Monday, November 07, 2011

  • Monday, November 07, 2011
  • Elder of Ziyon
Last month I mentioned a fascinating story about how Israel managed to smuggle out priceless Jewish biblical manuscripts that belonged to the Jewish community in Syria.

Al Akhbar English has a different spin on the story:
Israel's Manuscript Theft: Appropriating Jewish Arab History

Ancient Jewish manuscripts have been stolen and smuggled from Arab countries including ones briefly displayed in Jerusalem earlier this month. The consistent Israeli practice is an attempt to undermine the existence of Jewish presence outside of Israel.

The ‘Damascus Crowns’ are Bible manuscripts between 700 to 1,000 years old originating from Damascus’s Jewish community. The manuscripts were smuggled to Israel and were stealthily displayed earlier this month for a few hours in Israel’s National Library in Jerusalem. This was the second time Israel claimed possession of the documents.

Syrian Jews were renowned for being ‘rich in books.’ The 11 manuscripts that form the ‘Damascus Crowns’ were guarded in some of Syria’s 24 synagogues. None were written in Syria, but arrived there with Jewish migration and held in the Jewish community’s libraries. In the 1970s, with the smuggling of Syrian Jews to Israel via Turkey, the manuscripts were quietly spirited away.These human and manuscript smuggling operations received financial backing from Israeli authorities.
Somehow, according to this article, manuscripts that were not written in Syria "originated" in...Syria!

The author uses a UNESCO convention, which Israel did not sign, as proof that the manuscripts belong to Syria. However, the intent of the Convention makes it clear that it should not apply here: From Article II:
The States Parties to this Convention recognize that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property and that international co-operation constitutes one of the most efficient means of protecting each country's cultural property against all the dangers resulting there from.
Syria was not the "country of origin."

While the Convention does seem to say that any "cultural property found within the national territory" of a country belongs to that country it does not seem to address private property nor property belonging to communities. And that is not a clear cut topic; the issue of Jewish cultural artifacts in Lithuania has been discussed in law literature with many arguments being made that it should properly belong to the Jewish community, not to Lithuania. Most of the same arguments apply here:

While the Lithuanian Government currently claims ownership of the Jewish cultural artifacts, both legal and moral arguments can be made that the objects should be returned to the community that created them. The Jewish community can claim that the cultural property was not taken lawfully by Lithuania. Additionally, it can argue that the Vilnius Judaica collection [*156] is "property for grouphood" n58 and, like other property belonging to pre-World War II Jewish communities, should be returned.

The Lithuanian Constitution preserves the inviolability of property, which can only be seized by the State for "the needs of society" and with adequate compensation. n59 The Law on Protection of Movable Cultural Properties likewise provides that cultural property can only be taken from an owner for failure to observe regulations and mismanagement, again subject to compensation. n60 The Jewish community can argue that neither of these conditions has been met. In fact, if any party could be accused of mismanagement, it would be Lithuania, for almost fifty years of neglect.

Lithuanian law also provides that where an owner of cultural property cannot be established or where the owner has lost the right to ownership, the property can be transferred to the State. n61 While it is true that some of the objects do not bear identification marks, many in fact do. According to the United Nations, rightful owners should have a right of action for recovery of lost items of cultural property. n62 Moreover, the Jewish community can argue that it did not "lose" its rights of ownership. The United Nations has recognized that the "transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit." n63 The "abandonment" of the property in Lithuania can be seen as resulting from the hostile environment created by the occupation of either the Nazis or the Soviets.

In addition to possible legal arguments, heirs to cultural patrimony "have strong equitable claims to their ancestral property." n64 In determining whether certain property should be held inalienable, the theory of "property for personhood" was developed. The theory posits that some property is so [*157] bound up with a person's identity that it should not be transferred through the market. In fact, personhood property "has a stronger moral claim than other property." n65 Recently, the ideas behind property for personhood have been analogized into the group context, providing that groups have certain rights in cultural property. n66

The new classification of "property for grouphood" that has been proposed would address the tension between cultural identity and the rigid classifications of property ownership. n67 The use of this category of property in the area of cultural property is particularly useful, as "cultural objects nourish a sense of community." n68 "The notion that groups have intrinsic rights to exist, develop, flourish, and perpetuate themselves, and that these rights often are intertwined with groups' relations to history and objects justifies both creating a category of property which promotes grouphood and distinguishing between that property and merely fungible property." n69

To determine if certain objects should be designated property for grouphood, the fundamental question is whether the property is substantially "bound up" with the group identity. n70 In the case of the Jewish objects in Lithuania, the cultural property is "bound up" with the Jewish identity in the sense that it links the members of the group to past and future generations. The Lithuanian Government itself recognizes the connection between cultural property and "cultural continuity." n71 The books, manuscripts, and other materials give the group identity and symbolize its shared values. n72 Furthermore, many of the objects date back hundreds of years and tell of the glorious era of Jewish Enlightenment in Eastern Europe. "Groups have legitimate rights to 'foster, strengthen, and enrich their members' sense of community' by preserving and providing access to a common cultural heritage." n73 The goal of developing the group, in this case the Jewish community, [*158] would be furthered by group control over the collections. n74 If one accepts the classification of the Judaica collection as property for grouphood, then the next step would be the return of the property to the group that created it and that would be strengthened by it today.
Whether Syria likes it or not, Israel represents the Jewish community. Moreover, it represents the Jewish nation, which might not have owned territory in the centuries before 1948 but which never relinquished its nationhood.

Furthermore, it is insulting that the nation that for decades oppressed their Jewish community, and which did not lift a finger to protect priceless Jewish cultural treasures while the community was still there, should now claim that these same treasures are part of the culture that it successfully destroyed within its borders. It is the height of hypocrisy to claim to love the products of a community when at the same time the community itself was ethnically cleansed.

Syria marginalized and destroyed Jewish culture and history in its borders. It cannot now claim that this same culture is part of its own.

(h/t Zach N for Lithuania article)

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