Chabad V. Russian Federation, 466 F.Supp.2D 6 (2006)

LIBRARIES AND ARCHIVES: RESTITUTION OF RECORDED CULTURAL HERITAGE

Chabad v. Russian Federation, 466 F.Supp.2d 6 (2006)

United States v. Gourary, 650 F.Supp. 1463, 1464 (E.D.N.Y.1987), aff'd, 833 F.2d 431 (2d Cir.1987)

Chabad Memorandum Opinion

Chabad v. Russia Order

State of Netherlands v. Fed. Reserve Bank of New York, 201 F.2d 455, 459 n. 4 (2d Cir.1953)

Millicom Int'l Cellular v. Republic of Costa Rica, 995 F.Supp. 14, 23 (D.D.C.1998)

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964).

Dispute Derails Art Loans From Russia Carol Vogel and Clifford J. Levy, The New York Times, February 2, 2011

The Postwar Fate of Einsatzstab Reichsleiter Rosenberg Archival and Library Plunder, and the Dispersal of ERR Records P.K. Grimsted, Journal of Holocaust and Genocide Studies

Flyer: Reconstructing the Record of Nazi Cultural Plunder: A Survey of the Dispersed Archives of the Einsatzstab Reichsleiter Rosenberg (ERR)

Why Do Captured Archives Go Home? Restitution Achievements under the Russian Law, International Journal of Cultural Property, 2010 Cambridge University Press

6 466 FEDERAL SUPPLEMENT, 2d SERIES

2006); Turner & Newall, P.L.C. v. Cana- Accordingly, after weighing all relevant dian Universal Ins. Co., 652 F.Supp. 1308, factors, the Court concludes that this case 1310 (D.D.C.1987) (noting that the pre- should be transferred to the Northern Di- sumption against disturbing plaintiff’s vision of the United States District Court choice of forum ‘‘may switch to defendants’ for the District of Maryland in Baltimore. favor in the District of Columbia when Defendant’s motion to transfer [Dkt. # 9] neither party resides in the chosen forum is GRANTED, and the Clerk of the Court and the cause of action arises elsewhere’’). is ordered to transfer this case to the Both plaintiffs reside in Maryland, and the United States District Court for the Dis- only factual connection to the District of trict of Maryland. Columbia that they articulate is that they SO ORDERED. conducted a small portion of their business on behalf of Allstate here. Plaintiffs assert that Onyeneho sold between two and , five insurance policies in the District of Columbia, and Adu–Nyamekya sold approximately ten policies here.3 (Pl. Opp. at 2.) Defendant claims that its records show that Onyeneho sold a total of 174 AGUDAS CHASIDEI CHABAD OF policies for Allstate, three of which were UNITED STATES, Plaintiff, sold to D.C. residents, and Adu–Nyameke v. sold 137 policies, four of which were sold to RUSSIAN FEDERATION, D.C. residents. (Crupper Decl. ¶¶ 9, 10.) et al., Defendants. The relatively small percentage of Allstate business that plaintiffs conducted in the Civ. Action No. 05–01548 (RCL). District of Columbia is insufficient to per- United States District Court, suade the Court that the District has any District of Columbia. significant interest in the parties or their claims. In short, plaintiffs’ claims do not Dec. 4, 2006. have any meaningful ties to the District of Background: Religious corporation Columbia, and their selection of this forum brought action under the Foreign Sover- thus carries little weight. See Liban, 305 eign Immunities Act (FSIA), alleging that F.Supp.2d at 142. the Russian Federation and several Rus-

3. Plaintiffs have also filed the declaration of tion, and it will not consider the D.C. activi- Latine Halstead, a current Allstate agent for- ties of a non-party in its evaluation of this merly employed in the same eighteen-month motion. Moreover, while courts have consid- training program as plaintiffs Onyeneho and ered the distribution of a putative class in Adu–Nyamekye, who states she has sold 130 deciding transfer motions, see Berenson, 319 policies to D.C. residents. (Halstead Aff. ¶ 5.) F.Supp.2d at 3; Ellis v. Costco Wholesale Halstead attests that she is ‘‘interested’’ in Corp., 372 F.Supp.2d 530, 543 (N.D.Cal. joining this action, but is reluctant to do so 2005), plaintiffs have made no claim that the because she is concerned about retaliation by class is likely to include a large number of Allstate and ‘‘other adverse consequences.’’ D.C. residents. On the contrary, defendant (Id. ¶ 3.) While the Court does not doubt that has attested that no trainee-agent in the same R3000 trainee insurance agents at Allstate training program as plaintiffs maintained an sold insurance policies in the District of Co- office in the District of Columbia. (Crupper lumbia, it declines to speculate on which, if any, additional employees might join this ac- Decl. ¶ 12.) AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 7 Cite as 466 F.Supp.2d 6 (D.D.C. 2006)

sian state agencies violated international 5. International Law O10.33 law by taking and continuing to hold a For purposes of an action under the collection of Jewish religious books, manu- Foreign Sovereign Immunities Act (FSIA), scripts, and other documents. Russian a taking violates international law if (1) it Federation moved to dismiss. The United was not for a public purpose, (2) it was States District Court for the Central Dis- discriminatory, or (3) no just compensation trict of California transferred proceedings. was provided for the property taken. 28 Holdings: The District Court, Lamberth, U.S.C.A. § 1605(a)(3). J., held that 6. International Law O10.33 (1) Court lacked jurisdiction over claim Union of Soviet Socialist Republics did with regard to Library of Jewish reli- not violate international law when it seized gious books and manuscripts, but Library of Jewish religious books and (2) Court had jurisdiction with regard to manuscripts, requiring dismissal, for lack Archive of handwritten teachings, cor- of jurisdiction, of Jewish religious corpora- respondence, and records. tion’s action against the Russian Federa- Motion granted in part and denied in part. tion, under the expropriation exception to the Foreign Sovereign Immunities Act (FSIA), seeking possession of the library; 1. Federal Courts O33 taking of Library occurred when Soviet A court may rely on materials outside government moved it to a state facility or the pleadings to determine whether it has when it gave the owner an opportunity to jurisdiction. reclaim it, which he could not afford to do, at which times owner was a Soviet citizen. 2. International Law O10.31 28 U.S.C.A. § 1605(a)(3); Fed.Rules Civ. The Foreign Sovereign Immunities Proc.Rule 12(b)(1), 28 U.S.C.A. Act (FSIA) provides the exclusive basis for asserting jurisdiction over a foreign state 7. International Law O10.33 in a United States court. 28 U.S.C.A. Archive of handwritten teachings, cor- § 1602 et seq. respondence, and records of a Jewish rabbi were illegally expropriated, for purposes 3. International Law O10.38 of determining District Court’s jurisdiction The defendant-state has the ultimate in action against the Russian Federation burden of establishing immunity under the under the Foreign Sovereign Immunities Foreign Sovereign Immunities Act (FSIA). Act (FSIA), when Nazi Germany seized 28 U.S.C.A. § 1602 et seq. Archive in Poland during World War II, or when the Soviet Army took it from the 4. International Law O10.38 Nazis at end of War; Nazi taking was Under the Foreign Sovereign Immu- discriminatory, both takings were not for nities Act (FSIA), once the defendant any public purpose and were not compen- makes a prima facie showing that it is a sated, and at time of takings, rabbi was no foreign state, plaintiff bears burden of as- longer a citizen of the Soviet Union. 28 serting at least some facts showing that U.S.C.A. § 1605(a)(3); Fed.Rules Civ.Proc. one of the FSIA exceptions applies; there- Rule 12(b)(1), 28 U.S.C.A. after the burden shifts back to defendant to prove, by a preponderance of the evi- 8. International Law O10.33 dence, that the alleged exception does not For purposes of an action under the apply. 28 U.S.C.A. § 1602 et seq. Foreign Sovereign Immunities Act’s 8 466 FEDERAL SUPPLEMENT, 2d SERIES

(FSIA) expropriation exception, the defen- (FSIA), alleging taking of the Archive of a dant-state need not be the state that took Jewish rabbi in violation of international the property in violation of international law; RSMA intended to and did generate law. 28 U.S.C.A. § 1605(a)(3). income from sales of its materials in the U.S. 28 U.S.C.A. § 1605(a)(3); Fed.Rules 9. International Law O10.33 Civ.Proc.Rule 12(b)(1), 28 U.S.C.A. For purposes of determining jurisdiction in an action under the Foreign Sover- 13. International Law O10.31 eign Immunities Act’s (FSIA) expropriation exception, FSIA does not include any Act of state doctrine precludes a court requirement that the plaintiff have ex- from ruling on a claim under the Foreign hausted his legal remedies in the foreign Sovereign Immunities Act (FSIA) when its state. 28 U.S.C.A. § 1605(a)(3). resolution turns upon the legality of a foreign sovereign’s official action within its 10. International Law O10.33 own territory. 28 U.S.C.A. § 1602 et seq. Rights to Archive of handwritten teachings, correspondence, and records of 14. International Law O10.31 a Jewish rabbi were at issue, for purposes Act of state doctrine applies in an of determining District Court’s jurisdiction action under the Foreign Sovereign Immu- in action against the Russian Federation nities Act (FSIA) even if the plaintiff alleg- under expropriation exception to the For- es that a foreign sovereign’s action violated eign Sovereign Immunities Act (FSIA), international law. 28 U.S.C.A. § 1602 et even though at some point archive was seq. rabbi’s personal property rather than property of the religious group bringing 15. International Law O10.38 the action; at time rabbi was forced to leave archive in Poland he did not consider Defendants bear burden, in an action it to be his personal property, but to be under the Foreign Sovereign Immunities held in trust for the group. 28 U.S.C.A. Act (FSIA), of establishing that dismissal § 1605(a)(3); Fed.Rules Civ.Proc.Rule under the act of state doctrine is appropri- 12(b)(1), 28 U.S.C.A. ate in the given circumstances. 28 U.S.C.A. § 1602 et seq. 11. International Law O10.33 Whether an act is ‘‘commercial,’’ for 16. International Law O10.31 purposes of the expropriation exception to For purposes of determining District the Foreign Sovereign Immunities Act Court’s jurisdiction in action against the (FSIA), depends on the nature of the Russian Federation under the Foreign course of conduct rather than its purpose. Sovereign Immunities Act (FSIA), act of 28 U.S.C.A. § 1605(d). state doctrine did not apply to Soviet Un- 12. International Law O10.33 ion’s expropriation of an Archive of hand- Russian State Military Archive written teachings, correspondence, and (RSMA) engaged in a commercial activity records of a Jewish rabbi; Soviet forces’ in the United States, for purposes of deter- act of taking the archive from German mining District Court’s jurisdiction in ac- forces at the end of World War II oc- tion against the Russian Federation and curred in Poland rather than in Soviet RSMA, under expropriation exception to territory. 28 U.S.C.A. § 1602 et seq.; Fed. the Foreign Sovereign Immunities Act Rules Civ.Proc.Rule 12(b)(1), 28 U.S.C.A. AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 9 Cite as 466 F.Supp.2d 6 (D.D.C. 2006)

17. International Law O10.31 substantive law, employs different adjudi- Pursuant to act of state doctrine, Dis- cative procedures, or on the basis of gener- trict Court lacked jurisdiction in action al allegations of corruption. against the Russian Federation under the 23. International Law O10.42 Foreign Sovereign Immunities Act (FSIA), Dismissal, pursuant to the doctrine of alleging that Soviet Union unlawfully ex- forum non conveniens, was not warranted propriated a library of Jewish religious in action against the Russian Federation, books and manuscripts, regardless of any under the Foreign Sovereign Immunities impropriety in the Soviet judicial decision Act (FSIA), alleging that Soviet Union un- which overturned a ruling in plaintiffs’ fa- lawfully expropriated a collection of Jewish vor as to ownership of the library; library’s religious books and documents, where de- appropriation was carried out in accor- fendants failed to establish the adequacy of dance with official government directives. Russian courts to hear the dispute or clari- 28 U.S.C.A. § 1602 et seq.; Fed.Rules Civ. fy whether prior legislation barred plain- Proc.Rule 12(b)(1), 28 U.S.C.A. tiffs from bringing suit in Russia. 28 18. Federal Courts O45 U.S.C.A. § 1602 et seq. A determination under the doctrine of 24. Federal Courts O45 forum non conveniens is a discretionary Under the doctrine of forum non con- one. veniens, even if an alternate forum is ade- 19. Federal Courts O45 quate, Court must balance the relevant Under the doctrine of forum non con- private and public interest factors at play. veniens, a court must first determine 25. International Law O10.42 whether there is an adequate alternative Under the doctrine of forum non con- forum for the dispute and, if so, must then veniens, and in light of the strong pre- balance both private and public interest sumption in favor of plaintiffs’ choice of factors in favor of the respective forums. forum, District of Columbia, rather than 20. Federal Courts O45 the Russian Federation, was more appro- Under the doctrine of forum non con- priate forum for action, under the Foreign veniens there is a substantial presumption Sovereign Immunities Act (FSIA), alleging in favor of the plaintiff’s choice of forum, that Soviet Union unlawfully expropriated such that unless the balance is strongly in a collection of Jewish religious books and favor of defendant, the plaintiff’s choice of documents; private interest factors, includ- forum should rarely be disturbed. ing ease of access to sources of proof, travel costs, and translation costs, militat- 21. Federal Courts O45 ed slightly in favor of Russia as an alter- Under the doctrine of forum non con- nate forum, whereas public interest fac- veniens, burden is on defendants to satisfy tors, including general public interest in the threshold requirement of demonstrat- the case, favored an American forum. 28 ing the existence of an adequate alternate U.S.C.A. § 1602 et seq. forum with jurisdiction over the case.

22. Federal Courts O45 Pursuant to the doctrine of forum non conveniens, a foreign forum is not inade- William Bradford Reynolds, Howrey Si- quate merely because it has less favorable mon Arnold & White, LLP, Alyza Doba 10 466 FEDERAL SUPPLEMENT, 2d SERIES

Lewin, Nathan Lewin, Lewin and Lewin Immunities Act (‘‘FSIA’’), 28 U.S.C. LLP, Washington, DC, Marshall B. Gross- §§ 1602 et seq., under the act of state man, Seth M. Gerber, Jonathan E. Stern, doctrine, and under the doctrine of forum Alschuler Grossman Stein & Kahan, LLP, non conveniens. Santa Monica, CA, for Plaintiff. On July 14, 2005, the U.S. District Court Don A. Proudfoot, Jr., Lan T. Quach, for the Central District of California trans- James Henry Broderick, Jr., Squire, Sand- ferred the present case to this Court pur- ers & Dempsey, LLP, Los Angeles, CA, suant to 28 U.S.C. § 1406(a), declining to Donald Thomas Bucklin, Squire, Sanders rule on the remaining issues raised in the & Dempsey, L.L.P., Washington, DC, for motion to dismiss. (Order [Cal. 56] 3 to Defendants. Transfer Action.) Adhering to this Court’s Order [2] of November 23, 3005, MEMORANDUM OPINION the parties filed supplemental briefs to LAMBERTH, District Judge. address legal precedent in the District of The plaintiff, Agudas Chasidei Chabad Columbia Circuit. Now before this Court of United States (‘‘Chabad’’), is a non- are: the defendants’ motion [Cal. 13] to profit religious corporation incorporated dismiss, the plaintiff’s opposition [Cal. 45] under the laws of the State of New York. thereto, the defendants’ reply [Cal. 46], On November 9, 2004, Chabad commenced and the parties’ supplemental briefs [14; this action in the United States District 15]. This Court heard oral argument on Court for the Central District of California August 30, 2006. Upon consideration of against the Russian Federation and sever- the parties’ filings and oral arguments, the al Russian 1 state agencies (collectively applicable law, and the entire record here- ‘‘defendants’’).2 Chabad alleges that the in, this Court concludes that it has juris- defendants violated international law by diction over some, but not all, of Chabad’s illegally taking and continuing to hold an claims. Therefore, and in accordance with invaluable collection of Jewish religious this Memorandum Opinion, this Court books and manuscripts, a collection that shall grant in part and deny in part the Chabad claims to rightfully own. Chabad defendants’ motion to dismiss. seeks declaratory and injunctive relief mandating the return of the collection and I. BACKGROUND damages incurred because of the defen- Long before Chabad was incorporated dants’ violation of international law. The as a non-profit corporation under the laws defendants moved to dismiss for lack of of the State of New York, it was an organi- jurisdiction under the Foreign Sovereign zation of Jewish religious communities lo-

1. Various events providing the factual back- 2. In addition to the Russian Federation, the drop for this action took place on the territory other named defendants are the Russian Min- of the former Union of Soviet Socialist Re- istry of Culture and Mass Communication publics (‘‘USSR’’ or ‘‘Soviet Union’’) under (RMCMC), the Russian State Library (RSL), the governments of the Russian Empire (pre– and the Russian State Military Archive 1917), the USSR (between 1917 and 1991), (RSMA). and the Russian Federation (post–1991). 3. This notation refers to the filing’s docket This opinion refers to the defendant state and number in the civil docket of this case in the its agencies and instrumentalities as either United States District Court for the Central Russian or Soviet, depending on when partic- District of California (Western Division–Los ular events in question took place. Angeles). AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 11 Cite as 466 F.Supp.2d 6 (D.D.C. 2006) cated worldwide, with origins in the Rus- study of the Torah and the Kabbale than sian Empire. The United States District is the norm in Chasidism. Court for the Eastern District of New Chabad Chasidism was formed in 1775 York had the occasion to describe the his- by Rabbi Schneur Zalman, considered tory of Chasidic religious thought and of the first Lubavitcher Rebbe and known Chabad Chasidism, see Agudas Chasidei as the Alter Rebbe. The Alter Rebbe Chabad of United States v. Gourary, 650 was a disciple of the successor of the F.Supp. 1463, 1464 (E.D.N.Y.1987), aff’d, Baal Shem Tov. The founder’s son and 833 F.2d 431 (2d Cir.1987), which is useful successor, Rabbi Dov Baer, who died in for a fuller understanding of the issues 1827 and was known as the Mittler before this Court: Rebbe, settled in the Russian town of Chasidism, the movement of Chasidim Lubavich and, hence, gave the move- (literally, the ‘‘righteous’’), was founded ment its present name. The third lead- in the mid–18th Century in Eastern Eu- er of the group was the son-in-law of rope by Rabbi Israel ben Eliezer, known Dov Baer and the son of the daughter of as the Baal Shem Tov (‘‘Master of the Schneur Zalman. This Rebbe, known as Good Name’’). The teachings of the the Tzemach Tzedek, after the title of Baal Shem Tov emphasized the presence his major written work, was Rabbi Men- of God in all things, including the most ahem Mendel, who died in 1866. The mundane. The movement was in its fourth Lubavitcher Rebbe was the origin intensely community oriented and youngest son of Menahem Mendel, Rab- centered on leaders, generally disciples bi Samuel Schneersohn, known as the of the Baal Shem Tov, who served as Maharash. He was succeeded by his mediators between the Chasid, God and son, [the Fifth Rebbe] Rabbi Shalom the society outside the community. The Dov Baer, known as the Rashab, who movement divided itself into several died in 1920. The sixth Rebbe TTT was groups centered on individual leaders the son of Rabbi Shalom Dov Baer and and local communities, one of which succeeded his father on his father’s was Chabad Chasidism, which became death. known as Lubavitch Chasidism after the town in Russia in which the movement Id. at 1464 (emphasis added). The court was centered in its early years. noted that the ‘‘family relationship be- Id. at 1464 n. 1 (emphasis added). tween the TTT succeeding Lubavitcher Rabbi Schneersohn TTT was until his Rebbes may explain why TTT the distinc- death the sixth in a line of rabbis who tion between property of the religious in- led a movement of Orthodox Jews stitutions of Chabad Chasidism and the known as Chabad Chasidism. Chabad is personal property of the Rebbe is not a an acronym for the Hebrew words distinction which has had to be made with ‘‘cochma,’’ ‘‘bina’’ and ‘‘daas,’’ meaning any regularity in the movement’s history.’’ wisdom, knowledge and understanding. Id. As its name suggests, Chabad Chasi- At issue in this case are two distinct sets dism has been considered as placing a of property: the ‘‘Library’’ and the ‘‘Ar- greater emphasis on the intellect in the chive.’’ 4 The Library, the origins of which

4. Although the parties, at times, weave their ly to each. These two sets of property came arguments about the Library and the Archive into the defendants’ possession at different into a single thread, the law applies different- times and by different means; hence, this 12 466 FEDERAL SUPPLEMENT, 2d SERIES

date back to 1772, consists of more than War prevented the Fifth Rebbe from re- 12,000 books and 381 manuscripts. (Id. claiming the Library during that time. ¶ 11(a).) It ‘‘was established, maintained (Compl. ¶ 13; Defs.’ RJN 32, 41.) In early and augmented by the first Five Chabad 1920, the Soviet Department of Scientific RebbesTTTT’’ (Id. ¶ 11(a).) The Archive is Libraries (‘‘SDSL’’) moved the Library to comprised of over 25,000 pages of Chabad a state facility. (Opp’n [Cal. 45] Mot. Dis- Rebbes’ handwritten teachings, correspon- miss 4; Compl. ¶ 14; Defs.’ RJN 32–43.) dence, and other records. (Id. ¶ 11(b).) The Fifth Rebbe passed away in 1920 and The contents of the Archive passed down his son, Rabbi Joseph Isaac Schneersohn, from Rebbe to Rebbe, and the Gourary succeeded him as the Sixth Rebbe. (Opp’n court quoted testimony exemplifying its Mot. Dismiss 4.) In 1921, the SDSL ap- significance: proved the return of the Library to the [T]he ksovim that are original manu- Sixth Rebbe, who, however, lacked the scripts or manuscripts used by the funds for its return.5 (Id. at 4.) The Li- Rebbe himself, assume a sanctity about brary thus remained in the possession of them, that they are kind of the essential the SDSL. In 1927, the Soviet authorities legacy. I would compare it to the crown arrested the Sixth Rebbe and sentenced jewels. It’s something concrete that is him to death; later that year, bowing to passed on in a symbolic way, and in a international pressure, they allowed him to way incorporates in itself both the sanc- leave Russia for Latvia, then an indepen- tity, the very presence, the very person- dent nation, where he became a citizen. ality of the Rebbe himself. (Id. at 5; Compl. ¶ 15.) While the Sixth 650 F.Supp. at 1465. The term ‘‘Collec- Rebbe brought the Archive with him to tion,’’ as used by the parties and in this Latvia, the Library remained behind. memorandum, is primarily a term of con- (Opp’n Mot. Dismiss 5; Compl. ¶ 7.) In venience and refers to both the Library 1933, the Sixth Rebbe moved from Latvia and the Archive. to Poland, bringing the Archive with him. In 1915, the Fifth Rebbe, Rabbi Shalom (Opp’n Mot. Dismiss 5; Defs’ RJN 57–60) Dov Baer, fleeing Lubavitch from the ad- On September 1, 1939, Nazi Germany vancing German army, took some books attacked Poland; the Soviet Union invaded and manuscripts from the Library with Poland shortly thereafter. When the him and sent the rest to be stored in a Sixth Rabbi fled to the United States in private warehouse in Moscow. (Compl. 1940, he was unable to bring the Archive. ¶ 13; Defs.’ Request [Cal. 18] for Judicial (Opp’n Mot. Dismiss 6; Compl. ¶¶ 16–17.) Notice in Support Mot. Dismiss Ex. 1 He arrived in the United States on March [hereinafter ‘‘Defs.’ RJN’’] at 32, 41.) The 19, 1940. (Compl.¶ 16). On July 25, 1940, upheavals associated with the Bolshevik Agudas Chasidei Chabad was incorporated Revolution of 1917 and the Russian Civil in New York. (Id. ¶ 1.) The Sixth Rebbe

Court must consider the legal principles ap- mentions the 1921 SDSL resolution approv- plicable to the Library and the Archive sepa- ing the return of the Library to the Sixth rately. Rebbe and explains that the Rebbe ‘‘didn’t have the means to remove [the books] from 5. The document the defendants cite in sup- the [Department of State Libraries] within the port of this claim is a 1922 letter from the time frame specified in the resolution.’’ Id. Sixth Rebbe to the Director of the Rumyant- See also infra note 14 for additional details sev Museum, asking that the Library be returned to him. (Defs.’ RJN 32.) This letter about this event. AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 13 Cite as 466 F.Supp.2d 6 (D.D.C. 2006) made numerous efforts to retrieve the con- (Opp’n Mot. Dismiss 8; Compl. ¶ 25; tents of the Archive left behind in Poland, Defs.’ RJN 70–71.) The tribunal further affirming Chabad’s ownership of the Ar- held that the Library ‘‘cannot be declared chive. (Pl.’s Suppl. Br. 7 (citing Gourary, ownerless, as for a number of years, start- 833 F.2d at 435–37); Defs.’ RJN 61.) A ing from 1922, the owner of books and portion of the Archive’s contents arrived in manuscripts applied to various bodies of the United States in unknown circum- the Soviet State, requesting their return.’’ stances in 1941. (Pl.’s Suppl. Br. 7 (citing (Defs.’ RJN 71.) The court ordered the Gourary, 833 F.2d. at 435).) The rest of return of the Library to Chabad within the Archive was taken by Nazis in Poland one month. (Id.) Chabad stresses that on and moved to a ‘‘Gestapo-controlled castle November 18, 1991, the Chief State Arbi- in Germany.’’ (Id.) In 1945, the Archive ter of the RSFSR affirmed this decision on was taken by the Soviet Army as German appeal. (Opp’n Mot. Dismiss 8.) In fact, ‘‘trophy documents’’ or ‘‘war booty’’ and the Chief State Arbiter reversed in part transferred to the RSMA in Russia. the lower tribunal, holding that Chabad (Opp’n Mot. Dismiss 6–7; Pl.’s Suppl. Br. had failed to show that it, rather than the 7–8; Compl. ¶ 19.) A portion of the Ar- Rebbe, owned the Library, and ordered chive found in Poland that was not taken the Lenin State Library (the RSL’s prede- by the Soviet Army was returned to Cha- cessor) to transfer the Library to the Jew- bad by the Polish government in 1974.6 ish National Library. (Defs.’ RJN 74–77.) (Opp’n Mot. Dismiss 7; Compl. ¶ 19.) The Soviet Union dissolved on Decem- In 1990, Chabad formed the Jewish ber 25, 1991, and was replaced by the Community of Lubavitch Chassidim Russian Federation. Chabad alleges that (‘‘JCLC’’) as its representative in the Sovi- ‘‘[o]n January 29, 1992, the Deputy Chair- et Union. (Compl.¶ 21.) According to man of the Russian Federation ordered Chabad, on September 6, 1991, Soviet the [RSL] to give the Library to the Cha- President Mikhail Gorbachev instructed bad Delegation.’’ 8 (Compl.¶ 29.) The the RSL to return the Library to Chabad. Delegation, however, encountered a group (Id. ¶ 22; Pl.’s Suppl. Br. 8.) On Septem- of anti-Semitic hooligans incited by an ber 26, 1991, the JCLC petitioned an arbi- RSL director when it attempted to take tration court to order the RSL to return possession of the Library. (Id.) Shortly the Library; the same day the court thereafter, on February 14, 1992, the Dep- placed a lien on the Library. (Compl. uty Chief State Arbiter of the Russian ¶ 23; Defs.’ RJN 68.) On October 8, 1991, Federation nullified the previous court or- a State Arbitration Tribunal of the ders that mandated the RSL’s relinquish- RSFSR 7 held that the Soviet government ment of the Library and closed the case. had failed to prove that the Library ‘‘ac- (Id. ¶ 30; Pl.’s Suppl. Br. 10; Defs.’ RJN quir[ed] a status of National property.’’ 83–85.) Chabad argues that this ruling

6. Unless noted otherwise, the term ‘‘Archive,’’ tively became what today is the Russian Fed- as used throughout the rest of this memoran- eration. dum, refers to the part of the Archive in the defendants’ possession. 8. The defendants counter that the January 29, 1992 regulation only provided for the transfer 7. RSFSR (Russian Soviet Federative Socialist of the Library from the RSL to the State Republic) was one of the fifteen former Soviet Jewish Academy, another Russian state insti- Republics and encompassed Moscow and the tution. (Decl. [Cal. 15] Tatiana K. Kovaleva seat of the Soviet government. After the col- Supp. Mot. Dismiss [hereinafter ‘‘Kovaleva lapse of the Soviet Union, the RSFSR effec- Decl.’’] at 10.) 14 466 FEDERAL SUPPLEMENT, 2d SERIES was made ‘‘unilaterally and secretly’’ and truth of all factual allegations in the com- was procedurally defective. (Pl.’s Suppl. plaint, construing them in the light most Br. 10; Decl. [Cal. 40] Veronika R. Irina– favorable to the plaintiff, even if some are Kogan Opp’n Mot. Dismiss [hereinafter subject to dispute by the opposing party. ‘‘Irina–Kogan Decl.’’] ¶ 12.) On February See Republic of Austria v. Altmann, 541 19, 1992, the Supreme Soviet of the Rus- U.S. 677, 681, 124 S.Ct. 2240, 159 L.Ed.2d sian Federation abolished the January 29, 1 (2004); Saudi Arabia v. Nelson, 507 U.S. 1992, order and decreed that ‘‘the safety, 349, 351, 113 S.Ct. 1471, 123 L.Ed.2d 47 movement and use of the holdings avail- (1993); Kalil v. Johanns, 407 F.Supp.2d able to the [RSL be effectuated] solely on 94, 96–97 (D.D.C.2005). A court may rely the basis of the legislation of the Russian on materials outside the pleadings to de- Federation and the provisions of interna- termine whether it has jurisdiction. See tional law.’’ (Irina–Kogan Decl. Ex. J at 54.) Chabad claims that this decree di- EEOC v. St. Francis Xavier Parochial vested Russian courts of jurisdiction to Sch., 117 F.3d 621, 624 n. 3 (D.C.Cir.1997); hear Chabad’s claims by only allowing the Haase v. Sessions, 835 F.2d 902, 906 legislative branch to authorize any move- (D.C.Cir.1987) (‘‘[I]t has been long accept- ment of books in the RSL’s possession. ed that the judiciary may make appropri- (Opp’n Mot. Dismiss 15; Pl.’s Suppl. Br. ate inquiry beyond the pleadings to satisfy 10; Irina–Kogan Decl. ¶ 15.) itself on authority to entertain the case.’’ On December 16, 1993, Leon Fuerth, the (citation and internal quotation marks national security advisor to Vice President omitted)). Al Gore, entered into an agreement, entitled Memorandum of Understanding B. Jurisdiction under the FSIA (‘‘MOU’’), with the Minister of Culture of Russia, Evgeny Sidorov. (Decl. [Cal. 37] 1. Legal Standard for FSIA’s Expro- Leon Fuerth Opp’n Mot. Dismiss [herein- priation Exception after ‘‘Fuerth Decl.’’] ¶ 9.) The MOU pro- [2] The Foreign Sovereign Immunities vided for the transfer of the Library to a new facility, where RSL staff with the Act provides the exclusive basis for assert- assistance of Chabad, would catalog the ing jurisdiction over a foreign state in a Library’s contents. (Pl.’s Suppl. Br. 11– United States court. See Argentine Re- 12.) The MOU was an interim agreement public v. Amerada Hess Shipping Corp., between the Russian and United States 488 U.S. 428, 434–35, 109 S.Ct. 683, 102 governments and Chabad was not a party L.Ed.2d 818 (1989) (citing 28 U.S.C. to it. (Fuerth Decl. ¶ 9.) Although Chabad § 1604 and 28 U.S.C. § 1330(a)); accord claims that the Russian side failed to live Peterson v. Royal Kingdom of Saudi Ara- up to its obligations under the MOU, that bia, 416 F.3d 83, 85 (D.C.Cir.2005) [herein- does not bear on the present case as the after Peterson II ]. In enacting the FSIA, MOU was agreed to be non-prejudicial to Congress codified the longstanding tradi- any future resolution of the Library’s fate. tion of foreign sovereign immunity, see (Id.) Amerada Hess, 488 U.S. at 434 n. 1, 109 S.Ct. 683; accordingly, unless one of the II. DISCUSSION statutory exceptions enumerated in § 1605 A. Standard of Review is satisfied, a foreign state is immune from [1] When reviewing a Rule 12(b)(1) suit in United States courts. See § 1604; motion to dismiss, a court must assume the Amerada Hess, 488 U.S. at 434–35 & n. 3, AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 15 Cite as 466 F.Supp.2d 6 (D.D.C. 2006)

109 S.Ct. 683 (clarifying that in an action tion, this Court must find that: (1) ‘‘rights against a foreign state, a district court in property’’ are at issue; (2) the property cannot have subject matter jurisdiction, was ‘‘taken in violation of international unless one of the general exceptions to law’’; and (3) ‘‘the property at issue (or immunity in § 1605 applies). any property exchanged for it) [is] TTT [3, 4] The defendant-state has the ulti- ‘owned or operated by an agency or instru- mate burden of establishing immunity un- mentality of the foreign state and that der the FSIA. Princz v. Fed. Republic of agency or instrumentality’ engages in com- Germany, 26 F.3d 1166, 1171 (D.C.Cir. mercial activity in the United States.’’ Pe- 1994). Once the defendant makes a prima terson II, 416 F.3d at 86–87 (quoting facie showing that it is a foreign state, the § 1605(a)(3)). This Court will first ad- plaintiff bears the burden of asserting at dress the second prong of the expropria- least some facts showing that one of the tion exception before moving on to the FSIA exceptions applies. Crist v. Repub- other two. lic of Turkey, 995 F.Supp. 5, 10 (D.D.C. 1998) (Lamberth, J.). The burden then 2. Taking in Violation of Internation- shifts back to the defendant to prove, by a al Law preponderance of the evidence, that the [5] The second requirement of the alleged exception does not apply.9 Id. FSIA’s expropriation exception is that the Chabad relies on the FSIA’s expropria- property in question must have been ‘‘tak- tion exception, § 1605(a)(3), to challenge en in violation of international law.’’ 28 the defendants’ assertion of sovereign im- U.S.C. § 1605(a)(3); see also Peterson II, munity. This exception consists of two 416 F.3d at 86. A taking violates interna- distinct clauses and Chabad maintains that tional law if: (1) it was not for a public this Court has jurisdiction under the sec- purpose; (2) it was discriminatory; or (3) ond clause.10 (Compl. ¶ 37; Pl.’s Suppl. no just compensation was provided for the Br. 15.) Thus, in order to have jurisdic- property taken.11 See Crist, 995 F.Supp.

