The Jewish archive should not return to Iraq

 Crate of Jewish documents from Iraq awaiting restoration in the US

Update: Please sign the official Harif petition to stop the archive going back to Iraq

Should the Iraqi-Jewish archive be returned to Iraq after the exhibition at the National Archives in Washington DC ends next January? As opposition to its return builds, it can be useful to consider the legal arguments.  Point of No Return has obtained an important article by Bruce M Montgomery, an associate professor and faculty director of archives at the University of Colorado, in the International Journal of Cultural Property. The extracts below demonstrate why the memorandum signed by the interim US administration in Iraq in 2003 promising the archive's  return should not be honoured. The bold emphasis is mine. (With thanks: Carole) 


III. CONCEPT OF CULTURAL HERITAGE
As contested cultural property, the central question is to whom does the archive
belong? Whose cultural heritage is it? Does it belong to Iraq, the country of origin, or to the Iraqi Jewish diaspora, the culture of provenance? This question involves several issues, including the concept of Jewish cultural property, the notion of cultural heritage regarding minority ethnic and religious communities under international humanitarian law, including the conventions of war, and the history of persecution and dispossession of Jews in Iraq.

The term“Jewish cultural property” refers to the works and artifacts representing
the cultural heritage of Jewish people throughout history, not property merely
owned. In other words, the artistic works of Renoir or Matisse that were once
owned by French Jews and looted by the Nazis do not qualify under this definition as “Jewish cultural property,” albeit such property should be unquestionably returned to its rightful owners or heirs whenever they can be located. As Yehuda Z. Blum noted, due “to well-known historical circumstances and the unique course of Jewish history, the works and artifacts constituting the cultural heritage of the Jewish people are mainly of a religious character”—theological and philosophical works and manuscripts, including the Bible and its commentaries; editions of the Babylonian Talmud and the literature based on it; books, manuscripts, and archives regarding various aspects of the history and life of Jewish communities; Torah scrolls, illustrated prayer books, and Passover Haggadot, as well as a variety of religious artifacts.48 In other words, these works of religious expression and identity comprise a cultural heritage that exists independently from the sovereign state in which they were produced.

This concept of cultural heritage differs from its general articulation in the laws
of war, which govern the protection and restitution of cultural materials in war
and occupation. Because the archive was removed from Iraq during occupation,
the laws of armed conflict seemingly comprise the relevant legal regime in this
case aside from the memorandum of understanding between the CPA and SBAH.

Following the vast plundering of World War II, the international community
adopted a series of treaties that defined a cultural artifact as constituting the cultural patrimony of its country of origin. This concept of cultural property derived most immediately from the cultural property protections in the 1907 Hague Regulations Concerning the Laws and Customs of War on Land. The convention was drafted by diplomats of the European imperial powers before they withdrew from their colonial empires. As such, it represents a treaty of its time. The 1907 convention prohibits the seizure, pillage, and destruction of the property of municipalities and institutions dedicated to religion, charity and education, and the arts and sciences even when state property, as well as historic monuments and works of art and science. Although the convention does not provide for restitution of plundered cultural property, it does state that the seizure, destruction, or willful damage of cultural heritage should be made the subject of legal proceedings.

The 1954 Hague Convention for the Protection of Cultural Property in the Event
of Armed Conflict includes amore expansive definition of cultural property. Its preamble asserts that “damage done to cultural property belonging to any people whatsoever means damage done to the cultural heritage of all mankind . . .” and that “the preservation of the cultural heritage is of great importance for all peoples of the world and . . . should receive international protection.”Article 1(a) of the convention defines cultural property regardless of origin of ownership as “moveable and immoveable property of great importance to the cultural heritage of every people,” including works of art, manuscripts, books, and other objects of artistic, historic, or archaeological interest, as well as scientific collections and important collections of books or archives . . .”Under the convention, belligerents are forbidden to attack, damage, destroy, or pillage the cultural property of their adversary and have an affirmative obligation to prevent such acts.

The first protocol to the 1954 Hague Convention forbids belligerents or occupying forces from exporting cultural spoils from occupied territory during armed conflict and mandates the return of plundered property to the country of provenance at the end of hostilities. It also requires that any cultural property removed from enemy territory during armed conflict for safekeeping must be returned after the cessation of hostilities.49 In 1999, the international community adopted a second protocol to the 1954 Hague Convention,which strengthened the language of restitution to the country of origin.Article 9 of the protocol also prohibits occupying powers from exporting, transferring ownership of, or removing cultural property.50

The 1954 Hague Convention and its protocols assume that any cultural property
removed from a nation state under attack or occupation constitutes the cultural
heritage of the people of that country. In other words, if a piece of cultural
property has been removed country X, it may be assumed that it represents the
cultural heritage of the people of country X and should be rightfully returned to
the State of origin. This represents the premise on which Iraqi cultural authorities
claim the Iraqi Jewish archives as part of Iraq’s exclusive cultural heritage. It also
seems to represent the basis on which U.S. officials imported the archive into the
United States.

