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Sacred texts, foreign states and the US Supreme Court
By SHLOMO CUNIN
04/30/2014
Foreign states should not be able to disobey and disregard orders of US courts, especially once they have already agreed to submit to the jurisdiction of US courts.
 
Throughout history, the Jewish people have repeatedly had their personal property and sacred texts stolen and plundered. Often foreign governments have refused to return expropriated property. After years of exhausting all legal and political options in the country that refuses to abide by its own laws and international conventions, where can the victims turn? Many families and representatives of Jewish victims of the Holocaust had valuable property taken in violation of international law. The US legal system has offered one source of relief and hope that has proved to be effective. But a case that is currently before the US Supreme Court threatens to dim that hope and deny these victims any meaningful chance at relief.

Agudas Chasidei Chabad of the United States, which is headquartered in New York, has filed a “friend of the Court” brief in this case. We have urged the court to uphold the right of US citizens to pursue the enforcement of lawful judgments against foreign states.

During Russia’s October Revolution in 1917, over 12,000 sacred texts were stolen from Chabad by the Bolsheviks. In 1945, during the Holocaust, the Red Army plundered a Nazi-controlled castle in Poland which housed confiscated materials of enemies of the Third Reich, including Chabad’s sacred books and texts. The Red Army shipped the entire archive to Moscow and kept it secret until the collapse of the Soviet Union.

In 2004, after discovering the whereabouts of the archive in Moscow and exhausting other avenues, Chabad filed suit against Russia for the return of its documents under a federal law called the Foreign Sovereign Immunities Act, or the FSIA.

Foreign states are generally immune from legal action in US courts. The FSIA sets forth the exceptions to this general rule of sovereign immunity. One exception is when a foreign state explicitly waives its immunity. Another is when a foreign state expropriates property in violation of international law, as Russia did in seizing Chabad’s sacred books and texts.

A US district and Circuit Court of Appeals ultimately ruled in 2008 that Russia was not entitled to sovereign immunity with respect to Chabad’s claims.

Russia then withdrew from the case, suddenly claiming that it did not need to obey the courts’ orders. In 2010, after submitting evidence to prove its claims, Chabad obtained a judgment against Russia ordering it to return the entire collection. Russia did not comply.

IN EARLY 2013, Russia was held in contempt of court and ordered to pay $50,000 per day until it complied with the judgment in Chabad’s favor. The imposition of sanctions triggered a direct response and involvement in the case by Russian President Vladimir Putin who steadfastly refuses to return the Holocaust- looted property to Chabad. To date, Russia owes Chabad over $15 million in monetary sanctions.

Chabad’s objective in the litigation has been and remains the return of our heritage, not money.

Chabad’s ability to enforce this judgment and the sanctions depends, however, on its ability to seek and attach assets through standard discovery procedures in US courts. Once jurisdiction has been established, foreign states that are subject to valid judgments against them should not be able to shelter their assets by avoiding discovery to determine what property can be attached.

For this reason the case currently before the court is so important to Chabad. On April 21, the court heard the case that raises the question of whether a foreign sovereign can use claims of immunity to evade the most basic of judicial enforcement tools, including broad post-judgment discovery.

The case, Republic of Argentina vs. NML Capital, stems from the 2001 default of $81 billion by Argentina to thousands of bondholders. The bondholders are seeking discovery from third-party banks that do business with Argentina, so they can find out where Argentina’s assets are and try to recover money owed to them.

Argentina, which waived its sovereign immunity in its bond contract, has lost in the district and circuit courts. Like Russia, it now claims that it will not obey any judgment it doesn’t like.

Foreign states should not be able to disobey and disregard orders of US courts, especially once they have already agreed to submit to the jurisdiction of US courts or have been found by US courts not to be entitled to sovereign immunity. The Supreme Court has a chance to help our organization right a great historical wrong. It also has a chance to send a message to foreign states that defy the rule of law.

The author is a Chabad rabbi.
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