9. Few courts have discussed the evidentiary such property is present in the United burden on the defendant, other than noting States in connection with a commercial ac- that the defendant carries the ultimate burden tivity carried on in the United States by the of persuasion. This Court has previously stat- foreign state; or that property or any prop- ed that the defendant bears the burden of erty exchanged for such property is owned proof by a preponderance of the evidence, or operated by an agency or instrumentality which is representative of the consensus of of the foreign state and that agency or in- other Circuits. Crist v. Republic of Turkey, 995 strumentality is engaged in a commercial F.Supp. at 10; accord Aquamar S.A. v. Del activity in the United States. Monte Fresh Produce N.A., Inc., 179 F.3d The first clause (omitted here) does not apply 1279, 1290 (11th Cir.1999); Joseph v. Office in the present case, as it requires that the of Consulate Gen. of Nigeria, 830 F.2d 1018, ‘‘property or any property exchanged for such 1021 (9th Cir.1987); Alberti v. Empresa Nicar- property [be] present in the United States.’’ aguense De La Carne, 705 F.2d 250, 256 (7th § 1605(a)(3). Cir.1983). 11. Quoting from Sosa v. Alvarez–Machain, 10. Section 1605(a)(3) states, in relevant part: 542 U.S. 692, 725–728, 124 S.Ct. 2739, 159 A foreign state shall not be immune from L.Ed.2d 718 (2004), the defendants note that the jurisdiction of courts of the United ‘‘efforts of the federal courts to develop new States or of the States in any case TTT in law under the rubric of international law which rights in property taken in violation ‘should be undertaken, if at all, with great of international law are in issue and that caution’ ’’ and urge this Court to ‘‘move cau- property or any property exchanged for tiously in effecting remedies under the rubric 16 466 FEDERAL SUPPLEMENT, 2d SERIES

at 10–11 (citing Siderman de Blake v. Re- Br. 16 (quoting Rong v. Liaoning Provin- public of Argentina, 965 F.2d 699, 711 (9th cial Gov’t, 362 F.Supp.2d 83, 102 (D.D.C. Cir.1992), and RESTATEMENT (THIRD) OF 2005) (citing de Sanchez v. Banco Central FOREIGN RELATIONS LAW OF THE UNITED De Nicaragua, 770 F.2d 1385, 1397 (5th STATES § 712 (1987) [hereinafter RESTATE- Cir.1985)), aff’d, 452 F.3d 883 (D.C.Cir. MENT] ); see also H.R.REP. NO. 94–1487, at 2006)).) The parties agree that the Li- 19–20 (1976), reprinted in 1976 brary first ‘‘fell into the hands of the Sovi- U.S.C.C.A.N. 6604, 6618 (providing the ets during the Bolshevik Revolution of legislative history of the FSIA). At the 1917.’’ (Defs.’ Suppl. Br. 16; Pl.’s Suppl. jurisdictional stage, this Court is not re- Br. 18; Defs.’ RJN 66.) The Fifth Rebbe quired to determine whether the property was a Russian (and then Soviet) citizen in question was taken in violation of inter- until his death and the Sixth Rebbe was a national law as long as Chabad’s claim to Soviet citizen until at least 1927, when he this effect is substantial and non-frivolous. became a citizen of Latvia. (Opp’n Mot. See Crist, 995 F.Supp. at 11 (citing Sider- Dismiss 5.) Therefore, the defendants as- man de Blake, 965 F.2d at 711). sert, the Soviet government’s expropria- Chabad asserts that the ‘‘Soviet Union’s tion of the Library cannot have violated takings of the Chabad Collection are un- international law and thus cannot form the lawful on all fronts.’’ (Pl.’s Suppl. Br. basis of jurisdiction under the FSIA’s ex- 18.) However, because, as noted above, propriation exception. (Defs.’ Suppl. Br. the Library and the Archive came into the 16.) defendants’ possession at different times Chabad avers that the taking of the and by different means, this Court must Library by the defendants occurred in analyze the history of the Library and the 1992 when Chabad first claimed title to the Archive separately to determine whether Library after the November 18, 1991, rul- the criteria for a taking are satisfied with ing. (Compl. ¶ 42; Opp’n Mot. Dismiss regard to each. 15.) Chabad argues that the Soviet Un- ion’s physical taking of the Library was a. Was the Library taken in violation not a taking in the legal sense, because the of international law? Soviet Union allegedly never nationalized The defendants do not dispute that the the Library after first coming into its pos- Library’s taking was not for a public pur- session sometime around 1920. The Sixth pose, was discriminatory, and was not fol- Rebbe reasserted his non-abandonment of lowed by just (or any) compensation. Any the Library in communications to Soviet one of these claims, if substantial and non- authorities in 1922 and 1925, and ‘‘[b]e- frivolous, satisfies the taking requirement tween 1924 and late 1991, the Soviets did of the expropriation exception. See Crist, not claim an ownership interest in the 995 F.Supp. at 11 (citing Siderman de Library.’’ (Opp’n Mot. Dismiss 4–5, 14.) Blake, 965 F.2d at 711). Rather than re- In support, Chabad cites the October 8, fute Chabad’s allegations, the defendants 1991, arbitration court finding that the So- rely on the principle that international law viet government had not nationalized the does not govern disputes between a sover- Library, and the November 18, 1991, ap- eign nation and its citizens. (Defs.’ Suppl. pellate decision which affirmed that the

of international law.’’ (Defs.’ Suppl. Br. 14– poses of the FSIA’s expropriation exception 15.) The legal criteria for what constitutes a are well established and this Court is but taking under international law for the pur- following ample precedent. AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 17 Cite as 466 F.Supp.2d 6 (D.D.C. 2006)

Lubavitcher Rebbe 12 was the rightful own- at 102 (‘‘[C]onfiscations by a state of the er of the Library. (Id. at 8, 14–15.) The property of its own nationals, no matter key events, according to Chabad, were the how flagrant and regardless of whether Russian Federation Deputy Chief State compensation has been provided, do not Arbiter’s February 14, 1992, nullification of constitute violations of international law.’’ the earlier court orders, which allegedly (quoting F. Palicio y Compania, S.A. v. mandated the return of the Library to Brush, 256 F.Supp. 481, 487 (S.D.N.Y. Chabad (Compl.¶ 30), and the official Rus- 1966))); cf. United States v. Belmont, 301 sian decree that ‘‘the safety, movement U.S. 324, 332, 57 S.Ct. 758, 81 L.Ed. 1134 and use’’ of RSL holdings could only be (1937) (‘‘What another country has done in made on the basis of Russian legislation the way of taking over property of its (Opp’n Mot. Dismiss 15). These unilateral, nationals TTT is not a matter for judicial and allegedly illegal decisions, Chabad consideration here. Such nationals must claims, constituted the taking of the Li- look to their own government for any re- brary. dress to which they may be entitled.’’), Chabad avoids basing its taking claim on quoted in Rong, 362 F.Supp.2d at 102. the Soviet government’s confiscation of the There is some logic to Chabad’s proposi- Library in the 1920s, which, according to tion that regardless of whether there was the defendants (Defs.’ Suppl. Br. 16), is a taking of the Library in the 1920s, once precisely the act that constituted the tak- the Russian government undertook to re- ing. Were Chabad to agree, its claim turn it through court orders in 1991 or by would contravene the principle relied on decree in 1992, the Library again became by the defendants that ‘‘[w]hile takings of Chabad’s property. The subsequent re- property without compensation violate fusal to return the Library to Chabad in American public policy regardless of the 1992 could then constitute a taking, as nationality of the property owner, they Chabad was an alien in relation to the violate international law only where the government accused of the taking. In sup- property owner is an alien.’’ de Sanchez, port of its argument, Chabad relies on 770 F.2d at 1397 & n. 17 (discussing the Dayton v. Czechoslovak Socialist Republic, relation between a foreign country’s taking which dealt with a dispute concerning tex- of its citizen’s property and the FSIA); see tile plants previously owned by the plain- also id. at 1397 (‘‘It may be foreign to our tiffs and expropriated by the Czechoslovak way of life and thought, but the fact is that government. 672 F.Supp. 7, 8 (D.D.C. governmental expropriation is not so uni- 1986), aff’d, 834 F.2d 203 (D.C.Cir.1987). versally abhorred that its prohibition com- The Czechoslovak government promised to mands the ‘general assent of civilized na- compensate the plaintiffs, but the commu- tions.’ We cannot elevate our American- nist regime, which replaced it, refused to centered view of governmental taking of honor the earlier promise. Id. The court’s property without compensation into a rule analysis is helpful to an understanding of that binds all ‘civilized nations.’ ’’ (quoting the case: Jafari v. Islamic Republic of Iran, 539 Defendant argues that it is not a viola- F.Supp. 209, 215 (N.D.Ill.1982) (internal tion of ‘‘international law’’ for a state to citations omitted))); Rong, 362 F.Supp.2d take the property of one of its own

12. This ruling most likely refers to the Sev- (Defs.’ RJN 77.) enth Rebbe, although this is not entirely clear. 18 466 FEDERAL SUPPLEMENT, 2d SERIES

citizens. The Commission has already by the Deputy Chief State Arbiter of the determined that plaintiffs were Czecho- Russian Federation, which nullified the slovakian citizens on October 27, 1945, earlier court orders and closed Chabad’s the date their property was nationalized. case in the Russian courts. Compare Iri- Therefore, according to Centrotex [a co- na–Kogan Decl. ¶¶ 12–14 (asserting that defendant government company], there this order lacked legal justification and is no possible violation of ‘‘international was not binding), with Kovaleva Decl. law.’’ This argument, however, fails to ¶¶ 18–20 (asserting that under applicable recognize that the nationalization of the court rules, there was a lawful basis for plaintiffs’ property proceeded in two this decision). Notably, the November 18, steps. There was no violation of inter- 1991, appellate court order, which Chabad national law in 1945 when the govern- relies on, denied Chabad’s ownership ment nationalized the property of its claims, stating that the Rebbe, rather that citizens and promised to compensate Chabad, was the rightful owner of the them. When the government repudiat- Library. (Defs.’ RJN 77.) In sum, the ed this promise in 1948, however, the abovementioned orders and rulings issued plaintiffs were American citizens. This in 1991 and 1992 cannot be read as giving repudiation of the promise to compen- Chabad ownership of the Library and Cha- sate may constitute a separate ‘‘taking’’ bad should not be able to predicate its of the plaintiffs’ property which was in taking claim on them. violation of ‘‘international law.’’ This is- This finding is supported by the D.C. sue can not be resolved on a motion to Circuit’s affirmance of Dayton: the court dismiss. quoted a State Department letter stating Id. at 9–10. Chabad stresses the parallels that ‘‘[u]nder international law, the date of between the Czechoslovak government’s taking is fixed by the date of the expropri- refusal to honor its earlier promise to com- ation decrees and/or the date of physical pensate the plaintiffs and the Russian gov- seizure, and not by a subsequent date of ernment’s nullification of the earlier Soviet repudiation of an undertaking to provide court orders allegedly mandating the re- compensation.’’ Dayton, 834 F.2d at 206– turn of the Library to Chabad. 07, quoted in Defs.’ Suppl. Br. 16. There The strength of Chabad’s allegations is some tension between this statement does not rise to the level of the plaintiffs’ and the reasoning of the district court, claims in Dayton. According to Chabad, quoted supra, which the circuit court ex- the January 29, 1992, order by the Deputy plicitly adopted. Id. at 206. This tension Chairman of the Russian Federation pro- can be reconciled by noting that the dis- vided for the return of the Library to trict court did not find that the govern- Chabad, whereas the defendants maintain ment’s repudiation of its earlier promise to that it directed that the Library be moved compensate was a taking, but rather that a to a different state institution, where it motion to dismiss was not the proper vehi- would be more accessible for research pur- cle to decide this question.13 Dayton, 672 poses. See supra note 8 and accompany- F.Supp. at 10. Moreover, Dayton dealt ing text. The parties also dispute the specifically with a promise to provide com- legitimacy of the February 14, 1992, order pensation for nationalized property, where-

13. The Dayton court never reached this ques- grounds. 672 F.Supp. at 12–13. tion as it dismissed the action on other AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 19 Cite as 466 F.Supp.2d 6 (D.D.C. 2006) as the dispute in this case is precisely b. Was the Archive taken in violation about whether the Library was national- of international law? ized before 1992. As for the Archive, Chabad has made substantial and non-frivolous claims of its [6] This Court concludes that the Li- taking in violation of international law. brary’s taking took place in or around Although Chabad asserts that ‘‘[t]he ‘tak- 1920, when the Soviet government sealed ing’ of the Archive occurred in 2004 when it and moved it to a state facility, or, at the defendants Russian Federation, Russian latest, in 1921, when, in unclear circum- Ministry of Culture, and Russian Military stances, the Sixth Rebbe had the opportu- Archive ceased all dialogue with Chabad nity to retrieve it but could not afford to.14 concerning the Archive’’ (Compl.¶ 42), this Chabad’s arguments that the taking took Court bases its jurisdiction over Chabad’s place in 1992 are irreconcilable with the claims to the Archive on Nazi Germany’s Soviet government’s actions in the 1920s. illegal appropriation of the Archive in Po- Chabad suggests that the 1992 Russian land during World War II and its subse- nullification of previous Soviet court orders quent illegal appropriation by the Soviet was not a legitimate exercise of judicial or Army in Poland in 1945. legislative power. But even if the overturned October and November 1991 court [7, 8] For the purposes of the FSIA, decisions, which concluded that the Li- the defendant-state need not be the state brary was never nationalized, were valid, that took the property in violation of inter- they do not negate the Soviet Union’s de national law. See § 1605(a)(3) (using pas- facto taking of the Library in the 1920s. sive voice to focus on the act of the taking Chabad’s contention that there cannot be a rather than on the actor involved); Alt- taking in the absence of an official nation- mann v. Republic of Austria, 142 alization decree is without merit, as a F.Supp.2d 1187, 1202 (C.D.Cal.2001), aff’d, physical expropriation alone may well sat- 317 F.3d 954 (9th Cir.2002), aff’d, 541 U.S. isfy the legal criteria for a taking violating 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004). international law. As the defendants note, Nazi Germany’s seizure of the Archive if a state can take possession of private clearly violated international law as it was property and hold it indefinitely without it discriminatory, not for a public purpose, becoming a taking, ‘‘there would never be and did not result in payment of just com- an issue of jurisdiction under the FSIA for pensation. See Bodner v. Banque Pari- an expropriation because there would nev- bas, 114 F.Supp.2d 117, 134 (E.D.N.Y. er be any ‘taking.’ ’’ (Mot. Dismiss 12–13.) 2000) (noting that ‘‘the confiscation of pri- The Library’s possession and control by vate property during the Holocaust was a the Soviet authorities for over 70 years violation of customary international law’’ strongly support the finding that it was, (citing State of Netherlands v. Fed. Re- indeed, expropriated in the 1920s, when its serve Bank of New York, 201 F.2d 455, 459 owner was a Soviet citizen, and its taking n. 4 (2d Cir.1953))); Altmann, 142 thus did not violate international law. F.Supp.2d at 1203 (finding the Nazi taking

14. A passage in the district court’s decision in Mrs. Gourary [the Sixth Rebbe’s daughter,] Gourary provides some interesting informa- the Sixth Rebbe attempted to repurchase the tion: ‘‘The large library of the Fifth Rebbe, library, but the Soviet government ‘wanted TTT inherited by Rabbi Joseph Isaac Schneer- too much money. My father didn’t have the sohn, was confiscated by the communist gov- money, so he couldn’t redeem the library.’ ’’ ernment in the Soviet Union. According to Gourary, 650 F.Supp. at 1466. 20 466 FEDERAL SUPPLEMENT, 2d SERIES

of the plaintiff’s art collection ‘‘undeniably matter is outside the purview of interna- a taking in violation of international law’’). tional law. See supra Section II.B.2.a. The defendants aver that because Chabad Either Nazi Germany’s taking of the did not exist until 1940, it never owned the Archive or its taking by the Soviet Army Archive and thus cannot argue that the in Poland in 1945 constitutes a taking in Archive was taken from it. (Defs.’ Suppl. violation of international law. Chabad’s Br. 18.) This argument is discussed infra claim that the Archive was taken in viola- Section II.B.3 and has no bearing on tion international law is substantial and whether a taking violating international non-frivolous, and thus adequately satisfies law did or did not take place. Because the the second requirement of the FSIA’s ex- Nazis’ taking of the Archive clearly violat- propriation exception. ed international law, it serves to satisfy the second requirement of the FSIA’s expro- c. Exhaustion of Local Remedies priation exception. The defendants argue that a plaintiff In addition, the Soviet Army’s 1945 sei- cannot claim a taking in violation of inter- zure and appropriation of the Archive from national law without first ‘‘exhaust[ing] do- its Nazi captors as spoils of war was also a mestic remedies in the foreign state.’’ taking in violation of international law. (Defs.’ Suppl. Br. 18. (quoting Millicom The Archive was neither taken nor held Int’l Cellular v. Republic of Costa Rica, for a public purpose, as the Soviet Union 995 F.Supp. 14, 23 (D.D.C.1998)).) Milli- did not make it available for public use and com, however, explicitly only addresses long denied that it even had it. (Compl. takings that are based on a state’s failure ¶ 43; Opp’n Mot. Dismiss 18.) 15 And re- to provide just compensation. 995 F.Supp. gardless who the legal owner of the Ar- at 23. And the sources cited in Milli- chive was at the time, the Soviet Union 16 com—RESTATEMENT § 713 cmt. f and two neither provided nor offered compensation district court cases, both of which also rely for it. This taking took place in Poland on the same part of the RESTATEMENT— after the Sixth Rebbe had become a Latvi- further clarify the applicable legal stan- an citizen (Opp’n Mot. Dismiss 5; Compl. dard. 995 F.Supp. at 23. ¶ 15) and Chabad had been formed as a New York corporation (Compl.¶ 15), de- [9] Not only does the exhaustion re- feating any possible argument that this quirement contain several exceptions,17 but

15. It is unnecessary for this Court to address exhaust local remedies when the claim is the issue of whether the Archive’s taking by for injury for which the respondent state the Soviet Union was discriminatory (the sec- firmly denies responsibility, for example a ond prong of the illegal taking analysis), be- claim for injury due to the shooting down of cause the Soviet Union’s appropriation of the a foreign commercial aircraft where the Archive satisfies the other two criteria for a respondent state contends that the act was violation of international law. justified under international law. When a person has obtained a favorable decision in 16. Comment f (titled ‘‘Exhaustion of reme- a domestic court, but that decision has not dies’’) states, in relevant part: been complied with, no further remedies Under international law, ordinarily a state need be exhausted. is not required to consider a claim by anoth- RESTATEMENT § 713 cmt. f (emphasis added). er state for an injury to its national until that person has exhausted domestic reme- 17. These exceptions appear to apply to Cha- dies, unless such remedies are clearly sham bad, as it first pursued this matter in Russian or inadequate, or their application is unrea- courts and now avers that Russian legislation sonably prolonged. There is no need to prevents it from filing suit in Russia. See AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 21 Cite as 466 F.Supp.2d 6 (D.D.C. 2006)

§ 713(1) of the RESTATEMENT, to which it time Peterson II, one of the cases they applies, deals with actions between states now rely on, had yet to be decided. on behalf of their nationals. See RESTATE- The parties disagree about the proper MENT § 713(1); cf. RESTATEMENT § 713 Reporters’ Note 5 (citing cases between interpretation of the ‘‘rights in property’’ sovereign states to illustrate the exhaus- requirement. According to Chabad, the tion requirement). Only a handful of dis- FSIA’s expropriation exception requires trict courts have referred to the exhaus- this Court to determine that at issue in the tion requirement in the context of the claim are ‘‘rights in property taken in vio- FSIA’s expropriation exception and this lation of international law,’’ tracking close- Court is not willing to make new law by ly the language of the statute. Chabad relying on a misapplied, non-binding inter- asserts that the property at issue, the Li- national legal concept, which the FSIA, the brary and the Archive, is physical, and controlling statute for the jurisdictional thus ‘‘tangible’’ property, satisfying the question in this case, has not incorporated. first requirement of the expropriation exception.19 (Pl.’s Suppl. Br. 15–16.) The 3. Rights in Property defendants argue that to meet the first In their motion to dismiss, the defen- requirement of the expropriation excep- dants conceded, for jurisdictional purposes tion, Chabad’s ‘‘claim of right has to be as only, Chabad’s claims of right to the entire to a vested right in property.’’ (Defs.’ Collection.18 (Mot. Dismiss 10 & n. 7.) Suppl. Br. 10 (citing Peterson II, 416 F.3d Nevertheless, this Court has considered 83).) The defendants suggest that in or- the defendants’ arguments, raised in their der to assume jurisdiction under the ex- supplemental brief, as to Chabad’s owner- propriation exception, this Court must find ship of the Collection. The defendants that the plaintiff’s rights in subject prop- frame these arguments in light of D.C. erty, taken in violation of international law, Circuit law, which was not dispositive are in issue, and contend that Chabad does when the motion to dismiss was filed in the not meet this requirement because it has Central District of California, and at which no vested right in the Library or the Ar-

Malewicz v. City of Amsterdam, 362 F.Supp.2d ship or possession of either the Library or 298, 308 (D.D.C.2005) (holding the exhaus- the Archive. tion requirement inapplicable where the (Mot. Dismiss 10 & n. 7.) Dutch statute of limitations may have barred suit in the Netherlands). In addition, Russia 19. While the ‘‘tangible property’’ requirement firmly contends that its taking of the Collec- does not appear in the language of tion was justified under international law, and § 1605(a)(3), a number of courts, including the RSL has, in the past, allegedly refused to this one, have read it into the statute. See, comply with Russian courts’ rulings mandat- e.g., Peterson v. Royal Kingdom of Saudi Ara- ing transfer of the Library. bia, 332 F.Supp.2d 189, 197 (D.D.C.2004) 18. Specifically, the defendants stated: (Bates, J.) (citing cases from other districts), Here, for the purposes of this motion only, aff’d, 416 F.3d 83, 87. The D.C. Circuit has the first prong [of the expropriation excep- clarified, however, that the tangible-intangible tion] (right in property at issue) is not dis- distinction is subsidiary to the question of puted, inasmuch as Plaintiff’s claims of whether the there is a ‘‘ ‘right in property’ at right to the Library and the Archive are issue in the first place.’’ Peterson II, 416 F.3d placed in issue by Plaintiff’s com- at 87–88 (declining to settle the question of plaint.[FN7] TTT the effect of the ‘‘tangible/intangible distinc- [FN7] Obviously, the Defendants vigorously tion [on] subject matter jurisdiction under deny that Plaintiff has any right of owner- FSIA’s expropriation exception’’). 22 466 FEDERAL SUPPLEMENT, 2d SERIES

chive. (Id. at 10–11.) Peterson II, which caveat is that this case was decided under the defendants rely on, dealt with the New York state trust laws, and primarily speculative nature of the plaintiff’s future concerned the status, at the Sixth Rebbe’s benefits from Saudi Arabia’s retirement death in 1950, of the books that were benefits scheme rather than any tangible brought to Chabad in New York before property he had possessed. 416 F.3d at then. See Gourary, 650 F.Supp. at 1474 88. The plaintiff’s employers contributed (‘‘The conclusion is inescapable that the a certain percentage of the plaintiff’s in- library was not held by the Sixth Rebbe at come, in his name and for his benefit, to a his death as his personal property TTTT’’) retirement fund established by a state (emphasis added); id. at 1473 (‘‘The treat- agency for foreign workers. Id. at 84–85. ment of the library at the time of [the After the Saudi Arabian government elimi- Sixth Rebbe’s] death supports the conclu- nated non-citizens’ eligibility to these re- sion that the library was no longer consid- tirement benefits and failed to provide a ered by him or by those familiar with his full refund of his contributions to the plain- thought on the matter as his personal tiff, he brought suit under the FSIA, as- property.’’). In addition, the Library was serting that his contributions constituted a not before the court in Gourary, as the right in property within the meaning of the Sixth Rebbe had left it behind in Russia expropriation exception. Id. at 85–86. when he was allowed to leave Russia for The D.C. Circuit’s opinion clarified that Latvia.20 the expropriation exception requires that Nevertheless, the Gourary decisions rights in property be in issue in the claim, shed some light on the relation between whereas the plaintiff in that case had the Sixth Rebbe, the Collection, and the ‘‘failed to allege sufficient facts demon- Chabad community. The Sixth Rebbe’s strating that the contributions constitute a efforts, starting in 1939 and lasting until ‘right in property’ in the first place’’ be- his death, to recover the books and manu- cause there was no guarantee of any re- scripts he left behind when fleeing the turn of his contributions. Peterson II, 416 German invasion of Poland, including the F.3d at 86–87. The plain language of Archive, demonstrate that he considered § 1605(a)(3) supports Chabad’s position— them to be the possession of Chabad and it is silent as to the identity of the owner was trying to recover them for Chabad’s of the subject property and solely requires benefit. See, e.g., Gourary, 833 F.2d at that the property in question be ‘‘in issue.’’ 435–36 (quoting the Sixth Rebbe’s Novem- See § 1605(a)(3) (granting jurisdiction ‘‘in ber 27, 1939, letter, referring to the Ar- any case TTT in which rights in property chive as ‘‘three boxes of sacred manu- taken in violation of international law are scripts, which are the property of Agudas in issue’’ and which satisfies the other two Chabad and should be sent straight to requirements of this exception) (emphasis New York’’). While the New York state added). law of charitable trusts, applied in Gour- Both parties rely on the district and ary, is irrelevant to the present case, the circuit courts’ decisions in Gourary to sup- gist of both courts’ discussions is that the port their arguments about Chabad’s own- Sixth Rebbe had held the Archive and ership of the Collection. An important other religious books on behalf of Chabad,

20. What the Gourary court refers to as the Poland after the German invasion; these in- ‘‘library’’ were the books and manuscripts in cluded the Archive. the Sixth Rebbe’s possession before he fled AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 23 Cite as 466 F.Supp.2d 6 (D.D.C. 2006) and after his arrival in the United States books that were the subject of litigation in in 1940, what remained of the Collection that case. attained the corresponding legal status. [10] Chabad’s claims are rooted in the See Gourary, 650 F.Supp. at 1475 (noting defendants’ alleged illegal taking and pos- that ‘‘[w]hile each of the Rebbes ap- session of the Archive and it has presented pear[ed] to have treated the library as sufficient facts, for jurisdictional purposes, personal property, TTT there can be no that it has a right in property in the question that the library came to be con- Archive. This is consistent with the ceived as one to be used for the benefit of FSIA’s aim, as the expropriation exception the religious community of Chasidim by simply establishes a court’s jurisdiction the leader of the community’’); id. at 1476 over the foreign state as a party to the (‘‘[T]he library was never held by the action; a court does not at this stage de- Rebbe as personal property for his person- cide on the merits of the substantive al benefit and his private, as opposed to claims.21 An allegation of a foreign state’s religious, purposes. It was held as per- expropriation of property is likely to in- sonal property for the community’s benefit volve significant factual dispute as to the and for charitable uses.’’); id. at 1745 & n. ownership of this property. In these cir- 10 (finding that the establishment of a cumstances, a Rule 12(b) motion to dis- legally enforceable relationship between miss, even when accompanied by limited the Sixth Rebbe, his library of books and jurisdictional discovery, is not a proper manuscripts, and the followers of Chabad avenue for the resolution of this dispute. was ‘‘a result of a need to articulate for the This Court finds that Chabad’s rights in benefit of others the precise nature of the this property are in issue, satisfying the relationship between the library and the first requirement of § 1605(a)(3). Chabad Chasidic community,’’ ‘‘a necessity imposed on the Rebbe, not by his follow- 4. Commercial Activity in the United ers, but by the events of the mid-twentieth States century’’). The third requirement of the FSIA’s The import of the district and circuit expropriation exception requires a com- courts’ decisions is that even before he was mercial activity nexus between the foreign forced to leave the Archive behind in Po- state, or its agency or instrumentality that land, the Sixth Rebbe did not consider it to owns or operates the property at issue, be his personal property, but had rather and the United States. § 1605(a)(3). The held it ‘‘in trust for the benefit of the first clause of the expropriation exception, religious community of Chabad Chasi- not at issue in this case, requires that the dism.’’ Gourary, 650 F.Supp. at 1474. A ‘‘commercial activity [be] carried on in the logical inference of Gourary is that had United States by the foreign state.’’ Id. the Sixth Rebbe managed to retrieve the (emphasis added). The FSIA defines Archive from Poland, it would have be- ‘‘commercial activity carried on in the come the property of Chabad, just as those United States by a foreign state’’ as ‘‘com-

21. In fact, the defendants’ motion to dismiss the Archive are placed in issue by Plaintiff’s supports this reading of the statute. The de- complaint,’’ even as the corresponding foot- fendants conceded that the ‘‘rights in prop- note made it clear that defendants would erty’’ requirement of the expropriation ex- challenge Chabad’s claim of ownership of ception was ‘‘not disputed, inasmuch as the Collection. (Mot. Dismiss 10 & n. 7.) Plaintiff’s claims of right to the Library and 24 466 FEDERAL SUPPLEMENT, 2d SERIES

mercial activity carried on by such state Despite this broad definition of ‘‘com- and having substantial contact with the mercial activity,’’ the defendants maintain United States.’’ § 1603(e) (emphasis add- that this Court should interpret the second ed). The second clause, relied on by Cha- clause of the expropriation exception nar- bad, requires that the entity that owns or rowly, by requiring a ‘‘higher standard of operates the property at issue ‘‘be engaged contact with the United States’’ than that in a commercial activity in the United required in the first clause of § 1605(a)(3). States.’’ § 1605(a)(3) (emphasis added). (Defs.’ Suppl. Br. 21–22.) The defen- [11] The FSIA defines a commercial dants attempt to divine what ‘‘Congress activity as ‘‘either a regular course of com- must have intended’’ by its use of ‘‘en- mercial conduct or a particular commercial gaged in’’ and ‘‘carried on,’’ and argue, transaction or act.’’ § 1603(d). Congress based solely on the language of gave the courts broad discretion to ‘‘deter- § 1605(a)(3), that the statute only ‘‘makes min[e] what is a ‘commercial transaction’ sense’’ if the term ‘‘engaged in’’ is con- for purposes of’’ the FSIA. See H.R.REP. strued to require a level of commercial NO. 94–1487, at 16 (1976), reprinted in activity at least equal to that of ‘‘carried 1976 U.S.C.C.A.N. 6604, 6615. Whether on.’’ (Defs.’ Suppl. Br. 21–22.) an act is commercial depends on the na- The defendants’ construction of the stat- ture of the course of conduct rather than ute is unconvincing. The language of the its purpose. § 1603(d). It is immaterial statute implies that the phrase ‘‘engaged whether the foreign state possesses a prof- in’’ should be simply read together with it motive, ‘‘[r]ather, the issue is whether the definition of ‘‘commercial activity’’ in the particular actions that the foreign state § 1603(d), and Congress’ intentional omis- performs (whatever the motive behind sion of a definition for ‘‘engaged in a com- them) are the type of actions by which a mercial activity’’ supports this interpreta- private party engages in trade and traffic tion. By its plain language, the second or commerce.’’ Republic of Argentina v. clause of § 1605(a)(3) bears on the com- Weltover, Inc., 504 U.S. 607, 614, 112 S.Ct. mercial activities of a foreign state’s agen- 2160, 119 L.Ed.2d 394 (1992) (internal quo- cy or instrumentality, which owns or oper- tation marks omitted). The term ‘‘com- ates the property in question, and does not mercial’’ is used to distinguish governmen- require a nexus between the taking and tal acts from those a private person or the commercial activity in the United entity can engage in—‘‘when a foreign gov- States. Hence, this Court must determine ernment acts TTT in a manner of a private whether the RSMA was engaged in ‘‘either player within [a market], the foreign sov- a regular course of commercial conduct or ereign’s acts are ‘commercial’ within the a particular commercial transaction or meaning of the FSIA.’’ Id. (noting, as an act,’’ § 1603(d), in the United States, at the example, that a state’s ‘‘issuance of regula- commencement of this action.22 tions limiting foreign currency exchange’’ is not a commercial activity because it The RSMA entered contracts with two cannot be performed by a private actor, American companies for the reproduction whereas a state’s contract to buy goods is and sale of RSMA materials worldwide, a commercial activity because private com- including in the United States. (Pl.’s panies can do the same). Suppl. Br. 34.) As a result, the RSMA

22. Because this Court found that the Library law, it does not address the issue of the RSL’s was not taken in violation of international commercial activities in the United States. AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 25 Cite as 466 F.Supp.2d 6 (D.D.C. 2006)

received royalties from U.S. sales of its University, and the University of Califor- materials, denoted as such, through at nia in Los Angeles. (Id. Ex. D.) least December of 2004. (Id. at 35.) One [12] The RSMA intended to and gen- of these agreements, with Yale University erated income from the sales of its materi- Press (‘‘Yale’’), a unit of Yale University als, in the preparation of which it partici- and located in Connecticut, is for a ‘‘joint pated under these contracts, in the United preparation and publication of a volume of States. The contract the RSMA signed documents entitled The Spanish Civil with Yale is governed by Connecticut law War.’’ (Decl. [Cal. 51] Marshall B. Gross- and intended for Yale to sell jointly-pre- man Supp. Pl.’s Suppl. Mem. P. & A. pared reproductions of the RSMA’s mate- [hereinafter ‘‘Grossman Decl.’’]. Ex. 11, ¶ 1 rials in countries including the United at 276.) The agreement gives Yale the States. The contract with PSM, albeit right to distribute this volume worldwide, governed by Russian law, contains similar other than in Russia (Id. Ex. 11, ¶ 2.1 at terms. The RSMA received royalties spe- 276), and is valid until December 31, 2027 cifically in consideration of the sale of re- (Id. Ex. 11, ¶ 5.1 at 278). The parties productions of its materials in the United agreed for this agreement to be ‘‘governed States. Consequently, this Court finds by the law of the Russian Federation and that the RSMA ‘‘engaged in a commercial by the law of the State of Connecticut, activity in the United States.’’ § 1605(a)(3). U.S.A.’’ (Id. Ex. 11, ¶ 11.4 at 282.) The The defendants suggest that the royalty record shows that the RSMA received roy- amount 23 is insufficient to amount to a alties from ‘‘US Regular Sales’’ stemming jurisdictional basis under FSIA (Defs.’ from this agreement as late as December, Suppl. Br. 29); however, the statutory 2004. (Id. Ex. 11, ¶ 5.1 at 275.) definition of ‘‘commercial activity’’ clearly states that it can be a ‘‘particular commer- In 1999, the RSMA also entered a con- cial activity or act,’’ § 1604(d) (emphasis tract with Primary Source Media (PSM), a added), and the Supreme Court provided Connecticut division of Thomson Informa- an example, in Weltover, Inc., 504 U.S. at tion, Inc. (Decl. [Cal. 38] Joseph Bucci 614, 112 S.Ct. 2160, of a single contract for Opp’n Mot. Dismiss Ex. A at 5.) This goods being adequate to satisfy this re- contract called for ‘‘the preparation and quirement. publication of a collection of documents pertaining’’ to Russian and Soviet history, C. Act of State Doctrine such as the Civil War in Russia and the [13–15] The act of state doctrine di- papers of Leon Trotsky. (Id. Ex. A at 5.) rects courts in the United States to pre- Under this contract, PSM would sell resume the validity of ‘‘acts of foreign sover- productions of materials in the RSMA’s eigns taken within their own jurisdictions.’’ archives, and PSM paid the RSMA at least See W.S. Kirkpatrick & Co. v. Envtl. Tec- $60,000 in advance royalties. (Id. Ex. A at tonics Corp., Int’l, 493 U.S. 400, 409, 110 5–7, Ex. E at 66–68.) Royalty statements S.Ct. 701, 107 L.Ed.2d 816 (1990). This is provided by PSM to the RSMA show sales a prudential doctrine, premised on ‘‘ ‘the to several universities in the United strong sense of the Judicial Branch that its States, including Harvard, Yale, Ohio State engagement in the task of passing on the

