Worrying Precedent: US Family Keeps Plaque Looted From Berlin Museum in 1945

Several newspapers have been reporting the story of a family inheriting a gold plaque that was looted from a Berlin Museum in 1945 - for example Kieran Crowley and Chuck Bennett "Holocaust survivor's kin can keep $10M relic" New York Post, 7th April 2010. More fully: Vesselin Mitev, German Museum Loses Attempt to Reclaim Artifact From Estate. See also Roger Alford Spoils of War and The Golden Tablet of the Ishtar Temple, Opinio Juris.

Let us leave aside the human interest (sympathy-seeking) element of this story which is what most of the newspapers focussed on. This actually is irrelevant.

The 9.5-gram solid-gold tablet was one of a number that were buried in the foundations of a temple in the city of Ashur, now Qual’at Serouat, Iraq, about 150 miles north of Baghdad. It was placed there in the reign of the Assyrian King Tukulti-Ninurta I (1243-1207 BC) who expanded the Assyrian empire but was later killed by his son. In 1913 a team of German archeologists led by Walter Andrae unearthed it, and was allowed to take it along with other finds as "partage". In 1914 it was sent to Basra for transportation to Germany. But with the outbreak of World War I, the tablet did not reach Germany until 1926. It finally went on display at the Vorderasiatisches Museum in 1934, only to be put in storage five years later with the start of World War II. Then it went missing, apparently looted - like much else - by Soviet troops from the museum stores in the chaos of the advance of the Red Army into the heart of the collapsing Third Reich. 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. What seems to have happened was that the ancient Assyrian gold tablet had apparently been obtained from somebody (a Red Army soldier?) by the Polish civilian Flamenbaum in exchange for a few packs of black market cigarettes on the streets of post-war Berlin where he found himself after the War. In 1949, Flamenbaum emigrated to New York and began working at a Canal Street liquor store. It is not explained by what means the items were removed from Germany in terms of the legislation applicable to ownership of and exports of antiquities in 1949.

Within a few years, Flamenbaum had pawned the tablet, along with rare coins, (now where did they come from?) to purchase the liquor store, his attorney said. But he soon paid back the pawnbroker and reclaimed the coins and tablet. When Flamenbaum died at age 92 in 2003 in Great Neck, he left the tablet to his three children, Israel, Hannah and Helen in a 1971 will. Hannah Flamenbaum is an assistant New York attorney general.

Berlin Museum officials had all but forgotten the tablet existed and had neglected to place it on its lists of stolen artifacts, and it wasn't until Israel Flamenbaum contacted the museum in 2006 and notified the museum that his father's estate had the tablet that it decided to sue to recover it.

A New York court however decided the museum had waited too long to press its claim and the tablet (worth, it was said in the newspaper reports, an estimated $10 million) is rightfully the property of Flamenbaum's three adult children.

"It is certainly understandable how the family would feel entitled [to keep the artifact] and offended by the efforts of the German government," said John Farinacci, an attorney for the Flamenbaum's estate. "This was part of an immigrant's tale. It was one of the things he was able to get and put in his pocket to make a new life," he added. [footnote: Is the Berlin Vorderasiatisches Museum "the German government" and is it the same "German government" who had attacked Flamenbaum's native Poland in the War? And was it Hannah, Israel and Helen Flamenbaum who this German government had persecuted?]

At a Surrogate Court hearing in September 2009, the director of the museum, Beate Salje, testified that due to the chaotic nature of the occupation and the separation of East and West Berlin, the museum had not got a full record of the items taken by Russian troops at the end of World War II, some of which were returned in 1957. In the specific conditions of post-war East Berlin, it was useless to fill out a report or alert the authorities about what Soviet troops had stolen. The disappearance of the tablet was noted in the museum's internal records, but the museum had never reported the tablet as stolen and had never listed it as missing on any international art registry (even after a University of Chicago professor reported that he had seen the artefact in New York apparently in 1954). Nassau County, N.Y., Surrogate John B. Riordan therefore held that the Berlin museum from which the object was looted during the War, could not stake a claim to the artifact as it had not acted promptly to recover it: "The court finds that the museum's lack of due diligence was unreasonable".

