Spoils of War and The Golden Tablet of Ishta Temple

“An ancient gold tablet, discovered during archaeological excavations in 1913 in the Ottoman Empire, disappeared from a Berlin museum in the immediate aftermath of World War II and reappeared almost sixty years later in the safe deposit box of a Holocaust survivor.” So begins In re Flamenbaum, a case that reads like a Hollywood movie script.

As reported here, “the gold tablet was found during an excavation around the city of Ashur, now Qual’at Serouat, Iraq, by a team of German archeologists led by Walter Andrae. The inscribed tablet, which was discovered in the foundation of the Ishta Temple, is actually a construction document, according to the judge. It dates to the reign of the Assyrian King Tukulti-Ninurta I (1243-1207 BCE) who expanded the Assyrian empire but was later killed by his son. When the excavations finished in 1914, the tablet was packed up along with other artifacts and sent to Basra, where it was loaded on a Germany-bound freighter…. In 1934, the tablet was put on display at the Vorderasiatisches Museum…. Five years later, with World War II looming, the museum was closed and the tablet was put in storage along with other antiques and works of art. At the end of the war in 1945, an inventory discovered that the tablet was missing. Nearly 60 years later, in April 2003, the tablet was discovered among the possessions of Riven Flamenbaum, of Great Neck, N.Y., after his death at the age of 92.”

The court rejected the museum’s claim under the doctrine of laches, but in so doing it left unresolved a fascinating international law question pertaining to spoils of war and prohibitions against pillaging and plundering. Here is how that issue was articulated by the court:

The executor argues that the spoils of war doctrine applies, based upon the possibility that the former [USSR] acquired the gold tablet along with other museum artifacts following the end of the World War II. In support of this position, the executor cites the testimony of the museum director at the hearing. Dr. Salje testified that Russian troops took valuables out of the museum at the conclusion of World War II, and returned some, but not all, of the objects in 1957…. The estate claims that under the applicable laws of the Soviet Union … cultural property taken by Russian troops during the occupation of Berlin after World War II was lawfully transferred from one sovereign to another and that this taking of the gold tablet by Russian troops extinguished the rights of the museum pursuant to international law. Thus, a party subsequently acquiring the tablet could obtain good title and transfer good title to others.

The museum maintains, however, that the spoils of war doctrine does not affects its right to the tablet because international authorities as well as the Hague Convention of 1907 forbid pillaging and plundering….

The court finds that the estate has not adequately established facts upon which the court might consider the applicability of the spoils of war doctrine. Consequently, the court need not address the complex international law issues and conventions raised by learned counsel in this matter.

So for all you law of war experts out there, had the Flamenbaum estate been able to establish that Russian troops seized the golden tablet of Ishta Temple from the Germans at the end of World War II, and then transferred the tablet to Holocaust survivor Riven Flamenbaum, would he be lawfully entitled to keep it?