23. For the 2004 calendar year, the RSMA’s (Grossman Decl. Ex. 11, ¶ 5.1 at 275.) royalties from U.S. sales were $114.15. 26 466 FEDERAL SUPPLEMENT, 2d SERIES

validity of foreign acts of state may hinder’ claring the taking of the Archive a viola- the conduct of foreign affairs.’’ Id. at 404, tion of international law, this ruling would 110 S.Ct. 701, (quoting Banco Nacional de not have the effect of declaring illegal any Cuba v. Sabbatino, 376 U.S. 398, 423, 84 official Soviet or Russian action in its own S.Ct. 923, 11 L.Ed.2d 804 (1964)). The territory. See W.S. Kirkpatrick & Co., 493 doctrine thus precludes a court from ruling U.S. at 409, 110 S.Ct. 701 (‘‘The act of on a claim when its resolution turns upon state doctrine does not establish an excep- the legality of a foreign sovereign’s official tion for cases and controversies that may action within its own territory. Id. at 406, embarrass foreign governments, but mere- 110 S.Ct. 701. The act of state doctrine ly requires that, in the process of deciding, applies even if the plaintiff alleges that a the acts of foreign sovereigns taken within foreign sovereign’s action violated interna- their own jurisdictions shall be deemed tional law. Sabbatino, 376 U.S. at 430– valid.’’) (emphasis added). The defen- 431, 84 S.Ct. 923. The defendants bear dants’ arguments with respect to the act of the burden of establishing that dismissal state doctrine mostly relate to the taking under the act of state doctrine is appropri- of the Library,24 and counsel for the defen- ate in the given circumstances. See World dants admitted during oral argument that Wide Minerals Ltd. v. Republic of Kaza- the act of state doctrine has less force with khstahn, 116 F.Supp.2d 98, 104 (D.D.C. respect to the Archive. Based on the par- 2000) (Lamberth, J.) (‘‘The party raising ties’ written and oral arguments on this the act of state defense has the burden of issue, this Court finds that the act of state establishing the facts required under the doctrine does not apply to the taking of the doctrine.’’) (citing Riggs Nat’l Corp. & Archive. Subsidiaries v. Comm’r of IRS, 163 F.3d 1363, 1367 & n. 5 (D.C.Cir.1999)). b. The Library [17] Chabad premises its claims of the a. The Archive Library’s taking in part on the alleged [16] The act of state doctrine does not unlawfulness of the Russian Chief Arbi- apply to Chabad’s claims concerning the ter’s Final Decision, which overturned the Archive. The Nazi taking of Jewish prop- decisions reached by tribunals below. An erty during the Holocaust was manifestly official judicial decision, even one tainted illegal. See Bodner, 114 F.Supp.2d at 134. by allegations of impropriety, as Chabad It is not clear whether the Soviet Army’s alleges this one was (Pl.’s Suppl. Br. 10, taking of the Archive as spoils of war at 25), is an official act of a sovereign nation. the conclusion of World War II was an Chabad is in effect asking this Court to sit official government act, but irrespective, it in review of the Deputy Chief State Arbi- occurred in Poland and not in Soviet terri- ter of the Russian Federation. That this tory. (Compl.¶ 19.) Were this Court to Court cannot do. Chabad also attempts to eventually decide in Chabad’s favor, de- paint the February 19, 1992 decree by the

24. For example, the defendants’ supplemental states that: ‘‘[w]hether viewed as a taking in brief simply summarizes the application of 1917, 1992, or 2004, the actions that Chabad the act of state doctrine in Dayton, 672 seeks to call into question are as to property F.Supp. at 7–13, without any specific refer- taken and held by a foreign sovereign within ences to the taking of the Archive. (Defs.’ its own territory.’’ (Id. at 31.) This comment Suppl. Br. 30–33.) In fact, one of the defen- clearly refers to the Library, and just as clear- dants’ few references to the facts of this case ly has no bearing on the Archive’s taking. in the ‘‘Act of State’’ section of their brief AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 27 Cite as 466 F.Supp.2d 6 (D.D.C. 2006)

Supreme Soviet of the Russian Federation, be declined’’). Under the doctrine of fo- allegedly divesting the Russian courts rum non conveniens, a court must first from adjudicating claims for the recovery determine whether there is an adequate of the Collection, as another discrete tak- alternative forum for the dispute and, if so, ing. (Id. at 25.) Legislative acts of a must then balance both private and public foreign sovereign are quintessential official interest factors in favor of the respective government action and Chabad’s claim forums. See Piper Aircraft Co. v. Reyno, premised on the impropriety of this legis- 454 U.S. 235, 255 & n. 22, 102 S.Ct. 252, 70 lation is also barred by the act of state L.Ed.2d 419 (1981). There is a substantial doctrine. Were Chabad to have argued presumption in favor of the plaintiff’s that the Library’s taking occurred in the choice of forum, and ‘‘unless the balance is 1920s, as this Court has found, the act of strongly in favor of the defendant, the state doctrine would squarely apply be- plaintiff’s choice of forum should rarely be cause the Library’s appropriation and disturbed.’’ Gulf Oil Corp. v. Gilbert, 330 transfer to state facilities was done in ac- U.S. 501, 509, 67 S.Ct. 839, 91 L.Ed. 1055 cordance with official government di- (1947). rectives. (Defs.’ RJN 32–43; Compl. 1. Adequate Alternate Forum ¶ 14.) [21, 22] The burden is on the defen- The application of the act of state doc- dants to satisfy the threshold requirement trine results in the same outcome as the of demonstrating the existence of an ade- application of the FSIA’s expropriation ex- quate alternate forum with jurisdiction ception. This Court has no jurisdiction over the case. El–Fadl v. Central Bank of over Chabad’s claims to the Library, and Jordan, 75 F.3d 668, 677 (D.C.Cir.1996). even were it to have jurisdiction, these The defendants’ briefs contain conclusory claims would be barred by the act of state statements as to whether this case can be doctrine. However, this Court does, under brought in a Russian court and the record the FSIA, have subject matter jurisdiction is not clear whether the February 19, 1992, over Chabad’s claims to the Archive, and decree precludes Chabad from filing suit in the act of state doctrine does not preclude the Russian Federation. Compare Irina– these claims. Kogan Decl. ¶ 15 (asserting that the 1992 decree prevents Chabad from pursuing D. Forum non Conveniens any judicial remedy in the Russian Feder- [18–20] In addition to their arguments ation to recover the Collection), with Reply as to this Court’s jurisdiction, the defen- Opp’n Mot. Dismiss 12 (arguing that the dants urge that the doctrine of forum non 1992 decree does not bar litigation in the conveniens should compel this Court to Russian Federation with respect to either dismiss the case. A determination under the Library or the Archive). Chabad the doctrine of forum non conveniens is a paints the legislation as applying to both discretionary one. See Am. Dredging Co. the Library and the Archive (Pl.’s Suppl. v. Miller, 510 U.S. 443, 453, 114 S.Ct. 981, Br. 10–11; Irina–Kogan Decl. ¶ 15), but on 127 L.Ed.2d 285 (1994) (noting that the its face, the legislation only affects RSL doctrine of forum non conveniens is ‘‘a holdings (i.e., the Library) and does not supervening venue provision, permitting mention the RSMA, where the Archive is displacement of the ordinary rules of ven- stored (Irina–Kogan Decl. Ex. J at 54). ue when, in light of certain conditions, the Chabad also implies that adjudication in trial court thinks that jurisdiction ought to the Russian Federation may take a long 28 466 FEDERAL SUPPLEMENT, 2d SERIES

time and may be biased against its claim and inexpensive.’’ Am. Dredging, 510 U.S. (Pl.’s Suppl. Br. 37), but a foreign forum at 448, 114 S.Ct. 981 (quoting Gulf Oil., ‘‘is not inadequate merely because it has 330 U.S. at 508, 67 S.Ct. 839). Relevant less favorable substantive law,’’ ‘‘employs public interest factors include: (1) the different adjudicative procedures,’’ or on preference for deciding local controversies the basis of ‘‘general allegations of corrup- at home, and conversely (2) the preference tion.’’ El–Fadl, 75 F.3d at 678. for resolving significant issues in a more central forum; (3) in diversity cases, the [23] Nevertheless, the burden is on the familiarity of the forum with applicable defendants to ‘‘ ‘provide enough informa- state law; and (4) the burden of jury duty tion to enable the District Court’ to evalu- on citizens of a forum unrelated to the ate the alternative forum.’’ Id. at 677 case. Id. at 448–49, 114 S.Ct. 981 (quoting (quoting Piper Aircraft, 454 U.S. at 258, Gulf Oil, 330 U.S. at 508–09, 67 S.Ct. 839). 102 S.Ct. 252). At oral argument, the This Court is mindful of the ‘‘strong pre- parties failed to shed more light on the sumption in favor of the plaintiff’s choice adequacy of Russian courts to hear this of forum, which may be overcome only dispute or on the effect of the 1992 legisla- when the private and public interest fac- tion on this question. See id. at 678 (‘‘[I]f tors clearly point towards trial in the alter- the foreign forum would deny [the plain- native forum.’’ Piper Aircraft, 454 U.S. at tiff] access to its judicial system on the 255, 102 S.Ct. 252. claims in his complaint, dismissal on forum non conveniens grounds is inappropriate.’’). Having conducted jurisdictional a. Private Interest Factors discovery and presented their oral argu- While it may be relatively easier and ments, the defendants had ample opportu- less costly for a Russian court to gain nity to make a showing of the existence of access to some sources of proof, such as an adequate alternate forum. However, witnesses and tangible evidence, this factor the defendants’ conclusory statements does not weigh in favor of dismissal. Al- about adequacy of a Russian forum fall though the taking of the Library occurred short of the required showing for forum in the Soviet Union, the Archive’s taking non conveniens. took place in Poland—first when it was taken by the Nazis and then by the Sovi- 2. Private and Public Interests ets. While some of the evidence is un- [24] Even if this Court were to find doubtedly located in the Russian Federa- that the alternate forum is adequate, it tion, it is likely that other evidence exists must then balance the relevant private and in Poland and in Germany. This Court public interest factors at play. Mutam- heeds the defendants’ argument that in bara v. Lufthansa German Airlines, 2003 addition to ease of access, the cost of mak- WL 1846083, at *2 (D.D.C. Mar.24, 2003). ing the witnesses and evidence available to Some relevant private interests are: (1) a court in the United States may be sub- ‘‘relative ease of access to sources of stantial. (Defs.’ Suppl. Br. 38–39.) Cha- proof’’; (2) ‘‘availability of compulsory pro- bad allays some of these concerns by not- cess for attendance of unwilling’’ wit- ing that the defendants can easily access nesses; (3) cost of attendance of witnesses; many of the documents in question, which (4) enforceability of a judgment, if ob- are in their possession (Pl.’s Suppl. Br. tained; and (5) ‘‘other practical problems 39), and in light of modern technology, the that make trial of a case easy, expeditious location of documents is not a significant AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 29 Cite as 466 F.Supp.2d 6 (D.D.C. 2006) factor. See Thayer/Patricof Educ. Fund- (Defs.’ Suppl. Br. 39–40) does not shift ing, L.L.C. v. Pryor Res., Inc., 196 the balance, as the examination of the F.Supp.2d 21, 36 (D.D.C.2002). Regard- Collection, if necessary, will occur in Rus- less of the forum, these documents will sia regardless of the location of the trial. have to be provided to Chabad and its (Pl.’s Suppl. Br. 40.) counsel, located in New York, the District Finally, the defendants note that ‘‘[s]ince of Columbia, and California; in fact, vari- the ‘Collection’ is located in Russia,’’ any ous Soviet-era documents, some dating judgment requiring the defendants to back to the 1920s, have already been pro- transfer the Collection to Chabad ‘‘would vided to Chabad as part of jurisdictional discovery. Chabad also points to an earli- have a far greater chance of being en- er stipulation between the parties in which forced in Russia if it were to come from a the defendants agreed to produce any for- Russian court rather than a U.S. court.’’ eign employees or private citizens for de- (Defs.’ Suppl. Br. 42.) The defendants position ‘‘on the east coast of the United appear to be suggesting that this Court States, or in London, England, or Paris, should divest itself of jurisdiction because France,’’ and Chabad agreed to pay rea- if it rules against the defendants, they may sonable airfare and hotel costs for these refuse to abide by its judgment. Such an deponents. (Stipulation and Order [Cal. argument is an affront to this Court and 12] ¶ 3.e at 2.) does not militate in favor of dismissal on the grounds of forum non coveniens. The fact that many of the evidentiary documents are in Russian does not clearly weigh in favor of the defendants’ choice of b. Public Interest Factors forum. The cost of translating Russian The public interest analysis leans in fa- documents into English may well be signif- vor of maintaining the present forum. icant. (Defs.’ Suppl. Br. 40.) However, The defendants’ argue that most District many Russian documents have already of Columbia residents have no interest in been translated, with translation services this dispute. (Defs.’ Suppl. Br. 43.) The being readily available for other docu- Russian Federation, claim the defendants, ments. (Pl.’s Suppl. Br. 40–41.) In addi- has a strong interest in the outcome of this tion, some evidentiary documents are in dispute, as the Library ‘‘is an important Hebrew, and there are likely some in Ger- element of the heritage of the Russian man, which will have to be translated Federation’’ and it ‘‘is being used by vari- whether the forum is in the Russian Fed- ous individuals and entities, including the eration or the United States. As for Russian Chassidic community.’’ (Defs.’ translation costs in relation to witness tes- Suppl. Br. 43.) timony, while defendants argue that potential witnesses in this case are Russian and It is no mere coincidence that this case their depositions will require translation is being heard in the District of Columbia, into English, Chabad points out that most as Congress has designated this Court to of its witnesses reside in North America, be a proper forum for all actions brought and their depositions will require transla- under the FSIA. § 1391(f)(4). The Dis- tion into Russian if this case is dismissed trict of Columbia is the seat of the United in favor of a Russian forum. Additionally, States government, and is the location of the defendants’ allegation that the parties various foreign embassies, including the and their experts will have to examine the Russian one. There is a public interest in Collection to determine its exact contents resolving issues of significant impact in a 30 466 FEDERAL SUPPLEMENT, 2d SERIES

more central forum, such as this one. See not ‘‘persuaded by the alternative Russian Gulf Oil, 330 U.S. at 509, 67 S.Ct. 839. argument that the Library was a national The general public interest in this case is treasure’’ in view of the fact that it was evidenced by the demonstrated interest ‘‘completely hidden from view for nearly a and involvement of the United States gov- quarter of a century, and its existence only ernment in pushing for a resolution of the revealed when tracked down by outsiders’’; dispute surrounding the Collection. The because this ‘‘treasure’’ was stored in the national security adviser to a former Vice lower stacks of the Lenin Library without President of the United States stated that regard for the books’ significance; and the return of the Collection was frequently because of evidence of anti-Semitism in brought up by the Vice President and Russia). In addition, the Soviet Union President of the United States in meetings long denied that it even had possession of with their Russian counterparts, as well as the Archive. by a ‘‘succession of United States Ambas- As for the other public interest factors, sadors.’’ (Fuerth Decl. ¶ 7.) The MOU this case represents more than just a local- addressing the Library’s storage condi- ized dispute, so the preference for deciding tions was signed at the highest levels be- localized controversies in a local forum is tween the United States and Russian gov- inapplicable. Because this is not a diversi- ernments. (Id. ¶ 9.) ty case, but one predicated on questions of More recently, multiple letters ad- international law, either forum may have dressed to Russian Presidents Yeltsin and to deal with legal concepts ‘‘foreign to Putin, signed by all one hundred United itself.’’ Gulf Oil, 330 U.S. at 509, 67 S.Ct. States Senators and by over three hundred 839. It is also important to note that members of the United States House of there is no burden on potential jurors, as Representatives, as well as a letter from jury trials are not available in suits the State Department expressing its con- brought under the FSIA. (Pl.’s Suppl. Br. cern about the situation, comprise signifi- 42.) cant evidence that there is a strong public [25] Even had the defendants demon- interest in the United States in the out- strated the existence of an adequate avail- come of this litigation. (Suppl. Decl. able alternate forum, a balancing of the Marshall B. Grossman Supp. Pl.’s Suppl. private and public interest factors does not Br. [15] Ex. B at 6–13 (May 31, 1992, letter ‘‘clearly point towards trial’’ in the Russian signed by the entire Senate); id. Ex. B at Federation. Piper Aircraft, 454 U.S. at 16–24 (February 24, 2005, letter signed by 255, 102 S.Ct. 252. The private interests the entire Senate); id. Ex. B at 28–43 slightly favor the defendants, mostly due (May 5, 2005, letter signed by members of to the location of witnesses and costs asso- Congress); id. Ex. B at 44 (July 11, 2005, ciated with translating testimony and vari- letter from the State Department)). ous relevant documents. The public inter- Chabad points out the irony in the de- ests favor Chabad—while the defendants fendants’ claim that the Library is part of can claim a natural interest in having the the Russian Federation’s cultural heritage, case decided in a domestic court, there is a when the Russian Federation and its pre- greater public interest in having this dis- decessor Soviet Union kept the Library in pute decided in the United States, which is poor conditions for decades. (Pl.’s Suppl. also home to many followers of Chabad. Br. 42–43.) See also Fuerth Decl. ¶¶ 10– Assuming arguendo the existence of an 12 (noting that the U.S. government was adequate alternate forum, the private and JOYNER v. RENO 31 Cite as 466 F.Supp.2d 31 (D.D.C. 2006)

public factors viewed together do not over- construe the term ‘‘Collection’’ in the Com- come the strong presumption in favor of plaint to refer solely to the Archive. the plaintiff’s choice of forum, id., especial- SO ORDERED. ly where the plaintiff is a United States citizen. In all, the principles underlying the doctrine of forum non convenience point to the District of Columbia as the , more appropriate forum for this litigation.

III. CONCLUSION For the foregoing reasons, this Court concludes that it has jurisdiction over Cha- Richard JOYNER, Plaintiff, bad’s claims relating to the Archive but v. not the Library. The application of the act of state doctrine does not change this Janet RENO, et al., Defendants. outcome, as it only bars this Court from Civil Action No. 00–2006 (RBW). adjudicating Chabad’s claims relating to the Library, and this Court does not find it United States District Court, appropriate to dismiss the case under the District of Columbia. doctrine of forum non conveniens. Ac- Dec. 7, 2006. cordingly, and for the reasons stated herein, this Court shall grant in part the mo- Background: Personal representative of tion [Cal. 13] to dismiss as to Chabad’s estate of inmate who was murdered by claims concerning the Library, and shall other inmates while incarcerated in federal deny in part the motion to dismiss as to penitentiary in Pennsylvania brought Bi- Chabad’s claims concerning the Archive. vens and other claims against, inter alia, penitentiary warden, unnamed penitentia- A separate Order accompanies this ry employees and other federal officials. Memorandum Opinion. After action was transferred for convenience of witnesses and parties, 267 ORDER F.Supp.2d 15, parties to action were nar- Upon consideration of the defendants’ rowed and action was retransferred back motion [Cal. 13] to dismiss, the plaintiff’s on ground that transfer had not been to opposition thereto, the defendants’ reply, district where action might have been the parties’ supplemental briefs, and the brought originality. Defendants moved to entire record herein, it is, for the reasons dismiss action. stated in the accompanying Memorandum Opinion, hereby Holdings: The District Court, Walton, J., held that: ORDERED that the defendants’ motion [Cal. 13] to dismiss is GRANTED as to (1) original transfer to district where ac- those claims in the Complaint regarding tion ‘‘might have been brought’’ did not the Library and DENIED as to those require, as precondition, determination claims regarding the Archive, as the terms that action would be timely under stat- ‘‘Library’’ and ‘‘Complaint’’ are defined in ute of limitations applicable to action in paragraph 11 of the Complaint and used transferee forum; throughout the accompanying Memoran- (2) transferee district court acted without dum Opinion. Going forth, this Court will proper authority in reviewing merits of

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February 2, 2011 Dispute Derails Art Loans From Russia

By CAROL VOGEL and CLIFFORD J. LEVY

Several paintings from Gauguin’s Tahitian period will probably be missing from a major exhibition of his work at the National Gallery of Art in Washington when it opens this month, as will a canvas in that museum’s coming show on the Venetian painter Canaletto and his rivals. At the Metropolitan Museum of Art a small but important exhibition of Cézanne’s famous card player paintings, opening next week, will almost surely be short one.

These and other probable absences from blockbuster shows this year stem from an obscure legal dispute that has turned into a full-scale diplomatic feud between the United States and Russia.

State-run Russian museums, including the Hermitage in St. Petersburg and the Pushkin Museum of Fine Arts in Moscow, are canceling long-scheduled loans to American institutions in response to a decision by an American judge in a case involving Jewish religious documents held by Russia.

The ban is highly unusual. For decades international loans have been the lifeblood of large and lucrative shows, and exchanges between American and Russian institutions have been common. The Met alone has borrowed works from Russian institutions for about 40 shows since 1990. But now, like the National Gallery, it is scrambling to fill holes in heavily promoted exhibitions.

“We are all caught up in a political situation that is not of our making,” said Thomas P. Campbell, director of the Met.

Diplomats in Washington and Moscow have been seeking to negotiate an agreement to pave the way for the loans but have so far been unsuccessful.

The legal dispute centers on the so-called Schneerson Library, a collection of 12,000 books and 50,000 religious documents assembled by the Chabad-Lubavitch Hasidic movement over two centuries prior to World War II, and kept since in Russia.

For decades the Chabad organization, which is based in Crown Heights, Brooklyn, has been trying to regain possession of the library, saying that it was illegally held by the Soviet authorities after the war.

In 1991 a court in Moscow ordered the library turned over to the Chabad organization; the Soviet Union then collapsed, and the judgment was set aside by the Russian authorities. The Russian government now says it wants to preserve the library for Russian Jews and scholars.

In recent years the organization has taken its case to court in the United States, and on July 30, 2010, Royce C. Lamberth, a federal judge of the United States District Court in Washington, ruled in favor of the Chabad organization, ordering Russia to turn over all Schneerson documents held at the Russian State Library, the Russian State Military Archive and elsewhere.

Russian officials, saying that an American court had no jurisdiction, had refused to participate in the proceedings. And after Judge Lamberth’s decision, the Russian Foreign Ministry denounced it as a violation of international law. The ministry said an American court had no right to get involved in a case concerning Russian assets on Russian soil. Russian cultural officials reacted more slowly, but by autumn they began warning Russia’s state-controlled museums that any artwork lent to the United States was at risk of being seized by the American authorities to force Russia to abide by the decision.

In an interview on Monday a lawyer for the Chabad organization confirmed that it might ask a court to confiscate art from Russia as a kind of legal hostage.

American diplomats have sought in recent weeks to convince the Russian government that under American law art from Russian museums on loan in the United States was immune from seizure. But Russian officials have remained unconvinced and say they want more legal assurances before the loans resume.

The dispute seems to have touched a nerve in Moscow, where the authorities have been highly sensitive since Soviet times to what they perceive as meddling in their internal affairs by other governments.

“This collection in the Russian Library has never left the borders of Russia,” the culture minister, Aleksandr Avdeyev, said in January on the Echo of Moscow radio station. “It is located here legally, and we are the owners.”

“We have undertaken all the judicial requirements to explain to the court and to the American community group that the issue, my friends, is international law, rather than domestic American law,” Mr. Avdeyev said. “Under international law there is state jurisdiction, and if you want to sue, fine, sue us on Russian territory.”

David Siefkin, a spokesman for the United States Embassy in Moscow, said American diplomats believed that an arrangement could be worked out to allow for the art exchanges.

“We’ve reassured the Russians that, for the last 45 years, a U.S. statute has granted immunity from judicial process for works on loan from foreign countries,” Mr. Siefkin said. “For 45 years all such artwork, including Russian art, has been safely returned.”

But Russian officials and museum executives said they wanted the American government to offer new, more stringent legal protections. They said the decision by Judge Lamberth demonstrated a kind of judicial overreaching in American courts that might also lead to art from Russia being seized. Until such protections are put in place, no art will be lent, they said.

“The United States will not give us absolute guarantees that our works are going to be returned,” said Larisa A. Korabelnikova, a spokeswoman for the Hermitage. “So for now we are refraining from sending them. You want to see these exhibits, and we would really would like to show them to you. It is just a very unpleasant situation.”

The four shows that stand to suffer in the coming months are “Cézanne’s Card Players” and “Rooms With a View: The Open Window in the 19th Century” at the Met, and “Gauguin: Maker of Myth” and “Venice: Canaletto and His Rivals” at the National Gallery. Earl A. Powell III, the director of the National Gallery, said that he too had been trying to allay the Russians’ fears.

“We’ve been at it for about three weeks now, talking to our colleagues in Russia so they clearly understand that the U.S. seizure from immunity does work,” Mr. Powell said. “It’s frustrating.”

Officials from the Chabad organization spoke of frustration too. Marshall Grossman, a lawyer representing the organization, said it had gone to the American courts because it could not receive a fair hearing in Russian ones. The documents, he said, are a precious collection of books and manuscripts written by seven generations of Chabad leaders, including most recently Rebbe Menachem Mendel Schneerson, for whom the collection is named.

“They tell the philosophy, the laws, the customs and the cultures of the Chabad branch of Orthodox Judaism,” Mr. Grossman explained.

For decades, he said, “these documents sat boxed up and they were of no interest to the Russians. They were looted by the Nazis and taken into Poland during World War II. The Russians seized these writings from the Nazis. They warehoused them in the basements of museums and military archives.”

Mr. Grossman criticized the Russian authorities for refusing to lend the promised artworks. “This is an absurd position,” he said. “It is a self-destructive act which harms itself and art lovers all over the United States.”

But when asked whether he would consider trying to seize some of the art, he said, “Chabad will exercise every remedy under the law in order to enforce the judgment. With no exceptions.”

Research Note

The Postwar Fate of Einsatzstab Reichsleiter Rosenberg Archival and Library Plunder, and the Dispersal of ERR Records*

Patricia Kennedy Grimsted Harvard Ukrainian Research Institute

Alfred Rosenberg was one of Nazi Germany’s most successful “looters.” The Downloaded from Einsatzstab Reichsleiter Rosenberg (ERR), organized specifically for plunder under his direction, seized cultural property across Nazi-occupied territories. This research note traces what happened to the ERR’s hoard of books and archival materials that ended the war in the ERR evacuation center head- hgs.oxfordjournals.org quartered in Ratibor (now Polish Racibórz), in Upper Silesia. In contrast to the treasures found in the Western occupation zones of Germany and Austria, a large part of the property in Silesia fell into Soviet hands. Thus plundered a second time, it was held in secret for decades. Only recently has it been possible to find and identify the displaced books and archives, 1

and to raise the issue of restitution. The author addresses the issue of where at Yeshiva Gottesman on March 24, 2011 the ERR’s own records were scattered, as well as current efforts to bring them together electronically and make them widely accessible to researchers.

Western Restitution—Most “Books Go Home from the War” ERR loot in Germany at the end of the war was generally returned by the Western Allies to the country of origin of the prewar institutions, owners, or their successors—to

*Editorial Note: This article continues the author’s “Roads to Ratibor: Library and Archival Plunder by the Einsatzstab Reichsleiter Rosenberg,” Holocaust and Genocide Studies 19, no. 3 (2005): 390–458; both are related to “Twice Plundered or ‘Twice Saved’? Identifying Russia’s ‘Trophy’ Archives and the Loot of the Reichssicherheitshauptamt,” Holocaust and Genocide Studies 15, no. 2 (2001): 191–244. The latter was updated in Russian translation as “Dvazhdy zakhvachennye ili ‘dvazhdy spasennye’? Rozysk rossiiskikh ‘trofeinykh’ arkhivov i dobycha Glavnogo upravleniia imperskoi bezopasnosti,” Sotsial’naia istoriia. Ezhegodnik 2004 (Moscow: ROSSPEN, 2005): 401–55. A list of abbreviations follows the text. Citations to Soviet-era archives give fond (record group), opis’ (inventory within fond) and delo (or file) numbers. In Soviet-era practice a “fond” designates an integral group of records or a collection from a single office or source, or papers of an individual or family. Transliteration from the Cyrillic generally follows Library of Congress practice. Ukrainian place- and other names are rendered according to current Ukrainian usage.

doi:10.1093/hgs/dcl005 278 Holocaust and Genocide Studies, V20 N2, Fall 2006, pp. 278–308 the extent they could be located and their claims legitimized. The Offenbach Archival Depository (OAD) outside Frankfurt am Main, characterized as the “American antithesis to the ERR” and “the biggest book restitution operation in library history,” served as a centralized American restitution facility for many collections plundered by the ERR and other agencies.2 A recent internet exhibit by the United States Holocaust Memorial Museum (USHMM) features reminiscences of the first director of OAD, Seymour J. Pomerenze, providing a vivid sense of the OAD mission.3 Between its March 1946 opening and its closure in April 1949, OAD processed more than three million displaced books and manuscripts, along with Jewish ritual silver. These included loot the ERR had collected from Jewish and other sources all over Europe for the Institute for the Study of the Downloaded from Jewish Question (IEJ) in Frankfurt and Hungen, Masonic collections stored elsewhere, and some of the books brought together by the Reichssicherheitshauptamt (RSHA) that survived the bombing of Berlin. Several shipments came into OAD from the Banz/Staffelstein area, representing materials that the ERR managed to hgs.oxfordjournals.org evacuate from Ratibor and Berlin toward the end of the war.4 Although OAD returned nearly 300,000 books to the USSR, Russian publications have only recently started to acknowledge this but still claim that only a third of that total reached the Soviet Union.5 Lately we have learned more about the Jewish books that were not returned to their countries of origin. Many of them had identifiable stamps or at Yeshiva Gottesman on March 24, 2011 other ownership markings, including many from Eastern Europe and the Baltic countries. They were not returned because their original institutions had been liquidated or moved into emigration, because of the feared antisemitism in the postwar Stalinist regime, or because those dealing with them did not know the appropriate languages or did not make adequate efforts to identify their provenance. The YIVO Institute of Jewish Research from Vilnius, on the other hand, was legally reestablished in New York and thereby received many of the library collections from Vilnius. In other cases they were not returned because zealous Jewish scholars and intellectual leaders were anxious to build up Jewish library reserves in Israel or to “save” abandoned Jewish books from war-torn Europe and to redistribute them to Jewish institutions across the seas, while in some cases representatives from many Jewish libraries were rushing to Europe to establish claims. Today, as Jewish communities are being reestablished in Eastern Europe, some are calling into question the postwar American policy of “redistribution” of “heirless” Jewish books to Jewish communities in the United States and Israel. Considerable research on the subject was undertaken by the U.S. Presidential Commission on Holocaust-Era Assets, but further clarification was challenged by the difficulty of locating all of the widely dispersed books.6 Israeli scholars are also investigating the subject, although sources are often hard to come by.7

The Postwar Fate of ERR Records 279 A different category of books and archives not returned to their countries of origin was siphoned off by U.S. intelligence (G-2). Some of those considered of “operational value” never even reached Offenbach; of those that did, intelligence agents removed slightly over 5,000 items from the restitution pipeline. The most famous case was the 500 files of the “Smolensk Archive,” first seized by the ERR from the Communist Party Archive of Smolensk Oblast’. These were signed over to G-2 and flown to the Pentagon. Transferred to the U.S. National Archives in the 1950s, they were long available for purchase on microfilm, but the original files were finally returned to Russia only in December 2002. In fact the Soviets had found most of the archive themselves in Silesia (almost five freight cars), but often wrote as if the Americans had taken all of it. In 1963 they Downloaded from refused an early American offer to return the 500-plus files in Washington, afraid that claiming them would amount to acknowledging the “mistakes” of the Sta- lin regime documented therein.8 The two major ERR caches of library books that ended up under Western hgs.oxfordjournals.org Allied control in Austria were also immediately restituted to their homelands. In mid-May 1945 the British discovered over half a million books in the Monastery of Tanzenberg and neighboring depots in Austrian Carinthia, which the ERR had taken from all over Europe for the Central Library (Zentralbibliothek) of the Hohe Schule (ZBHS), Rosenberg’s planned university for the Nazi elite.9 The British authorities kept captured German staff under house arrest in Tanzenberg and at Yeshiva Gottesman on March 24, 2011 forced them to re-sort the books for return to the countries of seizure.10 Parts of several of the Rothschild libraries were among the two consignments to France— 591 crates (ca. 70,000 volumes) in May 1946 and another 879 crates in July. Most of the 975 crates that went home to the Netherlands contained materials from the International Institute of Social History in Amsterdam.11 Another 557 crates with a total of about 55,000 volumes were transferred to the Soviet authorities in May 1946, another twelve crates coming later to bring the total (by the close of British operations in Tanzenberg, mid-October 1948) to 569 crates.12 Thanks to the efforts of Austrian historian Evelyn Adunka, more information has been surfacing about the fate of books from Tanzenberg that were turned over to Austrian libraries in Vienna; many of those volumes not returned to their owners subsequently were sent to Jerusalem.13 Finding in Villa Castiglione (Grundlsee) the holdings the ERR had collected for Hitler’s Linz Library, American authorities transferred most to the U.S. Central Collecting Point in Munich to be returned to the countries from which they had been stolen. As an additional example, thirty crates of books and some scientific equipment from Smolensk, found by American authorities in the House of Nature (Haus der Natur) near Salzburg, were restituted directly to a Soviet officer there in December 1945.14 Some of the materials gathered for the Linz Library, however, eventually went to the Austrian National Library.15

280 Holocaust and Genocide Studies Soviet Non-Restitution in the East—Few “Books Go Home from the War” Nazi loot from Western Europe ending up in the East had a very different postwar fate than Soviet cultural property handled by the British and Americans. Two weeks after the Yalta Conference Stalin issued orders to establish a Special Committee on Reparations and a Trophy Administration under Marshal Zhukov, for the organized transport of extensive spoils of war, from whole factories to pianos, furniture, and wine—450,000 railroad cars by the end of 1945. Even today in the eyes of Russian “patriotic” politicians, Stalin’s signature on such orders, still classified top secret but now widely known thanks to Pavel Knyshevskii, legitimizes Soviet cultural plunder at the end of the war.16 Many of the sources regarding the cultural property Soviet “tro- Downloaded from phy” brigades brought home from Germany and Eastern Europe are still not available for research. Since glasnost and the collapse of the USSR, some of the “beautiful loot” is emerging from the secret depositories;17 the tens of millions of trophy books taken to the USSR from 1945 to 1948 are gradually being identified.18 The opening hgs.oxfordjournals.org of ERR records in Kyiv and Moscow in 1990 greatly advanced knowledge of ERR plunder throughout Europe. Our detailed knowledge of the books plundered by the ERR in Western Europe, and that ended the war in Ratibor in Upper Silesia, became possible only after that. The Fourth Ukrainian Front of the Red Army liberated the Ratibor area in

February 1945, but no reports have surfaced to suggest that they found any of the at Yeshiva Gottesman on March 24, 2011 ERR library and archival loot there. In early March 1945, a Soviet trophy brigade from the Committee on Arts (predecessor of the Ministry of Culture), led by Moscow Art Theater director Colonel Boris Filippov, arrived in Silesia. The brigade, which included Major Andrei Chegodaev, a well-known art historian from the Pushkin Museum of Fine Arts, was attached to the First Ukrainian Front. Its mission was to search castles and other repositories for cultural treasures that could be transported to the Soviet Union before civilian administration in Upper Silesia was handed over to Poland at the end of March. First assigned to the industrial city of Beuthen (now Polish Bytom), fourteen kilometers north of Kattowitz (now Polish Katowice), and then to nearby Gleiwitz (now Polish Gliwice), the brigade was attached to the Trophy Administration under Maksim Saburov, where he repre- sented Stalin’s Special Committee on Reparations.19 The Filippov Brigade sent back by rail hundreds of thousands of books (along with other loot) in several large echelons. None of the available documentation, however, suggests that any of those books had been looted by the ERR.20 At the end of February 1945, the Red Army found an echelon the ERR had abandoned at the Pless railway station. Undoubtedly due to the fact that this con- glomeration of materials included approximately four freight-car loads of the Smolensk Archive, a report of the recovery went to the Communist Party Central Committee in Moscow.21 By the end of April 1945, almost five full freight cars of the Smolensk

