The Iraqi Jewish Archive in Exile: A Legal Argument for Equitable Return Practice

By Leila Selchaif*

Print PDF

Abstract

In 2003, U.S. troops raiding Saddam Hussein’s secret police headquarters recovered the Iraqi Jewish Archive (Archive), a collection of tens of thousands of books and historical documents. The Ba’th party had removed these materials from Iraqi Jews beginning in the 1950s, when most of the country’s Jewish population fled the country and left behind their property. Since the Archive’s 2003 recovery, the U.S. National Archives and Records Administration has digitized, restored, and housed the collection. Although the U.S. is bound by written obligation to return the Archive to Iraq, over the eighteen years that it has remained in America, Iraqi Jews have publicly called for its return instead to their own community. There has recently been increased public interest in, and institutional willingness to, repatriate historically looted cultural heritage, and the Iraqi Jewish Archive is poised to offer a powerful blueprint for further action, particularly because its situation is so complicated. Unlike in the case of Nazi-looted artwork, which often has a clear owner and path to restitution, the Archive is currently in the possession of one country and facing a claim for ownership from another, as well as from people, estranged from that country, that counter that claim. Furthermore, returning the Archive to Iraqi Jews is far from a simple prospect—there are arguments against splitting the Archive, significant barriers to identifying property owners, and the looming question of where the Archive would best be housed. Additionally, the traditional process by which Jewish ownership of the Archive might be recognized—through the courts—is not likely to be successful, and would surely have deep financial and temporal costs. While this Note discusses legal strategies, it ultimately recommends utilizing restorative justice practices to reach an equitable and forthright solution. A collaborative approach should be attempted, because the Iraqi Jewish Archive has the power to set a strong example for future equitable return practice. This power does not come from the value of its collection, which contains phonebooks and college applications among a smaller number of older and more valuable religious texts. The Archive’s power lies in how it symbolizes the persecution of the Jewish people, not only in Iraq but throughout the world and its history. Equitably returning the Archive provides an opportunity to put into practice a form of recognition and reconciliation that should be implemented in future cultural heritage negotiations.

Introduction

The Iraqi Jewish Archive is a collection of materials—records, books, religious texts, and antiques—that U.S. troops recovered from Iraq during the Iraq War.1 The collection brought to light photographs and letters that marked a time when Jews once thrived in Iraq, as well as a once-beautifully decorated Torah housing and a Venetian text printed in the Renaissance period.2 Most of the materials appear to share one common trait—they had been gathered by the Iraqi government from Iraqi Jews.3 Once the Archive arrived in America, many hoped that the U.S. would return the Archive to those from whom it had been taken many decades prior.4 The U.S., however, had agreed to return the Archive to the new Iraqi government, once restoration was completed.5 Over the nearly twenty years since it was brought to America, selections of the Archive have been exhibited at times, but mainly it has been kept in storage—freeze-dried, rebound, and boxed up.6

When recovered in May 2003, the materials were moldy because they had been sitting in a flooded state building’s basement in Baghdad.7 By June, U.S. conservators had flown to Iraq and determined that the materials needed to undergo mold remediation, which could be best completed at U.S. facilities.8 Iraq did not possess conservation facilities, and furthermore, was just beginning to transition from the Ba’th government to U.S.-appointed leadership, making its national stability tenuous.9 The State Board of Antiquities and Heritage of Iraq (SBAH) agreed to allow loan of the materials to the U.S. National Archives and Records Administration (NARA) for conservation.10 In August 2003, the Archive was loaded into metal boxes and flown to the U.S.11

The mold growth was stabilized by freeze-drying, but NARA found the materials too fragile to handle.12 NARA was limited in what resources it could use for the Archive. It could provide its lab and storage space but could not direct any of its funds to actively work on conserving the Archive.13 Alternately, organizations could fund the restoration, but the millions of dollars required was difficult to drum up, as organizations rightfully feared the restored Archive’s future inaccessibility when returned to Iraq. From this early stage, it is clear that ownership was a concern—philanthropists hesitated to shell out for restoration while it was unclear where the Archive would ultimately reside.14 In 2005, conservators received nearly $100,000 in federal funding to continue restoration.15 However, they still struggled to gain access to the materials due to the state of the water and mold damage. They began identifying and cataloging the materials from their cover information.16 Years passed, and conservation efforts seemed slow going. The Archive lay inventoried, but not fully preserved or digitized.17 In 2011, the government claimed it had allocated approximatel $3 million for NARA to begin serious restoration.18 In 2010, a group of experts identified notable materials that should be restored enough to be digitized, and a smaller number of especially valuable materials that should be fully restored and physically exhibited.19 However, by this point, SBAH was tired of waiting and in 2010, asked for the Archive’s return.20 NARA responded in June 2011 with a plan for return once conservation was completed.21 In October 2011, Iraq’s Deputy Culture Minister publicly called on the U.S. to return the Archive and threatened to sue.22 By November 2013, NARA apparently had prepared the Archive sufficiently to display select artifacts, and put on an exhibit at the National Archives, eventually launching a tour of the Archive that exhibited in New York, Missouri, California, and Florida over the course of the next three years.23 In May 2014, ahead of an anticipated June return date, the Iraqi Ambassador to the U.S., Lukman Faily, announced that the Archive’s stay in the U.S. would be extended.24 However, in June 2014 ISIL/Daesh proclaimed itself a world caliphate and massacred thousands of Iraqi cadets at Camp Speicher in Tikrit.25 This geopolitical development, while unrelated to the Archive negotiations, overshadowed plans for the extension, and the agreement was never formalized in writing.26

The Archive continued to remain in the U.S., its return date murky. The 2013 tour continued until 2016 and then the Archive rested for nearly two years.27 The Archive toured again in late 2017 through 2018, exhibiting in Texas, Georgia, and Maryland.28 While the Archive toured, the State Department disclosed that when the $3 million fund that had been set aside to conserve the Archive expired in September 2018, it planned to return the Archive to Iraq.29 Apparently in response, a bipartisan group of lawmakers introduced a resolution in July 2018, raising concerns that Iraq was not the right place to send the Archive, and urging the government to renegotiate the date of return.30 Though never enacted, there was a flurry of public support for the resolution.31 Before the return date SBAH and NARA reached an agreement that extended the Archive’s stay, allowing for continued efforts to preserve and increase access to it.32 In 2020, attention was again given to the matter of the Archive’s repatriation after the release of a short documentary, and the news that a separate archive of Ba’th Party documents that had also been seized in 2003 had been quietly repatriated in August 2020.33 Where before there was a clamor, there has recently arisen only a murmur: what will happen to the Archive, and what should happen? There are many stakeholders in this situation, and each argues for a different solution.

One stakeholder group are the ‘Iraqi Nationalists,’ who argue that the Archive belongs to and in Iraq.34 Supporters of this group say that—however unfairly or unfortunately—legally, morally, or pragmatically, the Iraqi Nationalist stakeholders have the strongest claim to the Archive.35

In direct opposition to the Iraqi Nationalists are the Jewish Community stakeholders, who argue that the Archive deserves to be with the people from whom it was stolen. Those people, the Iraqi Jewish diaspora, are not in Iraq, nor are they aligned with a research institution. From this perspective, the Archive is cultural property that represents great community wealth and suffering, and is not simply research material to be mined.36

A third group of stakeholders are the Archivists. They value the Archive for its contribution to scholarship. They argue that the Archive must be somewhere accessible to researchers, not split apart into private keepings or sequestered far from metropolitan hubs.37 Additionally, there is some overlap in stakeholder stance with the Jewish Community, who point to the Archive’s informational value as a factor in why either their or U.S. ownership and access is important.38

The final stakeholder, quite simply, is the general public, the audience of this Note. Public outcry has consistently been a powerful force keeping the Archive from being relinquished to Iraq. The public is affected by equitable return practice, and how it may set a powerful example for future returns. While the principle of justice demands action, it is less clear what a just outcome might look like.

To consider alternative paths to restitution beyond keep-or-return, we must understand some theories of cultural heritage. A basic model pits nationalism against internationalism. Cultural nationalism argues that cultural property belongs to the nation of origin and usually should stay there.39 Source nations, such as Iraq, and archeologists often fall into this camp.40 The Iraqi Nationalist stakeholders reside here. By contrast, cultural internationalism argues that cultural property should be accessible to the public and should be housed where it is best able to be maintained and studied.41 Collectors and museums often fall into this camp.42 The Archivist stakeholders reside here. The U.S. government also largely takes an internationalist stance.43

The Archive being Jewish cultural heritage clutters up this paradigm. Where do the Jewish Community stakeholders reside? Does a nationalist understanding mean that the Archive belongs in Iraq because it belonged to Iraqi Jews? Not only might there be a reason for it to return from whence it came, geographically speaking, but its presence could serve as a powerful reminder of the past wrongs of the government and as a continuing commitment to reckon with those wrongs.44 It might even operate as a gesture of goodwill to usher in a new peace and welcoming of Jews back to Iraq.45

However, the only Jewish culture now present in Iraq is what can be traced in the archeology of crumbling Jewish Quarters in Iraqi cities.46 In the face of this fact, the argument that the best location for the Archive is its motherland loses some power. After a mass exodus in 1950, and further decline through the remainder of the twentieth century, there remain, at most, three aged Iraqi Jews living as unobtrusively as possible in one small sector of Baghdad.47 Due to intense antisemitism from the populace and the government, the flow of Jews has only gone one way—out. If there are any Jews left in Iraq, they struggle to even keep their personal Jewish observation and tradition alive.48 The Archive, if it were permanently housed in Iraq, would be stewarded by foreigners, not to mention foreigners whose predecessors caused the separation of the property from the peoples to whom it rightfully belonged.

In an Iraq nearly devoid of Jews, cultural nationalism might mean repatriation elsewhere, in a current location of the Iraqi Jewish diaspora. That location is entirely unclear. The U.S. currently has physical possession of the Archive, but many more Iraqi Jews live in Israel. There are 600,000 Jews of Iraqi descent in Israel, and an estimated 15,000 in the U.S.49 If the prevailing argument is that the Archive should rest where its people reside, then Israel appears to be the strongest contender. However, Israel is not involved in the current U.S.-Iraq agreement, and the enmity between Israel and Iraq is so deep that reaching an agreement on this issue seems unlikely.50 This thorny situation displays the difficulty with a nationalist theory of cultural heritage.

Treating the materials as an archive allows the discussion to skirt the confusion of nationalism by relying on an internationalist theory. Internationalism would argue that the Archive should go wherever it would be best accessed.51 Some have suggested that the Babylonian Jewry Heritage Center outside of Tel Aviv is a fitting spot.52 Internationalists also argue that the instability and constant violence in Iraq makes it an unsafe place to keep the Archive.53 However, this argument is somewhat fraught because similar arguments have long been employed to keep countries from reclaiming their cultural heritage; Western museums protest that countries of origin lack the capacity to safely maintain collections.54

The situation features a web of potentialities and consequences that must be addressed holistically and collaboratively. To begin, the nationalist-internationalist discourse does not completely fit the framework of the stakeholders, thus making it harder to understand who might be right or wrong. Both sides are also tainted by ethics issues: colonialist, patronizing attitudes dog the internationalists and a bloody and continuing history of cultural cleansing plague the nationalists.55 A responsive solution must take in these complexities through a restorative justice praxis.

This Note urges that the issue be resolved through restorative justice. Restorative justice is a framework for dealing with conflicts outside of the traditional justice system. Rather than solely focusing on what a perpetrator’s punishment should be, it considers how to repair a harm.56 This focus is not centered on the victim alone.57 While restorative justice is difficult to define, Tony Marshall provides a good description: “[a] process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future.”58 Stakeholders—victims, perpetrators, and all those who are invested in the community implicated—must become involved in repairing the harm done.59 The work of restorative justice seeks not only to right a current wrong but to cast a wider net: to repair relationships and prevent future harm.60

This Note situates the dispute over the Archive in historical context. Part I sketches the history of Iraqi Jews, the U.S.’s recovery of the Archive, and related legislation and litigation. Part II then considers what “return” might look like and how stakeholders might bring it about, first proposing a legal path that the dispute could take; then engaging with alternative resolutions, and recommending a shared compromise, the practice of which could repair past harm and serve as an example for future repatriation efforts.

