Despite refusing to participate in a lawsuit for nearly three years since a judgment that ordered the return to the Chabad Lubavitch movement in Brooklyn of the late Rebbe Menachem Schneerson’s library, the Russian Federation swiftly spoke up when news came of the U.S. District Court for the District of Columbia’s order yesterday sanctioning and fining the defendants $50,000 per day until they comply with the 2010 judgment. The Washington Post reports today that the U.S. government has declined to comment.
A quote attributed to the Russian Foreign Ministry in response to the order stated “It is outrageous that a Washington court has taken this unprecedented step fraught with most serious consequences as the imposition of a fine on a sovereign state. . . .The Schneerson Library has never belonged to the Chabad; it never left Russia, and was nationalized because there were no legal heirs in the Schneerson family. . . .The 'return' of these books to the US is therefore not an issue in principle.” The Russian Foreign Ministry even tweeted about it, threatening to “respond in kind” and saying “The decision to fine Russia for its refusal to transfer the Schneerson collection to the Hasidic community is illegitimate and inflammatory” and “The #Schneerson collection belongs to the #RussianFederation. It has legal immunity and is the property of the Russian people.” The latter of those is at least a defense, one they might have asserted in the lawsuit and on which they very well might have won—had they chosen to participate.
There are indeed outrageous aspects of this development, but not the ones Russia describes. The first is that the defendants would presume to argue about the principle of law to anyone, particularly because the basis for jurisdiction in the Chabad case, the “taking of property in violation of international law” was actually not wartime looting as the Russian Empire, the Soviet Union, and Nazi Germany overran the movement’s headquarters for a quarter century, but that these very plaintiffs won a judgment in the new Russian Federation in the early 1990s, at which point the Russian executive branch simply overruled the decision and declared the library to be Russia’s. The library is very much an issue of principle.
Second, although one might expect that kind of response from the defendants—given that the very fact that the larger issue is a retaliatory ban on art loans based on a completely specious argument (that other objects might be seized to satisfy the Chabad judgment, which they will not)—the position to date from the U.S. Departments of Justice and State, and their silence today remains far more disappointing. The DOJ’s brief conflated simple issues of sanctions and enforcement, and asked the Court not to do anything about Russia’s years-long defiance for a judgment issued by a neutral court. The bases for this request were, essentially, that it might upset diplomatic relations underway, efforts that were either anemic or which consisted of the United States acceding through silence to Russia’s demands.
The United States needs to speak forcefully—now—in support of the order, whether or not it agrees. The separation of powers and respect for unpopular judicial decisions is an essential cornerstone of the rule of law in the United States. The United States government should do better than to continue to endorse the hostage-taking, taking-the-ball-and-going-home approach Russia has used in this case.