IV. IV. CULTURAL HERITAGE AND DISPOSSESSION
Nonetheless, the Hague Conventions do not specifically address situations in which cultural property belonging to a particular ethnic or religious group within a country under occupation has been looted by previous national authorities and removed by a foreign occupying power for restoration.
Indeed, the concept of cultural heritage and restitution embodied in the conventions of war carry little legitimacy in this case. The United States was not a party to the 1954 Hague Convention during the invasion and occupation when the archive was transferred to U.S. soil.

But it is arguable that even if the United States had been a signatory, U.S. author-
ities would not be bound to respect its restitution provisions given the nature of
the archive as looted private and communal property. To return the archive to
Iraq, the country of provenance, would presume that it constitutes Iraqi, not Jewish, cultural heritage.

This presumption is problematic given the history of Jewish persecution, disenfranchisement,expulsion, and dispossession by the Iraqi state. The grim history surrounding the destruction of the Iraqi Jewish community and its culture has relevance on whether the Iraqi state has a legitimate and sovereign claim over the archive. Indeed, over the course of much of the twentieth century, successive Iraqi regimes considered Jews and their culture an alien and enemy presence worthy of eradication. The Jews in what is now Iraq is of ancient lineage, older than any other outside the Holy Land. The community traces its origins to the sixth century bce, when Nebuchadnezzar conquered Judea and sent most of its population into exile in Babylonia. For more than 2500 years they resided along the banks of the Tigris and Euphrates as an integral minority people accommodating themselves to an ever-changing series of new rulers and empires.51 The British conquest of the territory in 1917 enabled Jews to prosper economically, and many were elected to government posts.

This progress came to an abrupt halt after the new state of Iraq won independence in 1932. Arab nationalism together with resentment of Jewish government employment during the global depression of the 1930s and the influence of Nazism and anti-Semitism augured the eventual destruction of the Jewish community.52 The dismissal of Jews from government posts in 1934 and 1936 was accompanied by bombings of Jewish establishments in 1936 and 1938.53 In June 1941, the Mufti-inspired, pro-Nazi coup of Rashid Ali ignited rioting, a brutal pogrom in Baghdad, and a declaration of war against Great Britain. The British quickly deposed Ali, but not before armed Iraqi mobs with the complicity of the army and police murdered 180 Jews, wounded 1000 more, and destroyed Jewish property in a two-day rampage. Starting in 1947, anti-Jewish riots became common, and by 1948, the year of Israel’s founding, the number of Iraqi Jews had dwindled to between 120,000 and 130,000, the lowest point in their 2500 year history.54 Although emigration was prohibited, many Jews fled via an underground movemet. Iraq joined other Arab armies in attacking the new Jewish state and ushered in an era of severe repression against its Jewish population.

The Iraqi state pronounced Zionism a capital crime, excluded Jews from civil
society, subjected them to random searches and interrogations, extorted their possessions, dismissed them from jobs, prohibited them from higher education, and restricted their travel abroad.55 (...)

In other words, as the host nation, the Iraqi state demonstrated a vicious animus
against Jewish culture—considered a manifestation of a foreign and enemy
element not part of Iraq’s own cultural heritage—and pursued official policies to
extinguish its flame from Iraqi society, if not from its archaeological past. It is
certainly ironic that Iraqi officials now consider the Iraqi Jewish archive as part
of Iraqi cultural heritage only after the State expunged its Jewish population. But
this belated realization, if not aggressive and archaic assertion of political and
cultural sovereignty, cannot serve as justification for Iraq expropriating the cultural heritage of a people that it despised and purged from the country just because they once resided within its territorial borders. The incontrovertible fact
remains that if the Jewish people and their culture managed to thrive during
ancient and modern periods of Iraqi history, this occurred despite the majority
culture’s hostility toward them and its attempts to repress and obliterate their
cultural heritage. It would be a cruel irony of history if the Iraqi State that persecuted and effectively expelled its Jewish minority and obstructed its cultural
development now became the guardian of an important archive representing the
patrimony of that culture.

V. CULTURAL HERITAGE OF “PEOPLES” AND
INTERNATIONAL HUMANITARIAN LAW
Returning the archive to the land that purposefully destroyed its Jewish community and dispossessed it of its cultural property would not meet the elemental principles of justice. Even if the materials had not been removed to the United States for conservation, the materials would still constitute the cultural heritage of the Iraqi Jewish diaspora and not the State of Iraq where it was originally located or produced. Certainly, the hostility displayed by successive Iraqi regimes toward Iraqi Jews and their culture transgressed the march of human rights law over the course of the twentieth century. Before World War II, states were largely considered sovereign, autonomous, and free from outside interference.