I. Historical Background

“O sons of Zion dwelling in Babylonia, flee.”

—Iraqi Jewish leadership proclamation, April 8, 1950.61

Although Jews have lived in Iraq for over two thousand years, there may never be a Jewish community in Iraq again. The vast majority of a population of 180,000 at its height, emigrated from Iraq under intense antisemitism in the second half of the twentieth century.62 As part of this exodus, the cultural heritage—not to mention material wealth—of the Iraqi Jews was expropriated. The Jewish Archive is comprised of materials that the government acquired through this expulsion and expropriation. The rescue of the Archive is also the story of the imperilment of the Archive, beginning with the flooding of its basement, and continuing through its misclassification both as an archive and as Iraqi government property. For nearly twenty years, Iraqi Jews and their allies have called for the Archive’s repatriation. It is difficult to repair the harm done to the Iraqi Jewish people; however, compromising and collaborating to attempt such restoration through the return of the Archive is an important act to further justice and remedy past wrongs.

A. History of Jews in Iraq

Jews have been in Iraq longer than in any other geographical area outside of Israel. Jewish lineage in the area that is now Iraq can be traced back to sixth century BCE, making it the oldest settlement of Jews outside of what is now Israel.63 The Biblical history traces the “Babylonian captivity,” during which King Nebuchadnezzar II of Babylon besieged Jerusalem and took many Jews captive, in the sixth century BCE.64 Archeological findings confirm the presence of Jews in Babylon, or modern Iraq, at this time.65 Jews remained a notable minority in Iraq for 2,300 years. In the nineteenth century, Jews grew from three to thirty-five percent of Baghdad's population.66 This growth continued into the twentieth century: in 1919, there were a recorded 87,488 Jews, and by 1949 there were 180,000.67 But the twentieth century brought violence as well as growth. The Iraqi state and Arab nationalism emerged, and as a result, Jews faced extreme discrimination.68 In the 1930s, an Iraqi government inspired by German Nazis discriminated against their Jewish populace, including discharging them from their jobs.69 In 1941, Arab mobs raped and murdered Baghdadi Jews and looted their homes in a pogrom known as the Farhoud.70 By the late 1940s, Jews were facing ever-increasing violence.71 Israel had just been formed, but emigration was forbidden.72 Despite this prohibition, many Iraqi Jews clandestinely fled, as persecution increased at home.73

By 1949, the Iraqi government was making concerted efforts to rid the country of the Jewish population. They proposed a population transfer: 100,000 Iraqi Jews for the same number of Palestinian Arab refugees.74 This proposal went nowhere.75 Indeed, the government had no intention of simply pushing the Jews out—expulsion was also a political threat and a means of acquiring Jewish assets.76 The government cracked down on illegal emigration at the same time as it increased its antisemitic actions, including prosecution for Zionism.77 A short-lived change in law reduced the punishment for crossing the border into Iran, prompting a mass outflow of Jews and their wealth.78

In response, the Iraqi government passed a bill in 1950 allowing Jews to emigrate within one year, so long as they renounced their Iraqi citizenship.79 The government did not expect many Jews to take the opportunity to leave, and at first many were indeed hesitant, because it was unclear whether they could retain ownership of their property in Iraq.80 Nonetheless, Jews from around the country convened in Baghdad, through expulsion or voluntarily, as they waited for transportation out of Iraq.81 Living conditions deteriorated as the number of would-be emigrees swelled and waiting continued.82 During this time, antisemitic bombers targeted and killed Jews in Baghdad, increasing the urgency of the emigrants.83

As the Denaturalization Act of 1950 expired in 1951, Iraq extended the emigration period, adding a new condition: Jews had to leave nearly all their assets behind.84 Even if they liquidated assets, the Act only allowed Jews to bring the equivalent of $150—denominated in 2021 USD—and 66 pounds of luggage upon their departure.85 The economic motivation behind this requirement is clear: the Iraqi government would profit off its discrimination by taking the property of the Jews it drove out.86 Additionally, the Prime Minister of Iraq hoped that offloading tens of thousands of newly-poor Jews into Israel would weaken Israel’s economic status.87

Many more Iraqi Jews responded to the new law than expected.88 Understanding that no better deal would be made to protect their property and legal status, over 100,000 Jews registered to emigrate.89 However, the registrants were processed slowly. They had left jobs, sold homes, and relinquished citizenship, but Iraq had not expected so many Jews to sign up and failed to create a sufficient system for physically getting the registrants to Israel.90 Israel, too, held up the process because it was unable to handle the rate of refugee absorption from Iraq and many other countries, and had imposed a quota of accepting only 3,000 Iraqi Jews per month.91 Israel was, at the same time, taking in Eastern European Jews displaced in the aftermath of the Holocaust, and therefore lacked the infrastructure to shelter the over-100,000 people coming from Iraq.92 However, Israel ultimately conceded to an airlift. With a U.S.-based airline, the Israeli government launched an emergency rescue operation.93 It was codenamed Operation Ezra and Nechemiah, named for the biblical figures who led the Jews out of Babylon and back to Judea after their first exile.94 From 1951 to 1952, the Israeli government airlifted 120,000 Jews out of Iraq and into Israel.95 These Jews left nearly all their possessions behind.96

Jews faced continued persecution in Iraq after this initial exodus. The roughly 6,000 Jews who remained in Iraq, concentrated in Baghdad, entered a short period of peace and reprieve until the late sixties.97 The government was somewhat permissive, and Jewish public presence was greatly reduced.98 However, the Ba’th party (led in reality, if not in name, by Saddam Hussein) came to power in 1968, and immediately cracked down on the Jewish population in Baghdad.99 In retaliation for Israel’s victory in 1967 in the Six-Day War, the Iraq government arrested and publicly hanged Jews, declaring a national holiday.100 Jews were required to wear yellow armbands, they were fired from their jobs, their travel was restricted, their bank accounts frozen, and their phone lines disconnected.101 This new wave of discrimination prompted a final mass emigration. Jews were prohibited from leaving the country until 1972, although many fled with the help of the Kurdish Peshmurga and Israeli Mossad.102 By the mid-1970’s, there were only a few hundred Jews left in Iraq.103

By 2003, when the U.S. invaded and brought down the Ba’th party, only a few dozen Jews remained, all elderly and grouped in one Baghdad neighborhood.104 The few who continue to live on know that they are the last members in Iraq of a people that existed there for thousands of years.105 All other Iraqi Jews are diasporic, and many have assimilated into new cultures, often leaving behind their cultural heritage.106 The final stage of genocide is to deny that it happened and to erase all traces of its presence.107 The Iraqi Jewish Archive offers a hope of reviving the memories and attesting to the presence of a once thriving culture, which even violence and persecution could not completely extinguish.

B. History of the Archive

The ‘Archive,’ as it is often referred to, is a disordered collection of far-ranging materials, gathered without intent to display or study, but rather to oppress, humiliate, and erase. It is not what a layperson would generally think an archive is—it was not carefully collected and grouped to document a people. The Iraqi Jewish Archive was collected over the course of the latter half of the twentieth century, but it contains not only twentieth century materials, but also family heirlooms and treasured valuables, including antiquities that can be dated as far back as the sixteenth century.108 The Archive likely began to form as Jews who departed Iraq during and prior to 1951 entrusted their property to friends, families, and synagogues.109 Because they were stripped of their property when they left, this reassignment kept their private keepsakes and valuables from reaching government hands. As Jews from around Iraq came to Baghdad to depart through Operation Ezra and Nechemiah, their property likely ended up in Baghdadi synagogues. In the 1960s and 1970s, most of the remaining Jews fled clandestinely and without baggage to avoid suspicion, and it is possible that their property eventually made its way to safekeeping in synagogues and cultural centers. As the population dwindled, so did the synagogues, further concentrating the cache.110 There are accounts that in 1969, Saddam Hussein’s secret police collected the Jewish community’s cultural property, and that again in 1984, they went to the single remaining synagogue in Baghdad and took everything else that was collected there.111 The Ba’th party likely also increased surveillance and the systematic harvesting of documents that now make up the Archive.112 The history of the collection of the Archive makes clear that the material was taken without the consent of the original owners, and maintained for the purpose of continued oppression of the Iraqi Jewish community.

The scope of the Archive is far ranging, encompassing two categories. The first category is administrative, containing school materials from the 1920s-1975, including class rosters, exam scores, and invoices; community records from the 1910s-1960s, including correspondence between rabbis and community chairs, business ledgers, property leases, and marriage certificates; Jewish hospital records from the 1920s-1960s, reports on the legal issues surrounding Iraqi citizenship for Jews from the 1940s-1960s, the time in which the greatest number of Jews emigrated from Iraq; British colonial correspondence from the 1920s-1930s; bound limited-published dissertations, largely on the Palestinian-Israeli conflict from the 1980s-2000s; Arabic newspaper clippings focused on Jewish issues from the 1950s-1960s and 1990s; and Iraqi government material that likely got incidentally added in the rescue mission.113 The second category in the archive is literary: prayer books, Haggadot, Talmuds and other rabbinic literature, Tanakhs, school-related textbooks, telephone books, and an assorted miscellany.114 Perhaps the most well-known book in the Archive is a Ketuvim printed in 1548 in Venice.115 Additionally of note, is a Babylonian Talmud from 1793, and a Zohar from 1815.116

Some of the contents of the Archive have been the subject of scholarship as well as personal connection. Scholars also discovered hand-written notes by the author of an important piece of rabbinical scholarship, the Ben Ish Hai, which have since been published.117 Scholars hope to utilize other marginalia and notes found in the pages of recovered Archive texts.118 An expert in Arab affairs has compiled a list of Iraqi-Jewish surnames, and consulted records in the Archive as one of his sources.119 Iraqi Jewish families have recognized their pictures on display from the Archive, and have spoken about how much of an impact the Archive has made in allowing them to show their families parts of their lives had to be left behind, undocumented.120

Just as the deal to bring the Archive to the U.S. and to recognize its owner as Iraq was ill-considered, so was its classification as an archive. Instead, the collection should have been recognized as looted cultural property and the U.S. should have established a repatriation campaign. However, the Archive is not unsuited for archive status because it is disorganized, but rather because of the significance of its contents. The Iraqi Jewish Archive, as it has been dubbed, might benefit from being split up, because it holds great personal value to a culture. Archives, on the other hand, are kept together because they hold educational value.121 While many archives are the product of duress, looting, and malicious intent, and many are also the product of unintentional grouping, the Archive’s emotional value sets it apart. Archivists choose to keep materials collected together despite any miscellany because the collection as a whole can provide useful context and information.122 Thus, there are two closely connected core principles of archival science: provenance and original order.123 Provenance traces the history of the ownership of the materials and of the collection to understand the context of the contents.124 Original order keeps the order and contents of the Archive as they were originally collected.125 Archivists view collections comprehensively.126 The materials that make up an archive are not understood as individual items, but as a web of relationships that provide information about the people and groups that used and created them.127 These principles aid the researcher, but in this case, they pose a significant bar to repatriation efforts.

