Saturday, June 28, 2008

Jewish Books From Iraq Smuggled to Israel

I found this article to be of interest:

As indicated in a prior post, similar materials have also been saved by others and then donated to synagogues both here and abroad: with the following link:

Will the archaeological community demand the repatriation of these artifacts to Iraq even though the Jewish congregations that created and used these artifacts for liturgical purposes no longer exist? Stay tuned.


Don Thieme said...

It would seem to me that the Iraqi archives have a stronger claim to an historic Iraqi Torah than some affluent synagogue here in suburban Maryland.

I wonder whether anyone thought to inquire as to whether any members of the bombed synagogue from which the Torah came remain in Iraq?

Cultural Property Observer said...

It started innocently enough, or so I thought. I mentioned the article about the Save the Torah Foundation on the IraqCrisis list, observing that its removal from Iraq appeared to have been sanctioned by the US Military. That prompted a large number of posts on that list, with certain members of the archaeological community opining that any such action must be illegal under Iraqi and US law, and hence the perpetrators should be punished.

I guess Chuck Jones tired of my responses to others as he refused to post my response to Patty Gerstenblith. I attach it here as a consequence:


Thanks for your note. A couple of points:

First, under trade sanctions, the issue is whether the artifact was "illegally removed." If you go back through my posts, I indicated that the article suggested that the Torah was not illegally removed as the removal was sanctioned by US military authorities.

Further on that point, here is what someone named "Voz Earl" posted on the SafeCorner website in response to Paul Bradford's story:

According to the site

"Youlus, who lives in Cheswolde, said he has saved five scrolls in Iraq through his Rockville-based Save A Torah Foundation. The organization has rescued 557 Torahs and estimates more than 2,000 remain to be saved in Eastern Europe and elsewhere.

The organization says it researches the history of the scrolls before it buys them and returns them to their owners, if possible. In this case, Youlus said, he consulted international lawyers and Iraqi government officials to ensure the parchment was not covered by antiquities laws. As for an item such as this one, which was found in a severely bombed building, "anybody who wants to take it, takes it," he said."

This too suggests that the Torah was not 'illegally removed."

Second, restrictions have now been promulgated under the CPIA. I suspect you believe that Torahs were listed properly. I have my doubts that the criteria for emergency restrictions have been met for all the types of artifacts on the designated list, but will not belabor the point here.

Third, thank you for confirming that there was no explicit discussion you recall in Congress whether restrictions would cover Torahs. We will have to speculate on the reaction if the issue were ever raised specifically.

Finally, with respect to the "coin exemption," I have email confirmation from Congressman English's office that he promised to include a "coin exemption" into his bill, but as you recall, his bill was ultimately replaced by another bill sponsored by the House Ways and Means Committee Chair. That bill did not offer any exemptions. Rather, it left the discretion of what to put on the designated list to the State Department. The bill also provided for a "bypas" of CPAC review so we were not given the opportunity to comment publicly on why coins should be excluded. Nor was CPAC allowed an opportunity to study the matter and make its own recommendations.

Best regards,

Peter Tompa

-----Original Message-----
From: Gerstenblith, Patty
Sent: Mon, 30 Jun 2008 6:38 pm
Subject: RE: [Iraqcrisis] Rare Iraqi Jewish books 'surface in Israel'

To the Iraq-crisis community,

As requested by Peter Tompa and in response to a variety of comments that have been posted over the past few days, I would like to clarify the legal status of the importation of cultural materials from Iraq into the United States.

In fulfillment of obligations under Security Council Resolution 661 of August 1990, the President of the United States imposed sanctions against Iraq under Executive Orders 12722 and 12744, pursuant to the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-07. All goods, including cultural objects, from Iraq had therefore been barred from entry into the United States since August of 1990 under the general sanctions. Contrary to one assertion in the recent postings, I know of at least one Iraqi cultural artifact that was seized and forfeited by the U.S. government on the basis of both the general sanctions and other applicable U.S. laws.

On May 22, 2003, the United Nations Security Council passed Resolution 1483, calling for the lifting of the general sanctions. However, it provides in paragraph 7 that the Security Council
Decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of resolution 661 (1990) of 6 August 1990, including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph.

This provision calls on all United Nations Member States to prohibit trade in and to adopt other means to ensure return to Iraq of all cultural objects, not just those taken from the museums and other public institutions, but also those taken from other locations. The resolution was adopted under Chapter VII of the United Nations Charter and is therefore legally binding on all UN Member States.

On May 23, 2003, the day after UNSCR 1483 was passed, the United States lifted trade sanctions on goods from Iraq by granting a general license for such goods. However, certain goods were exempted from this general license, including “Iraqi cultural property or other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since August 6, 1990. Any trade in or transfer of such items including items with respect to which reasonable suspicion exists that they have been illegally removed, remains prohibited by subpart B of 31 CFR part 575.” 31 CFR 575.533 (b)(4)

The UN Security Council Resolution was also the basis for Congress’ enactment of the Emergency Protection for Iraqi Cultural Antiquities Act in late 2004. Sections 3001-03, P.L. 108-429. This legislation fulfills the United States’ obligations under Article 48 of the United Nations Charter to implement the Security Council Resolution. Most notably, the legislation adopts the broad definitions of cultural property to be protected given in UNSCR 1483, in place of the narrower definitions of archaeological and ethnological material given in the Convention on Cultural Property Implementation Act and is the basis for the list of designated cultural materials promulgated when the United States imposed import restrictions pursuant to this legislation. 73 Fed. Reg. 23334-42 (Apr. 30, 2008).

It is worth noting that several other countries enacted specific legislation to prohibit import of illegally removed Iraqi cultural materials, also using the broad language of the Security Council Resolution. These nations include the United Kingdom and Switzerland, as well as the European Union.

Peter specifically asked whether the question of Torahs came up during the conversations that led to enactment of the special Iraq legislation. I do not recall mention of Torahs during such conversations but, then again, there were few specific categories of cultural objects discussed, other than coins for which an exemption from these trade restrictions was sought. I further emphasize that it was not necessary to discuss any other specific category of cultural artifacts, as no other exemptions from the trade restrictions were sought by anyone involved in the discussions (so far as I know).

The definition of Iraqi cultural material in the Security Council Resolution specifically includes objects of religious importance, and it specifically includes objects found in the named Iraqi institutions and those found in “other locations in Iraq.” I do not know what could be clearer than that the Torah would be included in this definition and its import into the United States prohibited, if it was illegally removed from Iraq (that is, in violation of Iraqi export controls) any time after August 1990. In addition, I do not know of any exception under U.S. law that allows members of the military to violate these provisions. If the Torah was illegally removed from Iraq (and regardless of its ownership status), its import into the United Sates would be prohibited by U.S. law under a seamless sequence of United States legal instruments, including executive orders pursuant to IEEPA and the recently-imposed import restrictions under the CPIA, stretching back to 1990. This is not a restriction that just came into effect in April 2008.

Patty Gerstenblith
Professor, DePaul University College
of Law and Director, Center for Art,
Museum and Cultural Heritage Law
Chicago, IL

Cultural Property Observer said...

I should also note that Patty Gerstenblith in a subsequent communication reminded me that the bill that actually passed was a Senate alternative, though my strong recollection is that Senate bill was actually drafted with substantial input from the House Ways and Means Committee.