The Postwar Fate of ERR Records 281 CP Archive were shipped home from the nearest mainline railroad junction six kilometers south of Pless.22 Thanks to that same March 1945 report, we know the Pless echelon contained an even larger quantity of library books, periodicals, and other archival materials plundered by the ERR from western Soviet lands, including “approximately 100,000 books in 580 crates … from Riga, Reval [Tallinn], Pskov, and Vilnius” and “about 80,000 volumes of journals packed in 660 crates … from the libraries of the Belorussian Academy of Sciences and the Lenin Library of the BSSR …, the transport of all of which would require some ten to twelve railroad freight cars.”23 While the Smolensk CP Archive was rushed home immediately, the books—a lesser priority—were moved to join the plundered books from Ratibor Downloaded from that the Germans had stashed in immense warehouses in the Kattowitz suburb of Myslowitz (then still German; now Polish Myslowice) on the main east-west rail line fifty kilometers north of Pless.24 The first person to find the large hoard of books from Ratibor was apparently hgs.oxfordjournals.org Boris Ia. Shiperovich, an editor and bibliophile who later headed the Propaganda Division of the “Sovetskii pisatel’” publishing house in Moscow. Serving in a special Red Army unit to “save” displaced books, Shiperovich and his colleagues discovered two huge warehouses in Kattowitz (actually Myslowitz) with “hundreds and thousands of crates” marked with German alphanumeric labels: “I’ve never seen so many books,” he exclaimed. He identified many crates from Belorussia—with stamps of at Yeshiva Gottesman on March 24, 2011 the Library of the Academy of Sciences—and some from the Lenin Library in Minsk. He spoke of many French and Polish editions, “incunabula, imprints of the 16th and 17th centuries,” and others in “Hebrew, Slavonic, and Latin.” Reporting his discovery to Marshal Konstantin Rokossovskii, he then visited Kattowitz several times with Lieutenant General [Andrei] Okorokov, then chief of the Red Army Political Admin- istration (GlavPU) in Silesia. If we can believe Shiperovich’s memoir, the Red Army had not found the warehouses earlier or arranged the crates of books into the elaborate labyrinth he described.25 Shiperovich’s published memoir avoids mention of foreign “trophies.” In private letters from the front to his friend, literary critic Anatolii Tarasenkov, however, Shiperovich noted “book collections taken from various places by the Nazis,” and expressed regrets that he did not discover the books earlier because, “many materials had already been looted.” He was able to rescue and load “two cars with foreign books, including books from the library of the Rothschilds.” Subsequently, he and the colleagues helping him open selected crates found “the library of the Duke of Orleans [duc de Guise] and [those of] other important people who knew how to love books.” Shiperovich mentioned sending a few interesting books to his friend Tarasenkov by various couriers.26 The Germans probably had packed and moved many of the books to Myslowitz as they were leaving Ratibor. Since Myslowitz was itself on the major east-west rail

282 Holocaust and Genocide Studies line, and yet somewhat removed from the center of Kattowitz, it would have been an appropriate storage place. Possibly the warehouses Shiperovich found had earlier been used as a transit point for ERR book shipments from East and West. A Belorussian soldier from Mohilev wrote home that he had found books with stamps from Belorussian libraries in the Myslowitz (Kattowitz) warehouse in mid-June 1945.27 Per- haps he had been with Shiperovich or was in the unit that General Okorokov had ordered to sort the books. By July 1945 GlavPU workers who had been sorting the crated books were able to estimate 1,200,000 volumes in Russian and foreign languages, bearing stamps from six Soviet libraries in Mohilev, Pskov, and Riga. The Red Army report listed a sev- enth Russian-language collection as coming from the Turgenev Library.28 Evidently, Downloaded from sections covering the books from other Western sources were omitted from the version of that report published by the Russian State Library (RGB) in 2000; unfortunately the full original text and contiguous army reports are not open for research.29 The mention of the Turgenev Library (actually from Paris) in this report further hgs.oxfordjournals.org establishes that this was the ERR loot from Ratibor.30 After finding the German loot from Ratibor, the Red Army used the Myslowitz warehouses to consolidate other books found in the area and prepare an echelon for the USSR. Some 4,735 wooden crates and 2,305 cardboard containers were waiting in a warehouse until an estimated forty railroad wagons could be arranged for transport. The July 1945 Red Army report also references other books that the ERR pre- at Yeshiva Gottesman on March 24, 2011 sumably had tried to evacuate from their Ratibor center and its subsidiaries. It confirms the “approximately 150,000 books and 100,000 periodical volumes found in Pless from . . . Novgorod, Pskov, Vitebsk, Brest, and Pinsk.” It mentions 20,000 books from Belorussian libraries found twenty kilometers northwest of Ratibor in Schönhain (now Polish Chrosty).31 Much farther west, 32,500 books from Soviet repositories were found (including some looted by the ERR from the Ukrainian Academy of Sciences and the Novgorod Historical Museum) in Gröditzberg (now Polish Grodziec), near Goldberg (now Polish Zlotoryja), thirty kilometers west of Leignitz (now Polish Legnica).32 The palace and castle on the Gröditzberg estate of the former German ambassador to the USSR, Herbert von Dirksen, had been a retreat for German Foreign Minister Joachim von Ribbentrop during the war. Starting in 1942, it was one of the evacuation sites for books from the Staatsbibliothek in Berlin and for library and art treasures from the Breslau Museum, under the direction of Günther Grundmann.33 For almost two years the ERR Ratibor center had been sharing books with the Osteuropa-Institut in Breslau, which had also been evacuated to the Dirksen estate. Possibly the ERR had evacuated some books from Ratibor to Gröditzberg on the way back to Germany. Full shipping documentation is not available for many of the echelons from Silesia. Books found in Gröditzberg and other western areas probably were sent to the USSR in a September 1945 echelon from Schwiebus (now Polish Uwiebodzin,

The Postwar Fate of ERR Records 283 ca. seventy kilometers east of Frankfurt am Oder). According to a report by Trophy Library Brigade leader Margarita Rudomino, approximately 300,000 volumes were “collected, during the fighting, by the 2nd Trophy Command of the 33rd Army”— both retrieved Soviet books and “trophy literature collected on Polish territory.”34 In late October or early November 1945 an echelon of fifty-four freight cars left Myslowitz for Minsk with the books from Ratibor and Pless. Trophy Library Brigade leader Margarita Rudomino later explained, “Because most of the books in the warehouses had been looted by the Nazis from Belorussian libraries … the remaining literature was shipped to … the Public Library of the Belorussian SSR.”35 One of Shiperovich’s letters (presumably from near Myslowitz) recorded “fifty-seven wagons steaming away to Minsk.”36 Half a century later, a Belarusian library director Downloaded from confirmed in a letter that a shipment “reached Minsk by train in the autumn of 1945—fifty-four freight cars carrying about one million books.”37 It is doubtful that Rudomino was involved with the Myslowitz echelon—she was reporting a year later on the Soviet “recovery” of the Turgenev Library from hgs.oxfordjournals.org Paris and how it happened that some of its books had gone to Minsk.38 Some 60,000 of the Russian-language books from the Turgenev Library were taken to the Officers’ Club in Legnica, the Red Army headquarters in Silesia. Shiperovich headed the library there starting in December 1945, and in March 1946 he was sent to Moscow on a secret mission to transport some of the choicest books and manuscripts from the

Turgenev Library to the Lenin Library (GBL, now RGB). at Yeshiva Gottesman on March 24, 2011 Many books originally from Soviet libraries were internally displaced instead of returning home after Soviet retrieval. Some of the books from other Soviet republics that arrived in Minsk with that same fall 1945 transport reportedly were returned to their homes. Other books, including many rare volumes from other Soviet libraries, such as those in the Baltic countries, were not. Understandably, in the immediate postwar period, the Soviet library world was hardly prepared for systematic restitution and redistribution. It had its hands full just getting bombed-out libraries operational again, and finding censors to weed out “degenerate” foreign books, so they could accession the rest. Despite greater possibilities for research in Ukraine during the past decade, librarians in Kyiv still do not know what happened to the hundreds of thousands (if not million) books from Kyiv and Kharkiv that went to Ratibor in ERR shipments. So far there have been no indications that all of those came with the postwar transport to Minsk. Today the Rare Book Department in the National Library of Belarus (NBB) has an extensive card catalogue—and now an electronic library database—with provenance indications based on book stamps and other markings. One finds there books from Pskov and Smolensk, and from the former imperial palaces in suburban St. Petersburg, most of which undoubtedly arrived with the shipment from Ratibor and were not sorted out and sent on.39 Besides, all arriving books in foreign languages, and especially “trophy” books, had to clear the Glavlit censors. Since censors who

284 Holocaust and Genocide Studies knew the Baltic languages were scarce in Minsk, many incoming books of Baltic origin had to be put aside. Those in other foreign languages had to be inspected before shipment or before they could be given to readers.40 Such obstacles may explain the presence in Minsk of some of the more than 6,000 rare volumes from Julius Genss’s world-class art history and bibliophile collection, which was fought over by the SD and ERR in 1942 in Tallinn. The large part that ended the war in Pless arrived in Minsk via Myslowitz, but Genss’s daughter in Moscow today still has not been able to determine how many of her father’s books remain in Minsk. In the 1950s Soviet courts refused to return the library to Estonia. Only since Belarus’s independence have many of the rare books from the Genss collection been made available to readers in the Academy of Sciences Library in Minsk, but that Downloaded from library now claims to have only 1,000 out of the earlier 6,000 taken by the ERR. A few more volumes are now in the Rare Book Department of the NBB; all of them bear ex libris and stamps to the effect that they had gone through the ERR unit in Estonia.41 hgs.oxfordjournals.org Western Trophy Books on the Road to Minsk None of the contemporary Soviet reports mentioned above (or at least the available portions) presents the whole picture. In fact, only a little over half of that Ratibor consignment (via Myslowitz), or approximately 600,000 books and periodicals, origi- nated in Belorussian libraries plundered by the ERR. The other half of the echelon— more than half a million books that the ERR had plundered all over the European at Yeshiva Gottesman on March 24, 2011 continent and collected in Ratibor and its environs—became Soviet “trophies.” Accessioned by what is now the NBB, most of them were hidden away in special collections (spetskhrany) inaccessible to the public for half a century. Only recently has the truth emerged about this largest remaining concentration of displaced books from Western Europe.42 In 1989, 240 books with stamps of the Petliura Ukrainian Library in Paris were “returned” to Kyiv from Minsk. Obviously, they had been shipped there via Ratibor and Myslowitz. Under the Soviet regime no one would have considered returning them to their real home in Paris.43 In 1992, however, the All-Russian State Library for Foreign Literature (VGBIL) in Moscow returned 650 Dutch books to the Uni- versity of Amsterdam. Dutch librarians tracing their migration learned that the books had come to Moscow from Minsk. They learned this from a letter from then director of the Belarus National Library, Galina Oleinik, acknowledging that they had come from Silesia in an echelon of fifty-four freight cars. Amsterdam librarians discovered that a few of the Dutch-language books actually bore ownership markings of looted Belgian collections, and one was a Dutch New Testament with a stamp of the Turgenev Library. When it was returned to Paris, the latter thanked Dutch colleagues for the first book—out of 100,000 confiscated by the Nazis in 1940—to have come home. A Dutch librarian immediately suspected that those books had been sent to Minsk via Ratibor, but why had only 650 books been returned to the Netherlands, when

The Postwar Fate of ERR Records 285 Russian and Belarusian library sources suggested between 12,000 and 20,000 (another source suggested 40,000) Dutch books had been transferred from Minsk to Moscow?44 Those Dutch books were of no interest in Minsk, and could not even be accessioned because no censor there could read Dutch, and so gradually they had been transferred to Moscow. To be sure, when Minsk library director Oleinik wrote to Amsterdam in 1992 she did not reveal that another half million books from many Western European countries had arrived with the 650 Dutch ones. In 1999 an article about the “Involuntary Journey of Books from Paris to Minsk” appeared in English and Russian in Spoils of War: International Newsletter. The author, Vladimir Makarov, a retired Belarusian professor of French philology, did not reveal (and actually did not know) how many books were involved. He men- Downloaded from tioned books with dedications to Léon Blum, Georges Mandel, Jean Zay, and other French Jewish political leaders, along with journalists such as Louise Weiss; books with autographs of French writers such as André Gide, André Malraux, and Paul Valéry; books with stamps of major Jewish libraries in Paris; as well as books from the hgs.oxfordjournals.org Turgenev Russian Library.45 Earlier Makarov had published several other intriguing essays about the French books he found in Minsk, with dedications and ownership markings from prominent French libraries, including the Rothschilds among many other leading French Jews.46 Makarov did not know how or by what route the books had arrived in Minsk, but he realized they had been confiscated from Paris and then transported from Germany to Minsk. Today, he laments that when he served in Paris at Yeshiva Gottesman on March 24, 2011 as Soviet Belorussian delegate to UNESCO in the 1960s he was unable to return them to their owners or heirs in France.47 In 2003 I was able to confirm how many Western trophy books had arrived in Minsk. Contemporary documents, including postwar library directors’ reports in Minsk and Glavlit censorship files in Moscow, clearly label them “trophy” books retained in Minsk as “compensation” for wartime library losses. Only preliminary details have been established about the 400,000 books that were accessioned by the National Library of Belarus after the war. An international library conference held in Minsk in September 2003 was the venue for my initial report about the “Road to Minsk” and their earlier migration at the hands of the ERR.48 We now know more about the roads that took those Western books to Ratibor, where they ended the war in the company of many hundreds of thousands from Belorussian and Ukrainian libraries. That, and the fact that the Red Army had no orders to sort them out, determined the last leg of their journey to Minsk.49 Appropriate restitution of archives—at least those of Soviet provenance—was much more systematic. Most of the archival materials that arrived with the Myslowitz echelon were, following Soviet instructions, turned over to Belorussian archival authorities under the NKVD (later MVD). We know that the ERR took parts of the Dnipropetrovsk Communist Party Archive to Ratibor in October 1943, and that some of it arrived in Minsk, but we do not know what happened to the rest.50 Some

286 Holocaust and Genocide Studies 10,453 file units, including “party chronicles,” were transferred from Minsk to Kyiv in 1946.51 Dnipropetrovsk archivists still complain that many of the plundered files were not recovered.52 German wartime documentation and other foreign archives that were part of the same transport to Minsk eventually were forwarded to Moscow, where they joined other Soviet captured records in the former Special Archive (TsGOA). Most of the materials in that archive from France, Belgium, Luxembourg, and the Netherlands finally returned home during the past dozen years—the French in 1994 and 2000, the Belgian in 2001, and the latest batch of Dutch Jewish and Masonic files in 2003, as did some Masonic files from Luxembourg.53 Some of the ERR-plundered books at Ratibor—even some Western books— escaped the November 1945 transport to Minsk. Many had been pilfered from the Downloaded from Myslowitz warehouses before Shiperovich and his trophy library brigade found them. We also know that 60,000 books from the Turgenev Library were transferred from Myslowitz to the Officers’ Club at the Red Army Headquarters in Legnica in December 1945, and that many of those went directly to Moscow, while other hgs.oxfordjournals.org émigré editions were burned in Legnica. Some of the Turgenev Library books went to another officers’ club in Pechi on a military base in Minsk Oblast’ whence some eventually were transferred to the Lenin Library (GBL) in Moscow in 1951.54 Thanks to research by Belgian specialists, we know that the Poles found other books and archives. Between August 1954 and January 1955 a secret historical commission under the Institute of Party History of the Polish United Workers’ Party at Yeshiva Gottesman on March 24, 2011 (Communist Party) examined a forty-eight ton trove that had been transferred to Warsaw from Cracow, with a reported “445 crates of printed and archival materials of Dutch and Belgian origin and 263 bales of various periodicals.” No specific details have surfaced as to where they were found, but presumably it was in Myslowitz or the Ratibor area. The materials in the so-called “Dutch Collection” (in fact, they are both Dutch and Belgian) were distributed to various libraries and research institutes. Some 162 dossiers had been presented to the Institute of Marxism-Leninism in Moscow in July 1949, and more were presented in 1959. That would explain the presence even today of files of the Belgian Labor Party, documents of Belgian peace movements, and some papers of Belgian socialist leader Emile Vandervelde (1888–1936) in the Russian State Archive of Social and Political History RGASPI in Moscow. The presence of Vandervelde library books in Minsk suggests the likelihood that those archival materials too were from Ratibor. Belgian specialists also identified Vandervelde papers in the former Special Archive (TsGOA) in 1992, but it was not known if those arrived in Moscow from Minsk. As an exemplary gesture of archival restitution during the communist period, the Polish Communist Party returned 192 crates of socialist materials to the Netherlands (including a few of Belgian provenance) in 1956.55 That year saw many paintings of the Dresden Gallery and other rare books and manuscripts returned from the USSR to East Germany, as well as a number of important restitutions from Moscow to Warsaw.

The Postwar Fate of ERR Records 287 During a visit to Poland in the mid-1990s Belgian colleagues found many more books and archives from socialist collections that had been incorporated into various collections within the archives of the Central Committee of the Polish United Work- ers’ Party and the Central Archive for Modern Records (Archiwum Akt Nowych), and, in the case of books and periodicals, in the Library of the Sejm (Parliament). They recognized documentation of provenance in several Belgian sources, including materials of the Secretariat of the Second International, which, under Friedrich Adler’s leadership, had been located in Brussels. They found that indications of origin such as stamps and registration numbers sometimes had been cut away, but in other cases annotations or other revealing markings still were present.56 Belarusian libraries still are missing another million books that, according to Downloaded from ERR reports, were plundered and shipped to the Ratibor area by the ERR. Ukrainian libraries are missing between one and two million. The Paris, Brussels, and Amsterdam books that I identified in Minsk thus far are only the tip of the iceberg. hgs.oxfordjournals.org The Dispersal and Reintegration of ERR Records Many of their own working and administrative files that the ERR did not succeed in evacuating or destroying were left behind in the countries it was forced to quit. Many outgoing ERR documents have been incorporated into various record groups of German agencies of occupation in different countries, or of governments that occupied Germany. Responding to the recent heightened interest in the fate of art confis- at Yeshiva Gottesman on March 24, 2011 cated and displaced as a result of the Second World War, with the accompanying upsurge of costly law suits and claims, museum curators have taken a special interest in the ERR and its records, an important resource for provenance research.57 The ERR succeeded in evacuating at least some of their records and card files from Ratibor (December 1944–January 1945). Those they could, they took to Schloss Banz on the estate of Baron Kurt von Behr, who had directed the ERR Paris office, to be hidden there and in several other neighboring locations near Staffelstein, Bavaria.58 Chief of Ratibor research operations Gerd Wunder took away with him many of his own office files from Ratibor, and some books saved from the Ostbücherei. He set up a working office in Staffelstein. Those materials were mixed in with records taken there from ERR headquarters units that had remained in Berlin. U.S. Army MFA&A officers found and removed several batches of ERR files from Banz.59 Some there were transferred to a U.S. Army document center in Bamberg, and then to the larger G-2 center in Fechenheim (near Frankfurt).60 Others were taken to Bayreuth, and thence to Nuremberg, before many of them were shipped to the Captured German Records Center in Alexandria, Virginia. Late in the war the ERR sent many of its Paris records with plundered art to various ERR art repositories in Bavaria, or they ended the war in the salt mines of Alt Aussee and elsewhere, where they were recovered by U.S. MFA&A officers. One particularly important group of ERR Paris records, including the card files with

288 Holocaust and Genocide Studies meticulous provenance research and photographs of individual works of art (found by U.S. MFA&A officers in the ERR depository of Neuschwanstein, Bavaria) was taken to the U.S. Central Collecting Point (CCP) in Munich.61 The ERR shipped cultural treasures from the Eastern Front to designated repositories in Bavaria, where they, along with inventories and related documentation, were likewise found after the war by the MFA&A. For example, the castle of Colmberg, near Lehrberg (Landkreis Ansbach), was the principal repository for shipments of art (paintings, icons, furniture, decorative arts) from northwest Russia, particularly Pskov and Novgorod, the imperial palaces in suburban Leningrad (Gatchina, Pavlovsk, and Petergof), and also Kyiv.62 Art and archeological treasures from Ukraine and the Crimea went to the ERR repository of Höchstädt, and some of Downloaded from the original ERR inventories are preserved with the remains of U.S. restitution files in the Bundesarchiv in Koblenz. They were also found after the war by the MFA&A, together with hand-drawn guides to the castle storage areas.63 The most extensive “restitution research files” were organized at the CCP in hgs.oxfordjournals.org Munich under the U.S. Office of Military Government (OMGUS). When the specialists processing the materials prepared “property cards” for the art works, they sometimes used the ERR photos rather than making new ones, and took out ERR cards on art works in preparing restitution case files. As a result, many of the relevant ERR wartime documents became incorporated into American restitution files. When the Central Collecting Points were closed down, many of their records were incorpo- at Yeshiva Gottesman on March 24, 2011 rated into OMGUS records for transfer to the United States. They subsequently became integral components of OMGUS records, now held in the U.S. National Archives in College Park, Maryland (NACP, RG 260). Many of these were microfilmed before transfer. In 2000, Greg Bradsher of the National Archives produced an extensive Guide to Research on Holocaust-Era Assets, providing details of many such records in NACP.64 Recently NARA has been microfilming many of the OMGUS restitution records, including a separate publication of the ERR card files, making them more widely available.65 Residual CCP files stayed in Munich, together with copies of the microfilms and/or printouts from them, for the German Restitution Office (Treuhandverwaltung für Kulturgut) that continued operation in Bavaria. Those files were transferred in 1992 to the Bundesarchiv Koblenz, where they are now held as a separate record group (Bestand B 323). This explains why many ERR files, card files, and photographs are now found among the Munich CCP records in OMGUS records (RG 260) and likewise (with some duplication) in Koblenz. Sometimes originals are found in NACP with copies in Koblenz, or vice-versa. A few scattered ERR documents have been surfacing recently among French restitution files in the Archives Nationales, but these still require further investiga- tion. Some were used for postwar French collaboration trials and hence are incorporated into court records that had been subject to more restricted use. We know from

The Postwar Fate of ERR Records 289 British occupation records from Austria that British MFA&A officers passed on to French authorities some ERR documentation found in Tanzenberg. Thus copies of two ERR lists of libraries that had been confiscated in Paris recently surfaced in the Archives Nationales. However, in that case the versions of the ERR lists of Paris library seizures surviving among British records from Tanzenberg in the British National Archives (long known as the PRO, Public Records Office) are much more complete—with important hand additions—than the copy transferred to the French.66 The British reported finding in Tanzenberg some additional files, including shipping documents, principally relating to the Central Library of the Hohe Schule (ZBHS). Although some were also turned over to the French, their subsequent fate has not been determined. Two ZBHS acquisition registers were discovered in the Downloaded from University Library in Vienna in 2004, but the remaining materials that the British turned over to the Austrians have not surfaced; quite possibly they were not preserved.67 Ironically, a British officer in Austria in September 1945 sent a note to his Soviet counterpart in the ACA (Allied Commission for Austria) informing him “that hgs.oxfordjournals.org all books removed from Russia by the EINSATZSTAB ROSENBERG were sent to a clearing centre at RATIBOR in SILESIA. Other books may be found there, together with valuable records and catalogues. If such records are found, it is requested that they may be made available for scrutiny by Major Hayward, the British officer in charge at Tanzenberg.”68 What he did not know when he wrote those lines was that the ERR already had evacuated or burned most of their records from Ratibor. at Yeshiva Gottesman on March 24, 2011 What the British officer also did not know was that Soviet trophy scouts had found another major group of ERR records from Ratibor, as well as some files from the ERR Berlin operations and the ERR Working Unit (HAG) in Belgium and Northern France. Quite possibly, these came from several different sources, including some evacuated from Ratibor, but details are lacking. A partially declassified SVAG report suggests that some Rosenberg documents were found in the province of Brandenburg, but further information is not available. A Ukrainian trophy brigade in Germany seized a major group of ERR files, which were shipped directly from Dresden to Kyiv in November 1945. Transferred to the Secret Division of the Central State Historical Archive (TsDIAK) in Kyiv, and processed in 1947–1948, they remain today in Kyiv (TsDAVO). A small group of additional files were reportedly transferred to Kyiv from Latvia. Subsequently, several other diverse groups of files not of direct ERR provenance, and some not even from Rosenberg operations, have been added to the main group of ERR records in TsDAVO (fond 3676).69 The existence and extent of the ERR materials in Kyiv were known by few for half a century, and only since 1990 have they been open to researchers. Those records include many files with important documents about ERR activities in Belgium, France, and other European countries (including the Balkans and Italy), in addition to occupied areas of the USSR—Ukraine, Belorussia, some parts of Russia, and the 1939-annexed Baltic countries.

290 Holocaust and Genocide Studies Some additional but much more scattered files from ERR operations in several countries now are held by the Russian State Military Archive (RGVA), formerly the “Special Archive” (Osobyi arkhiv—TsGOA SSSR). Most of those fragmentary ERR files now in Moscow first arrived in Minsk, presumably from Ratibor, with the shipment from Myslowitz. They were forwarded to Moscow in 1955–1956. The ERR fond now in RGVA (fond 1401k) also contains major fragments of Rosenberg historical monuments registration cards for the occupied Soviet areas; these too were found in Poland after the war and transferred to Moscow. Long held in a Glavarkhiv safe, they finally were added to the fond in the Special Archive in the mid-1990s. The cards covering historical cultural monuments in Russia, Belorussia, and Ukraine have been published in facsimile with Russian translations.70 Some 300 cards from the Baltic repub- Downloaded from lics were not included in that publication but remain in RGVA. Another 150 ERR cultural registration cards are found in the separate ERR fond in Vilnius, mainly from Estonia and Lithuania, which it will be important to integrate with those in RGVA. The documents in Riga, which do not constitute a separate fond, are reports and hgs.oxfordjournals.org communications the ERR sent to other German occupation agencies in Latvia. Today many of the most important ERR documents relating to cultural plunder remain incorporated into various series of the widely dispersed records of the International Military Tribunal (IMT) in Nuremberg, where Alfred Rosenberg was interrogated, tried, and hanged for war crimes in October 1946. Most remaining files of Rosenberg operations in the cultural sphere were processed for the trial under the at Yeshiva Gottesman on March 24, 2011 direction of Colonel Robert G. Storey, Chief of the Documentation Division, Office of United States Counsel for the Prosecution of Axis Criminality, initially in the Paris office. Storey himself presented a report on the plunder of “art treasures” at the international trial.71 Hence, not surprisingly, the “PS” (Paris Storey) series includes many original ERR documents relating to cultural plunder, especially in Western Europe, now held in the U.S. National Archives.72 Documents used as evidence by the IMT were assigned exhibit numbers, sequentially under the country introducing them; copies of all those documents, translated into several languages, remain with the trial records in each of the participating countries—Great Britain, France, the Soviet Union, and the Untied States. According to agreement after the trials, the originals were supposed to be deposited at the International Court of Justice in The Hague, but a recent investiga- tion did not yield any original ERR documents there.73 NARA archivists have recently been cooperating with the Bundesarchiv and have already found many original ERR documents among U.S. IMT records.74 Many of the Rosenberg documents submitted but not used for the trial went to the Centre de Documentation Juive Contempo- raine (CDJC) in Paris, which accordingly now has one of the most extensive collections of original and copied ERR documents, as well as documents from other Rosenberg operations.75 During the postwar decades, the CDJC produced elaborate finding aids that greatly aid search of the Rosenberg Collection in Paris.76

The Postwar Fate of ERR Records 291 To summarize, the most significant groups of extant ERR records have ended up today in Germany (divided between Berlin and Koblenz), in Kyiv (TsDAVO), in Paris (at the CDJC), and in Washington, DC (NACP, College Park, MD). Smaller groups of highly fragmented files remain in Moscow (RGVA, most received from Minsk), Vilnius, Amsterdam (NIOD), and New York City (YIVO). A few stray documents have been reported in other countries, including Latvia. Copies of many ERR documents have been collected in Israel and are available for research in Yad Vashem. More microfilm copies have been brought together by the USHMM. Today the Bundesarchiv has brought together many of the remaining archival records of the various Rosenberg agencies in its Berlin-Lichterfelde facility and processed them according to their provenance. These now include both those that were Downloaded from returned from the United States to West Germany (Bundesarchiv-Koblenz) in the 1960s and those that were held in East Germany (GDR). Already in the 1960s, the Bundesarchiv had acquired copies of some of the ERR files held at the YIVO Insti- tute for Jewish Research in New York City (now its Berlin collection, YIVO RG 215). hgs.oxfordjournals.org While there is a separate record group in the Bundesarchiv for the ERR itself (Bestand NS 30), many ERR documents are found with the records of other Rosenberg agencies. The ERR’s parent agency was the so-called DBFU (Dienstelle des Beauftragten des Führers für die Überwachung der gesamten geistigen und weltanschaulichen Schulung und Erziehung der NSDAP), a post to which Rosenberg was appointed in 1934 and that he used to build up an extensive network of ideological at Yeshiva Gottesman on March 24, 2011 and cultural activities. (DBFU records are now classed in the Bundesarchiv as NS 15.) Since the DBFU was also the parent agency for the Hohe Schule, many of remaining files of the Hohe Schule, its Central Library, and its various institutes are found in that record group, including the Institute for Research on the Jewish Question (Frankfurt and Hungen).77 Many ERR planning, personnel, and correspondence files are interfiled in the Bundesarchiv with records of the Rosenberg Chancery, the Dienststelle (or Kanzlei) Rosenberg (NS 8). The ERR files mentioned above that came to the Bundesarchiv with the postwar OMGUS (and later German) restitution records remain in Koblenz, incorporated in the voluminous postwar restitution records (BAK, B 323).78 The ERR records that were captured by the U.S. Army after the war (with the exception of those incorporated in other record groups) were all microfilmed before their return to the Federal Republic of Germany in the 1960s. Still widely available, those microfilms are awkward to use and can be confusing, despite the availability of a printed descriptive English-language guide, and a correlation table in the German finding aid prepared in 1968. Before their return to Germany, those records were not processed according to their offices of creation, and the NARA microfilm series was entitled as if all of the documents were from the Rosenberg-led Ministry for Occupied Eastern [i.e., Soviet] Territories (Reichsministerium für die besetzten Ostgebiete—RMbO).79 Since they have been completely reprocessed in Germany, and

292 Holocaust and Genocide Studies other documents added to what is now the Bundesarchiv ERR record group (NS 30), along with those for other Rosenberg agencies closely related to the activities of the ERR, researchers will now want to consult the new online German finding aids.80 At the present time, however, research in the records of ERR plunder is still seriously hampered by the wide dispersal of ERR documentation and its incorporation into many different groups of records in many different archives. Given the wide dispersal of the ERR archival legacy in many countries, an international project is underway to produce a virtual reconstruction of the remaining records with a systematic electronic finding aid. Preliminary to that, given the extent to which the records of the Einsatzstab Reichsleiter Rosenberg (ERR) are crucial for identifying provenance of objects of cultural plunder, tracing migration Downloaded from routes, and often for establishing restitution claims, a multinational survey of ERR records remaining in various countries is nearing completion.81 The international politics of restitution make it impossible for the ERR files to be physically consolidated in Germany, where they could best be appropriately processed for research. hgs.oxfordjournals.org For example, neither Ukraine nor France would consider turning over to Germany the large collections of ERR records that have been held in archives in Kyiv and Paris for the last sixty years: hence, the need for the proposed project to bring together virtually as many of the scattered ERR records (and related files) as possible—in microform, together with an electronic finding aid on the file level (with breakdown as necessary listing groups of documents on the same subject or from the same ERR at Yeshiva Gottesman on March 24, 2011 unit), and the reproduction of some especially important individual documents (such as the confiscation lists) in electronic form.82 The ultimate aim is a virtual consolida- tion of the dispersed ERR records displaced in many countries, including some that have been incorporated into other record groups, with those files earlier returned to Germany from the United States.83 As of summer 2006 scanning of the extensive ERR records in Kyiv, along with related files of the Provincial Cultural Administration (Landesverwaltung der Archive, Bibliotheken, und Museen [LV ABM], directed by Georg Winter under the Reich Commissariat of Ukraine) was nearing completion. As part of an international collaborative effort to reconstruct remaining ERR records, complete microfilm copies will be offered for sale by a commercial library microform company, together with a provisional guide or “index” compiled by specialists in Kyiv. Eventually, professional description, carried out in conjunction with Bundesarchiv, will integrate those files in an electronic finding aid together with ERR files in Berlin, Koblenz, and elsewhere. It is to be hoped that the planned additional filming and a virtual finding aid eventually will make almost all of the surviving, but now widely dispersed, files more readily accessible to researchers. As another offshoot of this cooperative project, sponsored by the Conference on Jewish Material Claims against Germany, to increase access to the ERR records, specialists in Washington, DC are creating a database from the ERR card file from

The Postwar Fate of ERR Records 293 the Jeu de Paume in Paris. During the war ERR art historians prepared provenance research cards on approximately 23,000 individual works of art from confiscated French Jewish collections in Paris. The extant files, with over 17,000 cards, recently available on microfilm, along with some of the photographs that remain in NACP, are now available in a NARA microfilm publication.84 The database will provide search capability for the cards and images, and a collection-level authority file with reference to related seizure and transport documentation. An additional complex of ERR inventories and photographs, now located in the Bundesarchiv in Koblenz (B 323) are eventually to be included in the database, along with later inventories, shipping papers, and related data about the fate of the confiscated collections. Today the records of Nazi plunder are widely dispersed. But research and reference efforts Downloaded from such as these pilot projects in the archival world should provide an example of how displaced files can be reunited in a contemporary virtual environment.

* * * hgs.oxfordjournals.org

Some of the buildings that the ERR occupied in Ratibor are in ruins today. Those that survive bear no traces of the ERR wartime presence. Local inhabitants have no idea about the looted European cultural treasures that were sequestered there during the war, or even the names of the streets the Germans had imposed during their occupation. Neither do they know the name of the ERR or its wartime functions. at Yeshiva Gottesman on March 24, 2011 Not even the local museum had any information about the ERR’s one-time presence in the city. During my last visit, in 1999, they suggested planning an exhibit about the pivotal role their city served in wartime cultural displacements. Perhaps the documentation gathered for this article could serve as a first step. More than twenty years ago a well-researched article entitled “The Einsatzstab Reichsleiter Rosenberg and the Looting of Jewish and Masonic Libraries during World War II” did not mention Ratibor as a destination for ERR loot.85 Obviously at that time, with many archives still closed, we too could not have known about Myslowitz or the November 1945 echelon to Minsk. But two decades later, even the most recent major biography of Alfred Rosenberg, with a chapter on the ERR, touches on Ratibor only in passing.86 Contemporary documentation and postwar interrogations cited in my earlier article suggest that there were upwards of two million books and an untold quantity of archives gathered by the ERR to Ratibor and its vicinity. The owners of those half million plundered books from Western Europe and the Balkans that subsequently went to Minsk (together with another half million plundered from Soviet libraries) never even knew their books had survived and been “saved” by the Red Army. Many of those books were relegated to “secret/classified” collections (spetskhrany) for foreign books deemed inappropriate for Soviet readers. Others were destroyed by the censors at different times. Yet all were counted as “compensation” for Soviet losses in

294 Holocaust and Genocide Studies the war, and librarians in Minsk repeat that justification today.87 But how could books plundered from Western European collections—many from victims of the Holocaust— compensate for Belorussian losses and German destruction? Many of the half-million displaced Western books that were transported to Minsk from the Ratibor area have yet to be identified by provenance. Some of the Hebrew books were never even processed; others were reportedly stolen. The only books from Ratibor that have gone home from Russia (in 1992) were 650 Dutch books that had earlier been transferred from Minsk to Moscow. As for the rest, some of their owners perished in the Holocaust and others have since passed away, but even today the Rothschild family or the heirs of Léon Blum or Louise Weiss may well not know that some of their family books traveled the “involuntary journey” on Downloaded from the roads to Ratibor and then to Minsk.