Recategorizing the Archive as cultural heritage affects the identification of the rightful owners. Because the collection was recognized as the Iraqi government’s archive, the U.S. drew up an agreement with Iraq to rehabilitate and return it. But many who currently seek the Archive’s repatriation view the contents of the Iraqi Jewish Archive as cultural heritage, and not necessarily archival material.128 They argue that the rightful owners of the Archive’s contents are not the Iraqi government, but the individuals and their heirs who were forced to relinquish their possessions.129 Additionally, the materials that cannot be traced to an individual are viewed as communal cultural property of the Iraqi Jewish diaspora, and not of Iraq.130 As Kwame Anthony Appiah, noted philosopher and cultural theorist, put it, “cultural property [should] be regarded as the property of its culture.”131 To minimize complication, this Note defines cultural property and cultural heritage in the context of the Archive as “all movable objects which are the expression and testimony of human creation or of the evolution of nature and which are of archaeological, historical, artistic, scientific, or technical value and interest.”132 These religious texts, community records, personal papers, and other materials are the “expression and testimony” not only of Iraqi Jews, but of their persecution.

The story of how the U.S. Army rescued the Archive from the flooded basement of the Mukhabarat in 2003 displays one more facet of that historical trauma. There were many things that went wrong in the recovery of the Archive, which is not unexpected in the context of war and the lack of trained archeological specialists. U.S. troops, searching for weapons of mass destruction, bombed the Mukhabarat building, which held the Iraqi military intelligence organization.133 One bomb did not explode—if it had, the Archive would not have survived.134 The bombing left the building on shaky foundations, with the plumbing burst and the basement flooded.135 A Mukhabarat official had tipped off the Iraqi opposition leader, Ahmed Chalabi, that the basement held troves of information collected on Israel and on Iraqi Jews.136 There was even, Chalabi was told, a very rare seventh century Talmud.137 Chalabi took the information to Harold Rhode, the U.S. liaison to the opposition, and an Orthodox Jew.138 Rhode and a small team of soldiers from the Mobile Exploitation Team Alpha group, specialists in weapons of mass destruction, ventured into the flooded basement to search for the Talmud.139 Up to their waists in sewage, with dead animals floating past, they began to take out the materials they found.140 The interpreter on the mission, Tewfik Boulenouar, describes seeing menorahs.141 Although Boulenouar states that the team found the Talmud they had come for, no other source catalogs it among the Archive.142 In fact, it seems that some of the contents of the basement were looted or intentionally destroyed in the two days between discovery and continued excavation, as the team waited for water pumps to begin emptying the basement.143 Iraqi workers and the small team of soldiers, trained in dealing with extremely dangerous weapons, but not with extremely degraded historical material, pulled sodden books from the basement for days.144 Eventually, the U.S. government got involved and arranged to have the water pumped from the basement to aid the recovery, which continued for six weeks.145

The sodden materials were laid out to dry in the hot Baghdad sun, but this only served to spur mold growth that further deteriorated the papers until they resembled a pile of oatmeal.146 Days passed before Rhode was able to get refrigerated trailers and electricity to keep them on, which were needed to slow the spread of the mold.147 The refrigeration was a product of U.S. interest, as well. Rhode enlisted the aid of the Lehman Brothers investment banker Harvey Krueger, and was also able to pass along a plea that reached the ears of Donald Rumsfeld, then Secretary of Defense, as well as Dick Cheney, then Vice President.148 This attention is what summoned NARA conservators to Baghdad for an assessment and recommendation that the Archive be treated in America.149 The cost, estimated at between $1.5 and 3 million, would have to be covered largely by private sources because NARA did not have a mandate to cover the cost of conserving non-U.S. government property.150 Nevertheless, the U.S. made an agreement with Iraq that recognized Iraqi ownership and promised to restore and then return the materials, and the Archive was airlifted out of Iraq.151

C. The Archive’s U.S. Visa

The Archive’s journey to the U.S. was facilitated by agreements between the U.S. and Iraq, and by novel use of a U.S. law, the Immunity From Seizure Act (IFSA).152 Enacted in 1965, IFSA was designed to allow objects of cultural significance to be temporarily exhibited in the U.S. by granting the objects immunity from suit.153 Its protection could assure lending nations, even ones that were on unstable or unfriendly terms with the U.S., that their items would not be seized by U.S. courts.154 In 2003, SBAH acknowledged that the Archive could not be conserved in Iraq at the moment and should therefore be sent to the U.S. with the understanding that it be returned within two years.155 This memorandum of understanding (MOU) with the Coalition Provisional Authority (CPA) (the U.S.-led transitional Iraqi government) is the basis on which all legal arguments against Iraq rest.156 The CPA then formed an agreement with NARA that the Archive would be returned when restored or upon request, and described a plan for exhibition, thus allowing IFSA to take effect and provide immunity from seizure.157 The actual U.S. exhibition of the Archive, which began in 2013, solidifies the Archive’s protection by IFSA. Using IFSA, NARA was able to bring the Archive to the U.S., leaving Iraq confident that it would be protected from suit contesting ownership.

The 2003 CPA-NARA agreement allowed the original transfer of the Archive to U.S. soil, but it had only anticipated a stewardship of two years, and further agreements had to be made to enable the Archive to remain abroad.158 The restoration efforts continued on, and in 2011, the U.S. Department of State formed an Interagency Agreement with NARA.159 NARA would finish conservation, digitization, and exhibition within three years, at which point it would send the Archive back to Iraq.160 The agreed date of return was extended in 2014 and again after 2018.161 This continued lack of return may mean a near-infinite U.S. possession within a murky legal space. Perhaps the Archive will be forgotten and can quietly be returned, just as a separate Archive of Ba’th party records was returned in August 2020.162 On the other hand, perhaps the patience of SBAH will run out at some point. The battle may even be taken to the courts. Alternately, an Iraqi Jewish party may sue, although no one has yet challenged Iraqi ownership in U.S. court (some threatened to do so in the early years).163 It remains to be seen whether there is a legal case to be made, but the only legal basis to bring suit is through IFSA.

The MOU and later agreements and extensions mean that the Archive remains in the U.S. under the agreement of Iraq, which maintains their claim of ownership. The MOU did not protect Iraq from private claims that Iraqi Jews might bring upon its arrival in the U.S. IFSA, however, does, and it is through legal challenge to IFSA that the struggle for ownership could be resolved.

II. Resolution Paths

“Have you murdered and also taken possession?”

-1 Kings 21:19

“Divide the living child in two, and give half to the one and half to the other.”

-1 Kings 3:25

The traditional option to resolve the ownership dispute of the Archive would be through litigation. A lawsuit on the question of ownership, however, faces numerous hurdles. If plaintiffs challenge ownership of the Archive in court, they will have to find a way through Iraq’s claim of sovereign immunity.164 Previous suits for repatriation have successfully used an exception to immunity based on a claim of expropriation, but this exception has become ever more tenuous in recent years.165 The litigation would be certain to drag on for many years, and the odds are not particularly in the plaintiffs’ favor. After discussing the legal case, this Note argues for use of restorative justice and alternative dispute resolution as the more successful, equitable, and adaptive solution.

A. Te Case for Litigation

The legal route to challenging ownership of the Archive is treacherous, but possible. Since the Archive is currently in the U.S. through a formal agreement with Iraq, U.S. citizens with a claim to the Archive can sue through the U.S. courts. Although international law prohibits expropriation of cultural property, and theoretically a claim could be brought through an international court of law, the U.S. legal system is also poised to handle this dispute. Statutes governing the U.S.’s stance on sovereign immunity, and the subject-matter jurisdiction that can be established by American-Iraqi Jewish plaintiffs, position the dispute within U.S. federal courts.166 Through litigation, the question of who owns the Archive might be established in a court of law and the Archive physically turned over to Iraqi Jews. The lawsuit might never make it to trial, but the commencement of litigation might finally prompt action from Iraq, either in settlement negotiations, or a more general decision to turn over ownership. In order to sue for possession of the Archive, plaintiffs must make a claim for restitution under replevin—a legal remedy for stolen property—by proving title, or legal ownership.167 Before plaintiffs can make that claim, which has its own difficulties, they must get around Iraq’s defense of sovereign immunity.168 Although IFSA provides sovereign immunity to the lending nation, a similar act, the Foreign Sovereign Immunities Act (FSIA), creates a very narrow exception to immunity, through which plaintiffs may bring suit.169

This case is not without precedent. The restitution of the Iraqi Jewish Archive would be built on the shoulders of restitution cases for Nazi-looted art. In fact, the very first restitution case of its kind won in the U.S. had a fact pattern that would likely be similar to a claim arising about the Archive. In Menzel v. List, the Menzels, facing persecution by the Nazis, had fled their home in Belgium and left behind a Marc Chagall painting, which the Nazis later took for “safekeeping.”170 The Menzels searched for it after the war, finally discovering it in 1962 in the collection of Albert List, who had bought it in good faith from the Perls Galleries.171 Mrs. Menzel sued for replevin and won in 1966. The court held that the Menzels had not abandoned their property, because they had fled for their lives.172 The opinion compared their relinquishment to a handover in a stickup.173 The court also held that the statute of limitations had not run although over twenty years had passed since the theft—the statute of limitations only began tolling when, upon demand for return, the demand was denied.174 Further, the court dismissed any claim to sovereign immunity, given that “the underlying transaction was the looting, plunder and pillage by the Nazis, which was of the very essence of evil.”175 These same defenses could likely be made in a suit to recover the Archive, and these same responses might well be used in reply.

Mrs. Menzel had to combat the defense of abandonment, which stems from the larger issue of title. Mrs. Menzel successfully established title by proving that she had not abandoned her property, but had been robbed of it.176 Similarly, Iraqi Jews will have to prove that they did not abandon the contents of the now-Archive when they emigrated. Iraq claims ownership of the Archive, and unlike in Menzel, where the U.S. did not acknowledge Nazi title to the property, the U.S. acknowledged Iraq’s ownership of the Archive in the NARA-CPA MOU.177 However, the strength of the MOU’s acknowledgement could reasonably be challenged. It was made under intense time pressure, given the Archive’s deteriorating state. The U.S. government had not inventoried the contents, nor queried their provenance. Had it the time to complete that due diligence, it may not have as readily acknowledged title.

Further, Iraq’s own claim to title is not bulletproof. Iraq would likely apply its Law No. 55 of 2002, the Antiquities and Heritage Law, which provides that the state owns all movable antiquities, including ancient manuscripts.178 However, the Archive arguably does not fall under this umbrella, since most of its materials are modern.179 The law is meant to protect antiquities that were excavated from Iraqi soil from looting and expropriation.180 The antiquities in the Archive’s collection—the Venetian Ketuvim, for example—are not the patrimony of Iraq. Nonetheless, Iraq can claim legal title for many of the materials through a series of laws that began with the Denaturalization Act of 1950, which stripped emigrating Jews of citizenship.181 This law led to a law passed in 1951 that retroactively froze the emigrants’ assets and empowered the government to take ownership.182 Because this transfer of property made to the state by Iraqi Jews was coercively done in violation of international law, plaintiffs could theoretically challenge Iraq’s claim to legal title in U.S. court.183 However, so much time has passed since the Archive was recognized by the U.S. as Iraqi property that it would be quite difficult to establish alternate title.

If Iraqi Jews can establish title, they are then faced with a secondary issue of identifying the members of the class (or identifying the specific property of the individual claimant). Identifying who the original owners of the stolen materials are is exceedingly difficult. Few materials can be traced to their original owners, and many materials, such as records of addresses, birth certificates, and report cards, belonged to organizations rather than individuals. Recognizing an Iraqi Jewish claim to title of the Archive would likely require a community representative organization, such as Jews Indigenous to the Middle East and North Africa or World Organization of Jews from Iraq to claim ownership. That organization might then decide to find a home for the Archive, or to do the work of repatriation by tracing ownership of the materials, as possible.

But again, before the plaintiffs can get to the question of equitable distribution, they must first counter claims of immunity from the would-be defendant.184 IFSA, which was used to bring the Archive to the U.S., seems to protect the Archive from forfeiture.185 However, there are three arguments for why immunity should not be applied. Two challenge the applicability of IFSA; one locates an exception to IFSA through another law. Douglas Cox, a scholar of international legal protections for cultural property and captured documents, argues that the invocation of IFSA is invalid because the State Department did not do its required due diligence to uncover any “potential for competing claims of ownership” before applying immunity.186 Cox’s other potential argument is that the exhibition of the material, necessary for application of IFSA, was pretextual and should not be allowed to incur protection.187 This argument is deeply weakened by the actual exhibition of the works that began in 2013; the argument would have been stronger if raised early in the U.S.’s holding. However, there may be another chink in IFSA’s armor that would allow a suit against Iraq in U.S. court—the Foreign Sovereign Immunity Act.

