Tuesday, April 22, 2014

Going to law to recover the archive

 The books and documents ready packed for shipment from Iraq to the US in 2003

If you are following the controversy over the Iraqi-Jewish archive, you could do worse than follow the website called Docex. This specialises in exploring the legal issues surrounding captured documents, cultural property, etc.This entry looks into the possiblity of using the US court system to prevent the return of the archives to Iraq.

The ongoing controversy over the Iraqi Jewish Archives (discussed in other contexts hereherehere, and here) -- which were found in Iraqi intelligence headquarters in Baghdad in 2003, brought to the United States for preservation, and are currently on display at the National Archives -- appears fairly straightforward: should they or should they not be returned to Iraq?

The U.S. government is planning to return the archives to Iraq next year, but there is significant opposition. An online petition and letters from Sen. Schumer and other members of Congress to Secretary of State John Kerry demand that the United States not return them.  Separately, Iraq has indicated it may be willing to negotiate to allow them to stay longer -- but still temporarily -- in the United States.

This post (the first of several on the debate) explores another potential forum for the controversy: a U.S. court. Could a lawsuit prevent the return of the archives and/or challenge Iraqi government assertions of ownership?

The short answer is that the chances of formally blocking the return of the archives to Iraq by court order are slim, but there is a navigable path to persuading a U.S. court to adjudicate legal ownership over the archives.  While litigation is often a poor method of dispute resolution, the Iraqi Jewish archives may present a scenario in which a court's careful balancing of the property rights of individuals with the sovereign rights of Iraq and a fact-intensive examination of the history, the law, and the documents could be uniquely valuable.

Read entry in full

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