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
CULTURAL HERITAGE LAWYER

 

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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Harvard Crimson Editorial: Cultural Loot: Harvard and others should be more open to art repatriation

Cultural Loot:  Harvard and others should be more open to art repatriation
By The Crimson Staff
Published: Tuesday, September 27, 2011

Last week, Harvard escaped from a bizarre and potentially damaging lawsuit after federal judge George A. O’Toole, Jr. threw out a request from a group representing victims of Iranian terrorist attacks to seize various Persian artifacts from Harvard. Still awaiting unpaid damages that a U.S. court ruled they were owed by the Iranian government, the group—under the leadership of Jenny Rubin—has recently set its sights on certain artifacts they believe to be the property of the Iranian government. Unfortunately for the plaintiffs, however, these artifacts are held in various collections such as the University of Chicago’s Oriental Institute and Harvard’s Peabody Museum, which acquired them long before the Islamic Republic of Iran was established in 1979.

And while Judge O’Toole’s ruling appears in part a straightforward and appropriate rejection of what seems a patently opportunistic attempt to benefit financially from both the tainted reputation of the Iranian regime and a warped view of history, it included a broader stance on the issue surrounding the ownership of formerly stolen artifacts—a controversy in which Harvard’s own position, in our view, warrants a re-evaluation.
“As a general matter,” O’Toole wrote, “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.”

Of course, we cannot imagine any other appropriate response to such an attempt. After all, the argument of Rubin et al concerns an alleged—and obviously false—association between the Persian Empire and the belligerent Iranian Islamic “Republic” that currently exists within its former borders. But, even still, we worry that these words may set some sort of dangerous legal precedent that gives Western institutions such as Harvard the right to keep artifacts regardless of the circumstances under which they were acquired. While Harvard has a very good argument for keeping possession of the particular items concerned in the Rubin case, it’s troubling that this case may only lead to Western institutions keeping a tighter stranglehold over the rest of the world's stolen cultural heritage.

As an institution at the forefront of learning and education, Harvard's steady acquisition of numerous artifacts whose provenance spans both time and space falls into a tradition of prominent historical collections held by universities. While not quite the Ashmolean, our Sackler and Peabody Museums, amongst others, house many rare and notable artistic and historical materials. Many of these pieces, it must be said, were acquired around the turn of the last century, at the same time or soon after many of this country’s great international collections were assembled in museums and at other universities. It is of course no coincidence that the acquisition of many of these items from cultures such as Ancient Egypt, China, Greece, and the Islamic Middle East came during a period of unparalleled Western hegemony. And it is no secret that many of the Western world's most famous collections, such as the British Museum's storied Elgin Marbles, were effectively stolen from their territories of origin. Much of the finest Chinese porcelain that today adorns many museums and private homes was looted from Beijing's Old Summer Palace during the nineteenth century, coming as revenge for China's role in the Opium Wars and Boxer Rebellion.

A walk through any major museum—be it the Metropolitan Museum of Art in New York City, the British Museum in London, or the Louvre in Paris—would show that Harvard takes a backseat in the saga of Western museums proudly holding onto artifacts that others want back. Many of the circumstances in which these objects were taken do not amount to the trope of a civilizing mission that is so frequently used to justify Lord Elgin's seizing of the Elgin marbles: Look again, for instance, to the looting of the Forbidden City in the summer of 1900 by the Eight-Nation Alliance. And even when objects were taken from their areas of origin for the purposes of protecting them, why not follow Harvard's own example of returning the Lowell Bells to Moscow after 50 years of safeguarding them? For too long, museums in Western Europe and the United States have jealously clung to objects to which they have no underlying valid claim. As a rule, they should begin returning them to the many nations of Eastern Europe, the Middle East, Asian and others who now have the ample resources to take care of them.

We would not dispute that collections in the great Western museums have served as infinite sources of education, enjoyment, and awe for countless residents and tourists of these cities. There is even an argument to be made that more people across the world encounter and learn from these artifacts in a Western museum than would were they all returned to the sites of their creation. However, the purpose of a historical artifact is the rare insight it affords the world of the present into the world of the past, and the value of that insight depends upon a conversation between an object’s current home and the site of its creation. In moving forward, we urge Harvard to consider following the example of peer institutions like Yale, which, after a lawsuit of its own from the Peruvian government over certain Incan artifacts taken years before, is moving to create a jointly operated research center slated to open in October.

This question of artifacts stolen years ago in different times from national entities that no longer exist is indeed a complicated one. We can only hope that Harvard’s approach in the future will be one of active engagement with the cultures from which many of the artifacts in its museums were taken and that the Rubin case doesn’t set a precedent of stifling discourse between East and West.

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