Friday, September 30, 2011

Rick St. Hilaire comments on Rubin v. Government of Iran v. Boston MFA and Harvard

Massachusetts Court Dismisses Rubin v. Government of Iran v. Boston MFA and Harvard 
Thursday, September 29, 2011

A Massachusetts federal court has ruled that the Museum of Fine Arts and Harvard University will not lose their collection of ancient Persian objects to eight plaintiffs injured in a 1997 terrorist bombing. The United States District Court, District of Massachusetts, issued a five page opinion on September 15, 2011 denying the plaintiffs’ efforts to gain control over the artifacts to satisfy their multi-million dollar court judgment against the government of Iran.

Jenny Rubin and several other Americans were injured in Jerusalem after Hamas carried out three bombings. Because the terrorist group received backing from Iran, the eight plaintiffs sued the government of Iran in federal district court in Washington, DC, winning a $71.5 million default award after the Iranian government failed to show up to court. Since then, the plaintiffs have sought to recover that judgment.

The government of Iran would not be expected to pay the court award, so the plaintiffs searched for local Iranian assets to seize. One place they looked was Boston/Cambridge, Massachusetts, where museums housed artifacts excavated from ancient Iran. The plaintiffs initiated a court action--known as an attachment--against the Boston Museum of Fine Arts, Harvard, the Harvard University Art Museums, the Busch-Reisinger Museum, the Fogg Art Museum, the Sackler Museum, the Semitic Museums, and the Peabody Museum of Archaeology and Ethnology. But the judge dismissed the plaintiffs’ case in his recent court order.

District Court Judge George O’Toole ruled that the plaintiffs could pursue their attachment action under the federal Terrorism Risk Insurance Act of 2002 so long as they could prove, under Massachusetts state law, that Iran owned the artifacts in the museums. But the plaintiffs could not supply this proof. Judge O’Toole wrote: “In the present case, the plaintiffs have not shown that the ‘goods, effects, or credits’ at issue here are property ‘of the defendant’ Iran." He added that “[d]espite extensive discovery, the plaintiffs are unable to sustain their burden of showing that any particular item held by the Museums is the property of Iran . . . . It is not enough simply to show that antiquities held by the Museums originated from sites within Iran.”

The court highlighted that the plaintiffs failed to prove that an Iranian cultural patrimony law declared ownership of the artifacts. Judge O’Toole wrote: “For example, the so-called ‘1930 Law’ [the plaintiffs’] cite does not automatically vest ownership of excavated antiquities in the government of Iran. In the first place, the 1930 Law does not on its face purport to vest ownership of excavated antiquities in the government. Moreover, the 1930 Law clearly contemplates that antiquities may be owned by private persons. . . . Additionally, other courts have concluded that the 1930 Law permits private ownership and is inconsistent with automatic government ownership of all antiquities originating from Iran.”

The court struck down the plaintiffs’ further argument that an Iranian civil law, Article 26 of its 1928 Civil Code, makes the artifacts government property. The opinion declared that [t]he plaintiffs have not shown that any of the antiquities now held by the Museums were at the time of removal from Iran ‘Government property . . . in use for the service of the public or the profit of the state.’ The necessary conclusion cannot be drawn simply from the fact that the items are the products of archeological explorations that were conducted in Iran . . . .”

The court also rejected the plaintiffs’ claim that antiquities from Persepolis were the property of the Iranian government. The court ruled that “[t]he plaintiffs’ specific argument that items taken from the ruins of the ancient city of Persepolis cannot be privately owned is also not persuasive. The legal argument relies heavily on Article 26 which . . . does not support a generalized conclusion that excavated items necessarily belonged to the government of Iran. The plaintiffs point to texts suggesting that foreign excavators unlawfully took items from Persepolis. Even if that is true as an historical matter, it does not get the plaintiffs where they need to go. As a general matter, establishing that a particular item was unlawfully exported or removed from Iran is not equivalent to showing that it now should be regarded as property of Iran subject to levy and execution. And as a particular matter, the plaintiffs simply are unable to establish that any item in the possession of the Museums, whether from Persepolis or elsewhere, is rightly considered to be the property of Iran.”

The case in the Massachusetts district court is now at an end. Any appeal would be filed in the First Circuit federal court.

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