In the post-World War II era, this concept in international law has undergone dramatic change. The statecentric system of sovereignty, noninterference, and territorial integrity has succumbed to respect for individual human rights, some group rights, and direct challenges to the absolutism of state dominion. The once accepted view in international law that the sovereign State held absolute dominion over the cultural heritage of distinct ethnic and religious peoples—apart from the majority society—within its borders or in its colonial lands no longer has validity.

In this regard, the 1954 Hague Convention and protocols have relevance in
referring to the cultural property of “peoples,” not of states or territories. This
notion is expanded upon in Geneva Additional Protocols I and II, which also provide substantial protections to cultural property in times of armed conflict. Protocol II prohibits any “acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.”64 The protocols define cultural property not simply as the has the heritage of the world or of a nation-state, but of a particular group of “peoples.” This definition extends beyond earlier notions of cultural property to imply that national governments may not always be trusted to protect the cultural property of disparate ethnic and religious groups within their borders. In some cases governments may intentionally destroy or place in harm’s way the cultural property of its ethnic and minority “peoples,” as occurred in the Balkan wars of the 1990s. As governments are largely seen as caretakers of cultural property, attacking and occupying forces have affirmative responsibilities to “protect the cultural property of the peoples and communities within nation states.”65

The right of self-determination of peoples regarding their cultural development,
heritage, and identity is now firmly acknowledged as a principle of international
law; it is enshrined in such United Nations instruments as the United
Nations charter, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, and the Declaration on the Rights of Indigenous Peoples.66 The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, which the United States took a lead role in drafting, also embraces the concept of “peoples.” It expresses deep concern over the illicit trade of cultural materials and its damage to “the cultural heritage of national, tribal, indigenous, and other communities, and also to the heritage of all peoples.”67 This normative concept, moreover, is articulated in Article 2(3) of the Convention on the Protection and Promotion of the Diversity of Cultural Expression: “The protection and promotion of the diversity of cultural expression presupposes the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minority and indigenous peoples.”68 Consequently, “peoples” has come to be regarded as subjects of international law endowed with certain irrefutable rights.

One of the imperative rights of self-determination relating to cultural development and identity is that a people have a right to their own cultural heritage. It would be absurd to argue that a people have the right of cultural self-determination, but not the right of ownership over their cultural property. Or, as Blum asserts, a people is “entitled, as an integrated part of its right of self-determination, to the ownership of its cultural property which constitutes the expression of its unique cultural heritage.”69 In other words, the right of a people to its cultural heritage is not extinguished upon expulsion and dispossession by the home state of origin. The legitimacy of this principle stands beyond and apart
from the territorial integrity of the sovereign state. As the United States is a signatory to both the United Nations Charter and UNIDROIT Convention and ratified the Hague Convention in 2008, it would seem to subscribe to this general
view.

VI. DISPOSITION OF THE IRAQI JEWISH ARCHIVE:
WHERE SHOULD IT RESIDE?(...)
 Unlike heirless Jewish materials recovered and redistributed after World War II, however, the fate of the Iraqi Jewish archive is complicated by the memorandum of understanding (MOU)/diplomatic agreement governing its return to Iraq. The United States would have to renege on this agreement and its apparent diplomatic representations to Iraq in order to place it in a new home accessible to the Iraqi Jewish diaspora. In the chaos of war and occupation, the CPA evidently failed to consider the archive’s provenance as looted private and communal property of a persecuted and expelled minority people in forging the agreement.

In other words, the CPA signed the agreement under erroneous pretenses without due consideration of the archive’s private and communal origins, the fact of it being robbed by the Iraqi secret police, and the broader historical dispossession and expulsion of the Iraqi Jewish community. On the one hand, it is understandable that respecting the terms of the MOU would promote U.S. diplomatic relations with Iraq; on the other, to do so would legitimate the past looting of the materials by the Iraqi secret police and disinherit the Iraqi Jewish diaspora a second time over. It would set the precedent of expediently and selectively ignoring, if not legitimizing, the past crimes of authoritarian regimes in plundering the cultural heritage of ethnic, religious, or indigenous minority communities within their on territorial borders. After all, before their expulsion, Iraqi Jews represented a religions and indigenous minority community, predating the arrival of Islam by more than a thousand years. While diplomacy often involves the art of nuance and expediency, it also involves humanitarian considerations enshrined in international human rights law.

