.
These two collections are often referred to as one unit, but the difference between property, like the library, that was nationalized after the Russian Revolution and what Russia now refers to as “cultural property displaced to the U.S.S.R. as a result of the Second World War,” like the archive, is significant.
What was in Russia at the time of the Revolution is generally considered inviolate and has left Russia only on limited loan or, during a terrible period of mass starvation there in the early ’30s, via surreptitious sales to get money for food.
Russia also views its vast plunder of cultural treasures during World War II, taken in territory where millions of Soviets died fighting the Nazis, as rightfully its own. Providing even symbolic restitution, member of Duma (the Russian Parliament) and former culture minister Nikolai Gubenko said in 1997, is “to spit on the grave” of the many millions who died during the war, The New York Times reported. A culture minister who advocated restitution was burned in effigy.
Russia is entitled to these objects, Mr. Gubenko, then-deputy chair of the Duma’s Committee on Culture, told the Washington Conference on Holocaust Era Assets in 1998. He emphasized Soviet losses and suffering in fighting the Nazis: “Twenty-seven million killed, of them two million Jewish compatriots, 1,710 fully or partially destroyed cities … nearly 200 million destroyed and stolen books, more than 600,000 lost cultural works … ”
And he added, “This is the amount of the U.S.S.R.’s losses in World War II. At the Nuremberg process, the Soviet Union offered 30 volumes of documentary evidence of the destruction and looting of its cultural property. What other country could provide such evidence?”
Russia formally nationalized the “displaced” property, including the archive, when it passed a new law in 1998—but the law contains an exception for Holocaust victims like émigré Jewish communities. It permits “restitution” provided the claim goes through diplomatic channels and Russia is compensated in exchange.
Before Russia walked away from the case in 2009, its argument that its own law could provide Chabad some relief outraged the U.S. Court of Appeals: “Obviously, Russia’s mere willingness to sell the plaintiff’s property back to it could not remedy the alleged wrongs,” the court wrote.
According to a report in Die Presse, 10,770 documents were returned to Austria in 2009 for “compensation” of 400,000 euros. That’s about $40 per document.
Mr. Goldstein, the restitution expert, thinks money could be raised, but on “principle,” he said, you “don’t pay to get stolen property back.” Further, Mr. Goldstein said claims are granted only on “[Vladimir] Putin’s whim.” Dr. Grimsted, however, who supports Chabad’s claim to the archive, said those few archives that have been surrendered have gone through the 1998 law, which may be Chabad’s best hope.
In any event, Chabad deliberately rejected advice to take this route, said someone who was privy to strategy discussions, because it did not want to separate the archives from the library, which it views as more valuable, but to which it has no World War II restitution claim.
It’s “against Russian law” to surrender the library, nationalized after the Russian Revolution, Dr. Grimsted pointed out, because the books “were always in Russia” or what was the U.S.S.R.
The claim for the library would ordinarily not be recognized by U.S. courts, either. When the U.S. formally recognized the Soviet Union in 1933 it also gave Soviet laws retroactive effect. The Court of Appeals said that the U.S. court had jurisdiction over the library claim on other grounds, however questionable that might be.
Chabad, said Dr. Grimsted, has “not taken into account” Russia’s special concerns about the library. Chabad’s first attempts in the early 1990s immediately aroused its fears, she said, that surrendering the books to Chabad would set a precedent that “would open it up to demands from every religious body” whose property was nationalized after the Revolution, including, within its own borders, the Russian Orthodox church.
After Chabad obtained its default judgment in July 2010, “there was an outburst of indignation,” said Dr. Grimsted. The Duma had been considering a law nationalizing religious texts, and in November it passed.
“After the decision,” said Dr. Grimsted, Russia “wouldn’t have passed something that would give the books away.”
The current art embargo isn’t the first time the Chabad case has ratcheted up tensions between the two nations. In May 1992, the U.S. was scheduled to return to Russia the portion of the Soviet “Smolensk Archive” it had gained possession of during World War II. But the return of those materials didn’t happen in 1992, because Chabad had won U.S. government support, and in March of that year the Senate, led by then-Senator Al Gore, passed a resolution blocking the return of the Smolensk Archive unless Russia surrendered the Chabad library.
Dr. Grimsted has suggested that Chabad’s efforts and the withholding of the Smolensk Archive “may well have inspired” the Duma debates that led to the passage of the 1998 law nationalizing spoils of war. At any rate, the Smolensk Archives were part of the Duma’s vigorous discussion.
The Senate resolution and Mr. Gore’s continuing efforts “held the Smolensk Archive hostage to the recovery of the Chabad Library from Moscow for 10 years,” Dr. Grimsted wrote recently. It wasn’t returned to Russia until 2002.
As for the current art embargo, Cadwalader’s Mr. Solomon points out the U.S. can enter the litigation at any time to protect its interests. He predicted that the U.S. will play a role there as “neutral arbiter.” Mr. Holzer, the Met spokesperson, said he understands that the State Department is trying to resolve things diplomatically.