Abbreviations used in text and notes BAB Bundesarchiv Federal Archive, Berlin-Lichterfelde hgs.oxfordjournals.org BAK Bundesarchiv Federal Archive, Koblenz CDJC Centre de Documentation Juive Contemporaine (Center for Contemporary Jewish Documentation), Paris DBFU Dienstelle des Beauftragten des Führers für die Überwachung der gesamten geistigen und weltanschaulichen Schulung

und Erziehung der NSDAP (Führer’s Deputy for Supervising at Yeshiva Gottesman on March 24, 2011 the Entire Spiritual and Ideological Enlightenment of the NSDAP) ERR Einsatzstab Reichsleiter Rosenberg GA RF Gosudarstvennyi arkhiv Rossiiskoi Federatsii (State Archive of the Russian Federation), Moscow, formerly TsGAOR SSSR and TsGA RSFSR GAU Glavnoe arkhivnoe upravlenie (Main Archival Administration), alternately, Glavarkhiv (Ukrainian HAU) -pri NKVD (after 1946, MVD) SSSR (under the People’s Commissariat [after 1946, Ministry] of Internal Affairs of the USSR and of the UkrSSR), 1941–1960 -pri Sovete Ministrov SSSR and UkrSSR (under the Council of Ministers of the USSR and of the UkrSSR), 1960–1991 Glavarkhiv Glavnoe arkhivnoe upravlenie (Main Archival Administration), alternately, and earlier usually, GAU IfZ Institut für Zeitsgeschichte (Institute for Contemporary History), Munich IISH/IISG International Institute of Social History (Internationaal Instituut voor Sociale Geschiedenis), Amsterdam

The Postwar Fate of ERR Records 295 MFA&A Museums, Fine Arts, and Archives (Division of Supreme Headquarters Allied Forces in Europe and OMGUS—British and American monuments officers) MVD Ministerstvo vnutrennykh del (Ministry of Internal Affairs), before 1946 NKVD NACP U.S. National Archives, College Park, MD, administered by NARA NARA National Archives and Records Administration NBB Natsyianal’naia bibliiateka Belarusi (National Library of Belarus) NIOD Nederlandsinstituut voor Oorlogsdocumentatie (Netherlands Downloaded from State Institute for War Documentation, formerly RIOD), Amsterdam NKVD Narodnyi komissariat vnutrennykh del (People’s Commissariat of Internal Affairs), after 1946 MVD hgs.oxfordjournals.org OAD Offenbach Archival Depot (OMGUS) OMGUS Office of Military Government, United States PRO Public Record Office (National Archives), London (Kew Gardens) RAN Rossiiskaia akademiia nauk (Russian Academy of Sciences) RGALI Rossiiskii gosudarstvennyi arkhiv literatury i iskusstva (Russian

State Archive of Literature and Art) at Yeshiva Gottesman on March 24, 2011 RGB Rossiiskaia gosudarstvennaia biblioteka (Russian State Library), Moscow, earlier the State Lenin Library—RGB RGVA Rossiiskii gosudarstvennyi voennyi arkhiv (Russian State Military Archive) RKU Reichskomissariat Ukraine (Reich Commissariat Ukraine) RMbO Reichsministerium für die besetzten Ostgebeite (Reich Ministry for the Occupied Eastern Territories) RNB Rossiiskaia natsional’naia biblioteka (Russian National Library), St. Petersburg RSHA Reichssicherheitshauptamt (Reich Security Main Office) RTsKhIDNI Rossiiskii tsentr khraneniia i izucheniia dokumentov noveishei istorii (Russian Center for the Preservation and Study of Documents of Modern History), Moscow (formerly Central Party Archive—TsPA) SMERSH “Smert’ shpionam” (military counter-espionage units under the Chief Intelligence Directorate—GRU [Glavnoe razvedyvatel’noe upravlenie]) TsAMO Tsentral’nyi arkhiv Ministerstva oborony RF (Central Archive of the Ministry of Defense of the Russian Federation), Podol’sk

296 Holocaust and Genocide Studies TsDAVO Tsentral’nyi derzhavnyi arkhiv vyshchykh orhaniv derzhavnoi vlady Ukraïni (Central State Archive of Higher Organs of State Authority of Ukraine), Kyiv (formerly TsDAZhR URSR) TsDAZhR URSR Tsentral’nyi derzhavnyi arkhiv Zhovtnevoï revoliutsiï URSR (Central State Archive of the October Revolution), Kyiv (now TsDAVO) TsDIA URSR Tsentral’nyi derzhavnyi istorychnyi arkhiv URSR (Central State Historical Archive UkrSSR), Kyiv, after 1958 -u m. Kyivi (often TsDIA-K, now TsDIAK)(Russian, TsGIA) TsGAFFKD Tsentral’nyi gosudarstvennyi arkhiv kinofolofonodokumentov (Central State Archive of Film, Photo, and Phonographic Downloaded from Documents) TsGAOR SSSR Tsentral’nyi gosudarstvennyi arkhiv Oktiabr’skoi revoliutsii i vysshikh organov gosudarstvennoi vlasti SSSR (Central State Archive of the October Revolution and Higher Organs of hgs.oxfordjournals.org Government of the USSR), Moscow (now part of GA RF) TsGAOR Tsentral’nyi gosudarstvennyi arkhiv Oktiabr’skoi Revoliutsii (Central State Archive of the October Revolution) -SSSR, Moscow (now part of GA RF) -UkrSSR, Kyiv (now TsDAVO)

-BSSR, Minsk (now TsDA Belarus) at Yeshiva Gottesman on March 24, 2011 TsGOA SSSR Tsentral’nyi gosudarstvennyi osobyi arkhiv SSSR (Central State Special Archive of the USSR), Moscow (now part of RGVA, earlier [1992–1999] TsKhIDK) TsKhIDK Tsentr khraneniia istoriko-dokumental’nykh kollektsii (Center for the Preservation of Historico-Documentary Collections), Moscow (formerly Tsentral’nyi gosudarstvennyi osobyi arkhiv—TsGOA SSSR) USFA U.S. Forces, Austria USFET U.S. Forces, European Theater USHMM The United States Holocaust Memorial Museum

Notes 1. In addition to “Roads to Ratibor,” see also Patricia Kennedy Grimsted, “Tracing Patterns of European Library Plunder: Books Still Not Home from the War,” in Jüdischer Buchbesitz als Raubgut: Zweites Hannoversches Symposium, ed. Regine Dehnel (Frankfurt am Main: Vittorio Klostermann, 2006) = Zeitschrift für Bibliothekswesen und Bibliographie 88 (2006):139–67, and earlier Grimsted publications listed at http://www.iisg.nl/archives_in_russia/bibliography.html. Ernst Piper’s impressive biography of Rosenberg appeared after my “Roads to Ratibor” went to press: Alfred Rosenberg: Hilters Chefideologe (Munich: Karl Blessing Verlag, 2005). Piper devotes chapter IX (pp. 462–508) to “ideological rearmament in the shadow of war,” with brief coverage of Rosenberg’s Hohe Schule, the Institute for Research on the Jewish Question in

The Postwar Fate of ERR Records 297 Frankfurt, and the ERR. While Piper fills in important background on Rosenberg’s varied activities, the book does not add significant coverage of the ERR and hardly mentions the Ratibor center. A more detailed study of the ERR and its exploits throughout Europe is still overdue. For expanded and updated details about Nazi archival plunder in Western Europe (including the ERR and the RSHA) and the fate of the Western European trophy archives seized at the end of the war by the Soviet Union, see the Grimsted introductory chapters and reports from Western European counties, in Returned from Russia: Nazi Archival Plunder in Western Europe and Recent Restitution Issues, ed. Patricia Kennedy Grimsted, F. J. Hoogewoud, and Eric Ketelaar (Leicester: Institute of Art and Law, forthcoming 2006). 2. See Leslie I. Poste’s article, “Books Go Home from the Wars,” Library Journal 73 (1948): 1699–1704. Poste served with the Army Monuments, Fine Arts & Archives (MFA&A) team after the war. Still the most detailed account of the OAD operations is his The Development of Downloaded from U.S. Protection of Libraries and Archives in Europe during World War II (Fort Gordon, GA: U.S. Army Civil Affairs School, 1964), a revision of his dissertation (University of Chicago, 1958). Poste devotes a chapter to OAD, pp. 258–301, including a chart of out-shipments by country, pp. 299–300. Poste’s quoted statement about OAD is repeated on p. 310. See also

Donald E. Collins and Herbert P. Rothfeder, “The Einsatzstab Reichsleiter Rosenberg and hgs.oxfordjournals.org the Looting of Jewish and Masonic Libraries during World War II,” Journal of Library History 18, no. 1 (1983): 21–36; and F. J. Hoogewoud, “The Nazi Looting of Books and Its American ‘Antithesis’: Selected Pictures from the Offenbach Archival Depot’s Photographic History and Its Supplement,” Studia Rosenthaliana 26, no.1–2 (1992): 158–92, which reproduces selected photographs from the albums illustrating OAD operations. 3. At http://www.ushmm.org/oad, with links to images and bibliography. See also Pomerenze’s at Yeshiva Gottesman on March 24, 2011 1996 Amsterdam conference presentation: “Offenbach Reminiscences and the Restitutions to the Netherlands,” in “The Return of Looted Collections (1946–1996): An Unfinished Chapter.” Proceed- ings of an International Symposium to Mark the 50th Anniversary of the Return of Dutch Collections from Germany, ed. F. J. Hoogewoud, E. P. Kwaadgras, et al. (Amsterdam: IISH, 1997), 10–18. 4. Remaining Offenbach files are scattered within the OMGUS (Office of Military Govern- ment for Germany, U.S.) records in the U.S. National Archives, as described in Holocaust-Era Assets: A Finding Aid to Records at the National Archives at College Park, Maryland, comp. Greg Bradsher (Washington, DC: NARA, 1999), especially p. 519. The most important collection of OAD reports and correspondence, including the photographic albums of OAD operations and albums with images of library markings found on the books, is now available in NARA Microfilm Publication M1942. The accompanying finding aid gives background: M1942. Records Concerning the Central Collecting Points (“Ardelia Hall Collection”): Offenbach Archival Depot, 1946–1951 (Washington, DC: NARA, 2003). 5. Official transfer papers and documents related to the OAD transfers to the USSR are reproduced in U.S. Restitution of Nazi-Looted Cultural Treasures to the USSR, 1945–1959: Facsimile Documents from the National Archives of the United States, comp. Patricia Kennedy Grimsted; CD-ROM (Washington, DC: Government Printing Office (GPO), 2001; prepared in collaboration with the National Archives). A recent study of postwar Soviet library retrieval erroneously claims only 100,000 books were received from American authorities in Germany: See Aleksandr M. Mazuritskii, Knizhnye sobraniia Rossii i Germanii v kontekste restitutsion- nykh protsessov (Moscow: Moskovskii gosudarstvennyi universitet kul’tury i iskusstv, 2000), 86. Mazuritskii repeats the figure in several other publications. See Grimsted, “Pokhishchennye

298 Holocaust and Genocide Studies natsistami knigi vozvrashchaiutsia s voiny: Zabytaia istoriia britanskoi i amerikanskoi biblio- technoi restitutsii v SSSR,” forthcoming in the proceedings of the Section on the History of the Book at the conference of the Russian Association of Librarians in St. Petersburg, 25 May 2005 (St. Petersburg: Rossiiskaia natsional’naia biblioteka [RNB], 2006). 6. A brief digest is presented in the Commission report, Plunder and Restitution: The U.S. and Holocaust Victims’ Assets: Findings and Recommendations of the Presidential Advisory Commis- sion on Holocaust Assets in the United States and Staff Report (Washington, DC: GPO, 2000), pp. SR-137–SR-210. 7. See most recently, Dov Schidorsky, “The Salvaging of Jewish Books in Europe after the Holocaust,” in Jüdischer Buchbesitz als Raubgut, 197–212.

8. See Marianna Tax Choldin, Karina Aleksandrovna Dmitrieva, Ekaterina Iur’evna Genieva, Downloaded from and Patricia Kennedy Grimsted, eds. Vozvrashchenie “Smolenskogo arkhiva”/The Return of the “Smolensk Archive” (Moscow: ROSSPEN, 2005). Earlier details appear in Grimsted, Odyssey of the “Smolensk Archive”: Communist Records in the Service of Anti-Communism (Pittsburgh, 1995; = Carl Beck Papers no. 1201).

9. See the reports furnished to the American Commission for the Protection and Salvage of hgs.oxfordjournals.org Artistic and Historic Monuments in War Areas (Roberts Commission), NACP, RG 239, boxes 11 and 63 (now available in NARA Microfilm Publication M1944), especially “Memorandum for Mr. Huntington Cairns, Secretary” (2 June and 28 June 1945), NACP, RG 239, box 63. The latter noted that the press and BBC had been shown around Tanzenberg on 30 May 1945. 10. The initial official British reports gave few details: Leonard Wooley, A Record of the Work

Done by the Military Authorities for the Protection of the Treasures of Art & History in War at Yeshiva Gottesman on March 24, 2011 Areas (London: HMSO, 1946), 39–40; see too the report of the British Committee on the Preservation and Restitution of Works of Art, Archives, and Other Material in Enemy Hands, Works of Art in Austria (British Zone of Occupation): Losses and Survivals in the War (London: HMSO, 1946), 4. Records of the British Tanzenberg operation, with a classification of books returned to various countries, are available in Foreign Office files in the Public Record Office— now National Archives—in Kew. 11. Documentation from the British restitution from Tanzenberg are found in PRO, FO 1020, files 1793, 2549, 2878, and 2879, among others. See the British MFA&A, “Preliminary Report on Zentralbibliothek der Hohen Schule (NSDAP)” (1 July 1945), and “Progress Report on Zentralbibliothek der Hohen Schule (NSDAP), Tanzenberg” (up to 25 Aug. 1945), PRO 1020/ 2793. Gabriela Stieber, “Die Bibliothek der ‘Hohen Schule des Nationalsozialismus’ in Tanzenberg,” in Carinthia I: Zeitschrift für geschichtliche Landeskunde von Kärnten 185 (1995): 343–63, was the first to utilize the British files in the PRO, FO 1020. 12. Regarding British restitution to the Soviet Union, see Grimsted, “Rare Books from Voronezh to Tartu and Tanzenberg: From Nazi Plunder and British Restitution to Russian ‘Lost Book Treasures,’” Solanus 18 (2004): 72–107; Grimsted, “Knigi iz Tsarskogo Sela vozvrashchaiutsia domoi s voiny,” in Kniga: Issledovaniia i materialy, ed. I. N. Tarasenko (Moscow: Nauka, 2005), 72–94; and Grimsted, “Pokhishchennye natsistami knigi vozvrashchaiutsia s voiny.”

13. See especially, Evelyn Adunka, Der Raub der Bücher: Plünderung in der NS-Zeit und Restitution nach 1945 (Vienna: Czernin Verlag, 2002), and several subsequent articles, including “Die Zentralbibliothek der Hohen Schule in Tanzenberg,” in Die Österreichische

The Postwar Fate of ERR Records 299 Nationalbibliothek stellt sich ihrer NS-Vergangenheit, ed. Murray G. Hall, Christina Köstner, and Margot Werner (Vienna: Österreichische Nationalbibliothek, 2004), 71–81. 14. A memorandum in OMGUS records certifies to the transfer, US NA, RG 260, USACA, MFA Lists, Receipts, and Reports, box 1 (claims file Russia #1, now available on microfilm, M1927, roll 2). Related documentation is reproduced in U.S. Restitution of Nazi-Looted Cul- tural Treasures to the USSR. 15. See the recent report of Murray Hall, “The Untold Story of the ‘Führerbibliothek’ in Linz and the Role of National Library in Vienna,” at the conference “The Future of the Lost Cul- tural Heritage” in 0eský Krumlov, Czech Republic, 22–24 November 2005, to be published in the forthcoming proceedings.

16. See Pavel Knyshevskii, Dobycha: Tainy germanskikh reparatsii (Moscow: Soratnik, 1994; Downloaded from also available in German translation). Knyshevskii’s revelations were first made in a sensational press account by Radio Liberty correspondent Mark Deich, “Podpisano Stalinym: ‘Dobycha, tainy germanskikh reparatsii,’” Stolitsa 29 (191) (1994): 18. Knyshevskii presents the text of Stalin’s order (GKO, No. 7590ss; 25 February 1945; RGASPI, fond 644/1/373, fols, 48–51) and

related documents with little commentary; as of April 2006 it is still classified. hgs.oxfordjournals.org 17. Konstantin Akinsha and Grigorii Kozlov with Sylvia Hochfield, Beautiful Loot: The Soviet Plunder of Europe’s Art Treasures (New York: Random House, 1995). 18. See Grimsted, “Tracing Trophy Books in Russia,” Solanus 19 (2005): 131–45. A selection of documents from the most important trophy library brigade was published in German translation, ed. Klaus-Dieter Lehmann and Ingo Kolasa, Die Trophäenkommissionen der Roten

Armee: Eine Dokumentensammlung zur Verschleppung von Büchern aus deutschen Bibliotheken at Yeshiva Gottesman on March 24, 2011 (Frankfurt am Main: Vittorio Klostermann, 1996) = Zeitschrift für Bibliothekswesen und Bibliographie, special issue no. 64). See Grimsted, Trophies of War and Empire: The Archival Heritage of Ukraine, World War II, and the International Politics of Restitution (Cambridge, MA: Harvard University Press for the Harvard Ukrainian Research Institute, 2001) for an overview of postwar trophy shipments to the USSR and literature regarding displaced cultural treasures and restitution issues. 19. Akinsha and Kozlov, Beautiful Loot, devote a chapter to the operations of the Filippov Brigade in Silesia (pp. 105–11) with several quotations from the Filippov diary in Rossiiskii gosudarstvennyi arkhiv literatury i iskusstva (RGALI), fond 3002/1/3 and 4. Kozlov is now preparing extracts of the diary for publication, and kindly shared his findings with me. 20. Filippov’s retrospective comments about his trip mention Ratibor in passing; RGALI, 3002/ 1/4, fol. 46; he also checked off a schematic map of Ratibor on pages from a printed German regional map—RGALI, 3002/1/3, fol. 101. Apparently he found nothing worth reporting there. On the Filippov Brigade, the sites they visited, and the cultural property they sent to Moscow see Grimsted, The Odyssey of the Turgenev Library from Paris, 1940–2002: Books as Victims and Trophies of War (Amsterdam: International Institute of Social History, 2003; IISG Research Papers no. 42); electronic version: http://www.iisg.nl/publications/respap42.pdf, chapter 7. 21. A report by the head of the Chief Political Administration of the Red Army (GlavPU RKKA) intelligence service, I. V. Shikin (1 March 1945) to G. M. Malenkov, TsK VKP(b), RGASPI, 17/125/308, fols. 11–12; G. F. Aleksandrov and I. V. Shikin to G. M. Malenkov, TsK VKP(b) (1 March 1945), RGASPI, 17/125/308, fols. 14–17. The reports were published by

300 Holocaust and Genocide Studies Valerii Shepelev, “Sud’ba ‘Smolenskogo arkhiva,’” Izvestiia TsK KPSS, 1991, no. 5, pp. 135–36; I thank Shepelev for acquainting me with the original file. 22. The shipment left from the railroad junction of Czechowice-Dziedzice, although one Soviet Russian report suggested it was Dresden. See full documentation in Grimsted, Odyssey of the Smolensk Archive, 44–48. See also Grimsted, “The Return of the ‘Smolensk Archive’: From a Symbol of Cold War Scholarship to a Symbol of Restitution Politics,” in Vozvrashchenie “Smolenskogo arkhiva”/The Return of the “Smolensk Archive.” (Those documents were not available before 1990, but Russian archivists and politicians still claim that all of the “Smolensk Archive” had been taken to the U.S. Actually only 541 files were removed by U.S. intelligence from the Offenbach Archival Depot in 1946.) 23. Shikin to Malenkov (1 March 1945), RGASPI, 17/125/308, fols. 11–12; and Aleksandrov Downloaded from and Shikin to Malenkov (1 March 1945), RGASPI, 17/125/308, fols. 14–17; published by Shepelev, “Sud’ba ‘Smolenskogo arkhiva.’”

24. For a recent illustrated description of Myslowitz, see Lech Szaraniec, Górny Ulbsk, Malopolska—Poludniowo-zachodnia, pólnocno-zachodnia, Ulbsk Opawski, Dolny Ulbsk:

Zabytkowe ourodki miejskie (Katowice: Muzeum Ulbskie, 1992), 193–98. hgs.oxfordjournals.org 25. Boris Shiperovich, “Spasenie knig,” Al’manakh bibliofila (1973): 57–59 (the text is dated 1971). Shiperovich’s mission in Silesia is confirmed in the memoirs of Anatolii Kuz’mich Tarasenkov, edited by his widow Mariia Belkina: “Glavnaia kniga,” Novyi Mir 11 (1966): 214–15. More details about Shiperovich and the Myslowitz warehouse in relation to developments in Silesia at the time are provided in Grimsted, Odyssey of the Turgenev Library, chapter 5, “Silesian Sojourns and Book Transports to Moscow.” at Yeshiva Gottesman on March 24, 2011 26. Shiperovich’s letters to Tarasenkov from February 1945 through 1947 confirm that he was there in the Army and actively involved with the displaced books. RGALI, fond 2587 (Anatolii Kuz’mich Tarasenkov papers)/1/760. The quotations here are from an undated letter (ca. 1945) with no army postal number (possibly filed out of sequence), fols. 79–82. Obviously, since Shiperovich’s mail was going through the military censor, specific references to where he was and what he was doing were prohibited. Reference to “the library of the Duke of Orleans” refers to the library of Jean, comte de Paris, duc de Guise, a collection that the ERR confiscated from his estate near Brussels; the ERR had also seized many books belonging to various members of the Rothschild family and other distinguished French collections. 27. His handwritten note (17 June 1945) addressed to the Lenin Library in Minsk is found in the National Archive of Belarus, among the NBB library records, fond 546/2/4, fols. 20–21. I am grateful to NBB librarian Liudmila I. Stankevich for pointing me to this file, and to the National Archives of Belarus for furnishing me a copy. 28. Fragments of the report by Major V. Pakhomov (GlavPU RKKA), “O bibliotekakh, obnaruzhennykh voiskami Krasnoi Armii,” are published as doc. no. 169 in Bibliotechnoe delo v Rossii v period Velikoi Otechestvennoi voiny (iiun’ 1941–mai 1945), comp. A. L. Divnogortsev, ed. V. A. Fokeev et al. (Moscow: RGB “Pashkov dom,” 2000), 274–75; the archival reference cited is TsAMO, fond 32 (GlavPU RKKA), opis’ 11302/327, fols. 383–384v. The fragments published deal only with the retrieval of books confiscated by the Nazis from Soviet libraries: the reference to the Turgenev Library is the only mention of a plundered Western library. Divnogortsev assured me he did not have a copy of the complete original. The same document (with neither names nor date and with a variant reference) is cited by Mazuritskii, Knizhnye

The Postwar Fate of ERR Records 301 sobraniia Rossii i Germanii, 72, but Mazuritskii told me he saw the fragments of the document in RGB before it was published and did not have access to TsAMO. 29. My request to TsAMO for a copy of that specific document was not answered, but the act- ing director of the Archival Service of the Ministry of Defense, S. Kamenichenko (letter of 28 June 2002), claimed that “they have no documentation relating to the retrieval of libraries and archives.” I have been informed from other sources that the records of fond 32 (GlavPU RKKA) and its Trophy Administration) have not been declassified and processed for research. Colleagues in the Russian State Library (RNB) in Moscow also tried to obtain a copy of the document for me in connection with my research on the Turgenev Library, but TsAMO refused them as well in both January and June 2003. 30. The Myslowitz warehouse is also mentioned in a later brief report on the Turgenev Downloaded from Library by Margarita Rudomino, then the director of the All-Union Library for Foreign Liter- ature in Moscow (VGBIL, now re-named in her honor), who had headed the library group in a Soviet trophy brigade sent to Germany by the Committee on Cultural-Educational Institutions under the Council of People’s Commissars of the RSFSR (May 1945–October 1946). The quotation is from a brief segment on the Turgenev Library, “Turgenevskaia biblioteka v Lignits (Pol’sha),” no. 31 in Rudomino’s large report “Spisok bibliotek, obsledovannykh predstavitel- hgs.oxfordjournals.org iami Komiteta kul’tury v Germanii za period 1-go ianvaria–1 maia 1946 goda,” GA RF, A-534/ 2/1, fol. 137–137v (original ribbon copy, fols. 131–138; copy in A-534/2/10, fol. 182–182v). A facsimile of the Turgenev Library coverage appears in Grimsted, Odyssey of the Turgenev Library, Appendix III. A German translation of the entire document is published in Die Trophäenkommissionen der Roten Armee, doc. no. 20, pp. 127–43 (Turgenev Library, p. 141). Based on other documents in the same file, I attribute the report to Rudomino. at Yeshiva Gottesman on March 24, 2011 31. Pakhomov, “O bibliotekakh, obnaruzhennykh voiskami Krasnoi Armii,” 275. The castle in the village of Schönhain was one of the destinations mentioned in a German report about shipments from Belorussia destined for the ERR Ratibor center. 32. Ibid., 275. 33. Ibid. Grodziec (west of Leignitz [now Polish Legnica]) is confirmed as the palace of former Ambassador von Dirksen—an Internet reference confirms the wartime evacuation site under the direction of Professor Grundmann, with the Baroque palace to house books and library materials from Breslau, and the castle to house for books from the Staatsbibliothek in Berlin. The article also mentions Soviet plunder in 1945: “Tajemnica ambasadora Dirksena (Tajemnica zamku w Grodycu)”: http://www.turystyka.riders.pl/pl/miejsca_tajemnicze/index.php3?Action=1 &nr=10. 34. Rudomino [signed], “Kratkie itogi raboty” (Berlin, September 1946), GA RF, A-534/2/1, fol. 57 (cc in fol. 54); German translation in Die Trophäenkommissionen der Roten Armee, doc. no. 26, p. 164. That transport is also mentioned in other reports in the same file, fol. 21 (cc in fol. 60) and fol. 91. Details about many of the echelons from Silesia appear in Grimsted, Odyssey of the Turgenev Library, chapter 5, and the Grimsted article “Silesian Crossroads for Europe’s Displaced Books: Prisoners of War or Compensation?” forthcoming in the proceedings of the conference “The Future of the Lost Cultural Heritage,” in 0eský Krumlov, 22–24 November 2005. 35. [Rudomino], “Turgenevskaia biblioteka v Lignits (Pol’sha),” in “Spisok bibliotek, obsledovannykh. . .,” GA RF, A-534/2/1, fol. 137–137v (see note 30).

302 Holocaust and Genocide Studies 36. Shiperovich to Tarasenkov, undated letter [1945], RGALI, fond 2587/1/760, fol. 80. In another undated letter with “New Year’s Greetings,” Shiperovich mentions finding two crates of contemporary English-language literature, although he “had not been able to get them, so they went to Minsk,” fol. 84. 37. From a letter by National Library director Galina N. Oleinik to Frits J. Hoogewoud (June 1993), quoted by Hoogewoud in “Russia’s Only Restitution of Books to the West: Dutch Books from Moscow (1992),” in The Return of Looted Collections, 72–73. Oleinik did not indicate any more details about the shipment or its point of origin. Hoogewoud kindly showed me the original letter; in 2003 I found an out-going copy and related documentation in a file in the Rare Book and Manuscript Department of the National Library of Belarus (NBB), thanks to Tat’iana Ivanovna Roshchina. Downloaded from 38. Regarding Rudomino’s participation, see her memoir, Moia biblioteka, ed. with commentary by Adrian V. Rudomino (Moscow: “Rudomino,” 2000), 189–221. Although considerable documentation is given for Rudomino’s participation in the brigade, her visit to Silesia is not mentioned. Her son Adrian Rudomino (who served in Leignitz after the war, when his mother was in Germany) told me she did make a quick trip to Silesia in an army helicopter, but he found no additional documentation among her papers. hgs.oxfordjournals.org 39. My remarks here are based on my own research in the card files in the National Library of Belarus (NBB) in September 2003. 40. Censorship procedures became apparent during my research in the Glavlit records in Moscow (GA RF fond 9425). A report from Belorussia from 1949 appears in 9425/1/625. More details appear in Grimsted, “The Road to Minsk.” at Yeshiva Gottesman on March 24, 2011 41. See Inna Gens, “Istoriia odnoi biblioteki,” Lekhaim, Ezhemesiachnyi literaturno- publitsisticheskii zhurnal 4 (132) (April 2003): 48–53. “Ukradennaia biblioteka,” Iksha. Al’manakh. Proza. Stili. Memuary. Dokumental’nye rasskazy 1 (1997): 130–46; Inna Gens, “Ukradennaia biblioteka,” Korolevskii zhurnal 13 (1998): 38–42. Inna Gens kindly met with me in Moscow and has been in correspondence with me about her father’s library and his postwar efforts to recover his collection. The family still would like to see the library returned to Estonia in her father’s memory. I examined her father’s books in NBB and photographed the bookplates. 42. See my counterpart article, “The Road to Minsk for Western Trophy Books,” Libraries and Culture 30, no. 4 (2004): 351–404; electronic version: http://muse.jhu.edu/cgi-bin/access.cgi? uri=/journals/libraries_and_culture/v039/39.4grimsted.pdf&session=93519577; Russian version: “Trofeinye knigi iz Zapadnoi Evropy: Doroga v Minsk cherez Ratibor (Ratsibuzh). Ograblenie bibliotek ERR (Operativnym shtabom Reikhsliaitera Rozenberga),” in Matieryialy tretsikh mizhnarodnykh knihaznuchykh chytanniau “Kniha Belarusi: Poviaz’ chasoi” (Minsk, 16–17 verasnia 2003 g.) (Minsk: Natsyianal’naia bibliiateka Belarusi, 2005), 39–90. 43. See Grimsted, “The Postwar Fate of the Petliura Library.” When I was researching that article more than a decade ago, colleagues in Minsk neglected to tell me that more books from the Petliura Library were there. I was able to examine some in September 2003. 44. Frits Hoogewoud, “Russia’s Only Restitution of Books to the West: Dutch Books from Moscow (1992),” in The Return of Looted Collections, 72–74. See also the exhibition catalogue for the books returned: Nederlandse boeken—slachtoffers van de oorlog: Tentoonstellingcatalogus van de boeken uit het fonds van de VGBIL aanhorig bij de Nederlandse bezitters Amsterdam,

The Postwar Fate of ERR Records 303 Universiteitsbibliotheek, September 1992, comp. and ed. M. F. Pronina et al. (Moscow: Rudomino, 1992). An annotated copy of the catalogue is held in the Bibliotheca Rosenthaliana, Amster- dam University Library. A few copies of the original Russian version were also produced: Niderlandskie knigi—zhertvy voiny: Katalog vystavki knig iz fondov VGBIL, prinadlezhashchikh vladel’tsam iz Niderlandov, 15–28 iiunia 1992 g. See more details in Grimsted, “The Road to Minsk.” 45. Vladimir Makarov, “Involuntary Journey of Books from Paris to Minsk,” Spoils of War: International Newsletter 6 (February 1999): 25–27 (also published in Russian). 46. Vladimir Makarov, “Avtografy sud’by,” Evropeiskoe vremia 10 (1993): 12–13, also published as a separate pamphlet, Avtografy sud’by (Minsk: Institut inostrannykh iazykov, 1993). Vladimir Makarov, “Avtografy sud’by,” Vsemirnaia literatura 6 (1998): 134–43, and “Velikoi Downloaded from artistke, pochtitel’no. . . ,” Vestnik Minskogo gosudarstvennogo lingvisticheskogo universiteta, seriia 1: Filologiia 4 (1998): 157–64. Karina Dmitrieva at VGBIL kindly provided me copies of several of Markarov’s other articles that had not been known abroad. When I met Makarov in Minsk in 2003, he generously shared copies of several additional ones.

47. Makarov showed me the extensive card files he has compiled of the French autograph hgs.oxfordjournals.org inscriptions and ownership markings on books he found in Minsk libraries. He told me he had not found anyone else so concerned about the provenance and fate of those books. 48. My initial brief report was presented at the Third International Bibliophile Readings: “Kniha Belarusi: Poviaz’ chasou,” at the National Library of Belarus (NBB), Minsk, 16–17 September 2003; an expanded version is published in Russian in the conference proceedings (see Grimsted, “The Road to Minsk”). I am very grateful to NBB colleagues for facilitating my at Yeshiva Gottesman on March 24, 2011 research about Western trophy books in Minsk, and especially Tat’iana Roshchina, who until 2003 headed the Department of Rare Books, and is now senior bibliographer in that department. 49. I did not meet anyone in Minsk other than Professor Makarov who thought those books should have gone home. 50. “Doklad o rabote arkhivnykh organov BSSR za 1 polugodie 1946 g.” (Minsk, 22 July 1946), GA RF, 5325/2/1558, fol. 137. According to an unpublished Russian source, the archive was found in Ratibor, so perhaps more details are given in the subsequent letter from GAU UkrSSR to GAU SSSR (19 July 1957) (which he cites as Arkhiv GAU 19s/129, fols. 106–111); but that file is still classified. These details about return of the Dnipropetrovsk archive were earlier documented in Grimsted, Odyssey of the Smolensk Archive, p. 22. 51. Hudzenko, who then directed the Ukrainian Archival Administration (under the NKVD), noted at a meeting of local Party archival leaders at the end of October 1946 that “some 10,000 units from the Dnipropetrovsk Party Archive were taken to Germany and are now in Belarus,” Stenogramma respublikanskogo soveshchaniia zaveduiushchikh partarkhivami obkomov KPb/ U (30–31 October 1946), RGASPI, 71/6/251, fols. 63–64; see also remarks by the Dnipro- petrovsk representative (fol. 98); mention is made of the recovery of some “party chronicles,” newspapers, and library materials (fol. 103). 52. A letter from the Ukrainian Branch of the Institute of Marxism-Leninism mentioning the materials seized by the Nazis and subsequently returned to Ukraine was found in local party files in the Derzhavnyi arkhiv Dnipropetrovs’koi oblastï, fond 19/5/110, fol. 55; as cited by Dmytro Meshkov in his compilation Dnipropetrovs’ki arkhivy, muzeï ta biblioteky v roky

304 Holocaust and Genocide Studies Druhoï svitovoï viiny: Anotovanyi perelik dokumentiv i materialy (Kyiv, 2000). At the September 1994 conference in Chernihiv on displaced Ukrainian cultural treasures during World War II, Meshkov reported that only a small part of the files plundered by the Nazis were returned. 53. See the reports about archival restitution to France, Belgium, the Netherlands, and Luxembourg in Returned from Russia. 54. RGB Archive, opis’ 25, no. 221; see more details in Grimsted, Odyssey of the Turgenev Library, postscript. 55. These Polish developments are documented by Jacques Lust, Evert Maréchal, Wouter Steenhaut, and Michel Vermote, Een zoektocht naar archieven: Van NISG naar AMSAB (Ghent: Amsab, 1997), pp. 96–101. See also the account by Józef Stepien, “Losy akt Miedyznarodowego Instytutu Historii Socjalnej w Amsterdamie w uwietle informacji Downloaded from komisji powolanej do zbadania ‘archiwum holenderskiego’ z lutego 1955 r.,” Teki archiwalne, seria nowa 3 (25) (1998): 317–24. I thank Belgian and Dutch colleagues for alerting me to this. 56. Figures are not available, but some samples found in Warsaw were reported by Michel Vermote in his talk at the 2000 VGBIL conference in Moscow, “War Trophies in Perspective: The Fate of Looted Collections from Belgium,” available electronically with the proceedings, hgs.oxfordjournals.org “Mapping Europe: Fate of Looted Cultural Valuables in the Third Millennium Moscow, VGBIL, 10–11 April 2000,” http://www.libfl.ru/restitution/conf/vermot.html. More detailed reports are available in Amsab Institute of Social History (Ghent), and I am grateful to Michel Vermote and Wauter Steenhaut for sharing them with me. 57. For more details about resources regarding art looting in ERR and related postwar Western restitution records, see The AAM Guide to Provenance Research, comp. Nancy H. Yeide, at Yeshiva Gottesman on March 24, 2011 Konstantin Akinsha, and Amy L. Walsh (Washington, DC: American Association of Museums, 2001). I am grateful to the contributors of many sections of that guide, and to personal advice from several of the authors, in connection with the presentation that follows. 58. See more details in Grimsted, “The ‘Smolensk Archive’: From a Tool for Nazi and American Sovietology to a Pawn in International Restitution Politics” in Vosvrashchenie “Smolenskogo arkhiva”/The Return of the “Smolensk Archive.” 59. For example, an MFA&A report (8 December 1945) describes many materials removed from Banz, BArch (BAK), B-323/550. 60. Thus, according to an OMG-Bavaria Property Control Branch report (5 February 1947), 150–200 folders of ERR records, including Hauptamt correspondence files, had been removed from Banz castle to the Bamberg collecting point for transfer to the Frankfurt Document Center along with index cards and lists of books—BAK, B-323/328. 61. A copy of the monthly MFA&A report (29 August 1945) is found in NACP, RG 260, Prop- erty Division, AHC. In addition to Munich there were CCP in Marburg, Wiesbaden, and Offenbach (OAD). 62. See, for example, the inspection report on Colmberg Castle (Landkreis Ansbach) by James T. Tillinghast (14 August 1945), and the memorandum with enclosures of Frank P. Albright (15 February 1946), BAK, B 323/495. Original Nazi inventories of some of the Pskov icons have been preserved in the same file, while copies of those for Kyiv icons reside among the ERR and RKU records in Kyiv.

