Alex Joffe made the following observations on the IraqCrisis List in a recent thread touching on the removal of Torahs from Iraq. Joffe critiques the cultural property concepts used to justify the rights of a government that has historically persecuted Jews to Jewish artifacts found in its territory. Joffe posits that a concept from refugee law, "non-refoulment," may have some application. This concept would prevent the return of artifacts to a nation state where they would only be endangered.
Joffe has written critically about both archaeologists and collectors. His article, "Museum Madness," in the Middle East Quarterly was the first publication to expose the unsavory ties between Saddam Hussein's regime and members of the Western archaeological community. See: http://www.meforum.org/article/609
I quote Joffe in full. Not surprisingly, his powerful post elicited only silence from those who vehemently defended Iraqi Government rights to Jewish holy books:
The exchange on Iraqi Jewish heritage is fascinating, if distressing, and usefully exposes the difficulties inherent in current thinking about 'cultural property.'
Given that the Iraqi Jewish community was 1) threatened and attacked, 2) systematically disenfranchised and then robbed by the Iraqi state, and then 3) effectively expelled by the state, to whom does the remaining cultural property belong? The Iraqi state made its desire to see the Jews - whose presence long predated that of Arabs, Muslims or Christians - removed, and in short order this was accomplished. The facts of this dispossession, from approximately 1934 through 1951 and beyond, are perhaps not as well-known as they should be.
In the modern Iraqi state this began process with the dismissal of Jewish officials in 1934 and 1936. This was unofficially complemented by the bombings of Jewish establishments in 1936 and 1938, and culminated with the farhud of June 1941. The official process intensified with the criminalization of Zionism in 1948 (Amendment to Article 5 of the 1938 Criminal Code) and the imposition of martial law in 1948. Already in early 1949 Nuri Said described a plan to Sir Alex Kirkbride to expel Iraq's Jews, which he echoed on many occasions that year to foreigners. The draft bill on denaturalization of 1950, which confiscated the property of Jews who emigrated, and the bombing of Masuda Shemtob synagogue in January 1951 were the climax. By March 1951 120,000 Jews had left Iraq, taking with them 50 pounds sterling per adult and 20 per child. In 1952 remaining Jews were forbidden from emigrating. In 1963 Jews were forbidden to sell property and after 1967 the few remaining Jews were dismissed from jobs, their property confiscated, bank accounts frozen, and telephones disconnected. Jews were hanged in 1968 and 1969, and by the 1970s the few remaining Jews were permitted to leave after being pressured to turn over title to property. With the coming of the Americans in 2003 perhaps only two or three dozen Jews remained.
The erasure of Jews from Iraq extended to archaeology. Magnusson and Baram have documented the instrumental use of archaeology by 20th century Iraqi nationalism, and Jews do not appear to figure except as enemies. I remember vividly being told by an archaeologist who had worked on the Hamrin excavations during the 1980s that when a site was found to contain Jewish remains - and how this was determined was not specified - the site was allowed to be flooded, or was bulldozed. Perhaps this is exaggerated or incorrect, but one wonders then where in the extensive documentation of Iraqi archaeology of the past decades, or century, one finds evidence of the 2500 year Jewish presence, aside from incantation bowls and personal names in ancient texts.
To suggest that the Jewish heritage of Iraq had any place at all in modern Iraqi culture seems utter nonsense. There is a peculiar revisionism among both some Arabs and Jews alike that rewrites the above history to propound a romantic syncretism, in particular the facile 'Arab Jew' literature from certain Israeli scholars, but again, it flies in the face of obvious facts. The reality is Iraq, through its duly constituted governments, expunged its Jews both physically and from its history. The Iraqi claim to Jewish antiquities is therefore paradoxical. Analogous, although obviously more extreme, are claims by post-Holocaust successor states to Jewish property. Conversely, Israeli claims to be the effective successor state for destroyed Jewish communities seems more a unique Westphalian gloss on the millet system or the minorities treaties.
None of this, however, justifies smuggling antiquities out of Iraq or anywhere else, nor does it justify individuals taking matters into heir own hands in contravention of international conventions. And it obviously does not endorse the destruction of cultural institutions, nor any particular view regarding the war itself. But legalistic appeals to laws written by imperial powers and then successive illiberal and dictatorial regimes (and of course lowest common denominator of international conventions) must also be seen for what they are, ex post facto claims to 'heritage' that was until recently unwanted and in large part denied. This belated interest is very much in keeping with a larger pattern of vocal concern for the integrity of Iraqi heritage, expressed with a highly original vehemence against American occupiers rather than the Baathists whom they destroyed. It is ironic to see bitter critics of the American war against Saddam, whose opposition is based on innumerable grounds not least of which the 'export of democracy', demanding the return of items in a manner that presupposes that a liberal society, capable of embracing its multicultural past, has been created.
Jeff Spurr's objections regarding the Iraq Memory Foundation, Baath party archives, and the Hoover Institution, are similarly vehement. One wonders, however, about what sort of access scholars might have had to those archives had the Saddam regime not been destroyed. Perhaps a latter day Hanna Batatu would indeed have been granted access, in due course. But the lustration procedures so painfully and inadequately implemented in Germany with respect to Stasi files, and not at all in places like Romania, seem unlikely in the present Iraqi political climate, and wholly impossible in the previous one. Here historical comparisons are plentiful, if ambiguous, at least from a strict legal point of view.
Are scholars obliged to avoid all materials that have been removed illegally from their countries of origin? Certainly this has been a topic among cuneiform scholars. But what of situations where vital data would have been forever buried or destroyed? To whom did the Smolensk archive, captured by the Germans from the Soviets and then by the US, belong? Should Merle Fainsod have refrained from studying this archive for his essential book Smolensk under Soviet Rule? Did the victorious powers have the right to exploit captured German files for war crimes trials? Did they have the right to exploit them for technical information? Had the Western powers rushed to reestablish Germany (even faster than they did), and returned the vast archives sooner, what kind of access and historical understanding of National Socialism would we have today? Should the Mitrokhin archive, purported KGB documents copied and smuggled out of Russia by a long-time KGB archivist - in obvious contravention of local law - been published and studied? What about the manuscript of Solzhenitsyn's The Gulag Archipelago?
To whom, then, does the cultural property of dispersed or destroyed communities belong, and what to do about unwanted or 'illegally obtained' property? Who has standing to speak for these types of cultural property? Universalist appeals to humanity are de facto vague, national claims by states that did the displacing or destroying are (or should be) suspect, and communal claims fall somewhere in the middle. This final ground, however, is certainly where at least some repatriation arguments lie with respect to tribal entities. But the universalist stance too has merit, certainly with respect to data that shed light on closed societies. Given the horrors expressed by so many scholars against the past being used for nationalist purposes it is also ironic to see so many hold up the nation-state as the inevitable custodian of cultural property.
Finally, in the absence of a liberal democratic society, with open institutions and an equally open mindset - or in the demonstrable presence of its antithesis - what is the obligation to return cultural property? International law is a malleable and often slippery thing. But it is important to note that in international refugee law there is a concept called non-refoulment, where refugees cannot be returned to a place where their lives or freedoms would be threatened. Perhaps something analogous has been discussed in cultural heritage law, but it certainly seems applicable in the case of Iraqi Jewish patrimony and Baath party archives.