The FSIA was passed in 1976 to provide immunity for foreign states from U.S. litigation, but unlike an act with a similar purpose, IFSA, FSIA provides exceptions to immunity.188 Under customary international law, the courts of one state do not have jurisdiction over a foreign state.189 However, the FSIA provides exceptions to this protection in order to hold foreign states to some level of accountability.190 Courts have repeatedly interpreted FSIA’s exceptions to pierce IFSA’s protection.191 One of these exceptions might be of use in an attempt to bring suit against Iraq. The expropriation exception, § 1605(a)(3), revokes immunity if (1) the suit concerns property that was stolen in violation of international law and (2) the foreign state is engaged in commercial activity in the U.S. in connection with that stolen property.

A case decided in 2005, Malewicz v. City of Amsterdam, used the FSIA in this way to get around IFSA.192 An artist’s heirs sued Amsterdam for return of illegally taken artwork after it was loaned to the U.S. for exhibition.193 § 1605(a)(3) of the FSIA requires that the property at issue is “present in the United States in connection with a commercial activity” carried out by the foreign state.194 The loan of the art for exhibition, the D.C. District Court held, was sufficient commercial activity.195 The works were protected by IFSA.196 Rather than try to seize the art, the plaintiffs sued the owner, the foreign city of Amsterdam, and requested monetary damages or return of the works.197 They used the brief presence of the art in the U.S. not only to establish jurisdiction, but also to establish commercial activity, circumventing the seizure protection of the IFSA.198 The shield had become the sword. Amsterdam settled with the descendants, returning five of the paintings in their collection.199

Time has not been kind to the expropriation exception, however. In 2016, the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA) banned the use of the exhibition of a “work of art or other object of cultural significance” as the proof of commercial activity needed to sue over the item.200 However, the FCEJICA does provide an exception if the property was taken after 1900 “in connection with the acts of a foreign government as part of a systematic campaign of coercive confiscation or misappropriation of works from members of a targeted and vulnerable group.”201 Thus, a case involving the Archive can still satisfy the commercial activity prong of § 1605(a)(3) with the exhibition of the Archive.202 However, there is a second, very recent snag concerning the interpretation of what would satisfy the international law violation prong of § 1605(a)(3).

The current issue with the international law violation prong has to do with geographic locations of the violation and the violator. In Malewicz, the plaintiffs alleged that the Dutch state violated international law by taking property owned by a Russian citizen.203 In Menzel, the German state violated international law by taking property owned by a Belgian citizen.204 In the case of the Archive, the Iraqi state took property from Iraqi Jews—that is, rather than taking foreign property, it took domestic property. In February 2021, the U.S. Supreme Court held that § 1605(a)(3) could not be applied to a domestic taking of property by a state against its own people, because that type of taking was not a violation of international law.205 In the case, Federal Republic of Germany v. Philipp, descendants of art dealers sued for restitution of the Welfenschatz (in English, the Guelph Treasure), which they alleged was sold by German Jewish citizens under duress to the German state of Prussia.206 The Court found that because the state had not deprived “an alien” of property, it was not “wrongful under international law.”207

The heirs to the Guelph Treasure argued that, if the taking was not a violation of international law, then genocide, which includes cultural cleansing, and thus the taking of the Guelph Treasure, violated international law.208 The Court declined to accept this argument, holding, “the expropriation exception is best read as referencing the international law of expropriation rather than of human rights.”209 The Court held that to read § 1605(a)(3) otherwise would improperly weaken immunity, allowing it to be revoked any time “a violation of international human rights law is accompanied by a taking of property.”210 This decision strikes a blow to the viability of the Archive’s suit. However, all is not lost—the Archive might still thread the needle of international takings into the loophole of the expropriation exception.

When the property that became the Iraqi Jewish Archive was claimed by the Iraqi state as their own, the rightful owners were no longer citizens of Iraq, or at least not all of them were. The Denaturalization Act of 1950 allowed Jews to emigrate, so long as they renounced Iraqi citizenship and left their property in Iraq.211 The property was still nominally theirs, and could be used in Iraq, but not outside it.212 But in 1951, on the day after the year-long offer expired, Iraq secretly forced into law an even more egregious bill: the Law for the Control and Administration of Property of Jews Who Have Forfeited Nationality.213 This law froze the assets of Jews that had chosen to be denaturalized and to leave the country.214 It also transferred ownership of those assets to the state.215 The law was structured to shield Iraq from international liability by making lawful its expropriation. However armored, perhaps Iraq may not prevail. What the 1951 law makes clear is that when Iraq took property from the Jews, it took the property from Jews that were no longer citizens of that sovereignty. And thus, plaintiffs may argue that the taking of the Archive was in violation of international law because it deprived “aliens” of property.216 Therefore, plaintiffs may be able to use the expropriation exception to get around Iraq’s sovereign immunity and sue for restitution of the Archive.217

The path is far from clear, and far from speedy. For comparison, the Philipp case was filed in 2015, and five years later, after reaching the U.S. Supreme Court, has been remanded for further proceedings.218 A similar fate likely awaits an Archive suit, extending an uncertain situation that has now existed for nearly twenty years, not counting the previous fifty during which the Archive was held by the Ba’th party and its governing predecessors. Perhaps, as in Malewicz, and in so many other cultural restitution cases, the suit would ultimately settle out of court. As the saying goes, however, in a good settlement no one wins. Perhaps only part of the Archive would be returned, or ownership shared. Or perhaps, there would be no settlement. Perhaps the lawsuit would not be decided in plaintiff’s favor, and the Archive would return to Iraq with U.S. authorization. The next section considers some outcomes that could dispose of the need for a lawsuit entirely.

B. The Case for Non-Legal Resolution

Beginning, let alone winning, a legal suit for restitution of the Archive is difficult, expensive, and lengthy. In addition, the outcome of a successful suit may not accomplish what Iraqi Jews might wish for, because the Archive is made up of so many disparate materials which pose an array of difficulties to successful return. Furthermore, it is possible that enforcement might become an issue.219 In this situation, a non-litigious strategy might be to the benefit of the Iraqi Jewish community, as well as to relationships between Iraq and other stakeholders.220 The use of a restorative justice practice to negotiate the return of the Archive could also set a transformative precedent for future equitable restitutions.

Part of the difficulty with devising a restitution for the Archive stems from the need for different treatment of different materials within the Archive. It is confusing to try to apply one set of reasoning to a sixteenth century Bible and to surveillance records from the 1990s. The materials and objects in the Archive are not of universal value. The public takes up the cause of the Archive, thinking of the wedding certificates and the report cards, and they argue that the individuals whose names are on those documents should have a say in where the documents go.221 Whether or not those materials are of greater value in the hands of private individuals or in the libraries of researchers should be decided by those owners. But what about official correspondences, local laws, and mass-produced prayer books? Those were not people’s keepsakes, but a representation of the community. They were held communally in synagogues.222 They cannot be doled back out to rightful owners. Who decides where these objects should go? It may be possible to bypass this impossible question by seeking a compromise between the nationalist and internationalist theories of restitution.

We can look to other restitutions for guidance. The Archive is not unique in its situation. In March 2021, Iraq returned eight tons of archived files that it had stolen from Kuwait in 1990.223 This return was part of an extended reconciliation arising from the Gulf War that involved returning Kuwaiti bodies found in a mass grave in Iraq, and paying $51 billion dollars in restitution to Kuwait.224 The U.S. has also recently quietly returned an archive taken from Iraq during the Iraq War.225 The Ba’th party in Iraq compiled an archive that documented abuses of Kurds during the Anfal.226 Unlike the Archive, which is constituted of stolen property, the Ba’th Party created this archive, and its return to Iraq is part of an acknowledgment of past atrocities. Previously, a digital copy had symbolically and ceremoniously been handed to an Iraqi institution.227 The U.S. institution that previously housed the Archive now retains its own digital copy.228 The physical documents are currently kept in a secure location without access to the public due to their sensitive contents.229 When news of this return broke, some feared that the Archive’s return to Iraq would similarly be announced, and that it might become similarly (physically) inaccessible, despite digital copies of most materials currently being available online.230 On the other side, these types of acceptances of guilt and attempts to repair harms show an interest from Iraq of engaging with the Archive in a way that could also recognize past persecution and future goodwill.231 Plans for some form of return of the Archive can take note of these returns and how the Archive could be treated similarly and differently. The Archive represents an opportunity to continue restitution, publicly, while setting an example.

The idea that long-stolen cultural heritage should now be returned has been gaining global recognition in recent years, and current claims are rife and far-ranging. They are also encountering some of the same difficulties in imagining repatriation that the Archive does. In the summer of 2020, the University of Pennsylvania’s Penn Museum announced that it would begin attempts to repatriate the skulls it has in its collection that belonged to Black people who were enslaved.232 However, a lack of records in the collection itself as well as in the genealogical records of the descendants of enslaved people pose huge problems to accurate and complete repatriation, leading activists to call for transparency in the decision-making and a total dissolution of the Morton collection, numbering over 1,000 skulls.233 Across the world in Amsterdam, the Rijksmuseum has been attempting to return Southeast Asian art seized during colonial rule, but have struggled to figure out if the objects should go to the current governments of Indonesia and Sri Lanka, or to the descendants of the rulers at the time the objects were stolen.234

The Archive has particular aspects that make it a good opportunity to set an example for future restitution efforts. It was originally taken from a people who are largely unable to trace ownership claims. The contents were then secondly taken by another country that has no legal ability or intention to redistribute it, but that has arguably rescued it from certain misuse and destruction. Its preservation and conservation were incredibly expensive, and its monetary valuation, besides a few objects, is likely low. Its cultural value is high, however, and it is a powerful reminder of great injustice and persecution. The public has clamored for its return to its rightful owners, but what would justice look like? Using concepts of restorative and transitional justice, the return of the Archive can offer a template for reconciliation and growth in the Iraqi community, and for repatriation of other cultural heritage worldwide.

Restorative justice practices are utilized in the United States most often in the context of criminal justice.235 Often, the parties meet in a circle, a non-hierarchical practice that allows the victim some agency and closure, and requires that the perpetrator take responsibility and recognize the harm their actions have caused.236 However, the context of cultural heritage conflict calls for a different type of practice within the restorative justice framework. While modern restorative justice grew out of a theory of restitution, it extends beyond giving back what was taken.237 Restorative justice requires the parties in conflict to meet and understand each other.238 Often, the meeting brings about a more complex outcome beyond satisfying the demands of the victim.239 Because the Archive presents a complex problem, with numerous stakeholders and no clear “just” solution, restorative justice is well-suited to the issue. It is not easy to return the Archive. Some protest any attempt to split it apart, but it seems inappropriate to choose a single entity to own it. For swaths of the Archive, there is no clear individual owner. Where and how (and if) it would be displayed are all in contention. Restorative justice can create an informed and equitable solution.

Restorative justice is already used in cultural heritage conflicts, albeit not widely. Moira Simpson has considered its use in the context of museums seeking to rectify their long history of seizing and displaying the art and artifacts of indigenous populations.240 She ties participation in repatriation to respecting and valuing the culture and its ability to thrive:

To ignore, dismiss or reject requests from indigenous peoples who seek the return of cultural objects . . . would suggest that museum professionals are more concerned with preserving artefacts than supporting communities in their efforts to perpetuate the distinct cultures, beliefs and practices that led to the creation of the artefacts.241

By engaging in restorative justice, the Iraqi government can take steps towards atoning for a long-unacknowledged wrong. It can allow the Iraqi Jewish community to properly care for the Archive and to display it in the context the community feels is best.