The Postwar Fate of ERR Records 305 63. Inventories and other documentation covering the holdings found in Höchstädt are preserved in BAK, B 323/91 and 495, and related documents in 498. Another copy of some of these materials, transmitted by Edwin C. Rae, MFA&A (19 February 1946), is found in NACP, RG 260, Records of the Property Division, AHC, boxes 117 and 329. Most of those shipments to Höchstädt were under the direction of Dr. Rudolf Stampfuss and Dr. Walther Hülle of the ERR Special Operational Unit for Prehistory (Sonderstab Vorgeschichte). The Germans even brought seven Soviet specialists with the shipments via Cracow, including the archeologists Valeriia Kozlovska and Petro Kurinnyi from Kyiv and Vadym Shcherbakivskyi from Prague. Unfortunately, some of these castles were also used immediately after the end of fighting to billet troops, and were poorly guarded, with long delays before the collections could be moved to the Munich Collecting Point. That would explain why many reports of theft and vandalism survive. For more detail about the repositories used for shipments from the Eastern Downloaded from Front see Grimsted, introduction to U.S. Restitution of Nazi-Looted Cultural Treasures to the USSR. 64. Greg Bradsher, A Guide to Research on Holocaust-Era Assets (Washington, DC: NARA, 2000). An electronic version with selected documentary publications appears on the NACP

website: http://www.archives.gov/research/holocaust/finding-aid/index.html hgs.oxfordjournals.org 65. For example, NARA microfilm M 1943 (with pamphlet introduction): ERR (Einsatzstab Reichsleiter Rosenberg) Card Files and Related Photos, ed. Greg Bradsher and Tim Mulligan (Washington, DC: NARA, 2003). 66. “Paris Libraries of Jewish Ownership Confiscated by the ERR, March/June 1941” (16 August 1945), PRO, FO 1020/2793. A handwritten note in the file explains: “extracted from a file of reports by Dr. Gerhard WUNDER, found at Tanzenberg and forwarded by Major at Yeshiva Gottesman on March 24, 2011 [John] Hayward, 16 Aug. 45. A copy has been sent to the French.” Sophie Coeuré kindly sent me an earlier version she found recently in the Archives Nationales, F 17 17996. 67. Ingrid Ramirer graciously shared the two fragmentary ZBHS registers recently discovered in the Vienna University Library. 68. “Russian books at Tanzenberg, Land Kärten,” ACA (British Element), J. W. Goodison to M. Gavrilov, Public Enlightenment Division, ACA (Soviet Element) (Vienna, 19 September 1945), PRO, FO 1020/2794, doc. 28A. 69. More details in Grimsted, Trophies of War and Empire, 323–27. 70. Mikhail A. Boitsovyi and Tat’iana A. Vasil’eva, eds. and comps., Kartoteka “Z” Opera- tivnogo shtaba “Reikhsliaiter Rozenberg”: Tsennosti kul’tury na okkupirovannykh territoriiakh Rossii, Ukrainy i Belorossii, 1941–1942 (Moscow: Izdatel’stvo Moskovskogo universiteta, 1998) = Trudy istoricheskogo fakul’teta MGU 5 (ser: “Istoricheskie istochniki” 1). 71. In addition to copies within the trial records (NACP, NG 238), a copy of the Storey report, together with a few of the documents related to cultural plunder from the PS series, is retained within one box of the Ardelia Hall Collection, US NACP, RG 260 (OMGUS), CCP Restitution Research and Reference Records, box 182. Many of the ERR documents in the Storey series are available on microfilm (NACP T988), and some appear in the trial publications. 72. A selection (but far from all) of the individual documents in the PS series are listed in the published Yad Vashem finding aid The Holocaust: The Nuremberg Evidence, Part One: Docu- ments: Digest, Index, and Chronological Tables, prepared by Jacob Robinson and Henry Sachs

306 Holocaust and Genocide Studies (Jerusalem, 1976), 132–57, with references to published versions of the documents listed, but unfortunately lacking trial exhibit reference numbers. 73. I appreciate the assistance of the archivist at the International Court of Justice in The Hague in clarifying the arrangement and providing access for me to the IMT records. 74. Samples of these documents are listed along with other details about the ERR documents in IMT records in Grimsted, Cultural Plunder during World War II: The Dispersed Records of the Einsatzstab Reichsleiter Rosenberg (ERR). A Survey of Records and Bibliography of Avail- able Finding Aids, forthcoming. 75. That explains why a large portion of the Rosenberg documents in Paris have “pull slips” referencing their extraction from the large collection of Rosenberg files found by the

Americans, taken to the United States, and returned to Germany in the 1960s. Downloaded from 76. Card files in the CDJC reading room provide document-by-document resumés as well as name, subject, and geographic indexes. See the selected coverage by Joseph Billig, Alfred Rosenberg dans l’action idéologique, politique et administrative du Reich hitlérien: Inventaire commenté de la collection de documents conserves au C.D.J.C. provenant des archives du Reichsleiter et Ministre A. Rosenberg (Paris, 1963 = “Les inventaires des archives du Centre de hgs.oxfordjournals.org Documentation Juive Contemporaine, Paris,” vol. 1). Selected documents on cultural plunder from the DCJC Rosenberg Collection are published in French translation in Jean Cassou, ed., Le pillage par les Allemands des oeuvres d’art et des bibliothèques appurtenant á des Juifs en France: Recueil de documents (Paris, 1947; CDJC. Série “Documents,” no. 4). 77. Technically the Hohe Schule was not part of the ERR, although the ERR was its main supplier of books and other research materials, and often Hohe Schule staff were simulta- at Yeshiva Gottesman on March 24, 2011 neously serving in ERR Special Command (Sonderkommando) units. 78. An internal finding aid with folder descriptions is available in Koblenz for Bestand B 323. More details about the ERR documentation will appear in the forthcoming Grimsted survey of ERR Records, Cultural Plunder during World War II. 79. The microfilm series was produced from the temporary record group (EAP 99), now listed as T-454. See “Guides to German Records Microfilmed at Alexandria, VA” no. 28: Records of the Reich Ministry for the Occupied Eastern Territories, 1941–45, prepared by the Committee for the Study of War Documents, the American Historical Association (Washington, DC: National Archives, 1961). A supplement was issued including a small group of Rosenberg files found later in NACP and added to EAP 99 (including scattered ERR documents): “Guides to German Records,” no. 97: Records of the Reich Ministry for the Occupied Eastern Territories (Reichsministerium für die besetzten Ostgebiete) and Other Rosenberg Organizations, Part II (Microfiche ed.: Washington, DC: NARA, 1996). 80. See the introduction by Jana Blumberg to the revised finding aid for NS 30, prepared since the records were consolidated in Berlin: http://www.bundesarchiv.de/foxpublic/ 697E220F0A06221200000000B1 5183D3/findmittel.jsp. Jana Blumberg has likewise compiled revised finding aids (also at the same website) for the DBFU (NS 15) and Rosenberg Chancery (NS 8) records. The introduction to the 1968 Bundesarchiv finding aid for NS 30 includes a correlation table for the U.S.-produced microfilms: “Vorlaufiges Verzeichnis des Bestandes NS 30, Einsatzstab Reichsleiter Rosenberg,” typescript (Koblenz: BAK, 1968); a copy is available in the USHMM.

The Postwar Fate of ERR Records 307 81. Patricia Kennedy Grimsted, Cultural Plunder during World War II. 82. I first submitted a proposal for the project at the request of Wesley A. Fisher in 2000, when he was Director of International Programs and later Director of External Affairs at the United States Holocaust Memorial Museum, after a seminar on the ERR that I presented as a visiting fellow. 83. The project is being planned and initial imaging made possible by sponsorship of the Conference on Jewish Material Claims Against Germany, Inc., in cooperation with the Bundesarchiv, with Patricia Kennedy Grimsted as project consultant. Filming of the initial segment in TsDAVO (Kyiv) and planning for commercial distribution is being undertaken by Primary Source Microfilms, Inc. See http://www.claimscon.org/?url=looted_art.

84. M1943: ERR card files and related photographs, 1940–1945, comp. Greg Bradsher and Downloaded from Tim Mulligan (Washington, DC: NARA, 2003). 85. Collins and Rothfeder, “The Einsatzstab Reichsleiter Rosenberg and the Looting of Jewish and Masonic Libraries.”

86. Piper, Alfred Rosenberg, chapter 9. hgs.oxfordjournals.org 87. Many librarians in the National Library and other libraries in Minsk have told me this. Disinclined to restitution, they nonetheless have assured me they would be willing to cooperate in a project to identify the provenance of “their” books and to learn more about their wartime history. at Yeshiva Gottesman on March 24, 2011

308 Holocaust and Genocide Studies RECONSTRUCTING THE RECORD OF NAZI CULTURAL PLUNDER A SURVEY OF THE DISPERSED ARCHIVES OF THE EINSATZSTAB REICHSLEITER ROSENBERG (ERR)

Patricia Kennedy Grimsted

Published online by the International Institute of Social History (IISH/IISG), Amsterdam, March 2011

http://www.iisg.nl/publications/errsurvey.php

In association with the NIOD Institute for War, Holocaust and Genocide Studies, Amsterdam, with generous support of the Conference on Jewish Material Claims Against Germany (Claims Conference)

The Einsatzstab Reichsleiter Rosenberg (ERR), the special operational task force headed by Adolf Hitler’s leading ideologue Alfred Rosenberg, was one of the main Nazi agencies engaged in looting cultural valuables in Nazi- occupied countries during the Second World War. The detail with which the ERR documented the art, archives, books, and other Judaica it plundered has proved essential for the recovery of cultural valuables after the war and their return to victims or heirs. This extensive international survey describes the archival remains of the ERR in 29 repositories in 9 countries – from Washington and Brussels to Moscow and Kyiv. It serves as a preliminary guide to documents generated by the ERR as well as records by postwar agencies seeking to return the ERR loot. Links are provided to many dispersed materials now available on the Internet or in microform; these include the recent efforts of the U.S. National Archives and Records Administration (NARA), the German Federal Archives (Bundesarchiv), the Ukrainian state archives (TsDAVO), and other repositories, with additional digital contributions expected soon, providing improved access to a major component of the record of wartime cultural plunder and retrieval. Repositories Covered 1. BELGIUM 1.1. Algemeen Rijksarchief / Archives générales du Royaume, Brussels 1.2. Service des Victimes de la Guerre (SVG) / Dienst voor de Oorlogsslachtoffers (DOS), Brussels 1.3. Centre d’Études et de Documentation Guerre et Sociétés Contemporaines (CEGES) / Studie- en Documentatiecentrum Oorlog en Hedendaagse Maatschappij (SOMA), Brussels 1.4. Stadsarchief Gent

2. FRANCE 2.1. Ministère des Affaires étrangères et européennes (MAEE), Direction des Archives, La Courneuve 2.2. Centre des Archives diplomatiques de Nantes (CADN), Nantes 2.3. Archives des Musées Nationaux (AMN), Paris 2.4. Archives Nationales-site de Paris 2.5. Mémorial de la Shoah: Centre de Documentation Juive Contemporaine (CDJC), Paris 2.6. Dépôt central des archives de la Justice militaire

3. GERMANY 3.1. Bundesarchiv (BArch), Berlin-Lichterfelde 3.2. Bundesarchiv, Koblenz 3.3. Bundesarchiv Bildarchiv, Koblenz 3.4. Bundesarchiv-Militärarchiv (BArch-MA), Freiburg 3.5. Auswärtiges Amt, Politisches Archiv (PA AA), Berlin 3.6. Bundesamt für zentrale Dienste und offene Vermögensfragen (BADV), Berlin 3.7. Institut für Zeitgeschichte (IfZ), Munich 3.8. Zentralinstitut für Kunstgeschichte (ZI), Munich

4. LITHUANIA 4.1. Centrinis Valstybinis archyvas (CVA), Vilnius

5. THE NETHERLANDS 5.1. NIOD Institute for War, Holocaust and Genocide Studies, Amsterdam

6. RUSSIAN FEDERATION 6.1. Rossiiskii gosudarstvennyi voennyi arkhiv (RGVA; former Special Archive), Moscow 6.2. Gosudarstvennyi arkhiv Rossiiskoi Federatsii (GA RF), Moscow

7. UKRAINE 7.1. Tsentral'nyi derzhavnyi arkhiv vyshchykh orhaniv vlady ta upravlinnia Ukraïny (TsDAVO Ukraïny), Kyiv

8. UNITED KINGDOM 8.1. The National Archives of the United Kingdom (TNA; former Public Records Office), Kew 8.2. The Imperial War Museum (IWM), London

9. UNITED STATES OF AMERICA 9.1. National Archives of the United States (Archives II), College Park, MD (NACP) 9.2. United States Holocaust Memorial Museum (USHMM), Washington, DC 9.3. YIVO Institute for Jewish Research, New York City

Appendices include a chart of art collections plundered by Rosenberg agencies in France and Belgium, correlating ERR codes, inventories, and registration cards held by German, French, and U.S. archives; a descriptive list of ERR wartime repositories; postwar art-looting intelligence reports; and an extensive bibliography. International Journal of Cultural Property (2010) 17:291–333. Printed in the USA. Copyright © 2010 International Cultural Property Society doi:10.1017/S0940739110000123

Why Do Captured Archives Go Home? Restitution Achievements under the Russian Law Patricia Kennedy Grimsted*

Abstract: The return of captured French archives—not art—ignited debate in the Russian Duma in the spring of 1994, leading to the passage of the 1998 Federal Law “On Cultural Valuables Displaced to the USSR as a Result of the Second World War and Located on the Territory of the Russian Federation.” Yet, a decade since the law was signed, there have been five cases of captured archives from the Second World War returned to Western European countries, as explained in the recent book, Returned from Russia. The aim of this article is to examine major factors involved in the restitution of archives from Russia, and why amid the politics of restitution the return of archives has been more successful than art. The article first successively examines the major factors involved, namely, foreign political pressure; the underlying support of international law, both in specific instruments and historical archival practice; the circumstances and Soviet aims of archival plunder; the present contrast with Soviet political ideology and alignments; the fact that Russian archivists were more willing to return their loot than museum directors; and that archival returns were easier to conform to the 1998 law, because the receiving countries were willing to offer the “compensation” Russian archivists were demanding. Country by country, first in Western Europe starting with France and now Austria and Greece, archives have been going home, but so far only a few symbolic files from Germany have been returned. A final section of the article briefly singles out the captured records from several other countries remaining in Moscow, including many Jewish records, even some representing Holocaust losses.

The return of captured archives—not art—ignited debate in the Russian Duma in the spring of 1994, leading to the passage of the 1998 Federal Law “On Cultural Valuables Displaced to the USSR as a Result of the Second World War and Lo-

*Senior Research Associate, Ukrainian Research Institute, and Associate, Davis Center for Russian and Eurasian Studies, Harvard University, Cambridge, MA; Honorary Fellow, International Institute of Social History, Amsterdam. E-mail: [email protected].

291 292 PATRICIA KENNEDY GRIMSTED cated on the Territory of the Russian Federation.” The 1998 law virtually nationalized the cultural spoils of war brought to the Soviet Union, without distinction among art, archives, or library books. But why was it old documents few Russians could read that caused such uproar on the Russian political front and internationally rather than canvases of Degas or Goya, or Dürer drawings many could enjoy? Two-thirds of the French archives had already gone home before the Duma’s restitution embargo. Besides, the long-hidden French archives were being returned on the basis of a bilateral diplomatic agreement signed by foreign ministers in Paris in November 1992 that had promised their return by the end of 1993. By that time Russian museum directors had not even considered the return of the Degas or Goya paintings, and Russia had already refused return of the Bremen drawings (plundered by a private soldier who had requested their return), the first “trophy” art to be exhibited in both St. Petersburg (1992) and Moscow (1993).1 It took another six to eight years after the 1994 embargo, but France finally got most of its remaining archives in 2000 and 2002, but only 101 drawings from Bremen (less than one-fifth of those still in Russia) and stained- glass windows from Frankfurt on Oder have gone home since. Not even 1000 out of an estimated 11 or 12 million trophy books have been returned since 1991. So why is it, despite the May 1994 setback, that archival restitution (and some even before passage of the 1998 law) has been much more successful than the return of trophy art or library books? A decade since the law was signed, there have been six cases of captured archives from the Second World War returned to Western European countries. Even before the law passed (but in accordance with its provisions) captured archives also went home to Liechtenstein (July 1996) and Great Britain (1998). The 2007 book Returned from Russia heralds the success stories for five subsequent returns: France (1994, 2000), Belgium (May 2002), and the Netherlands (December 2001, January 2003), as well as one fond with 103 files of Masonic records from Lux- embourg (August 2003). In 2001, the Rothschild papers from Vienna were handed over to The Rothschild Archive in London, the only instance of restitution to a private family.2 A sixth archival return to Austria is already progressing, with 51 of over 80 fonds (record groups) of Austrian provenance transferred to Vienna in June 2009. What were the major factors involved in these success stories? The following analysis suggests several: Western European political pressure and Russian political expediency; the underlying support of international law, both in specific instruments and historical archival practice, with effective pressure of the International Council on Archives (ICA); the circumstances and Soviet aims of archival plunder in contrast to art; and the present contrast in political alignments and ideological imperatives. We might add the fact that Russian archivists were more anxious to return their loot than museum directors, and that archival returns were easier to negotiate than art under the terms of the 1998 law, because the receiving countries were willing to offer the more modest “compensation” Russian archivists were WHY DO ARCHIVES GO HOME? 293 demanding. A final section of the article briefly singles out the captured records from several other countries remaining in Moscow, even some representing Ho- locaust losses, raising the question of why Russia has not facilitated their return. The factors considered in different cases may not provide a full answer to the question of why archives were returned in contrast to art, but they demonstrate some of the important elements involved, and the pattern of returns may even help raise hope for release of more archival prisoners of war.

HIGH-LEVEL FOREIGN POLITICAL PRESSURE

Political pressure and expediency, to be sure, were the most important major factors in the return of archives to Western Europe, after the extent and nature of the massive captured archival materials in Russia became known in the fall of 1991. With the collapse of the Soviet Union, new Russian leaders were looking West, and with few exceptions, Western European countries had been excluded from Soviet-period archival restitution. Besides, among the recipients of archives, only the Netherlands had a major claim for art, and so politicians were concentrating on archives. In February 1990 in a now famous newspaper interview, “Five Days in the Spe- cial Archive,” Director Anatolii Prokopenko admitted the existence of many Ger- man records from the Third Reich in what had been the top-secret Central State Special (Osobyi) Archive (TsGOA SSSR). The Germans had already suspected as much.3 Later in October 1990 a scandal broke about an abandoned church outside of Moscow with several million early German trophy library books, and even a few long-lost treasures from the Turgenev Russian émigré library in Paris.4 At that same time in newly opened Moscow archives, I discovered documents with Soviet security chief Lavrentii Beria’s resolutions about the May 1945 capture of French intelligence archives from a remote Gestapo/Abwehr counterintelligence center in a Czech village castle (then part of the Sudetenland) (Figure 1). Since I had no idea what had happened to the 28 freight cars of archives, I consulted the well-connected literary journalist Evgenii Kuz’min, who had tracked down the story about the abandoned trophy German books. Only a year later could he publish my interview revealing what turned out to be seven linear kilometers of records from France, among those from many other countries.5 A week later, Osobyi Ar- chive director Prokopenko confirmed the findings of “the well-known archival spy Grimsted”—“Archives of French Spies on Leningrad Highway,” and admitted the existence of captured archives from almost every country in Europe.6

Dutch March 1992 Agreement

Amid early hopes for restitution, in March 1992 the Dutch were first to sign an agreement for the return of their archives.7 Even before the revelation of cap- 294 PATRICIA KENNEDY GRIMSTED

FIGURE 1. Patricia Grimsted at the castle in Horní Libchava (German Oberliebich) near Cˇ eská Lípa (German, Bömisch-Leipa), where the RSHA Amt IV ran a top-secret intelligence center with captured French military intelligence, security service, and other records. She discovered in 1990 a file of documents in Moscow describing the Soviet counterintelligence SMERSH discovery of the German archival center in May 1945 and transfer of 28 freightcar loads of French records to Moscow. Most of the archives have been returned from the former Special Archive (now part of RGVA) to Paris in 1994 and 2000. Photo- graph by Jaro Svenceny. tured Western European archives in Moscow, Dutch archivists had hosted a group of reform-oriented Soviet archivists in June 1991, the first visit to the West for most of them. Three of the group soon after became directors of major Russian archives. By early 1992, Vladimir Kozlov, who was among the group, became the first post-Soviet director of the Central Party Archive and then deputy (and later chair) of the Russian archival agency Rosarkhiv. He kept telling me the Dutch should have been the first to get back their captured archives from Moscow.8 The 1992 Dutch agreement was never ratified, however, and only 10 years later, after implementation of the 1998/2000 law and Queen Beatrix’s visit to Moscow in June 2001, did most of the Dutch archives finally come home in 2002 and 2003.9 By that time, the Dutch Foreign Ministry and art restitution specialists had essentially given up pursuing their claim for the Koenigs Collection of master drawings, although they had been displayed in Moscow and a catalog was published in 1995.10 WHY DO ARCHIVES GO HOME? 295

Unfulfilled German July 1992 Agreement

On 2 July 1992, the President of the German Federal Archives (Bundesarchiv) and the Chairman of the Russian State Archival Service (Rosarkhiv) signed an agreement whereby the Germans agreed to furnish microfilming equipment, for which they made an initial payment, so the German archives could be copied before return.11 German politicians and even cultural leaders, it should be pointed out, were much more vocal in pressing demands for art from German state and private collections that had been hidden in secret depositories for half a century than for all of the National Socialist period captured records still in Moscow. Just after passage of the Federal Law over presidential veto, President Yeltsin flew to meet German Chancellor Kohl in Baden-Baden in April 1997. He person- ally returned 11 symbolic files from the personal papers of Walther Rathenau, along with microfilms of German Communist Party records.12 The 1998/2000 Russian law may forbid the return of any cultural valuables to Germany, but does not that same law permit the return of possessions of enemies of the Third Reich? The major fond of Rathenau papers (with 419 files) is still held in the former Special Archive and has been under contention by family heirs in Germany and Switzer- land for years.13 After all, Rathenau was assassinated in 1922 by a right-wing ex- tremist, and his papers had been seized by the SD-Hauptamt as a prime example of a leading German Jewish politician. Should not Rathenau qualify as a victim of proto-Nazi anti-Semitism?

Unsigned Belgian 1993 Agreement

Negotiations had also started in 1992 for a large quantity of Belgian archives, three-quarters of which were military records. Signing an agreement was on the agenda when President Yeltsin visited Brussels in December 1993, but that did not happen. Only after passage of the law and several other high state visits did the Belgian archives return home 10 years later in 2002. No “trophy” art of Bel- gian provenance had been identified so far in Russia, so again diplomats could concentrate on the archives. They were willing to do so, given that 70% of the Belgian files being returned were military records. They had plenty of help and enthusiasm from the Amsab Institute of Social History (Ghent), whose director and chief archivist devoted considerable time to the identification and description of the socialist, Jewish, and Masonic archives of Belgian provenance in the Special Archive and other repositories in Moscow, all of which greatly facilitated the return negotiations.14 During the transfer ceremony at the Belgian Embassy in Moscow, we all joked about the Belgian Army trucks that had come to fetch the archives (Figures 2 and 3). That first convoy from a NATO country caused a crisis of its own and delayed the transfer, when Rosarkhiv had trouble billeting foreign military personnel.15 296 PATRICIA KENNEDY GRIMSTED

FIGURE 2. Official Russian-Belgian archival restitution ceremony at the Belgian Embassy in Moscow, May 2002. Belgian Embassy official Theo Cumps (standing left) stamping the transfer documents, Belgian ambassador André Mernier (seated left) with RGVA Director Vladimir N. Kuzelenkov (seated, right); standing in the rear left to right: Belgian diplomat Jan Devadder, Rosarkhiv Chief Vladimir P. Kozlov, Director of Historico-Diplomatic De- partment of the Ministry of Foreign Affairs, Petr V. Stegnii. Photo courtesy of Amsab Insti- tute of Social History (Ghent)

French 1992 Diplomatic Agreement

When the Russian Federation emerged from a collapsed Soviet Union, many foreign policy issues surfaced, and archives were among them, especially the captured archives in Moscow. Because of their extent and state importance, the French archives in Moscow had aroused the biggest scandal and political pressure with front-page coverage in the Paris press. The French government concentrated on the return of the archives, in part to be sure, because no trophy art from France or elsewhere in Western Europe was revealed in Russia. Relatively few trophy library books from France are in Russia, although many more have been later identified in Belarus. When President François Mitterand first visited Moscow in 1992, “the archives of French spies” were on his agenda. Indeed, the return of archives to almost every country has involved high-level state visits. Coincidentally, the offices of the ICA are based in the Archives Nationales in Paris, and ICA Executive Secretary Charles Kecskeméti, a 1956 Hungarian refugee, was quick to organize a major international meeting in Paris regarding the captured archives in Russia, and a series of other gatherings followed. However, Rus- WHY DO ARCHIVES GO HOME? 297

FIGURE 3. Belgian Army staff applaud as the last box of Belgian archival files leaves the former Special Archive (now part of RGVA), Moscow, May 2002. Photo courtesy of Amsab Institute of Social History (Ghent). sian leaders preferred bilateral solutions and were already negotiating with several countries. As it turned out in the early 1990s, France was the only country with the political muscle to pull off an immediate diplomatic agreement specifically for the return of their archives, even if it took another 10 years to fulfill. Already by November 1992, French and Russian foreign ministers recognized international customary law when they agreed for the restitution of the French archives in Moscow by the end of 1993: In accordance with international practice, the Sides recognize the inalienable nature of public archives and shall return such of these as, being in the possession of one of the Sides, ought to belong to the other.16

INTERNATIONAL LAW AND PRACTICE

That quoted statement in the French agreement well demonstrates the important factor of international law and practice in the return of archives. Consider- ation of the uniqueness of archives as legal record of the institutions, communities, or individual lives they represent underscores the long and strong tradition for 298 PATRICIA KENNEDY GRIMSTED archival restitution in international law, and particularly customary law.17 While the seizure of archives during war has a long historical tradition, precedents for the postwar restitution of captured or “displaced” official records of state and private agencies have often emerged much stronger than the case for art or library books. Already in 1961, even at the height of the Cold War, the ICA, in its annual In- ternational Conference of the Round Table on Archives (best known as the French acronym CITRA), bringing together heads of national archives throughout the world, had taken action on the importance of returning archives displaced during the Second World War. A concluding CITRA resolution in Warsaw in 1961 (with Soviet participation) addressed that specific issue: Considering that archives are for every nation a part of the most valuable cultural property and that each nation has the right to hold its own archives; On the bas[is] of international law and in order to promote peace and friendship among peoples; The VIth International Conference of the Round Table on Archives deems desirable to call on archival institutions and archivists all around the world, asking them to take the suitable measures for returning to their rightful owners archives groups and documents which have been displaced during World War II.18 That was just before the United States and Great Britain returned most of the records captured at the end of the war, particularly those of Germany. Even before that resolution, the Soviet Union, particularly under Nikita Khrushchev, had already returned many captured records to East Germany in the 1950s, and subsequently to other Warsaw Pact countries. The Russian law under consideration makes no distinction among art, library books, or archives in terms of their potential restitution. Yet archives, and particularly state records captured in wartime and postwar occupation, have tradition- ally been treated distinctively under international law. Reinforcing the Hague Conventions of 1907 and 1954, UNESCO in 1976 adopted the position that “[m]il- itary and colonial occupation do not confer any special right to retain archives acquired by virtue of that occupation.”19 Meeting in Thessalonica in 1994, when debate about the Russian cultural property law was already underway in Moscow, the annual CITRA meeting was devoted to displaced archives in international legal tradition. A CITRA resolution at the conclusion of the conference called for settlement of archives still displaced as a result of the Second World War and colonial rule, and it reaffirmed “accepted archival principles, that archives are inalienable and imprescriptible and should not be regarded as ‘trophies’ or objects of exchange.” The Russian delegation was one of the only two abstentions in an otherwise unanimous vote.20 A strong international legal base for archival restitution is probably why the Council of Europe (CoE), in formulating conditions for Russian admittance to membership, required “distinction between types of property.” Indeed, archives WHY DO ARCHIVES GO HOME? 299 were singled out for return in the fourteenth point in an “agreement of intents” the Russian Federation signed in gaining admittance in January 1996: xiv. to settle rapidly all issues related to the return of property claimed by Council of Europe member states, in particular the archives transferred to Moscow in 1945.21 At the same time, the CoE issued the Reference Dossier on Archival Claims in conjunction with the ICA, containing the texts of many earlier documents indicative of the strong international customary law relating to the return of archives, in addition to the statutory law of conventions.22

LITTLE “COMPENSATION” AMONG SOVIET-CAPTURED ARCHIVES

Another factor that should be considered in the return of archives rather than art is that unlike the case with art, most of the captured archives that surfaced in Moscow in 1991 were not originally seized as trophies. In establishing his Trophy Commission and Trophy Brigades in February 1945, Stalin may have forgotten about the Hague Convention of 1907 and subsequent legal instruments prohibiting cultural plunder. But archives were rather seized for “operational” purposes, as instruments of Stalin’s postwar battles against internal and external enemies of the Soviet state in the emerging context of the Cold War.23 Following NKVD (Peo- ples’ Commissariat of Internal Affairs) instructions in February 1945, Beria rec- ommended to Viacheslav Molotov in April a special mission “to search thoroughly through all German archives and libraries to effect means of preservation and bring to the Soviet Union materials . . . that have scientific-historical and operational significance for our country.”24

Foreign Military and Security Fonds

In contrast to the Soviet Trophy Brigades that brought back the art and library books, it was Red Army counterintelligence units (SMERSH) and special Soviet NKVD archival commandos that seized archival loot. Except for German records themselves, most of the foreign archival loot had earlier been seized by various Nazis agencies. The highest priority was the vast majority of archives transported to Moscow for obvious “operational” purposes that could hardly be interpreted as cultural “compensation.”Beria’s red-penciled resolutions appear on numerous top- secret 1945 reports about archival reconnaissance. The 28 freight cars of French archives from the Gestapo/Abwehr center in the Czech castle near Cˇ eská-Lípa were among the first to arrive in Moscow. Earlier an additional 30 freight cars of French, Belgian, and other military records were shipped to Moscow from the Heeresarchiv (Military Archive) and Abwehr intelligence center in Berlin-Wannsee. Another 30 freight train wagonloads came with other mil- 300 PATRICIA KENNEDY GRIMSTED itary archives in the Berlin area, including Potsdam. A similar quantity of top- level German scientific records was rushed to Moscow for the top-secret “Laboratory One” after discovery in a railroad yard near Prague. Of less operational interest were the 25 freight-car loads of European Jewish and Masonic records that were transferred later in the fall of 1945 from the key Silesian evacuation archival center of the Reich Security Main Office—RSHA (Reichssicherheitshauptamt) Amt VII in a remote Silesian village castle in Wölfelsdorf (now Polish Wilkanów), near Habelschwerdt (now Polish Bystrzyca Kłodzka). But with the Wölfelsdorf horde came important socialist files, including records of the Second International, many of them having been seized from the Paris Branch of the International Institute of Social History (Amsterdam) and Russian émigré sources in Paris, which were considered at the time as having important “scientific-historical and operational significance.”

Operational Use: A Special (Osobyi) Archive “For at Most Five Years!”

