CPO is proud to present this guest post from Bill Pearlstein, a principal of the law firm of Pearlstein & McCullough, LLP. It was prompted by news that the State Department has agreed to delay repatriation of the Iraqi-Jewish Archive, at least for the time being.
The Silence of the Lambs.
At a Spring 2014 conference in New York addressing art world due diligence issues, Larry Kaye, dean of the plaintiffs' bar, and other speakers stated that the first question in analyzing the merit of any restitution claim is to determine "what is the right thing to do?" In their view, the rights and wrongs of the legal issues entailed in bringing and resolving a restitution claim should follow the morality dictated by the facts. This is apparently a useful rule in assessing holocaust art claims, where the moral issues underlying the claim are often clear and consistent with the legal result.
The Iraqi Jewish archives consist of personal property and records of the Iraqi community that were confiscated by the Iraqi State as Iraq's Jews were hounded into forced emigration. The morality of the matter is clear and argues against repatriation to Iraq; the Jewish archives were stolen from Iraq's Jews and ought to be returned to the heirs or representatives of that community.
One would thus expect the plaintiffs' bar to oppose restitution on moral grounds. Why then has the plaintiffs' bar either supported or been silent regarding the State Department's proposed restitution of the Iraqi Jewish Archives?
The plaintiffs' bar appears to be caught between the easy morality of supporting restitution claims of Holocaust victims and the more difficult calculus—for them, at least—of opposing the repatriation of property to a sovereign nation (and potential client). Bear in mind that the same lawyers who dominate the Holocaust restitution bar first made their reputations representing sovereign nations such as Egypt and Turkey in claims for the repatriation of antiquities against Western collectors and museums.
The public mantra of the plaintiffs' bar in cultural property claims is that antiquities must always be returned to the source nation regardless of the date or circumstances of export, flaws in applicable patrimony laws, or other factors that might argue against repatriation. The fundamental principal of US and UK law that no one can ever take title of stolen property has been the basis of numerous successful claims for the return of antiquities. Yet the plaintiffs' bar is apparently unwilling to see a repatriation claim resolved against a foreign sovereign on the basis of this same principal. This moral double-standard is shameful, and undercuts whatever claims to superior morality they invoke when representing their clients in paying matters.
The archeological lobby is equally compromised in this matter. In antiquities matters they care only to keep material inside national borders and out of the hands of Western collectors on the theory that this will lessen demand and thereby preserve context. They are hopelessly in thrall to and cannot afford to criticize host nations. If anything, the Near Eastern archeologists appear to support the return of the Iraqi Jewish Archives regardless of the immorality of restitution.
I would love to be wrong on the facts and am open to correction as to whether any members of the restitution bar or the archeological community have in fact opposed return of the Iraqi Jewish Archive. I would be particularly interested in learning the moral or legal basis for why they have chosen to break both ranks and silence.
I'd appreciate your thoughts, and the thoughts of others who follow your blog.