Indeed, some of that care does not include display. Already, damaged Torah fragments taken from the Mukhabarat have been ritually buried according to Jewish practice.242 Jewish sacred writings must not be destroyed, so when they are damaged and can no longer be used, the practice is to bury them.243 There is no prohibition against displaying these fragments, and one of the fifty Iraqi Jewish Archive Torah fragments reviewed by rabbinical authorities was retained for exhibition.244 The remaining forty-nine were buried in a coffin in 2013 in the New Montefiore Cemetery in West Babylon, New York.245 The official press release describes “representatives from all groups with a stake in the Iraqi Jewish Archive” as well as the Iraqi ambassador and other Iraqi representatives, and U.S. Department of State and NARA representatives were in attendance.246 The Iraqi ambassador had reviewed the fragments and approved their burial.247 In this action, we see a willingness to engage in restorative justice.

A restorative justice practice in the context of the Iraqi Archive conflict should be nestled into a larger agenda of transitional justice. The United Nations defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”248 The Ba’th regime was a brutal era of cultural cleansing and genocide inflicted not only upon Jews, but most notably upon Kurds.249 Engaging in work to repair past harm caused by the exile of Jews and the rounding up of their property can open a door to further transitional justice. While continuing to maintain a property right in the Archive and a plan to exhibit it in Iraq, the current ambassador to the U.S., Fareed Yasseen, has also expressed the desire to mend relationships with the Iraqi Jewish diaspora.250 It is possible that using restorative justice practices and diplomatic incentives could finally bring the conflict to a resolution.

The ending for the Archive could be the beginning for continuing transitional justice. Iraq is still deeply hostile towards Jews. A 2003 fatwa ordered the killing of any Jews attempting to buy real estate in Iraq.251 The then-director of the Gilgamesh Center for Antiquities and Heritage Protection—not Jewish himself, but who showed an interest in preservation of Mosul’s Jewish quarter—was arrested and interrogated for two months by Iraqi police under suspicion of spying for Israel.252 There are at most three Jews remaining in Iraq in 2021.253 There is a great need for reconciliation and reopening of Iraq towards the Jewish community.

An alternative to litigation—its cost, uncertainty, and adversarial nature—might look like this: stakeholders in the Archive (including representatives in Iraq) would engage in dialogue. In recognizing the history of Jews in Iraq, the cultural contributions as well as the persecutions, this conversation could open a door to renewed community and credible contrition. What could come out is the way that the Archive represents the much greater and far-ranging harm done to a once-enormous community. The conversation could address how best to remedy the harm. Perhaps the stakeholders might agree that collaboration would be possible and desired.

There are many ways to devise a “restitution” of sorts that would not be a simple renunciation of claim to title. For example, The University of Maine signed an MOU with the Penobscot Nation in 2018 to collaboratively manage their collection of archeological heritage in a way that respectfully integrates traditional knowledge in the presentation of the collection.254 There may be a similar way to involve members of the Iraqi Jewish diaspora that can be identified in decision-making and curation of the Archive. As for physical logistics, Iraq could provide the Archive on long term loan, although that option may be distasteful to Iraqi Jewish stakeholders, given that it does not achieve symbolic return. The Archive’s digitization could be used, with symbolic digital copies of the Archive distributed to Iraq and in areas of Iraqi-Jewish diaspora, as was done with the Ba’th party archives.255 The Archive could be split and housed at numerous locations, perhaps some of it in private collection and others in research institutions and museums. The Archive could also assume a rotation schedule, the better to maximize its outreach, recognize the diasporic nature of its owners, and to share the burden of its conservation and housing. Although these ideas are dependent on voluntary participation of both Iraqi Jews and Iraqi state officials, they are powerful options. New ideas for resolution must be raised, or else we face continued inaction from the U.S. that will result, sooner rather than later, in the return of the Archive to Iraq and the loss of a window for claimants to regain their cultural property. There exists now an opportunity to change the fate of the Archive. A collection that represents such suffering and injustice has the potential to be remade into something of recognition, respect, and restoration.

Conclusion

For the reasons above, concrete steps should be taken to resolve the fate of the Archive. The U.S. government should allow Iraq the opportunity to express willingness to work diplomatically with Iraqi Jewish stakeholders to collaboratively come to a solution that makes right the wrong of confiscating the cultural property of Iraqi Jews throughout the twentieth century. In the event that a lawsuit is necessary and a plaintiff apparent, there is a possibility that a challenge would yield results—and at the very least, it would pressure the U.S. and Iraqi governments to take action to address the remarkable collection of cultural heritage that currently sits, like the Jews sent to Babylon two thousand years ago, in exile.

∗ Leila Selchaif is a law student at Northeastern University, class of 2022. She majored in English Literature and Classical Studies at Swarthmore College. She would like to thank Sharon Persons, Bruce Montgomery, Michael Brill, Rebecca Whiting, and the staff of Northeastern University Law Review for their help on this Note.

1 Recovery of Artifacts, Preserving Iraqi Jewish Archive, https://ijarchive.org/project/recovery-artifacts (last visited June 14, 2021); Notes on the Scope of the Iraqi Jewish Archive (IJA), Preserving Iraqi Jewish Archive (Sept. 27, 2013), https://ijarchive.org/sites/default/files/page-images/content/1.0/ScopeNotesWebsite.pdf.

2 Notes on the Scope of the Iraqi Jewish Archive (IJA), supra note 1; Tiq for Torah Scroll, Nat’l Archives, https://www.archives.gov/exhibits/ija/content/3841 (Jan. 6, 2015); Ketuvim, Nat’l Archives, https://www.archives.gov/exhibits/ija/content/1525 (Dec. 16, 2014).

3 Bruce P. Montgomery, Rescue or Return: The Fate of the Iraqi Jewish Archive, 20 Int’l J. Cultural Prop. 175, 188 (2013); Kate Fitz Gibbon, US Rescue of Iraqi Jewish Archives Imperiled, Cultural Prop. News (Oct. 2, 2017), https://culturalpropertynews.org/us-agreements-with-iraq-libya-egypt-beyond-rescuing-the-iraqi-jewish-archives/; Michael R. Fischbach, Claiming Jewish Communal Property in Iraq, Middle E. Rep., Fall 2008 at 5, 6, https://merip.org/paupress/download/UFIoGAltf9fkfA8u1513223454/MER%20248%20final.

4 See, e.g., Alice Fordham, Iraqi Jewish Documents Remain in Limbo, L.A. Times (Oct. 31, 2010), https://www.latimes.com/archives/la-xpm-2010-oct-31-la-fg-iraq-museum-20101031-story.html; Carole Basri & David Dangoor, Opinion, The Iraqi Jewish Archive Is Stolen Property that Should Go Back to Its Original Owners, Hill (Apr. 27, 2018), https://thehill.com/opinion/international/385072-the-iraqi-jewish-archive-is-stolen-property-that-should-go-back-to-its.

5 Agreement between The Coalition Provisional Authority and The National Archives and Records Administration (Aug., 20, 2003), http://www.dcoxfiles.com/cpanara2003.pdf at 2. [hereinafter NARA-CPA MOU].

6 The Iraqi Jewish Archive Preservation Report, Preserving Iraqi Jewish Archive (Oct. 2, 2003), https://ijarchive.org/sites/default/files/page-images/content/1.0/Iraqi%20Jewish%20Archive%20Report.pdf.

7 Recovery of Artifacts, supra note 1.

8 Montgomery, supra note 3.

9 Recovery of Artifacts, supra note 1.

10 Montgomery, supra note 3, at 176, 178.

11 Id.; Recovery of Artifacts, supra note 1.

12 The Iraqi Jewish Archive Preservation Report, supra note 6, at 3; U.S. Dep’t of State, Agreement No. 4490NEA141801, Interagency Acquisition Agreement Between the U.S. Department of State and the National Archives and Records Administration to Complete the Preservation of the Iraqi Jewish Archive 1 (2011) [hereinafter Interagency Acquisition Agreement], https://ijarchive.org/sites/default/files/page-images/content/1.0/IAA%20State%20-%20NARA_0.pdf.

13 Montgomery, supra note 3, at 182.

14 Carl Hartman, Fate of Rare Jewish Artifacts from Iraq Remains Uncertain, L.A. Times (May 28, 2004), https://www.latimes.com/archives/la-xpm-2004-may-28-et-artifacts28-story.html.

15 Interagency Acquisition Agreement, supra note 12, at 19–26.

16 Id.

17 Id. at 1.

18 Rebecca Santana, Tug-of-war over Iraqi Jewish Trove in US Hands, NBC News (July 10, 2011).

19 Interagency Acquisition Agreement, supra note 12, at 22.

20 Montgomery, supra note 3, at 184.

21 Interagency Acquisition Agreement, supra note 12, at 1.

22 Iraqi Official Urges U.S. to Return Archives, Radio Free Eur. Radio Liberty (Oct. 19, 2011), https://www.rferl.org/a/iraq_united_states_archives/24364123.html.

23 Discovery and Recovery: Preserving Iraqi Jewish Heritage, Preserving Iraqi Jewish Archive, https://ijarchive.org/exhibit/exhibit (last visited Apr. 25, 2021).

24 Jewish News Syndicate, Iraqi Jewish Archive’s U.S. Exhibition Extended, Algemeiner (May 15, 2014), https://www.algemeiner.com/2014/05/15/iraqi-jewish-archive%E2%80%99s-u-s-exhibition-extended/.

25 Taif Alkhudary, Opinion, Five Years On, Still No Justice for Iraq’s Camp Speicher Victims, Al Jazeera (June 12, 2019), https://www.aljazeera.com/opinions/2019/6/12/five-years-on-still-no-justice-for-iraqs-camp-speicher-victims.

26 Confidential State Department source with knowledge of the Iraqi Jewish Archive and relevant negotiations.

27 Discovery and Recovery: Preserving Iraqi Jewish Heritage, supra note 23.

28 Id.

29 Josefin Dolstein, Despite Protests, State Department Says it Will Return Trove of Jewish Artifacts to Iraq, Jewish Tel. Agency (Sept. 8, 2017), https://www.jta.org/2017/09/08/politics/despite-protests-state-department-says-it-will-return-trove-of-jewish-artifacts-to-iraq. Most of the funding had, at this point, been used. Confidential State Department Source, supra note 26.

30 S. Res. 577, 115th Cong. (2018).

31 See, e.g., Orthodox Union Praises Bipartisan Group of U.S. Representatives for Recommending Renegotiation of Iraqi Jewish Archives Scheduled Return to Iraq, Orthodox Union Advoc. Ctr. (Mar. 10, 2014), https://advocacy.ou.org/orthodox-union-praises-bipartisan-group-u-s-representatives-recommending-renegotiation-iraqi-jewish-archives-scheduled-return-iraq/; Basri & Dangoor, supra note 4; Talya Zax, Exclusive: The Iraqi Jewish Archive Could Reshape Foreign Policy. But Its Future Is Uncertain., Forward (July 17, 2018), https://forward.com/culture/405697/iraqi-jewish-archive-could-change-foreign-policy-linkage-mou-future/.

32 Confidential State Department Source, supra note 26. This extension was never publicized, and to author’s knowledge, has never been reported on in any way.

33 Michael P. Brill, Commentary, Setting the Records Straight in Iraq, War On Rocks (July 17, 2020), https://warontherocks.com/2020/07/setting-the-records-straight-in-iraq/; Lyn Julius, Return to Iraq of Ba’ath Archives Raises Fears for Jewish Archives, Algemeiner (Oct. 12, 2020), https://www.algemeiner.com/2020/10/12/return-to-iraq-of-baath-archives-raises-fears-for-jewish-archives/; Andrew Blum, D-Squared Media Announces Production and Release of “Saving the Iraqi Jewish Archives,” AP News (July 10, 2020), https://apnews.com/press-release/news-direct-corporation/bf6f235cf2acecfcf7ad29d6c18a09fa.