When establishment of the former top-secret Special Archive for captured foreign records (Osobyi arkhiv—TsGOA) was under discussion in August 1945, at least one Soviet archival director appropriately recognized international norms: Our government might declare some of the other materials as our property, but . . . clearly the government cannot consider fonds such as those brought from Czechoslovakia, for example, as part of the State Archival Fond of the USSR. And there are more than a few such fonds. We have a right to them only until such time when questions of an international character are regulated. Such temporary rights until that time we need to use for the processing of those materials and to arrange their appropriate storage. . . . In any case the archive would probably exist for only three, four, or maybe at most five years.”25 Other archival leaders immediately excluded academic research and agreed: Use of those fonds, in my opinion, should have an exclusively specific, limited character, namely utilization only for operational aims of the Peo- ples’ Commissariat of Security, Internal Affairs [NKVD], Defense, and Foreign Affairs [Narkomindel] . . . No scholarly research whatsoever can be carried out on the basis of those archives, and to be sure, no access whatsoever can be permitted for representatives of any scholarly institutions. . . . I consider there is no need for compiling detailed inventories [opisi] of those fonds, nor is there need for arranging the files in binders with numbers, etc.26 Five or now six decades later, rather than five years, the Special Archive no longer exists today as a separate archive: in 1999 it was absorbed by the neighboring Rus- sian State Military Archive (RGVA). Starting in 1992, several lists of fonds for dif- WHY DO ARCHIVES GO HOME? 301 ferent countries were published abroad, and finally in 2001, RGVA issued its own list of captured foreign holdings from the former Special Archive, printed with German support. For the German holdings, an unofficial German web site, however, provides more detail.27

Nonoperational Use: Jewish and Masonic Archives

In most cases annotated file-level inventories are now openly available to researchers for fonds in the former Special (Osobyi) Archive, now part of RGVA. During the Soviet period, however, inventories were not always compiled for records not needed for operational purposes, such as many of the Jewish materials, some of which were hardly described at all. For example, a 1964 preface to a survey (obzor) for one fond that contained files from three Dutch Jewish organizations states, “Since the documentary material does not have scientific or practical value, further processing work on the fond was not undertaken.”28 A Dutch Jewish archivist came to Moscow to identify many of the files before that fond could be returned to the Netherlands in 2003. Dutch archivists have since identified numerous fragmentary misplaced files found among Jewish records received from Moscow and have recently returned them both to Austria and to the Jewish Community in Thes- salonica (see Figures 5 and 7). Post-1991 foreign funding and collaborative projects have provided for many more detailed listings, including a guide to all of the Jew- ish fonds, with an updated English version due in the fall of 2010.29 More than 14,000 Masonic files from all over Europe still remain intermixed in a massive collection that has never been properly sorted out; an Austrian Masonic archivist published a German translation of the Russian preliminary inventories (opisi) in 2002.30 One encouraging exception was a significant group of Masonic files from the Netherlands that were returned with the final Dutch restitution transfer, after a Dutch Masonic archivist spent many days identifying them in RGVA.31 Currently a Norwegian Masonic specialist is identifying those of Norwegian provenance, while many from Austria are expected to be claimed with the second batch of Austrian archives being prepared for transport.32 Separate fonds had been established for some groups of Masonic records, especially the large collections from France. Most of the French Masonic records have gone home, although some important fragments remain.9

Operational Use—Archival Rossica

Beria’s archival scouts were also delighted to find Russian émigré fonds among the Wölfelsdorf horde. Such materials had already been prioritized by operational agencies for the identification of “anti-Soviet” or Ukrainian “bourgeois-nationalist” elements abroad. Many of them had earlier been seized by the RSHA to be used against the “Bolshevik menace.” 302 PATRICIA KENNEDY GRIMSTED

Most important in that regard, however, was the Russian Foreign Historical Archive (RZIA) in Prague, the capture of which merited a “special file” to Stalin himself when it arrived in Moscow in nine sealed freight wagons as a highly prized “gift of the Czech government to the Academy of Sciences of the USSR.”33 The Academy of Sciences, to be sure, never saw those archives. In May 1946, however, NKVD Security chief Kruglov assured Zhdanov that “access for scholars would be closed,” and the documents “would be expeditiously analyzed for data on anti-Soviet activities of the White emigration to be used in operational work of organs of the MVD and MGB SSSR.”34 The Prague materials were nevertheless deposited in a top-secret division of the Central State Archive of the October Revolution (TsGAOR SSSR), which is today part of the State Archive of the Russian Federation (GA RF). In the meantime, the holdings were distributed to over 30 different archival repositories in the USSR. Today they are valued as Russia’s lost or exiled émigré culture, and Russian archivists refuse to consider any of them for restitution.35 Later in the 1950s, other émigré materials were moved there from the Special Archive. Those more closely connected to the Bolshevik Party, including the records of the Second International that Nazi agents had seized in France, were moved to the former Central Archive of the Communist Party. Russian archival officials today also consider these to be an essential part of the Russian cultural heritage and refuse to consider restitution, even if most of them were created and long held abroad. Since 1991, they have been legally registered as part of the so-called Ar- chival Fond of the Russian Federation. Today, Rosarkhiv will entertain claims only for records of foreign provenance that are now held in the former Special Archive (today part of RGVA).

“Trophy” archives and the Hansa Case

Only a few of the archives brought to Moscow were openly termed “compensation” at the time. As reported in December 1945, a special Soviet Archival Admin- istration Trophy Team chose for transport “only seven wagons of the most topical fonds presenting interest for Soviet historical sciences and activities of operational organs.” Their trophy choices included the vast medieval city archives of Bremen, Hamburg, and Lübeck, representing as they did, according to a 1945 archival report, “documentation relating to the Hanseatic League with which Novgorod was associated and which is sadly lacking in Soviet repositories.”36 In words similar to those used by Russian legislators today, Georgii Aleksandrov justified such seizures to Georgii Malenkov in December 1945: “[B]ringing them to the USSR might to some extent serve as compensation for the losses wrought by the German oc- cupiers on scholarly and cultural institutions in the Soviet Union.”37 Most of the medieval Hanseatic archives were returned to East Germany during the Soviet period, and the rest were returned to Germany after reunification. Thus in 1990, in exchange, a large part of the Tallinn City Archive from Estonia that WHY DO ARCHIVES GO HOME? 303 had been held as hostage for others in West Germany came back to Estonia. A few damaged Hanseatic charters remain in the Manuscript Department of the Russian National Library, and a few that had been stolen from an archive in Moscow are to be found today in Novosibirsk. Because they were secret trophy materials, they could not be fully registered in the Moscow archive where they were held during the Soviet period, and when stolen, open prosecution was impossible in Soviet courts.38

SOVIET ARCHIVAL RESTITUTION: INTERNATIONAL POLITICAL ALIGNMENTS AND IDEOLOGY IN CONTRAST

Another factor in the return of archives to Western Europe after 1991 was the reversal of the European political configuration and prevailing ideology. Soviet archivists and their leaders in the Kremlin may have had political reasons for not returning Western archives and selectively returning others to their Eastern Euro- pean “brothers.”Russian archivists today may be quick to highlight restitution during the postwar Soviet decades, but only a few symbolic files were returned to Western Europe. Starting in the late 1950s, when the Soviet Union became active in the ICA and Soviet leaders had political reasons to adopt international standards, several million files among the extensive records “rescued by the Soviet Army” were returned to Eastern Bloc nations. Some of them went home to the German Democratic Republic even before the Warsaw CITRA resolution quoted earlier, and many more afterwards. By that time most of the important operational utilization would have been completed. Even some of the Soviet-captured RSHA files (many from Ge- stapo and SD-Hauptamt predecessors) were turned over to the Stasi for their analysis, which is why today they are now found in Berlin, while contingent files remain in Moscow. Papers of Miklós Horthy that had escaped destruction were returned to Hungary in 1959. Chinese Communist Party records and some other files were returned to China. Public mention was never made, but the thousands of files from German Masonic lodges were returned to the German Democratic Republic (GDR), including many belonging to the Federal Republic. A few symbolic presentations were made to France and Austria in the early 1960s at the time of official state visits, and Nazi-seized records of the Norwegian royal family were also returned. Published accounts positively portrayed the Soviet role of “helping other countries reunify their national archival heritage.”39 As Soviet archivists officially explained at the time, such restitution was “in strict adherence to international legal norms and respectful of the sovereign law of peoples and their national historical and cultural legacy.”40 In sharp contrast, we do not find such internationally oriented legal attitudes in the rhetoric of post-1991 returns, and especially in the Russian Duma debates about the Russian law under discussion and the required compensation. Nor are such socialist ideals expressed 304 PATRICIA KENNEDY GRIMSTED in any of the post-1991 legal acts of transfer or conveyance. Notably, many archives of former East European brethren remain in Moscow, and Poland has not been the recipient of any files since the transfers in the 1950s, except for a few symbolic documents regarding the Katyn massacre.

POST-1991 RUSSIAN ARCHIVAL LEADERSHIP OPTS FOR RESTITUTION

Still another factor involved in the post-1991 return of archives should be seen in the orientation of Russian archivists, as already mentioned in passing earlier. Since 1991, the attitudes and plans of the new archival leaders in charge of Rus- sian state archives have been a major factor in the return of archives. In the early 1990s the new reformist archivists in charge were quickly drawn in to the in- creasing pace of international archival relations. Most were quite prepared for restitution of the displaced archives in Moscow, although strictly limited to those held in what could soon be termed the former Special (Osobyi) Archive. They were no longer bound by the ideological imperatives of Soviet justification, the political imperatives of continental Cold War alignments, or of archival secrecy. Newly arrived on the international archival scene, if they had not understood the legal imperatives for archival restitution before, the vehemence of demands from their new foreign counterparts quickly increased their understanding. Even if they could not speak their language, Russian archivists were anxious for the respect of their foreign colleagues, and they were deeply embarrassed by the dis- approval they experienced resulting from the long-hidden captured foreign archives in Moscow. In his report on the Paris 1992 meetings, Vladimir Kozlov, then deputy chair of Rosarkhiv, expressed scorn for the vehemence of the French demands, an attitude that continued after he assumed the chair in 1996. His memoir account, published as he was retiring from Rosarkhiv in 2009, again reflected the sensitivity with which he and some of his colleagues reacted to French demands for immediate restitution, compared to the more moderate attitude expressed by the Dutch and Belgians.41

Unique Archives, Not “Compensation”

Like their Western brethren, Russian archivists are nonetheless professionals, as were their Soviet predecessors. They too recognize the basic uniqueness of archives as official records of state, societal organizations, communities, and individuals, and the deciding factor of provenance. Albeit in the context of restitution politics, they consider that archives should be returned to their homelands. One set of archives cannot “compensate” for another, nor can archives be “replaced in kind.” Twice-plundered French military archives may have been considered important to the Soviet regime for military intelligence or geopolitics, but after 1991, WHY DO ARCHIVES GO HOME? 305 they became an embarrassment in Moscow. Belgian Jewish Community files could not replace destroyed parish registers in Kyiv, nor even other Jewish files in other cities, if Russian specialists could even read them. Nor could German Hansa records replace plundered historical records in Novgorod, even “to some extent,” as suggested when they were transported to Moscow in 1945. International lawyers may split hairs over the principle of “restitution in kind,” but this legal concept cannot be, nor has it ever been, applied to archives, which by definition remain unique legal records. Following international legal solutions at the end of the First World War that included restitution in kind for art or library books, some similar ideas were suggested after 1945, although the concept could not be agreed upon by the four victorious Allies after Russian unilateral cultural seizures from Germany. In the early 1990s, Russian archivists were quite prepared to return the Soviet- captured archives, although on their own terms, and not without bilateral discussion and negotiations. Instead of recognizing restitution as a legal imperative, however, they preferred to bargain with individual countries one at a time, often with Soviet-style bilateral archival agreements as the aim. Indicative of initial Western-looking post-Soviet attitudes, Special Archive director Prokopenko almost immediately publicly suggested an agreement with France for return of their archives, and he was soon moved to the Russian archival agency, Roskomarkhiv (later Rosarkhiv), to help arrange one.42 As noted earlier, during 1992 and 1993, Russian archival authorities were making progress in bilateral negotiations with several countries, although they did not want international restitution norms to dictate terms. It was Russian politicians who put a stop to the early restitution progress. Beholden as they were to public outcry and ultranationalist forces, Duma deputies accepted the dubious concept of the trophy cultural valuables (including archives) in Russia as “compensatory restitution” for the horrors, destruction, and loss of the Great Patriotic War. Although archivists certainly could not apply that principle to holdings in the Special Archive, even if after the Thessalonica CITRA, they no longer called them “trophies”.43

Commercial Potential for “Paper Gold”

The potential benefits from Russia’s massive captured archives, some archivists first thought, might have also had commercial advantages, when runaway inflation left few rubles in archival budgets, and the new business sector was draining off poorly paid archival staff, especially those with foreign languages. That was a period when many foreign specialists were decrying “commercialization” in Russian archives, with high charges for the “right to copy” as well as for copies themselves. Indeed, the Special Archive started selling copies to foreigners at prices three or four times what they were charging Russians and several times above Western standards. The French had to pay one dollar a page for photocopies of the Russian inventories of their own archives. Archivists still hoped the former top-secret repository could yield more “paper gold,” as publishers and the press rushed in for the bonanza of 306 PATRICIA KENNEDY GRIMSTED revelations in the “new” Russia. As was the case with other archives, several commercial projects involving the Special Archive were proposed, and one or two even started, including a short-lived commercial firm trying to claim exclusive research rights. Yet Russian archivists understood that they were dealing with archives of foreign provenance, not their own, and hence became more cautious about the legality of selling wide-scale microform publication rights, when such were proposed, despite the lure of high royalties offered for commercial microfilming. A few academic publications were forthcoming, such as the newly revealed Goebbels diaries undertaken with the Institut für Zeitgeschichte in Munich.44

Barter for Archival Rossica in the Diaspora

Russian archival leaders may have abstained from voting on the Thessalonica resolution against archives as trophies and barter with archives. While they stopped using the popular Russian term “trophies” in connection with their captured records, there was no denying their own ambitious plans for barter. With the fall of the Iron Curtain, Russian historian-archivists partook of the tremendous surge of interest in the Russian emigration, an area long forbidden in research and publication under Soviet rule. With the approval of the Foreign Ministry, archive leaders opted to utilize the captured records they held in Moscow to demand in exchange the return of Russian émigré archives abroad, “archival Rossica” as it became known. In addition to a series of Russian émigré conferences for the diaspora in Moscow, Rosarkhiv organized its own conference at the end of 1993, proclaiming an official program on “Archival Rossica Abroad.”45 In connection with restitution claims from abroad, Russian archivists devised a strategy of requiring receiving countries to turn over in exchange any archival Ros- sica uncovered in their own repositories. In the Belgian case, when one Russian émigré collection found could not legally be returned to Russia, Russian archivists settled for microfilm, and even then the return of the Belgian archives from Rus- sia was dubbed an “exchange.”46 In fact, almost every legal instrument, or act of conveyance, for post-1991 restitution of archives has used the term “exchange” rather than term “restitution,” which might imply a legal imperative. In addition to the required “compensation” in storage charges and other fees that legislators had already written into the projected law, they further required the receiving side to pay for microfilming the archives before return, or at least those that Russian archivists decided might by of most interest to Russian researchers. They fully recognized that the call for storage charges and compensation being drafted into the text of the law would assist their appallingly low archival budgets and radically depleted staff. Yet, it must be said to their credit that Rosarkhiv strongly opposed major concepts and wording of the cultural property law during debates in the Duma in April 1995.47 The possibility of repatriating foreign Rossica, beneficial agreements, and other factors of compensation may well have encouraged archivists in Russia to opt for WHY DO ARCHIVES GO HOME? 307 restitution in contrast to counterpart museum directors. The Pushkin Museum of Fine Arts in Moscow controls more trophy art than any other in the capital and suffered few losses in the course of German occupation, but its director, Irina An- tonova, nevertheless remains one of the staunchest opponents of the restitution of art and other cultural valuables.

POLITICS AND SUCCESSFUL RESTITUTION

The Duma Debate and the “Smolensk Archive” After the Duma sent the French trucks home empty in May 1994, legislators cited a well-known example of archival Rossica across the ocean as a pretext for their embargo. The fact that democratic, law-abiding America still held the so-called Smolensk Archive hostage in the U.S. National Archives justified Russia in not returning the French archives.48 What they failed to mention, however, were some rather important details that emerged about the matter of the Smolensk Archive after 1991. In fact, soon after the 1961 Warsaw CITRA resolution quoted earlier, after the United States returned the captured German archives and others seized at the end of the Second World War, American archivists had offered to return the 500-plus files of the Smolensk Archive in 1963. At the height of the Cold War, however, Soviet officials refused to submit the required legal claim, which they feared “could be used in the U.S.A. as on official recognition of the authenticity of those documentary materials,” demonstrating as they did the evils of collectivization in the 1930s. Soviet archival chief Gennadii Belov explained in a communi- qué to the Central Committee in 1965 that the archive contained “documents of CPSU leadership . . . and operational organs of the NKVD . . . including testimony of tolerated errors in collectivization procedures and extensive repression and bru- tality.” Hence, “with concurrence of the Ministry of Foreign Affairs,” he accordingly “recommend[ed] that it is not appropriate to raise with the State Department the question of the return of the Smolensk Archive.”49 What also emerged in 1992 was the fact that the Soviets had secretly retrieved five freight train wagonloads of the Smolensk Party Archive in the spring of 1945, in the railway yards near the major evacuation research center of the Einsatzstab Reichsleiter Rosenberg (ERR) in Silesia, and rushed them back to Smolensk. But that did not prevent Soviet archivists and legislators from constantly recounting that the Americans had taken all of the Smolensk Archive across the ocean. Al- though the true story had already been revealed in a Moscow conference with published press commentary before the proceedings and in a monograph in the United States, politicians in the Duma preferred manipulated facts.50 Today, we can be glad that those 500-plus Smolensk files were finally returned from Wash- ington to Moscow, as celebrated in December 2002, then to Smolensk, and that more of the true story was revealed in a book of collected articles presented in Moscow in November 2005.51 308 PATRICIA KENNEDY GRIMSTED

France: Scandal over “Compensation”

Russian archivists were understandably displeased by the U.S. failure to return the Smolensk Archive as promised in 1992 (see later), and manipulation of the facts did not help, when they were required to explain the situation to the Duma. They were indeed embarrassed by the Duma boycott that prevented finalizing the French return in 1994 and were even more embarrassed by the scandal that ensued.52 In addition to close to half a million dollars in storage fees and microfilming charges (for archives the French thought had been lost in the war), France turned over to Russia the originals of some alienated Russian archival documents that had long been held in France. But to make the scandalous situation even worse on the Russian side, the “compensation” money already received by Rosarkhiv from France for “storage charges” and microfilming went into various speculative in- vestments, which persisting lawsuits never recovered for Rosarkhiv. The former Special Archive (then TsKhIDK, now part of RGVA) was accordingly only able to film part of the materials that were returned to France before the Duma embargo. Reportedly, the microfilming equipment furnished by Germany to film the Ger- man records before their return to Germany was used instead to film the French materials. And to be sure under the terms of the new law, none of the German records could be returned as promised, while the Germans have had to pay dearly for subsequent copies. Most of the archives of Western European provenance have now been returned home under terms of the 1998/2000 Russian law, which also justified Rosarkhiv charging the compensation and/or storage fees that European countries have had to provide in connection with their return. Soon after Yeltsin was forced to sign the Russian law in 1998, a new Russian decree was issued authorizing the exchange with France that would permit the rest of the French archives to go home, but even the additional transfers in 2000 did not include all of the archives of French provenance remaining in the former Special Archive. Today Russian archivists claim that in one of the still-undisclosed transfer protocols, the French agreed to turn over some additional symbolic archival Rossica. The documents at issue are some ship logs from the revolutionary period that carried fleeing Russians to Algeria. Although the ships were eventually returned to the USSR, French archivists now report that the ship logs cannot legally leave France. Apparently the sub- stitution of photocopies or digital copies has not been negotiated, as was done in the Belgian case where microfilms were substituted for the originals. Therefore the controversy continues, and there has been no movement for the remaining French files in Moscow.53 On the other hand, the French still do not know how many of the French military intelligence records might have been siphoned off by Soviet military agencies, or how many of the French security files may have been kept by the KGB. We can only guess that the French intelligence files on the top- level Soviet leaders noted in Soviet-captured French documents might have made it to what are now still secret files in the Presidential Archive. WHY DO ARCHIVES GO HOME? 309

Liechtenstein Archives Returned: The Lure of Archival Rossica

The first archival return from Russia, apart from France, took place in the summer of 1996 while the law on cultural valuables was still being debated. That return went through thanks a highly desirable batch of archival Rossica being offered in exchange. And perhaps worth noting, Rosarkhiv arranged the transfer to coincide with the Duma summer recess. The voluminous Liechtenstein archives seized near Vienna after the war (and forgotten in Moscow for half a century) were flown to Berne, accompanied by the head of Rosarkhiv for their trip home to the Grand Principality. A law permitting their return had first been rejected by the Russian legislature, but then the necessary approval finally went through when the archives were defined as “family papers” not needed in Russia. More importantly, it went through because Prince Hans-Adam arranged to purchase from Sotheby’s for exchange a costly collection of archival documentation relating to the assassination of the Russian imperial family in 1918. And the transaction was proposed just at the time that a Russian Commission was investigating the imperial assassination. Of special importance, the commission had wanted the ciphered telegram announcing the death of the family in Ekaterin- burg in 1918! But even that hefty compensation was met by a virulent article in a government newspaper soon after the transfer, criticizing the “ill-conceived exchange,” as constituting a “tremendous detriment to Russian security, economy, and prestige.”54 Offsetting such press criticism, the Russian Foreign Ministry gained even more diplomatically in the transaction. The transfer was formally celebrated with an exhibition of the Russian imperial archival Rossica in Moscow, opened by Foreign Minister Evgenii Primakov with Prince Hans-Adam and his wife. At that high state occasion, it was announced that Russia, Europe’s largest state, formally opened diplomatic relations with one of Europe’s smallest. The high payment in barter of archival Rossica in exchange led a Vaduz newspaper to complain that Liechtenstein had to “repurchase” its archives. (Specula- tions about the price ranged from a quarter to a half million dollars [£100,000– £500,000 at Sotheby’s in London].) Yet, archivists in other European countries saw a glimmer of hope that their documentary treasures might still come home. And that exchange turned out to be the model for the later exchange with the Rothschild family. The Rothschilds purchased a valuable collection of nineteenth-century Russian imperial love letters from Christie’s, which were exchanged for the Viennese Rothschild files. The Rothschild deal took almost 10 years to negotiate and still represents the only archival return to a private family. But that exchange qua restitution had to wait until after passage of the amended Russian 1998 Law!55 It was the first fond of Austrian provenance to be released from Moscow after 1991, but others have since followed. 310 PATRICIA KENNEDY GRIMSTED

Factors in Successful Returns

The archives now back in France and the Benelux countries and those of the Roth- schild family, to be sure, are only a fraction of the files that were so mercilessly carted away during the war by at least five major Nazi agencies of plunder, then seized a second time by Soviet authorities. Not all of the archives of French, Bel- gian, or Dutch provenance identified in Moscow came home, especially examples of foreign-produced Rossica that Russian archivists refused to release, nor did many of the important printed materials that Soviet archivists had removed when processing the archives. Major foreign political pressure, the underlying support of international law, historical international archival practice as emphasized by the ICA, and new European political alignments were among the factors involved in those success stories, together with strong approval of Russian archivists and due “compensation” to meet their own demands for the return of archival Rossica from abroad. The fact that Western nations have been willing to negotiate with the Russians under the terms of the law has been crucial to the success of what returns have taken place. Thus those archives that did come home were returned not only thanks to factors on the Russian side but also because of the willingness of individual archivists from the countries involved to spend countless hours traveling back and forth to Moscow, identifying their files and negotiating with their Russian colleagues, to say nothing of the support and encouragement of foreign state officials and diplomats involved. Many contingent French, Belgian, and Dutch archival files had been transferred to other archives in Moscow, for which Russian archivists have yet been unwilling to entertain claims. Nevertheless, despite the losses and displacements in the course of their migration, there was much to celebrate in the homecomings that the decade-long investigations and negotiations made possible. And, in strong contrast to the situation with foreign trophy books and art, most of the foreign archival holdings in Russia have been identified, particularly those in the former Special Archive, at least by country and usually by record group (i.e., creating agency) of provenance.

Austria: Progressing Returns

A chapter on the return of Austrian archives could not be included in the 2007 volume Returned from Russia, although negotiations were then underway and there had been considerable hope for transfer before press time. The Austrian holdings in RGVA were all well identified in an Austrian-compiled 1996 guide covering over one hundred fonds.56 The fiftieth anniversary of the peace treaty with Austria was well celebrated in 2002, and the ICA held its international congress in Vienna in 2004, after which the director general of the Austrian archives became president of the ICA. The time was ripe for the Austrian archives to return home, despite provision in the 1998/2000 law prohibiting return to former Axis countries. WHY DO ARCHIVES GO HOME? 311

The only Russian-claimed cultural property in Austria, Catherine II’s copy of the Giambologna (Jean de Boulonge) statue Flying Mercury, was ceremoniously returned to Pavlovsk in October 2005. The following month, a Decree of the Rus- sian Government in November 2005 authorized the return to Austria of 51 record groups (fonds) of Austrian provenance.57 The Russian Ministry of Culture issued a further enabling document for the return of the Austrian archives in January 2006, leading to speculation that President Putin would bring as least some symbolic files on his visit to Vienna. But Putin came to the Austrian capital empty- handed in May 2006, except for an important gas agreement that was signed during his visit.58 In Vienna, Putin did assure representatives of the Vienna Jewish Com- munity that their archives in Moscow would come home, although they had not been among the 51 fonds the Duma had approved in November 2005. Russian archivists had the 51 approved fonds ready for return by May 2008, but due to various bureaucratic difficulties, the Austrians did not send trucks to collect them until June 2009. In connection with the first major transfer involving 10,770 files comprising approximately eighty percent of the Austrian archives in Moscow, Aus- tria paid “compensation” of 400,000 euros, according to an Austrian press account, calculated for storage fees, microfilming, and related charges.58a While the archives went home through the auspices of the Austrian State Archives, the important collection some 870 early books from the Esterhazy family library in Eisen- stadt in Lower Austria remain in Moscow, despite long years of negotiation for their return. At least 30 more fonds of Austrian provenance, most of them of Jewish provenance, which had not appeared on the approved list are now being prepared for transfer later in 2010. Those to go in the next transfer include, for example, some important records from the Jewish Community in Vienna (IKG), many of which were described in a catalog published in Moscow in 2005, sponsored by the Com- mission for Art Recovery (New York) project in the New York-sponsored “Heri- tage Revealed” series.59 Some of the Hebrew manuscripts from IKG had been transferred in the late 1940s to the Lenin Library, now the Russian State Library (RGB), while other parts of the same record group (and in a few cases, even parts of the same manuscript) remain in RGVA (Figure 4). Those manuscripts were not catalogued in the library until recently, and some were allegedly stolen and sold off to under-the-table dealers. A part of one fifteenth-century manuscript offered at auction in New York was confiscated by U.S. Customs and returned to Vienna in 2003.60 The “Heritage Revealed” catalogs were the first attempt to describe some of the Holocaust-related Hebrew manuscripts remaining in Moscow. Austrian Jew- ish archivists visited Moscow to verify the identification of more in 2009. It remains unclear if the next transfer will include the Hebrew manuscripts from RGB. The vast files from Austrian Masonic lodges that had been identified as to provenance in the 1996 Austrian-published guide also remain in question, because unlike the Dutch example, no Austrian Masonic archivist has yet come to Moscow to identify them. 312 PATRICIA KENNEDY GRIMSTED

FIGURE 4. Book stamps of the library of the Vienna Jewish Community (IKG). Similar book stamps are found on manuscripts and archival materials throughout the fond of IKG materials in RGVA (fond 707k) and the IKG manuscripts that had been transferred to the Lenin Library in the late 1940s, now the Russian State Library (RGB). Photos courtesy of VGBIL and the Commission for Art Recovery

In addition to the Rothschild papers from Austria mentioned earlier, the only other Austrian Jewish archives that have already returned home were three boxes of files from various Jewish organizations that were mistakenly returned to the Netherlands. At the time of the book presentation of Returned from Russia in Vi- enna in March 2008, the former chief archivist of the Netherlands, Professor Eric Ketelaar, brought them with him from The Hague for presentation to his most grateful Austrian counterpart Director General of the Austrian State Archives, Lorenz Mikoletzky (Figure 5).

CONTINUING NEGOTIATIONS FOR RETURN The story of archival homecomings is not over. While the political impetus of the early 1990s and the demands from Western Europe are mostly satisfied, archival restitution continues to remain on the Rosarkhiv agenda, because many other captured foreign records from eastern and southeastern Europe, as well as many more German ones still remain in Moscow as prisoners of war. Many countries that had been part of the communist bloc during the Cold War at one time or another received significant quantities of captured archival materials returned from Mos- cow. One other NATO country, however, still has significant archives in Moscow.

Greece: Jewish Community and Related Records One of the most vocal in a series of ICA efforts to promote archival restitution, the 1994 CITRA, took place in Thessalonica, and it was devoted thematically to divided and displaced archives.61 Not mentioned during the proceedings, however, were the dispersed records of the Thessalonica Sephardic Jewish Commu- nity, 90% of whom perished in the Holocaust (Figure 6). Undoubtedly, few if any of the world archival leaders assembled were aware that many files from Thessa- WHY DO ARCHIVES GO HOME? 313

FIGURE 5. Professor Eric Ketelaar (left), retired National Archivist of the Netherlands, de- livers three boxes of Austrian Jewish archives (inadvertently ‘returned’ to the Netherlands) to Lorenz Mikoletzky (right), Director-General of the Austrian State Archives and Presi- dent of the International Council on Archives, at the Municipal Library, Vienna, March 2008. Photo by Georg Lembergh, courtesy the Vienna Municipal Library. lonica remain in Moscow today. Some of those files even contain community registration photographs of many individuals who perished in the Holocaust. And there is a small fond of records from the Jewish Community in Athens from the former Special Archive as well.62 The Russian State Military Archive (RGVA, successor to the Special Archive holdings) has already sold copies of the Greek files to Israel and to the Holocaust Museum (USHMM) in Washington, DC. Reportedly they subsequently wanted to charge the Greek government for another set of microfilms to be retained in Moscow (where no one can read Ladino in sephardic script in which many of the documents are written), before letting the originals return home. The Holocaust Museum has had an English-languge finding aid prepared for the copies from Moscow.63 A bilateral Russian-Hellenic Joint Declaration signed in Moscow on 9 December 2004 specifically called for the return of the Jewish Community archives still in Mos- cow, but the Greek government was slow to submit a formal claim as required under terms of the Russian 1998/2000 law. After 10 years of negotiations, the Greek Gov- ernment did submit an official claim in 2008. Specialists from the Greek Jewish Com- munity have visited RGVAto identify the files, and both Greek and Russian archivists subsequently report progress in bilateral negotiations (as of mid-2010). 314 PATRICIA KENNEDY GRIMSTED

FIGURE 6. An Israeli specialist (left) and two Stanford University graduate students, Julia Phillips Cohen and Devin E. Naar, examine a Thessalonica Jewish Community register in the Russian State Military Archive (RGVA, fond 1428k) in Moscow during the European Association of Jewish Studies conference, July 2006. Devin Naar has been completing his doctoral dissertation on the Thessalonica Jewish Community and their dispersed archives. Photo by Patricia Grimsted, courtesy of RGVA

In the meantime, Dutch archivists found a few fragmentary Jewish documents from Thessalonica intermixed in Dutch Jewish files earlier returned from Berlin and Prague, as well as in fonds from RGVA devoted to Jewish organizations in the Netherlands, which were returned to The Hague from Moscow in 2003. In August 2008, Dutch archivists delivered those files to the Jewish Community in Thessalonica—the first from the twice-plundered Moscow-held Greek archives to return home (Figure 7)! And across the ocean, the YIVO Jewish Research In- stitute in New York City has digitized its part of the original Thessalonica Jewish archives received from Germany after World War II and has made digitized copies available to the community in Thessalonica.64

Poland

A separate book-length guide, prepared in bilateral archival collaboration, describes the voluminous fonds of Polish records. The Polish fonds remain in two major fed- WHY DO ARCHIVES GO HOME? 315

FIGURE 7. Representing the National Archives (Nationaal Archief) of the Netherlands (The Hague) Elwin Hendrikse returns 165 sheets of documents of Thessalonica provenance to the Jewish Community of Thessalonica in August 2008. The documents had been seized by the Germans during the Second World War and taken to Berlin; they were among an extensive hoard of archives the Soviets found in Silesia and took to Moscow in the fall of 1945. The Greek documents were inadvertently mixed within several fonds of Dutch provenance that were returned by Russia to the Netherlands in 2003, but some of them came with Dutch Jewish archives returned earlier from Berlin and Prague. (a) Left to right: David Saltiel, President of the Thessalonica Jewish Community; Elwin Hendrikse of the Dutch National Archives; the financial controller of the Community; and Iacov Benmayor, the Vice-president (sitting). (b) The Vice-president of the Jewish Community, Iacov Ben- mayor, examines one of the documents returned from The Hague, with the Community Controller looking on. Photos courtesy of Elwin Hendrikse, of the Nationaal Archief of the Netherlands, The Hague. 316 PATRICIA KENNEDY GRIMSTED eral archives in Moscow: the State Archive of the Russian Federation (GA RF) houses many from Russian rule of Polish territories before 1918, while World War II– captured records are held in the former Special Archive (now part of RGVA).65 Se- rious negotiations for the return of Polish archives are accordingly more complicated, although only those in RGVA would come under the 1998/2000 Russian law. Among important Jewish fonds from Poland in RGVA is one containing 43 units of manuscripts and archival documents from the renowned Breslau Rabbinical Sem- inary (known in German as the Jüdische-Theologische Seminar Fränkelsche Stif- tung). The Seminary no longer exists in Wrocław, but some of its extant manuscripts found by the Poles in Silesia after the war had been held and catalogued by the Jew- ish Historical Institute in Warsaw. A particularly valuable component of the Bre- slau Seminary, however, was discovered in Prague, namely, 40 Hebrew manuscripts and incunabula of the Saraval Collection. In April 2003, the Jewish Religious Com- munity of Wrocław, legal heir to the Theological Seminary, asked the Polish Min- istry of Foreign Affairs for help in recovering the collection. The Czech side agreed to return the works, and an appropriate bilateral agreement was concluded. On 7 December 2004, during a visit of the Polish President to Prague, the 40 manuscripts and incunabula were handed over, while the Czech National Library retained digital copies, now displayed on their web site.66 Shortly afterward, the manuscripts and incunabula were returned to Wrocław, where the Jewish Community deposited them at the University Library.67 The Breslau Hebrew manuscripts in Moscow are described in a 2003 catalog, the first published description of trophy Judaica in Russia. This includes the ones in RGVA and also some of the Breslau manuscripts that had been transferred from the Special Archive (TsGOA) to the Lenin State Library (RGB) in 1949 and are now held in the successor Russian State Library (RGB).68 Recently more detailed SD (security police) documents about the seizure of the Breslau library in 1938 and its transport to Berlin have surfaced in the Bundesarchiv in Berlin.69 Given Russian procedures for blanket archival restitution country by country, however, an individual claim for the Breslau manuscripts described in Moscow could not be appropriately processed by the Polish side. Negotiations for more general restitution of Polish archival materials, however, are still pending.

Czech Republic

The Czech State Archives have been very forthcoming in restitution after 1989, with a major return of Dutch Jewish Community records to the Netherlands in December 2000, while the formal claim for the Dutch archives from Russia was still pending.70 And as mentioned earlier, the Czech National Library returned the Breslau Seminary Saraval manuscripts to Poland, but some fragmentary Czech archives still remain in Russia. An archivist from the Czech Republic surveyed files of Czech provenance in the Special Archive in 2002, and her report appeared in the Czech archival journal.71 A few files from the papers of the lawyer, Zionist WHY DO ARCHIVES GO HOME? 317 leader, and president of the Jewish Party in Czechoslovakia, Emil Margulies (1910– 1936), make up the only Czech Jewish fond listed in RGVA.72 Although hardly as significant as those from other countries, so far no arrangements have been made for the return of any of the Czech materials.

Former Yugoslavia

Five Jewish fonds remaining in RGVA contain files from the former Yugoslavia (Belgrade, Ragusa [Dubrovnik], and Zagreb) and have been described in some detail in the general guide to Jewish holdings already mentioned.73 A group of 35 files from the fond of B’nai B’rith were among those returned to Yugoslavia in 1956, but some 60 files remain, some of which are of Greek provenance. Among the most important other groups of records, a much larger fond remains with documentation from the Committee to Aid Jewish Refugees established by the Jewish Community in Zagreb. Visiting Croatian archivists are aware of these records, but so far as is known, no formal claim proceedings under terms of the current Russian 1998 law have been initiated. Part of the problem may well be that negotiations are still pending among successor states about fate of the archival legacy of former consolidated Yugoslavia.

