The New York Court of Appeals has decisively rejected the argument that a nation may acquire good title to a work of art by virtue of that work’s status as the “spoils of war,” an important holding that will affect future restitution claims brought under New York law.
From the Court of Appeals:
The Vorderasiatisches Museum in Berlin, Germany (the Museum), sought to recover a 3,000-year-old gold tablet from the estate of Riven Flamenbaum (the Estate). The tablet was first discovered prior to World War I by a team of German archeologists excavating at the foundation of the Ishtar temple in Ashur, Iraq. The tablet dates back to the reign of Assyrian King Tukulti-Ninurta I (1243-1207 BCE) and bears an inscription written in Assyro-Babylonian language and Middle-Assyrian cuneiform script. The tablet was shipped to the Berlin Museum (now the Vorderasiatisches Museum) in 1926. The Museum's inventory book catalogs the arrival of the gold tablet and provides a description and a sketch. In 1939, the Museum was closed because of World War II, and objects from Ashur were put in storage. In 1945, at the end of the war, the gold tablet was missing.
The tablet resurfaced in 2003, when it was discovered among the possessions of the decedent, a resident of Nassau County and a holocaust survivor. When Hannah K. Flamenbaum, the decedent's daughter and executor of the Estate, petitioned to judicially settle the final account, she listed a "coin collection" as an asset of the Estate. The Museum thereafter filed a claim with the Surrogate's Court, Nassau County, to recover the tablet. The Surrogate held a hearing, at which the Museum's director, Dr. Beate Salje, was the sole witness to testify. Dr. Salje testified that the tablet, along with many other objects, disappeared from the Museum sometime near the end of World War II. Russian troops removed some objects at the end of the war, brought them to Russia, and then back to the Museum in 1957. Dr. Salje stated that she did not know if the tablet was taken by Russian troops, German troops, or people who came to the Museum to take refuge.
Among the other arguments raised was that Flamenbaum had acquired title because it came to him via the Soviets, who had taken it as “spoils of war.” The Court of Appeals rejected the idea in the strongest possible terms: “the record is bereft of any proof that the Russian government ever had possession of the tablet. Even if there were such proof, we decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force []. Allowing the Estate to retain the tablet based on a spoils of war doctrine would be fundamentally unjust.”
To hold otherwise would have opened a Pandora’s box of justifications for looting. That is happily now closed.