34 Will Iraqi Jewish Heritage Stay in US?: Senate Resolution 577 Recommends Renegotiation of US - Iraq Agreement, Cultural Prop. News (Aug. 10, 2018), https://culturalpropertynews.org/will-iraqi-jewish-heritage-stay-in-us/. The moniker “Iraqi Nationalists” has been designated for identification purposes by the author, and is not meant to implicate any extant political party.

35 Sylvia Westall & Jonathan Saul, Tug-of-War Erupts Over Planned Return of Jewish Archives to Iraq, Reuters (Nov. 26, 2013), https://www.reuters.com/article/us-iraq-jews/tug-of-war-erupts-over-planned-return-of-jewish-archives-to-iraq-idUSBRE9AP0VR20131126.

36 Will Iraqi Jewish Heritage Stay in US?, supra note 34; Montgomery, supra note 3, at 189.

37 See, e.g., Montgomery, supra note 3, at 194–95. “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.” Id. at 194.

38 Id. “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.” Id. at 194–95.

39 Douglas Cox, Archives and Records in Armed Conflict: International Law and the Current Debate Over Iraqi Records and Archives, 59 Cath. U. L. Rev. 1001, 1049–50 (2010).

40 Lauren Baker, Note, Controlling the Market: An Analysis of the 1970 UNESCO Rule on Acquisition and the Market for Unprovenanced Antiquities, 52 Stan. J. Int’l L. 321, 332 (2016).

41 Id. at 333.

42 Id. at 332.

43 See discussion infra Sections I.C., II.A. (exploring how laws like FSIA and IFSA prioritize the exchange and display of cultural property over repatriation claims).

44 E.g., Will Iraqi Jewish Heritage Stay in US?, supra note 34.

45 In a similar example, Western countries have recently begun repatriating Benin Bronzes looted from Nigeria. Germany stated that the return of their collection was done to “address[] Germany’s colonial past.” Press Release, Fed. Foreign Off. of Germany, Statement on the Handling of the Benin Bronzes in German Museums and Institutions (Apr. 30, 2021), https://www.auswaertiges-amt.de/en/newsroom/news/benin-bronze/2456788.

46 See, e.g., Judit Neurink, Jewish Heritage Survived ‘Islamic State’ in Iraq, Deutsche Welle (Apr. 14, 2019), https://www.dw.com/en/jewish-heritage-survived-islamic-state-in-iraq/a-48296515.

47 Lyn Julius, Jews Vanish from Iraq, but Still Have No Closure, Jewish News Syndicate (Mar. 21, 2021), https://www.jns.org/opinion/jews-vanish-from-iraq-but-still-have-no-closure/; Stephen Farrell, Baghdad Jews Have Become a Fearful Few, N.Y. Times (June 1, 2008), https://www.nytimes.com/2008/06/01/world/middleeast/01babylon.html; cf. U.S. Dep’t of State, 2019 Report on International Religious Freedom: Iraq 4 (2019) https://www.state.gov/wp-content/uploads/2020/06/IRAQ-2019-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf. However, there are estimated to be 400 Jewish families in the Iraqi Kurdistan Region, which exists in Iraq but is autonomous from the Iraqi government. Qassim Khidir, In Erbil, Iraq’s Few Remaining Jews Cling to a Fading Heritage, Times Isr. (Sept. 7, 2020), https://www.timesofisrael.com/in-erbil-iraqs-few-remaining-jews-cling-to-a-fading-heritage/.

48 Farrell, supra note 47.

49 Maher Chmaytelli et al., With Jews Largely Gone from Iraq, Memories Survive in Israel, Reuters (Apr. 18, 2018), https://www.reuters.com/article/us-israel-independence-iraq-jews/with-jews-largely-gone-from-iraq-memories-survive-in-israel-idUSKBN1HP1ID; Maurice Shohet, Iraqi Jews in the USA, Iraqi Jews (Mar. 30, 1998), http://www.iraqijews.org/usa.html#statistics.

50 Iraq vs. Israel, Peace Rsch. Ctr. Prague, https://www.prcprague.cz/fcdataset/iraq-israel (last visited June 14, 2021); Ariel Kahana, US Lawmakers Push Trump to Keep Iraqi Jewish Archive in America, Isr. Hayom (Sept. 3, 2018), https://www.israelhayom.com/2018/09/03/us-lawmakers-push-trump-to-keep-iraqi-jewish-archive-in-america/.

51 E.g., Cox, supra note 39, at 1051.

52 Montgomery, supra note 3, at 183–84; About Us, Babylonian Jewry Heritage Ctr., https://www.bjhcenglish.com/about-us (last visited Sept. 21, 2021); cf. Fordham, supra note 4.

53 Westall & Saul, supra note 35 (“Nothing is safe, no shrine or holy place let alone a site where Jewish artifacts are stored. There is a complete breakdown in safety and security in Iraq now.”) (quoting Cynthia Kaplan Shamash, World Organization of Jews from Iraq); see also Fordham, supra note 4.

54 See Alex Marshall, A New Museum to Bring the Benin Bronzes Home, N.Y. Times (Nov. 13, 2020), https://www.nytimes.com/2020/11/13/arts/design/david-adjaye-benin-bronzes-museum.html. The Edo Museum of West African Art is poised to provide a home for the Benin Bronzes looted from Nigeria in 1897. Id. One of the goals of this museum is to create infrastructure for display by home countries. Id. The designer, David Adjaye, has said that it is the job of the Western museums to support the creation of this infrastructure to foster repatriation. Id.

55 Laura C. Mallonee, A Patronizing Argument Against Cultural Repatriation, Hyperallergic (Apr. 20, 2015), https://hyperallergic.com/198798/a-patronizing-argument-against-cultural-repatriation/. In the case of Nazi-looted art, Germany has at times argued that the pieces should remain under German ownership because the sales were not coerced. See e.g., Spencer S. Hsu, Germany to Appeal First Ruling Allowing Nazi-Looted Art Claim Against it in U.S. Court, Wash. Post (Apr. 19, 2017), https://www.washingtonpost.com/local/public-safety/germany-to-appeal-first-ruling-allowing-nazi-looted-art-claim-against-it-in-us-court/2017/04/14/478df4ae-2065-11e7-be2a-3a1fb24d4671_story.html; discussion infra Section II.A. (exploring the dispute over the Guelph Treasure recently litigated in Fed. Republic of Ger. v. Philipp, 141 S. Ct. 703 (2021)).

56 David B. Wilson et al., Effectiveness of Restorative Justice Principles in Juvenile Justice: A Meta-Analysis 7 (2017), https://www.ojp.gov/pdffiles1/ojjdp/grants/250872.pdf.

57 Lesson 1: What Is Restorative Justice?: Inclusion, Ctr. for Just. & Reconciliation, http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-1-what-is-restorative-justice/#sthash.ab6n3AcK.dpbs (last visited June 14, 2021).

58 Zvi D. Gabbay, Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative Justice Practices, 2005 J. Disp. Resol. 349, 359 (2005).

59 Ted Wachtel, Defining Restorative, Int’l Inst. for Restorative Pracs. 3–4 (2016), https://www.iirp.edu/images/pdf/Defining-Restorative_Nov-2016.pdf.

60 See id. at 4.

61 Esther Meir-Glitzenstein, Zionism in an Arab Country: Jews in Iraq in the 1940s 202 (2004).

62 Orit Bashkin, New Babylonians: A History of Jews in Modern Iraq 22 (2012).

63 Adhid Miri, The Jewish Community of Iraq- History, Influence, and Memories, Chaldean News (May 28, 2021), https://www.chaldeannews.com/features-1/2021/5/26/the-jewish-community-of-iraq-history-influence-and-memories.

64 Jeremiah 52:28–30.

65 Luke Baker, Ancient Tablets Reveal Life of Jews in Nebuchadnezzar's Babylon, Reuters (Feb. 3, 2015), https://www.reuters.com/article/us-israel-archaeology-babylon-idUSKBN0L71EK20150203.

66 Bashkin, supra note 62.

67 Id. at 22.

68 Shmuel Moreh, Introduction to Iraq's Last Jews: Stories of Daily Life, Upheaval, and Escape from Modern Babylon 1, 7 (Tamar Morad et al. eds., 2008); Dana Ledger, Note, Remembrance of Things Past: The Iraqi Jewish Archive and the Legacy of the Iraqi Jewish Community, 37 Geo. Wash. Int'l L. Rev. 795, 807 (2005).

69 Montgomery, supra note 3, at 187.

70 Moreh, supra note 68, at 6.

71 Id. at 7.

72 Ledger, supra note 68, at 809–10.

73 Meir-Glitzenstein, supra note 61, at 180–81.

74 Id. at 163.

75 Id.

76 Ledger, supra note 68, at 810–11; Yehouda Shenhav, Arab Jews, Population Exchange, and the Palestinian Right of Return, in Exile and Return: Predicaments of Palestinians and Jews 225, 228–35 (Ann M. Lesch & Ian S. Lustick eds., 2005).

77 Montgomery, supra note 3, at 187.

78 Id. at 195.

79 Id.

80 Mordechai Ben Porat, Firsthand Recollection, in Iraq's Last Jews: Stories of Daily Life, Upheaval, and Escape from Modern Babylon, supra note 68, at 110, 115; Ledger, supra note 68, at 811.

81 Meir-Glitzenstein, supra note 61, at 203–04.

82 Id. at 204.

83 Id. at 201.

84 Id. at 206.

85 Immigration to Israel: Operation Ezra & Nehemia - the Airlift of Iraqi Jews, Jewish Virtual Libr., https://www.jewishvirtuallibrary.org/operation-ezra-and-nehemia-the-airlift-of-iraqi-jews (last visited Apr. 25, 2021). The 1951 allowance was five dinars, which would have converted to $14 USD in 1951. In 2021, the value is approximately $150 USD. See Letter from Walter Eytan, Dir. Gen., Ministry of Foreign Affs. of Isr., to the Chairman of the Conciliation Comm'n (Mar. 19, 1951) (on file with the United Nations Conciliation Commission for Palestine), https://www.un.org/unispal/document/auto-insert-211728/. By contrast, in 1950, emigrants were allowed to bring fifty dinars with them. That converts to $140 USD in 1951, or approximately $1,500 USD in 2021. Prior to 1951, Jews were also allowed to retain and use their remaining assets within the borders of Iraq. Id.

86 Ledger, supra note 68, at 811.

87 Moshe Gat, The Jewish Exodus from Iraq, 1948–1951, at 119 (2013) (ebook).

88 Ledger, supra note 68, at 811.

89 Meir-Glitzenstein, supra note 61, at 198.

90 Id. at 198.

91 Id. at 205.

92 Ben Porat, supra note 80, at 115; Shlomo Hillel, Firsthand Recollection, in Iraq's Last Jews: Stories of Daily Life, Upheaval, and Escape from Modern Babylon, supra note 68, at 80, 92; Immigration to Israel: Operation Ezra & Nehemia - the Airlift of Iraqi Jews, supra note 85.

93 Hillel, supra note 92, at 92–93.

94 Id. at 94.

95 Immigration to Israel: Operation Ezra & Nehemia - the Airlift of Iraqi Jews, supra note 85.

96 Id.; Moreh, supra note 68.

97 Moreh, supra note 68, at 8.

98 Id. at 7–8; Ledger, supra note 68, at 812–13.

99 Moreh, supra note 68, at 8.

100 Id.

101 Id.; Montgomery, supra note 3, at 188.

102 Moreh, supra note 68, at 8.

103 Id.

104 See supra note 47.

105 James Glanz & Irit Pazner Garshowitz, In Israel, Iraqi Jews Reflect on Baghdad Heritage, N.Y. Times (Apr. 27, 2016), https://www.nytimes.com/2016/04/28/world/middleeast/in-israel-iraqi-jews-reflect-onbaghdad-heritage.html.