A critical consideration of this case involves weighing two competing factors:
(1) honoring a diplomatic agreement that defines the materials as Iraqi cultural
heritage, and by doing so, implicitly legitimizes the Iraqi Mukhabarat’s past outrages of dispossession and persecution, as well as assures its perpetual unavailability to the Iraqi Jewish diaspora; or (2) restoring this private and communal cultural property to the religious and cultural community from which it came—the rightful owners and their descendants—or otherwise placing the archive under circumstances outside Iraq in which itit may be accessible to the Iraqi Jewish diaspora and others. It is perhaps understandable that the CPA, overwhelmed as it was with the occupation and urgent security considerations, overlooked the archive’s provenance, even if Harold Rhode raised this issue almost from the beginning. The United States has a choice of whether to follow diplomatic convenience in honoring a flawed agreement, or to pursue restorative cultural justice. The former choice might serve diplomatic convenience by easing tensions with Iraqi officials, but it would sanction Iraq’s state sponsored looting of the cultural and religious heritage of a dispossessed and banished minority population.

This case differs from that of the Iraqi Anfal files seized by Kurdish dissident
forces and transported to U.S. soil for analysis immediately after the First Gulf
War. In that case, 18 metric tons of secret police documents were spirited out of
Iraq by U.S. military transport with the explicit understanding that they were Kurdish property, not the property of the central government. Unlike the private and communal nature of the Iraqi Jewish archive, these comprised state documents produced by Hussein’s security forces. The documents were created in the course of prosecuting a genocidal campaign against the Kurds for their alliance with the Iranians in the Iran-Iraq war. Following their capture, they were disowned by Saddam Hussein’s government as forgeries and claimed by Kurdish rebels who sought to exploit them to uncover informants in their midst before permitting their wider use as evidence for U.S. intelligence and international efforts to indict the Hussein regime under the 1948 genocide convention. Under the U.S.-Kurdish agreement, the United States agreed to return the documents to Iraqi Kurdistan upon Kurdish request.

In 2005, the Anfal documents were turned over to the State Department’s
Crimes Liaison Task Force for the trials of Saddam Hussein and his senior leadership for the Anfal crimes. It is currently unclear whether the U.S. government has returned the documents to Iraqi Kurdistan under the original agreement, or whether the Anfal files reside in the U.S. media processing center in Qatar with the millions of seized Hussein government records from the 2003 Iraq war. There are currently several major caches of Iraqi documents that were taken and removed from Iraq as a result of internal upheaval, war, and occupation; the vast majority of the documents remain at the media processing center in Qatar. Others reside at the Hoover Institute at Stanford University under an arrangement with the Iraqi government. But these various stores of documents, comprising tens of millions of pages of files, compose official state records, not looted private and communal cultural property of a once thriving but now extinct minority religious community.

VII. CONCLUSION
The U.S. State Department should acknowledge that the Iraqi Jewish archive comprises the distinct cultural heritage of the Iraqi Jewish diaspora and act accordingly.

It should follow the example established by the United States after World
War II regarding the disposition of heirless cultural property of destroyed Jewish
communities. The State Department should acknowledge that importing the archive to the United States under the immunity seizure law was based on the erroneous premise that it constituted Iraqi cultural property. It should now rely on
the advice of international Jewish groups to find an appropriate home for the cultural  materials where they may be made freely accessible to the Iraqi Jewish diaspora and other researchers. If such cultural property is considered part of the
heritage of “all mankind” or “every people” as asserted broadly under international humanitarian law, it follows that it must be made universally available. Ironically, if the materials were to be returned to Iraq, as the U.S. State Department has said it intends to do, its availability would be denied to the very people whose culture and religion it represents. Moreover, such denial would be animated by the same chauvinism and anti-Semitism that resulted in the destruction of the Iraqi Jewish community and the official looting of their cultural property in the first place.

To return the original materials to Iraq would compound and legitimate the
Mukhabarat’s historic outrages in plundering them, if not condone the Iraqi state’s current efforts to appropriate the private and communal property of a community that it eradicated as a matter of state policy. The United States should not be party to legitimating these acts of plunder and persecution. It is difficult to ignore the historic parallels between the Mukhabarat’s plunder and the Nazi’s more extreme pillage of Jewish cultural materials for the Reich’s study of the Jewish question.

Just as the United States relied on Jewish groups to distribute heirless cultural
property after the SecondWorldWar, so should the U.S. State Department request
the assistance of Jewish organizations to find a new home for the Iraqi Jewish
archive. International humanitarian law acknowledges the right of ownership and
self-determination of cultural expression and heritage by distinct ethnic and religious peoples. It also requires the protection of cultural expression and provides recognition of equal dignity and respect for all cultures, including those belonging to distinct minority communities. The United States should respect these principles and place the archive where the cultural materials will be received with dignity and respect and where the Iraqi Jewish diaspora and its descendants may have free and unfettered access to its cultural and religious past. At the same time, as a diplomatic gesture to Iraq, the United States should consider providing a digital copyof the archive to Iraq. This courtesy would conceptually fulfill the CPA/SBAH agreementwhile assuring the original archive’s placement at an appropriate research institution accessible to the world community.

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