Germany: NS-Period Records

In sharp contrast to archives from other European countries, German records have not gone home, despite the 1992 agreement with the Bundesarchiv for their return. Their return is now prohibited under the 1998 Russian law, which the Ger- man government has refused to recognize, because of its direct conflict with Russian-German Treaty on Good Neighborliness, Partnership and Cooperation of 1990 and the Cultural Agreement of 1993. German and Russian archivists are not optimistic about a change of policy with respect to archives, given the vehemence of antirestitution sentiment in Russian political circles and in the public at large. Nevertheless, there have been some positive steps between German and Russian archivists, such as the joint project for microfilming and database description of the records of the Soviet Military Administration in Germany (SVAG/SMAD), although those are Russian agency records as opposed to records of German agency provenance. Provisions have been made for photocopies to be made of some of the concentration camp records, such as those from Sachsenhausen and Ausch- witz, but the originals still remain in RGVA. More public attention has centered on the even more valuable collections of works of art from German museums and private collections still in Russia, which, as shown in several other contributions in this issue, especially those by Wolfgang Eichwede and Konstantin Akinsha on the Bremen Kunsthalle Collection, have not yet been resolved. Be that as it may, a great deal of importance should also be placed on the extensive German NS-period wartime records held in Moscow in terms of their value for 318 PATRICIA KENNEDY GRIMSTED

World War II and specifically Holocaust-related cultural assets research. By contrast in the 1960s, it should be remembered, the British and Americans returned to West Germany almost all the records they had captured, many from the same German agency record groups that remain in Moscow. For example, records of the RSHA (including SD and Gestapo), the Reichsarchiv and the Heeresarchiv (Military Archives) now form the basis for the appropriate record groups in the Bundesarchiv, but missing files remain in Moscow. Many of the documents in RGVA thus belong to contingent files now held in Germany, thus complicating research, even more so because many of the files in Moscow are not optimally arranged or accurately described.74 When united with the rest of the fonds now in the Bundesarchiv, the Moscow documents could help researchers determine the fate of other displaced cultural valuables, to say nothing of displaced people. For example, it was only by identifying and obtaining copies of documents from Moscow to combine with those in Berlin, along with some from other sources, that I was able to piece together the story of the fate of upwards of one million plundered books that ended the war in four Sudeten castles now in the Czech Republic.75 Among many other examples are reports of specific SD (security police) seizure of numerous important private archives and libraries from Paris. Not only do many SD reports on the French Communist Party and left-wing French intellectuals remain in Moscow, but they were transferred to the former Central CP archive, and today still remain classified in its successor (now the Russian State Archive of Socio- Political History—RGASPI).76 There is a German register of all of the French archives brought to the special German RSHA French information office (Auswertungsstelle Frankreich) in Berlin (August 1940–September 1942), many of which were subsequently evacuated to northern Bohemia (then the Sudeten- land), and thereby among the French archives captured by one of Beria’s special squads in 1945 (Figure 8).77 Another original German SD analysis file incorporates an original Dutch stenographic transcript of a Masonic lodge meeting in The Hague just before the German invasion, at which members were planning rescue efforts for Jews.78 Still not returned, but of great importance in tracing wartime archival seizures, are the German inventories of the French military archives that were prepared in the top-secret Wannsee center under the Heeresarchiv (Figure 9), along with the administrative documentation from the Heeresarchiv, with documents regarding the German capture of those archives in France, Belgium, and the Neth- erlands. Other reports detail military-related archives removed from Poland, Ukraine, and elsewhere in Eastern Europe, all of which, together with other materials in the Bundesarchiv-Militärchiv in Freiburg, could help track archival plunder and migration during the war. Other related documents have recently turned up in Freiburg.79 Also among German Military Archive (Heeresarchiv) records in Moscow are the original German maps and plans for the invasion of France in 1940 (Figure 10). There may be a legal hassle over which country should claim that particular file, since those plans had been captured by the French before the WHY DO ARCHIVES GO HOME? 319

FIGURE 8. Cover and sample fold-out pages of the RSHA Amt IV register of captured French archival materials received in Berlin—‘Tagebuch der Auswertungsstelle Frankreich– Berlin, Neue Friedrichstr. 50’ (18 Aug. 1940–14 Sep. 1942), with an archival file (delo) label from the Soviet Special Archive (TsGOA SSSR) pasted on top. The open page (no. 1) in- dicates receipt of French Sûreté files. (RGVA, fond 500k/1/215). Photo by Patricia Grim- sted, courtesy of RGVA invasion, and they are still filed in the French Ministry of Defense envelope in which they were filed when the Germans recaptured them in Paris!80 Many Russian archivists, and even more Russian politicians, are now of the opinion that German N-S period records should never go back to Germany. Quite in

FIGURE 9. Official stamp of the Heeresarchiv top-secret facility in Berlin-Wannsee found on most incoming administrative documents. The records of this facility, little known before recently, are split between Moscow (RGVA)and Freiburg (Bundesarchiv-Militärarchiv). Example from RGVA, fond 1256k/2/67, folio 29. Photo by Patricia Grimsted, courtesy of RGVA 320 PATRICIA KENNEDY GRIMSTED

FIGURE 10. A French-captured folder of German maps and plans for the German invasion of France in June 1940 (“Documents allemands 1939/40”). The folder with documents first captured by the French, was later recaptured by the Germans in Paris, transferred to the Heeresarchiv branch in Berlin-Wannsee (the no. ‘21’ being a Wannsee number), then captured by the Soviets in Wannsee in May 1945, and now held in RGVA in Moscow (the current archival signature appears below the French and German labels). Visible to right is the French Ministry of Defence envelope in which the maps and plans are still kept in RGVA today among the captured German Heeresarchiv records. The German map of northern France in the background shows the intended assault on Paris (circled in red). (RGVA, fond 1256k/2/25) Photo by Patricia Grimsted, courtesy of RGVA contrast, and by chance, when the French military records returned to Paris (Vin- cennes) in 1994, French archivists found five archival boxes with maps, plans, and other documents of German provenance, which they returned to the Bundesar- chiv in May 1997. France, like Russia, was also brutally victimized by the Third Reich, but French military archivists today understand international professional archival standards and the historical importance of reuniting displaced archives with their archival home.81 In addition to the 11 folders of trophy Rathenau personal papers from the Russian Foreign Ministry Archive (AVP RF) returned per- sonally by President Yeltsin in 1997 (mentioned earlier), those are the only documents of German provenance to have been returned from Moscow since 1990. Starting in the summer of 2008, some progress was made in identification and description of German Jewish archives in RGVA, with the official visit of several Jew- WHY DO ARCHIVES GO HOME? 321 ish archival specialists from Berlin. But that is only a beginning, to be sure, and certainly the German Jewish archives in Moscow deserve to be among the top priority for return. Many German Masonic files and also some valuable books also remain in RGVA, and even under the 1998/2000 law, those too should come under the category of individuals and organizations victimized by the National Socialist regime.

Jewish Documentation and the Council of Europe Resolution 1205 (1999)

Worthy of particular note, in all of the country holdings already mentioned remaining in RGVA, is the extent of documentation of Jewish provenance, most of which was seized by N-S agencies in connection with their implementation of the “Final Solution,” anti-Jewish, anti-Bolshevik, and anti-Masonic research and propaganda efforts. The Holocaust-Era Assets conference in Prague under the Czech presidency of the European Union in June 2009 again brought such matters into focus, although there were no presentations emphasizing displaced cultural valuables from or still held in Russia, Ukraine, or other countries of the former Soviet Union.82 The conference was purportedly a follow-up on the Washington Con- ference on Holocaust-Era Assets in 1998. A decade ago, three years after Russia became a member of the Council of Eu- rope, CoE Resolution 1205 (1999) made a special appeal to “the parliaments of all member states to give immediate consideration to ways in which they may be able to facilitate the return of looted Jewish cultural property.”83 At several points, the resolution made specific mention of Russia, but the 2000 amendments to the 1998 Russian cultural property law did not take such matters into account and made it even harder for looted Austrian and especially German Jewish property to be returned. Resolutions of the Vilnius Conference of Holocaust-Era Assets in 2000 again called upon European countries to comply.84 Although Russia remains a member of the CoE, it has shown little inclination to ease restrictions on the return of Jewish-owned archives and other cultural property. At least in the case of Western Europe and the Rothschild family, many Jewish Holocaust–related archives already have returned, although some important Jew- ish and Masonic archives from France remain in RGVA. But since the 1998/2000 law and implementation procedures, there has been no attempt to single out Jew- ish property as distinct from any other or to suggest it be given specific attention in terms of restitution. Rosarkhiv restitution negotiations have been only on a bilateral country-by-country basis. Perhaps now, in the wake of decisions to return more Austrian Jewish archives, consideration will be given to those of Jewish provenance from Germany, as well as those from other victims of the N-S regime from other countries remaining in RGVA. As mentioned earlier, Jewish archival materials in the Special Archive were frequently left undescribed, or at best inad- 322 PATRICIA KENNEDY GRIMSTED equately described, during the Soviet period. Since 1991 considerable foreign financial and technical assistance has brought noticeable improvements in the description of Jewish holdings, although much more is needed, just as much more is needed for art and library books from victims of the Holocaust.

United States: A Demand for Archival and Library Restitution from Russia in American Courts: The Chabad Case

Some Jewish holdings in RGVA may also elicit claims from institutions now based in the United States or from heirs of Holocaust victims who are now American citizens. But provisions for such claims are not facilitated, and are certainly not clear cut, in the 1998 Russian law. Perhaps as a result, recently a claim for restitution of records captured by Soviet authorities and now held in Moscow is being heard in U.S. courts. The potential importance of this case, with a default judgment against the Russian Federation in July 2010, explain the separate article devoted to it by Michael Bazler and Seth Gerber in this issue. On the eve of the war, the Hassidic community of Agudas Chasidei Chabad reestablished and incorporated itself in Brooklyn after fleeing from the Soviet Union in the 1920s, and then from Poland and Latvia in the 1930s. Ever since, under the leadership of Rebbe Schneersohn and his successors, they have been trying to retrieve their library that was left behind in a Moscow warehouse, then nationalized and hidden away until the period of glasnost by the former Lenin Library (now the Russian State Library—RGB).85 In trying to recover their library, the Chabad have appealed and won the support of many American presidents. They took their case to Russian courts in 1991 and received a favorable court decision, but RGB never implemented the Moscow court order.86 The Chabad discovered only in the late 1990s that RGVA held some of Rebbe Schneersohn’s papers that had been left in Warsaw when he fled Poland in 1939. These had subsequently been captured by the Nazis and then by the Soviets, presumably from the RSHA archival center in Silesia in 1945. Today they are held as a separate fond in the former Special Archive (now RGVA).87 Following the success of Austrian heirs seeking restitution of art from Austria in U.S. District Court in California, the Chabad filed suit several years ago in the same court, but the case was transferred to the U.S. District Court in Washington, DC. In a December 2006 decision, the court declared its right of jurisdiction in the case of the archives. To quote a fragment of that decision,

. . . this Court bases its jurisdiction over Chabad’s claims to the Archive on Nazi Germany’s illegal appropriation of the Archive in Poland during World War II and its subsequent illegal appropriation by the Soviet Army in Poland in 1945.88 Another step in the appeal process was heard in a U.S. District Appeals Court with an even more favorable decision for the Chabad in June 2008, suggesting the WHY DO ARCHIVES GO HOME? 323 possibility that they could legally claim their library books still held in the Russian State Library (RGB) as well.89 The judge explained that the Chabad did not have a viable alternative to pursue restitution under the terms of the Russian law, because even if they were to file a successful claim under the 1998 law, the Chabad would still have to pay dearly in compensation to retrieve their books and archive from the Russian Federation. Even before the court had finished proceedings, the Russian Federation withdrew from the case in June 2009, disputing the compe- tency of a U.S. court to adjudicate such matters. Although the case could have potential legal implications for related claims by other American citizens for captured archives, and other cultural assets, displaced from the Second World War and still held in Russia, the fact of Russian withdrawal does not suggest this an easy route for other American claims. Nonetheless, it is now important to consider what U.S. judges have to say in the 30 July 2010 default judgment about the illegality of the Russian seizures and retention of foreign cultural assets.90

Afterword Quite coincidentally, one of the Chabad’s earlier attempts to gain U.S. support for their claim against Russia also has ironic relevance for our analysis of archival restitution and our opening reference to the Duma embargo and debates on the Russian 1998 law. In fact, the Chabad effort, with the support of then Senator Al Gore, may well have inspired the Duma 1994 debates, and certainly the reference to the U.S.-held files from the “Smolensk Archive” (discussed earlier), which started after the Russian deputies sent the French trucks home empty. The return to Rus- sia of the “Smolensk Archive” had been scheduled to take place during the U.S.- Russian presidential summit in Washington in May 1992. In a move of political support for the Chabad claim in Moscow, then Senator Al Gore led the U.S. Sen- ate in March 1992 to a resolution that blocked the projected U.S. return of the “Smolensk Archive”, against the advice of the State Department and the U.S. Na- tional Archives. Undoubtedly the U.S. senators never knew that they thereby gave the Duma lawmakers an unfortunate example two years later to block the return of the French archives. The Senate resolution and continuing efforts of Vice Pres- ident Al Gore held the “Smolensk Archive” hostage for the recovery of the Chabad Library from Moscow for another 10 years. The example of the “Smolensk Ar- chive” in the United States was in fact aired in the Russian Duma debate over the 1998 law. The unfortunate deadlock in the United States, however, could be bro- ken only a decade later in 2002, under a new U.S. president, through the efforts of the New York–based Commission for Art Recovery, in connection with their joint project to identify and describe Holocaust-related assets in Russia.91 324 PATRICIA KENNEDY GRIMSTED

ENDNOTES

1. See Akinsha, “Why Can’t Private Art ‘Trophies’ Go Home from the War?” in this issue. 2. See Grimsted, et al., Returned from Russia. The present article updates my contribution to Part I of that volume, “From Nazi Plunder to Russian Restitution,” and earlier publications on the subject, most of which are listed (many with full text or hot links) at ͗http:/www.iisg.nl/archives- and-restitution/bibliography.php͘. The archival term “fond” has been anglicized, as is frequent in international archival usage. The Russian term came to the Soviet Union from the French fonds, meaning an integral group of records or a collection from a single office or source. American archivists prefer the more technical term “record group,” which in British usage would normally be “archive group.” 3. Ella Maksimova, “Piat’ dnei v Osobom arkhive,” Izvestiia, 18–22 February 1990 (nos. 49–53), based on an interview with TsGOA director Anatolii Prokopenko. 4. Evgenii Kuz’min, “Taina tserkvi v Uzkom,” 10. 5. Evgenii Kuz’min, “‘Vyvezti. . . unichtozhit.’ . . spriatat’ . . .’ Sud’by trofeinykh arkhivov” (interview with P. K. Grimsted), Literaturnaia gazeta, no. 39 (2 October 1991), 13. It took a year for the Kuz’min to verify and get permission to publish the interview with me. 6. Ella Maksimova, “Arkhivy Frantsuzskoi razvedki skryvali na Leningradskom shosse” (interview with Anatolii Prokopenko), Izvestiia, no. 240 (9 October 1991). 7. “Agreement between the Committee on Archival Affairs under the Government of the Rus- sian Federation and the Central Direction of State Archives of the Netherlands, of the 21st of March 1992” [Soglashenie mezhdu Komitetom po delam arkhivov pri Pravitel’stve Rossiiskoi Federatsii i Tsentral’noi direktsiei gosudarstvennykh arkhivov Niderlandov], as published in English translation in Grimsted et al., Returned from Russia, 261. 8. I was living in Moscow at the time working on a computerized archival directory, Archeo- BiblioBase; Kozlov was my Russian counterpart in the project then funded by the International Re- search & Exchanges Board, the National Endowment for the Humanities, and the International Institute of Social History (Amsterdam), with which I was associated as an honorary fellow. I became close friends with the group of archivists with which he was associated. 9. See Ketelaar, “The Return of the Dutch Archives,” 240–49, and the legal instruments involved, 261–67. 10. See more comments on the Koenigs Collection in Grimsted, “Legalizing ‘Compensation’ and the Spoils of War,” in this issue. 11. “Agreement on Cooperation between the Bundesarchiv of the Federal Republic of Germany and the Committee on Archival Affairs of the Government of the Russian Federation,” signed 2 July 1992; German text: “Vereinbarung über die Zusammenarbeit zwischen dem Bundesarchiv der Bundes- republik Deutschland und dem Komitee für Archivangelegenheiten bei der Regierung der Russis- chen Föderation,”signed on 2 July 1992 by Rudolf Pikhoia and Friedrich Kahlenberg (the Agreement was not published). 12. See the enabling document, “O peredache Federativnoi Respublike Germaniia arkhivnykh materialov, otnosiashchikhsia k V. Ratenau v obmen na rukopisi i arkhivy rossiiskogo proiskhozhdeniia, imeiushchie istoricheskuiu i kul’turnuiu tsennost’ dlia Rossii”: Rasporiazhenie Prezidenta RF, 16th April 1997, no. 134-rp, Sobranie zakonodatel’stva RF, 1997, no. 16 (21 April), st. 1892; available at ͗http://www.lawsector.ru/data/dok67/txb67504.htm͘. 13. RGVA, fond 634k, 419 files, dating from 1866–1935. 14. See Steenhaut and Vermote, “Mission to Moscow”; Lust et al., “Een Zoektocht naar Archieve.” See also the guide to Belgian fonds in TsGVA: Fondy bel’giiskogo proiskhozhdeniia; and in a Dutch edition: Michel Vermote et al., Fondsen van Belgische herkomst. Through my Amsterdam (IISH) association, I became close friends with Belgian Amsab colleagues and frequently consulted with them about their “mission to Moscow.” 15. See Lust and Vermote, “Papieren Bitte!,” esp. 210–16, and the legal instruments involved, 226–30. WHY DO ARCHIVES GO HOME? 325

16. “Agreement between the Government of the French Republic and the Government of the Russian Federation on cooperation in matters of public archives,” 12 November 1992; English translation: Grimsted et al., Returned from Russia, ch. 6, 148–52; French text: “Accord entre le Gouverne- ment de la République Française et le Gouvernement de la Fédération de Russie sur la coopération en matière d’archives publiques,” Decree no. 93–901, Journal officiel de la République française (Paris, 16 July 1993), 10011–13; ͗http://admi.net/jo/19930716/MAEJ9330027D.html͘; Russian text: “So- glashenie mezhdu Pravitel’stvom Rossiiskoi Federatsii i Pravitel’stvom Frantsuzskoi Respubliki o sotrudnichestve v oblasti gosudarstvennykh arkhivov” (Paris, 12 November 1992), Biulleten’ mezh- dunarodnykh dogovorov, 1994, no. 6, 23–25; available at ͗http://www.lawsector.ru/data/dos02/ txc02425.htm͘. Quite by chance, I was in Paris lecturing about the French archives in Moscow and consulting with French archivists at the time the agreement was signed. 17. See my preliminary discussion of this matter in my earlier monograph, ch. 3, “Provenance, Pertinence, and Patrimony: International Historical and Legal Precedents,” in Trophies of War and Empire, 83–136. 18. First published in Actes de la Sixième conference internationale de la Table ronde des archives; reprinted in Council of Europe, “Dossier on Archival Claims,” 33; available on the ICA web site. 19. UNESCO, “Report of the Director-General on the Study on the Possibility of Transferring Documents from Archives Constituted within the Territory of Other Countries or Relating to their History, within the Framework of Bilateral Agreements,” Nairobi, 1976 (19C/94, § 3.1.1); Reprinted in Grimsted, Trophies of War and Empire, 89. See also my article, “From Nazi Plunder to Russian Restitution: The International Framework for the Restitution of Archives,” 295–99. 20. “Resolutions of the XXX International Conference of the Round Table on Archives (CITRA).” The Russian delegation was one of the only two abstentions. I was sitting with them at the time, having been invited to the CITRA meeting as a consultant by the ICA, of which I have long been an individual member. 21. Council of Europe Parliamentary Assembly, Opinion No. 193 (1996) “On Russia’s Request for Membership of the Council of Europe,” adopted by the Assembly on 25 January 1996, when Russia was admitted to membership on its basis. 22. The full text of the Dossier on Archival Claims, compiled by Hervé Bastien, is now available on the ICA web site ͗http://www.ica.org/en/node/39083͘. See more background details in Grimsted, Trophies of War and Empire, ch. 3, “Provenance, Pertinence, and Patrimony: International Historical and Legal Precedents,” 83–136, and the related appendices. 23. See more details about the archives captured in earlier Grimsted reports, and most recently in the introductory chapters of Grimsted et al., Returned from Russia. 24. Kruglov to Beria (5 April 1945), GA RF, 5325/10/2025, fol. 4; a copy of the same list was addressed from Beria to Molotov (6 April 1945), fol. 5. See also the unregistered draft with a variant ending, fol. 3. 25. “Protokol soveshchaniia pri zam. nachal’nika Glavnogo arkhivnogo upravleniia NKVD SSSR— Izuchenie voprosa o sozdanii Osobogo Tsentral’nogo gosudarstvennogo arkhiva” (21 August 1945), GA RF, 5325/2/3623, fols. 2–3, 8. 26. “Protokol soveshchaniia” (21 August 1945), GA RF, 5325/2/3623, fol. 6v. 27. Ukazatel’ fondov inostrannogo proiskhozhdeniia. See the web site on the “Sonderarchiv” run by Sebastian Panwitz in Berlin, ͗http://www.sonderarchiv.de͘, with separate pages for literature and a list of fonds (nos. 500–1528), predominantly German and Austrian, some with helpful annotations. 28. RGVA, fond 1432k, obzor; in the case of that fond no opis’ is available today, which was one of the explanations for the delay in the restitution of the Dutch files that had been claimed by the Netherlands. Eric Ketelaar alerted me to this problem, and I subsequently examined the obzor in RGVA. 29. Fishman et al., Nazi-Looted Jewish Archives in Moscow; see also the earlier Russian edition, Dokumenty po istorii i kul’ture evreev. 30. Reinalter, Die deutschen und österreichischen Freimaurerbestände. Reinalter, however, made no attempt to verify the files in fond 1412k de visu, or correct the many errors in the Russian opisi. 326 PATRICIA KENNEDY GRIMSTED

31. Dutch Masonic archivist Evert Kwaadgras identified 260 files from Dutch lodges in fond 1412k that were returned to the Netherlands with the second round of Dutch archives in 2003. See Kwaadgras, “A Great Waste of Time and Energy,”306–309 (English) and at ͗http://www.libfl.ru/restitution/conf/ kwaadgras_e.html͘. 32. A leading Norwegian Masonic specialist Helge Horrisland, in a series of personal messages to the author, reports finding hundreds of files of Norwegian provenance and good cooperation with RGVA archivists. 33. Kruglov to Zhdanov (15 May 1946), GA RF, 5325/10/2023, fol. 46. The fonds from RZIA were opened for public research only in 1988. 34. Kruglov to Zhdanov (15 May 1946), GA RF, 5325/10/2023, fol. 46. 35. They were listed in a classified “secret” guide published in 1952, before they were further scattered to over thirty different archives and library collections in different parts of the USSR. See the guide Fondy Russkogo Zagranichnogo istoricheskogo arkhiva v Prage. Some of the fonds included had been captured in Paris, including documentation from the Paris Branch of the Insti- tute of Social History in Amsterdam, and papers of exiled Menshevik leader Boris Nikolaevskii, who headed the Branch. The “twice plundered” papers of exiled Russian foreign minister in the Provisional Government (1917) Pavel Miliukov, first seized from his home in Paris, were claimed by his heirs after the war, but it was only in the late 1980s that it was learned they were in Moscow. 36. Golubtsov to I. A. Serov, “Dokladnaia zapiska o rezul’tatakh obsledovaniia dokumental’nykh materialov germanskikh arkhivov, evakuirovannykh i ukrytykh v shakhtakh Saksonii” (Berlin, 24 October 1945), GA RF, 5325/2/1353, fol. 216. 37. G. Aleksandrov to TsK VKP(b) Secretary G.M. Malenkov, RGASPI, 17/125/308, fols. 49–51 (the quote is from fol. 51). 38. The theft from the Central State Archive of Early Acts (TsGADA), the so-called “Apostolov Affair” was described in print by Petrov and Chernyi, “Poteriavshi—plachem,” 9–11, who explained the impossibility of full prosecution of the alleged “inside” theft in a Soviet court. When the Bremen medieval records returned to Bremen in the early 1990s, for example, some 248 early charters and 1,387 maps from the Bremen Archive were missing, as a result of its migration. 39. See, for example, Baskakov and Shablovskii, “Vozvrashchenie arkhivnykh materialov,”and Tikh- vinskii, “Pomoshch’ Sovetskogo Soiuza.” 40. Kapran, “Mezhdunarodnoe sotrudnichestvo sovetskikh arkhivistov,” 33. 41. Kozlov, “Mezhdunarodnyi kollokvium arkhivistov v Parizhe,” 106–108. Cf. His memoir account, Kozlov, Bog sokhranial arkhivy Rossii, esp. 305–38. I recall his complaints to me in Moscow after his return from Paris in 1992. 42. One of the first French reports, by Thierry Wolton, “L’histoire de France dormait à Moscou” (interview with Anatolii Prokopenko), L’Express (21 November 1991), 82–83. By spring 1992 Proko- penko was Deputy Chairman of the Russian Committee for Archives (Roskomarkhiv) (after June 1992, Rosarkhiv) and involved in the restitution negotiations with France. 43. Rosarkhiv chair Vladimir Kozlov made this point in his presentation to a conference at the German Historical Institute in Moscow, 29 February 2009, “Tochka zreniia Rossii na problemu peremeshchennykh arkhivov”; he kindly gave me a copy of his paper, and I recall his attitudes while we were working together in the early 1990s. 44. See Grimsted, Archives of Russia Five Years After, esp. chs. 8 and 11. 45. IISG director Jaap Kloosterman and I, the only foreigners in attendance, were placed on the presidium. Since I was then living in Moscow most of the time, working with Rosarkhiv on a computerized directory of Russian archives, and knowledgeable about related foreign collections, I was called upon to assist and provide the keynote address. My presentation was published several versions in Moscow, even before the conference proceedings: Grimsted, “Arkhivnaia Rossika/ Sovetika.” 46. See Lust and Vermote, “Papieren Bitte!,” esp. 210–16, and the legal instruments involved, 215. 47. Such opposition appears in the Duma proceedings. See also Grimsted, “Legalizing ‘Compen- sation’ and the Spoils of War,” in this issue. WHY DO ARCHIVES GO HOME? 327

48. See the transcript of the State Duma session, “Federal’noe Sobranie, Parlament Rossiiskoi Federatsii,” 4, 26–33. See also, “Skandal, ne dostoinyi Rossii,” 5. 49. A more complete quotation from Belov’s communiqué (2 July 1965) in a declassified Central Committee file (RGANI, 5/35/212, fols. 158–59) and more contextual details were published in Grim- sted, The Odyssey of the “Smolensk Archive”, 79. 50. My report at a Moscow conference in 1992 was my first step in a personal ten-year campaign to get the 500 files from the Communist Party Archive in Smolensk held by the U.S. National Ar- chives returned to Russia. See more details in Grimsted, The Odyssey of the “Smolensk Archive”.The monograph cites other Moscow 1992 reports. 51. Vozvrashchenie “Smolenskogo arkhiva”/The Return of the “Smolensk Archive”. (See below for the U.S. side of the story in 1992.) 52. See the account of Kozlov, for example, Bog sokhranial arkhivy Rossii, esp. 320–24. 53. Some of the files of French provenance remaining in Moscow are identified in Grimsted et al., Returned from Russia, 184–88. Both Kozlov from the Russian side and archivists from the Quai d’Orsay have recounted their side of the story in personal meetings. 54. Details about the Liechtenstein return were documented in my article, “‘Trophy’ Archives and Non-Restitution”; the cover of the issue featured a picture of Prince Hans-Adam and his wife with Rus- sian Foreign Minister Evgenii Primakov at the exhibit of the Sokolov Collection opening in Moscow. 55. See the informative report by Victor Gray, now retired director of The Rothschild Archive, regarding the negotiations for restitution of the Rothschild archives from Austria, Grimsted et al., Returned from Russia, 286–96. 56. Jagschitz and Karner, Beuteakten aus O¨ sterreich. 57. Grimsted, “Flying Mercury ComesHometoPavlovsk.” 58. See the Russian authorizing decree: “O peredache Pravitel’stvu Avstriiskoi Respubliki 51 fonda arkhivnykh dokumentov avstriiskogo proiskhozhdeniia, peremeshchennykh v rezul’tate Vtoroi miro- voi voiny”: Postanovlenie Pravitel’stva RF, 8 November 2006, no. 658; Russian text: Sobranie zakonodatel’stva RF, 2006, no. 46 (13 November), st. 4805, 12884–86, available at ͗http://lostart.ru/ documents/detail.php?IDϭ883͘. 58a. Edward Steiner, “Moskau gibt erstmals geraubte Kulturgüter zurück,” Die Presse, 8 June 2009 ͗http://diepresse.com/home/kultur/kunst/485745/index.do͘. 59. Rukopisi i arkhivnye dokumenty Evreiskoi obshchiny goroda Veny/Manuscripts and Archival Doc- uments of the Vienna Jewish Community, available as a free download at ͗http://www.libfl.ru/ restitution/catalogs/index.html͘. 60. Some specialists, including Benjamin Richler in Jerusalem, suspect that some of the Hebrew manuscripts from IKG that have surfaced on auction in New York may have in fact disappeared from RGB. See Grimsted, “Flying Mercury Comes Home to Pavlovsk,” 128. 61. The proceedings were published in the ICA journal Janus, 1995, and as a separate volume: Archival Dependencies in the Information Age, CITRA 1993–1995. The resolutions are available on the ICA web site ͗http://www.ica.org͘. 62. The Thessalonica Community records (RGVA, fond 1428k; 297 file units; 1919–1941) and those from Athens (fond 1427k; 112 file units; 1901–1942) were both filmed by a specialist from Tel Aviv University, but the database finding aid is still not publicly available. Two smaller fonds comprise records of Zionist offices in Thessalonica involved with assisting the emigration of Jews to Palestine (fond 1435k and 1437k). There are a few additional files of Greek Jewish provenance, such as files of B’nai B’rith from Greece and Yugoslavia (fond 1225k). Copies of all of the Greek fonds are now available in USHMM. 63. The Thessalonica holdings on microfilm in USHMM have been assigned to the following record groups: RG-11.001M.51 (RGVA, fond 1428k) RG-11.001M.42 (RGVA, fond 1437k), and RG- 11.001M.53 (RGVA, fond 1435k). Finding aids are still being finalized. 64. The YIVO Thessalonica holdings constitute RG 207. 65. Archiwalia polskiej proweniencii, ed. Ste˛pniak. The first part provides annotated descriptions of prerevolutionary records now held in the State Archive of the Russian Federation (GA RF), (pp. 23–106), and the second part describes captured records from the interwar Republic of Poland 328 PATRICIA KENNEDY GRIMSTED and the Gdan´sk (Ger. Danzig) region in the former Special Archive that are now part of RGVA (pp. 107–44). 66. See Grimsted, “Silesian Crossroads for Europe’s Displaced Books,” 161–66; and Cies´lin´ska- Lobkowicz, “Raub und Rückführung der Leon Vita Saraval Sammlung.” The digitized texts of the Saraval manuscripts are available in the “Manuscriptorium” catalogue at the Clementinium web site ͗http://www.nkp.cz͘. 67. See the Polish Foreign Ministry web site: “Manuscripts and incunabula from the Jewish Theo- logical Seminary in Wrocław,” ͗http://www.msz.gov.pl/Manuscripts,and,incunabula,from,the, Jewish,Theological,Seminary,in,Wroclaw,27636.html͘. 68. See the catalogue of Hebrew manuscripts from Breslau, Katalog rukopisei i arkhivnykh materialov iz Evreiskoi teologicheskoi seminarii goroda Breslau/Catalogue of Manuscripts and Archival Ma- terials of Juedisch-Theologisches Seminar in Breslau, available as a free PDF download at ͗http://www.libfl.ru/restitution/catalogs/index.html͘. 69. Among the documentation on the Breslau seizures are SD reports are found scattered in the Bundesarchiv in Berlin-Lichterfelde, among them for example, BArch, R 58/6380b and R 58/6424, Tiel 1.V2 (alt ZB1–0648). 70. See Vlessing, “Dutch-Jewish Archives Come Home,” 254–55. 71. Sedláková, “Studijni pobyt Moskveˇ.” 72. RGVA, fond 705k, as described briefly in Dokumenty po istorii i kul’ture evreev, 156. See the forthcoming English edition, Fishman et al., ed., Nazi-Looted Jewish Archives in Moscow. 73. The Jewish records from Belgrade, Zagreb, and Dubrovnik (Ragusa) are described briefly in Dokumenty po istorii i kul’ture evreev, 105–14. See the forthcoming English edition, Fishman et al., ed., Nazi-Looted Jewish Archives in Moscow. 74. The most detailed description of German records remaining in Moscow is now the German web site run by Sebastian Panwitz in Berlin, ͗http://www.sonderarchiv.de͘, with separate pages for descriptive literature, publications, and lists of fonds with some helpful annotations. 75. See Grimsted, “Sudeten Crossroads for Europe’s Displaced Books.” 76. I have been able to note specific files transferred and numerous attempts to gain access, while Kyrill Anderson was still director of RGASPI, but those files were never processed in the former Communist Party Archive, and have never been prepared for declassification. 77. See Grimsted et al., Returned from Russia, 38–46. 78. Some examples are mentioned in Grimsted et al., Returned from Russia, 53–55. 79. These seizures are all documented in more detail in my introductory Part I, “From Nazi Plun- der to Russian Restitution,” in Grimsted et al., Returned from Russia. 80. See Grimsted et al., in Returned from Russia, 24. 81. See von Jena, in Mitteilungen aus dem Bundesarchiv, 77. 82. Many of the presentations and conference resolutions are available on the conference web site, ͗http://www.holocausteraassets.eu͘; see also details about the conference on the web site of the Central Registry of Information on Looted Cultural Property 1933–1945 (London), ͗http:// www.lootedart.com/NN9Q2D763901͘. 83. The text of the Resolution is available on the Internet at ͗http://assembly.coe.int/ Main.asp?linkϭ/Documents/AdoptedText/ta99/ERES1205.htm͘, as extracted from the Official Ga- zette of the Council of Europe (November 1999). 84. The conference web site is no longer available, but information about the Vilnius conference is found on the web site of the Central Registry of Information on Looted Cultural Property 1933– 1945 (London), ͗http://lootedart.com/MG8D3S6604͘. 85. See the compendium Separating Fact from Fiction, copies of which were distributed at the hearing in the U.S. Senate. 86. See the full Russian court citations in the final section of Grimsted, “Russian Legal Instru- ments” Appendix 2 in this issue, and facsimile extracts in the Chabad Compendium, Separating Fact from Fiction. 87. See the brief description of Schneersohn fond 706k in Dokumenty po istorii i kul’ture evreev, 157–59. See the forthcoming English edition, Fishman et al., ed., Nazi-Looted Jewish Archives in Mos- WHY DO ARCHIVES GO HOME? 329 cow. RGVA identifies it as the personal papers of Rebbe Isaac Schneersohn (1920–1950). The description notes that a few Schneersohn documents are also intermixed in fond 707k, representing the Jewish Community of Vienna. 88. Agudas Chasidei Chabad of United States, Plaintiff, v. Russian Federation, et al., Defendants, 466 F. Supp. 2d, DDC., December 4, 2006, Civ. Action No. 05–01548 (RCL), United States District Court for the District of Columbia, 2006 U.S. dist. LEXIS 878148. 89. Agudas Chasidei Chabad of United States, Appellee/Cross-Appellant, v. Russian Federation, Rus- sian Ministry of Mass Communications, Russian State Library, and Russian State Military Archive, Appellants/Cross-Appellees, 2008 June 13, No. 07–7002 (consolidated with 07–7006), United States Court of Appeals for the District of Columbia. 90. See the article by Bazyler and Gerber, “Chabad v. Russian Federation: A Case Study,” in this issue. This point was made in a helpful summary of the case presented by Howard Spiegler of Her- rick Feinstein, LLP, at a panel at the Conference of the American Association for the Advancement of Slavic Studies in Boston, November 2009. Spiegler’s outline and the related Court Orders are available on the website of the Commission for Art Recovery: ͗http:www.commartrecovery.org/ Russian/chabad.php͘. 91. The background story was described in some detail by Akinsha (with Patricia Grimsted), “Put’ nazad: Biblioteka Shneersona”/“On the Way Back.”

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