106 Id.

107 Gregory H. Stanton, The Eight Stages of Genocide, Genocide Watch (1998), https://www.keene.edu/academics/ah/cchgs/resources/educational-handouts/the-eight-stages-of-genocide/download/.

108 Notes on the Scope of the Iraqi Jewish Archive (IJA), supra note 1; Search the Collection, Preserving Iraqi Jewish Archive, https://ijarchive.org/search (last visited Aug. 12, 2021).

109 Michael R. Fischbach, Jewish Property Claims Against Arab Countries 56, 107 (2008).

110 Id. at 223–24.

111 Sandi Fox, Who Owns the Jewish Treasures that Were Hidden in Saddam Hussein’s Basement?, PBS News Hour (Apr. 29, 2014), https://www.pbs.org/newshour/world/stolen-treasures-iraqi-jewish-community; Jerusalem Center for Public Affairs, Documentary: The Discovery and Rescue of Iraqi Jews’ Patrimony in Baghdad. Will it Now Be Lost?, YouTube, at 5:30 (Sept. 28, 2017), https://www.youtube.com/watch?v=lJq0XNqBMnM.

112 Ledger, supra note 68, at 828–29.

113 Notes on the Scope of the Iraqi Jewish Archive (IJA), supra note 1.

114 Id. The Haggadah (pl. Haggadot) is the text that is read during the Passover Seder, recounting the Exodus of the Jews out of Egypt. Jamie Rubin, The Haggadah, My Jewish Learning, https://www.myjewishlearning.com/article/the-haggadah/ (accessed Dec. 17, 2021). The Talmud is the central rabbinic Jewish text for theology and religious law. What Is the Talmud?, My Jewish Learning, https://www.myjewishlearning.com/article/talmud-101/ (accessed Dec. 17, 2021). The Tanakh is the canonical collection of Jewish scriptures. It has three sections: the Torah, Nevi’im, and Ketuvim. Hebrew Bible: Torah, Prophets and Writings, My Jewish Learning, https://www.myjewishlearning.com/article/hebrew-bible/, (accessed Dec. 17, 2021).

115 See Ketuvim, supra note 2 (describing the Ketuvim as the final section of the Tanakh, also known as the Hebrew Bible).

116 Notes on the Scope of the Iraqi Jewish Archive (IJA), supra note 1. The Zohar is a foundational Kabbalistic text of scholarship on mystical aspects of Judaism. Hila Ratzabi, The Zohar, My Jewish Learning, https://www.myjewishlearning.com/article/the-zohar/ (accessed Dec. 17, 2021).

117 Saving the Iraqi Jewish Archives: A Journey of Identity (D-Squared Media NYC 2020).

118 Id.

119 Benjamin Weinthal, Ex-Israel Envoy Publishes New List of Baghdadi Jewry Surnames, Jerusalem Post (Aug. 31, 2020), https://www.jpost.com/middle-east/ex-israel-envoy-publishes-new-list-of-baghdadi-jewry-surnames-640494.

120 Saving the Iraqi Jewish Archives: A Journey of Identity, supra note 117.

121 The Nat'l Archives, Archive Principles and Practice: An Introduction to Archives for Non-Archivists 8 (2016), https://www.nationalarchives.gov.uk/documents/archives/archive-principles-and-practice-an-introduction-to-archives-for-non-archivists.pdf.

122 Id. at 7–8.

123 Id.

124 Id. at 7.

125 Id. at 8.

126 Id.

127 Id.

128 See, e.g., Basri & Dangoor, supra note 4.

129 Id.

130 Id. (“The Iraqi Jewish Archive should return to the private and communal Iraqi Jewish owners . . . .”).

131 Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers 118 (Henry Louis Gates Jr. ed., 2006).

132 U.N. Educational, Scientific and Cultural Organization Res. vol. 1, annex I, at 11 (Nov. 28, 1978), http://portal.unesco.org/en/ev.php-URL_ID=13137&URL_DO=DO_TOPIC&URL_SECTION=201.html (providing “Recommendation for the Protection of Movable Cultural Property”).

133 Montgomery, supra note 3, at 177.

134 Miriam Kresh, The Soldier in the Mukhabarat: Saddam Hussein's Trove of Jewish Artifacts, Jerusalem Post (Feb. 21, 2016), https://www.jpost.com/metro/the-soldier-in-the-mukhabarat-443108.

135 Id.

136 Fox, supra note 111.

137 Montgomery, supra note 3, at 177.

138 Id.

139 Id.; Kresh, supra note 134.

140 Kresh, supra note 134.

141 Id.

142 Id.; see also Edward Rothstein, The Remnants of a Culture’s Heart and Soul, N.Y. Times (Nov. 10, 2013), https://www.nytimes.com/2013/11/11/arts/design/iraqi-jewish-documents-at-the-national-archives.html. Although the article refers to a Torah scroll and most other accounts refer to a Talmud, it is likely that both refer to the same item which was misclassified in one telling or the other. This Note refers to the missing item as a Talmud.

143 Judith Miller, Aftereffects: Missing Documents; G.I.'s Search, Not Alone, in the Cellar of Secrets, N.Y. Times (May 9, 2003), https://www.nytimes.com/2003/05/09/world/aftereffects-missing-documents-gi-s-search-not-alone-in-the-cellar-of-secrets.html. Judith Miller’s accounts must be taken with a grain of salt, as she later was accused of fabricating and trumping up claims of weapons of mass destruction. See From the Editors; The Times and Iraq, N.Y. Times (May 26, 2004), https://www.nytimes.com/2004/05/26/world/from-the-editors-the-times-and-iraq.html (the original letter from the editors apologizing for the inaccuracy of articles authored by her). However, she was present as a journalist at the recovery of the Archive and provided one of the few firsthand accounts at the time of the find. Montgomery, supra note 3, at 177.

144 Miller, supra note 143; Profile: Mobile Exploitation Team Alpha, Hist. Commons, http://www.historycommons.org/entity.jsp?entity=mobile_exploitation_team_alpha__1 (last visited July 5, 2021). Very few accounts give a specific timeline of the recovery. As described between these two dispatches from the journalist accompanying MET Alpha, a day was spent on discovery and initial recovery. A couple days later, the team came back with water pumps to finish salvaging the basement. Miller, supra note 143.

145 Saving the Iraqi Jewish Archives: A Journey of Identity, supra note 117.

146 Talya Zax, Exclusive: In Exile, Iraqi Jews Are Desperate to Reclaim Their Artifacts — but So Is Iraq, Forward (July 16, 2018), https://forward.com/culture/405607/iraqi-jews-in-exile-claim-iraqi-jewish-archive-so-does-iraq/; Montgomery, supra note 3, at 178.

147 Jerusalem Center for Public Affairs, supra note 111, at 7:00; Montgomery, supra note 3, at 178.

148 Montgomery, supra note 3, at 177–78.

149 Id. at 178.

150 Id. at 178, 182.

151 Id. at 178.

152 See NARA-CPA MOU, supra note 5, at 4; Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display Act (IFSA), 22 U.S.C. § 2459(a).

153 Montgomery, supra note 3, at 179.

154 Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 310 (D.D.C. 2005) (“Section 2459 was passed to address this ‘threat to cultural exchange’ and specifically to address situations in which ‘[a]s a condition to the loan, [a foreign nation] insisted on a grant of immunity from seizure as protection against [its] former . . . citizens who had valid claims to the title of the works.’” (quoting a statement of interest filed by the U.S.)).

155 NARA-CPA MOU, supra note 5.

156 See Montgomery, supra note 3, at 180 (discussing how the U.S. used IFSA as basis for the MOU).

157 NARA-CPA MOU, supra note 5, at 2–4.

158 Confidential source, supra note 26.

159 Interagency Acquisition Agreement, supra note 12.

160 Id.

161 Josefin Dolsten, Despite Protests, State Department Says It Will Return Trove of Jewish Artifacts to Iraq, Jewish Telegraphic Agency (Sept. 8, 2017), https://www.jta.org/2017/09/08/politics/despite-protests-state-department-says-it-will-return-trove-of-jewish-artifacts-to-iraq?_ga=2.15181494.1060951520.1628299901-1043584871.1628299901. It was repeated and generally believed that after the 2014 extension, the Archive would be returned in 2018—however, there does not seem to have been a date set for return. Id. A confidential source reports that the agreement was extended at some point after 2018, and it is undisputed that the Archive still remains in U.S. custody. Confidential source, supra note 26.

162 Brill, supra note 33.

163 Naim Dangoor and Edwin Shuker are two claimants most willing to litigate. See, e.g., Daniel Sugarman, How I Became an Artefact: The Story of Iraq's Jewish Archive and Its Restoration, JC (Jan. 4, 2019), https://www.thejc.com/news/features/how-i-became-an-artefact-the-story-of-iraq-s-jewish-archive-and-its-restoration-1.478080; Joel Millman, Londoner Claims Ancient Title, a Lost Fortune for Iraqi Jews, Wall St. J. (June 30, 2003), https://www.wsj.com/articles/SB105692136915051400.

164 22 U.S.C. § 2459.

165 See, e.g., Republic of Aus. v. Altmann, 541 U.S. 677 (2004) (applying the expropriation exception of the FSIA was applicable in an action to recover the Austrian Portrait of Adele Bloch-Bauer by Gustav Klimt where it was being displayed in the U.S.).

166 See 22 U.S.C. § 2459; Foreign Sovereign Immunities Act (FSIA) of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (codified at 28 U.S.C. §§ 1602–11); E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302–03 (10th Cir. 2001) (“Tribal sovereign immunity is a matter of subject matter jurisdiction . . . which may be challenged by a motion to dismiss under [Fed. R. Civ. P.] 12(b)(1) . . . .”) (citations omitted).

167 William R. Ognibene, Lost to the Ages: International Patrimony and the Problem Faced by Foreign States in Establishing Ownership of Looted Antiquities, 84 Brooklyn L. Rev. 605, 608, 624–23 (2019).

168 Mark B. Feldman, Cultural Property Litigation and the Foreign Sovereign Immunities Act of 1976, 3 A.B.A. Section of Int’l L. Newsletter, No. 2 2011 at 9, 9.

169 28 U.S.C. § 1605.

170 Menzel v. List, 267 N.Y.S.2d 804 (Sup. Ct. 1966), appealed, 279 N.Y.S.2d 608 (App. Div. 1967), rev'd, 246 N.E.2d 742 (N.Y. 1969). Subsequent appellate history concerned only the measure of damages awarded.

171 Id. at 807.

172 Id. at 810.

173 Id.

174 Id. at 809.

175 Id. at 820. This reasoning was later adapted in exceptions to sovereign immunity created by FSIA.

176 Id. at 810–11.

177 NARA-CPA MOU, supra note 5. Iraq’s Prime Minister said, in 2014, “This is Iraqi legacy owned by all of the Iraqi people and belongs to all generations.” Fox, supra note 111.

178 Antiquities and Heritage Law No. 55 of 2002, art. 17 (Iraq), https://en.unesco.org/sites/default/files/ir_law55200_engtno.pdf. Ancient means over 200 years old. Id. art. 4.

179 These materials would likely be classified heritage materials, which must be registered with the state, but which can be privately owned. Id. art. 17.

180 Id. art. 1; see id. arts. 38–44 (listing penalties for looting and trafficking, including up to fifteen years in prison and execution).

181 Supplement to Ordinance Canceling Iraqi Nationality, Law No. 1 of 1950 (Iraq).

182 Law No. 5 of 1951 (Iraq) ( also called “A law for the Supervision and Administration of the Property of Jews who have Forfeited Iraqi Nationality”); Law No. 12 of 1951 (Iraq). See also Letter from Walter Eytan, supra note 85; Edwin Black, Jews in Islamic Countries: The Sudden End of Iraqi Jewry, Jewish Virtual Libr., https://www.jewishvirtuallibrary.org/the-sudden-end-of-iraqi-jewry (last visited Aug. 19, 2021). The Denaturalization Act of 1950 was followed by the 1951 act that stripped emigrating Jews of their possessions as well as their citizenship. Black, supra. In 1968, in retaliation for Israel’s victory in the Six Day War, Iraq passed an act that expropriated most of Jewish citizen’s property and transferred it to government ownership. Carole Basri, The Jewish Refugees from Arab Countries, 26 Fordham Int’l L. J. 656 at 685-86 (2003).

183 See 2009 Terezin Declaration on Holocaust Era Assets and Related Issues, U.S. Dep’t State (June 30, 2009), https://www.state.gov/prague-holocaust-era-assets-conference-terezin-declaration/ (clarifying that the Washington Conference Principles on Nazi-Confiscated Art applied to sales of property under duress); see also Washington Conference Principles on Nazi-Confiscated Art, U.S. Dep’t State (Dec. 3, 1998), https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/.

184 Feldman, supra note 168.

185 22 U.S.C. § 2459.

186 Blueprint for Litigation Over the Iraqi Jewish Archives, Document Exploitation (Nov. 25, 2013), http://www.docexblog.com/2013/11/blueprint-for-litigation-over-iraqi.html (quoting State Department due diligence checklist).

187 Id.

188 28 U.S.C. §§ 1602-1611. "Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities." Id. at § 1602.

189 Arthur Lenhoff, International Law and Rules on International Jurisdiction, 50 Cornell L. Q. 5, 5 (1964); see also Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 309 (D.D.C. 2005) (discussing history of sovereign immunity in U.S.).

190 28 U.S.C. § 1605.

191 Montgomery, supra note 3, at 181.

192 Malewicz, 362 F. Supp. 2d. 298.

193 Id. at 303.

194 28 U.S.C. § 1605(a)(3).

195 Malewicz, 362 F. Supp. 2d at 314 (“There is nothing ‘sovereign’ about the act of lending art pieces, even though the pieces themselves might belong to a sovereign.”).

196 Id. at 310 (“It is undisputed that the Malewicz Heirs could not seek to seize the artwork while it was in this country under a grant of such § 2459 immunity.”).

197 Id. at 309–10.

198 Id. at 310 (“The Court concludes that Plaintiffs' filing of the complaint while the artworks were physically present in this country was sufficient to meet the ‘present in the United States’ factor of FSIA without regard to later service of the complaint.”).

199 Nout van Woudenberg, State Immunity and Cultural Objects on Loan 181 (2012).

200 See Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Pub. L. No. 114-319, 130 Stat. 1618 (2016).

201 Id.

202 Alternately, § 1605(a)(3) allows suit if the state agency or instrumentality (here, SBAH) that owns the property is engaged in commercial activity in the U.S.

203 Malewicz, 362 F. Supp. 2d at 310.

204 Menzel v. List, 267 N.Y.S.2d 804, 807 (Sup. Ct. 1966).

205 Fed. Republic of Ger. v. Philipp, 141 S. Ct. 703, 715 (2021).

206 Id. at 708.

207 Id. at 712.

208 Id. at 709. On the idea of cultural cleansing as genocide, see Jamie B. Perry, Cultural Carnage: Considering the Destruction of Antiquities Through the Lens of International Laws Governing War Crimes, U.S. Att’ys’ Bull., March 2016, at 57, 59 (explaining that “crimes constituting cultural cleansing are inseparable from atrocity crimes against people and communities”).

209 Philipp, 141 S. Ct. at 712.

210 See id. at 713.

211 Law No. 1 of 1950 (Iraq); Black, supra note 182.

212 Black, supra note 182.

213 Law No. 5 of 1951 (Iraq). See generally Black, supra note 182.

214 Law No. 12 of 1951, art. 1 (Iraq) (“The funds of Iraqi Jews who left Iraq with a passport shall be frozen from the date this law comes into force.”).

215 Id. art. 2, § B (“The Department of the General Secretariat is established to monitor and manage the funds of persons whose nationality has been revoked, headed by the Secretary-General, according to a staff decided by the Council of Ministers.” (Google translation).

216 The term “alien” is used by Chief Justice Roberts in the Philipp decision, and so I use it here to make clear that I refer to the same class of people. However, the term itself is dehumanizing, and the author would prefer the term “noncitizen.” Notably, Justice Sotomayor refuses to use the term “alien” in her Supreme Court opinions. Benjamin Mueller, For Immigration Lawyers, a Surprise Speaker Who Asks Them to Change Lives, N.Y. Times (Sept. 4, 2014), https://www.nytimes.com/2014/09/05/nyregion/for-immigration-lawyers-a-surprise-speaker-justice-sonia-sotomayor-of-the-supreme-court.html.

217 Some of the Archive was likely taken after 1951, from property that was left to synagogues by Jews fleeing the country clandestinely. However, it seems likely that at least some of the Archive was taken from Jews that had been denaturalized. See Fitz Gibbon, supra note 3.

218 Philipp v. Fed. Republic of Ger., 248 F. Supp. 3d 59 (D.D.C. 2017), vacated, 141 S. Ct. 703, 716 (2021).

219 For example, in the case of Chabad v. Russian Federation, a Jewish organization sued Russia for return of an archive of 12,000 Rabbinic works. Agudas Chasidei Chabad v. Russian Fed’n, 466 F. Supp. 2d 6, 10–12 (D.D.C. 2006); Irina Tarsis & Elizabeth Varner, Reviewing the Agudas Chasidei Chabad v. Russian Federation, et al. Dispute, Am. Soc’y Int’l L. (Mar. 19, 2014), https://www.asil.org/insights/volume/18/issue/8/reviewing-agudas-chasidei-chabad-v-russian-federation-et-al-dispute. Although a U.S. Court found for plaintiffs in 2010, Russia did not comply with the judgment. Tarsis & Varner, supra. It faced huge financial sanctions, but did not comply and even brought suit in Russia for part of the Archive held on long term loan in New York. Tarsis & Varner, supra; Spencer S. Hsu, U.S. Judge Fines Russia $43.7 Million in Diplomatic Feud Over Jewish Collection, Wash. Post (Sept. 13, 2015), https://www.washingtonpost.com/local/crime/us-judge-fines-russia-437-million-in-diplomatic-feud-over-jewish-collection/2015/09/13/c6fce4f6-589e-11e5-abe9-27d53f250b11_story.html.

220 At a minimum, the pursued strategy should not make litigation the end goal. There are arguments for beginning with restorative justice, and bringing suit as a last resort, but another strategy could aim to bring suit to raise publicity and put pressure on Iraq, offering restorative justice and diplomacy as a carrot to the suit’s stick. Indeed, there is an argument that it is in Iraq’s best interests in terms of international business to seem welcoming to other communities.

221 See, e.g., Sugarman, supra note 163.

222 Fitz Gibbon, supra note 3.

223 Mustafa Shilani, Tons of Kuwaiti Archives, Stolen by Former Iraqi Regime, Arrive Home, Kurdistan 24 (Mar. 28, 2021), https://www.kurdistan24.net/en/story/24170-Tons-of-Kuwaiti-archives,-stolen-by-former-Iraqi-regime,-arrive-home.

224 Id.

225 Michael R. Gordon, Baath Party Archives Return to Iraq, with the Secrets They Contain, Wall St. J. (Aug. 31, 2020), https://www.wsj.com/articles/baath-party-archives-return-to-iraq-with-the-secrets-they-contain-11598907600. The Anfal was a Ba’th campaign that from 1986 to 1989 killed, at minimum, 50,000 and possibly as many as 182,000 Iraqi Kurds. Hum. Rts. Watch, Genocide in Iraq: The Anfal Campaign Against the Kurds 3–19 (1993), https://www.hrw.org/reports/pdfs/i/iraq/iraq.937/anfalfull.pdf; Anfal Campaign and Kurdish Genocide, Kurdistan Reg'l Gov't, https://us.gov.krd/en/issues/anfal-campaign-and-kurdish-genocide/ (last visited Apr. 27, 2021); Moreh, supra note 68, at 8.

226 Brill, supra note 33.

227 Ferdinand Hennerbichler & Bruce P. Montgomery, U.S. Restitution of the Iraq Secret Police Files from Saddam Hussein’s Regime Regarding the Kurds in Iraq, 5 Advances Anthropology 31 (2015), https://www.scirp.org/pdf/AA_2015021014524303.pdf.

228 Gordon, supra note 225.

229 Id.

230 Julius, supra note 33.

231 Western nations’ current efforts to repatriate Benin Bronzes is a similar example of goodwill and repair efforts. See supra note 45.

232 Hakim Bishara, Activists Renew Calls for Penn Museum to Repatriate Skulls of Enslaved People, Hyperallergic (Apr. 7, 2021), https://hyperallergic.com/635918/activists-renew-calls-penn-museum-repatriate-skulls-morton-collection/.

233 Id.

234 Toby Sterling, Dutch Ready to Give Back Seized Colonial Art - but to Whom?, Reuters (Oct. 13, 2020), https://www.reuters.com/article/us-netherlands-colonial-artwork/dutch-ready-to-give-back-seized-colonial-art-but-to-whom-idUSKBN26Y1A8.

235 See, e.g., Ian D. Marder, Developing Restorative Justice in Law, Policy and Practice: Learning from Around the World, Penal Reform Int’l: Blog (Jan. 10, 2019), https://www.penalreform.org/blog/developing-restorative-justice-in-law-policy-and-practice/; RJ in the Criminal Justice System, Ctr. for Just. & Reconciliation, http://restorativejustice.org/restorative-justice/rj-in-the-criminal-justice-system/#sthash.zQ0VQHAM.dpbs (last visited July 5, 2021).

236 Lesson 1: What Is Restorative Justice?: Amends, Ctr. for Just. & Reconciliation, http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-1-what-is-restorative-justice/amends/#sthash.RWvJrQ5k.dpbs (last visited June 14, 2021); see also Wachtel, supra note 59, at 3–4, 7–8.

237 John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 Crime & Just. 1, 2–3 (1999).

238 Lesson 1: What Is Restorative Justice?: Encounter, Ctr. for Just. & Reconciliation, http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-1-what-is-restorative-justice/encounter/#sthash.oSrZP0pe.dpbs (last visited July 5, 2021).

239 Lesson 1: What Is Restorative Justice?: Amends, supra note 236.

240 Moira Simpson, Museums and Restorative Justice: Heritage, Repatriation and Cultural Education, Museum Int’l, 2009, at 121.

241 Id. at 128.

242 Ritual Burial of Parchment Fragments, Preserving Iraqi Jewish Archive, https://ijarchive.org/project/burial (last visited Apr. 27, 2021).

243 Ask the Expert: Burying the Genizah, My Jewish Learning, https://www.myjewishlearning.com/article/ask-the-expert-burying-the-genizah/ (last visited Apr. 27, 2021).

244 Ritual Burial of Parchment Fragments, supra note 242.

245 Id.

246 Id.

247 Id.

248 Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice 2 (March 2010), https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf.

249 See Brill, supra note 33.

250 Zax, supra note 24 (“We cannot and will not relinquish ownership of the archive.”(quoting Fareed Yasseen, Iraq’s ambassador to the U.S.)); Zax, supra note 24 (“I still cling to the hope that the relationships will be restored and that the Jews that left Iraq would find opportunity to visit.” (also quoting ambassador Yasseen)).

251 Esmat Salaheddin, Jews Buying Land in Iraq Face Death, Cleric Says, Globe & Mail (June 28, 2003), https://www.theglobeandmail.com/news/world/jews-buying-land-in-iraq-face-death-cleric-says/article1018100/.

252 Neurink, supra note 46.

253 See Farrell, supra note 47.

254 UMaine and Penobscot Nation to Sign MOU Focused on Managing Tribe’s Cultural Heritage, U. Me. (May 4, 2018), https://umaine.edu/news/blog/2018/05/04/umaine-penobscot-nation-sign-mou-focused-managing-tribes-cultural-heritage/.

255 See Gordon, supra note 225.