The owner's claim was defeated by something called “the doctrine of laches”. Under New York law, the original owner may not be "lax in searching for missing or stolen property or… delay unreasonably in making a demand," Surrogate Riordan wrote. "The owner must be diligent, because even where the statute of limitations has not run, the claim may be barred by the doctrine of laches".

This is a worrying verdict as it establishes a dangerous precedent for nations such as the one where I write this that lost so much in the chaos of the Second World War. What of the museums that were shelled by the Nazis, then looted by the soldiers, then what was left packed up and sent off in unmarked trains to various locations in the Reich? Part of the caches were later found by various groups like the US "monuments men", but then there were others - some of whom decided to do some "liberating" of art works of their own. Then another group of art caches was found by the Soviets and the soldiers and officers sometimes followed the official channels, and sometimes like the western allies engaged in a little "private enterprise" of their own. Then of course there were the artworks which simply disappeared. The Amber Chamber is one famous example. A loss which I find personally very tragic is the Kammen Reliquary - simply vanished after being put on a train and evacuated west (probably destroyed in an allied bombing raid).

Now 1945-6 was a turbulent time, the Communists were taking over the government, people were being shifted (willingly and unwillingly) from one end of Europe to another, people were seeking contact with friends and family not knowing if they were alive or dead. All people were having to rebuild lives shattered by the War, cope with the rebuilding of cities, factories, infrastructure. A vast amount of work was put into working out what was lost, what had been found, what was where. In my city, most was "lost". The Nazis torched the libraries, stole the art collections, incinerated entire city quarters. On Hitler's personal orders sappers blew up most of the historical monuments of Warsaw in an effort to wipe it off the map. This all had to be rebuilt and then began the task of putting back in the buildings what had been saved by heroic "monuments men" of our own, breaking curfews during the occupation, to try and rescue a bit of stucco-work here, a sculpture there, all of which were then hidden so the Nazis would not find them. This work was not finished until the 1970s, some of it is still going on.

It is easy for a New Yorker who never experienced this type of situation to say, "you should make a list of what is missing". In 1945 there were no computers in museums and ministries. There were card indexes, longhand notes. Collating all the information was a massive task - and museums and other institutions had other tasks ahead of them. In 1948 began the purges, members of staff sddenly lost their jobs as deepening Stalinism took hold of society. This lasted until 1957. By the way there was also at this time a total purging of the records of the looting and scandalous behaviour of the troops of the Red Army during the "liberation" of central Europe in 1944-5 and this was especially thoroufgh in the DDR. As Stalin said, the reputation of the Red Army should not be "dragged through the mud" by the continued existence such records. The subject became taboo until the fall of Communism in 1989. For this reason alone, the reports demanded by the New York judge are unlikely to ever have existed.

How realistic is it to expect that every single item that was in a public or private collection was accounted for in the chaos of those years? We are talking literally about millions of objects.

On the other hand, there ARE records of where that particular object should have been in 1946, which is where it was in 1939.

Now really, I am sure Riven Flamenbaum was surely not so naive to imagine that the gold plaque in the grubby hands of a tootless peasant from the other side of the Urals in a grubby, bloodied and perhaps sperm-stained Red Army uniform had fallen from the sky. It would have been pretty obvious to even a fifteen-year old where a Russian soldier would come by such an item in occupied Berlin. Stolen is stolen. Mr Flamenbauum also was aware that this was an item of value - he pawned it to buy his own business. He also is reported to have pawned some "rare coins". Where did they come from, where are they now? I think we can safely assume that Mr Flamenbaum actually knew this was an item that had been stolen from a collection probably somewhere in the vicinity of the occupied city. Consideration of that fact alone surely resulted in awareness of a "blemish in the title" to the tablet's ownership throughout the last 60 years.

Obviously not according to a New York court. If you live in the US and have some art objects looted by the Nazis from a museum or private collection at home, you can sleep a little more soundly now, since the US courts are now placing conditions on the rightful owners to regain the property they lost. Conditions however that do not correspond to what was in reality practical in the chaos of the final months of World War Two.

[What Ms Flamebaum, irrespective of what a NY court decided, would most people agree would be the RIGHT thing to do now in memory of what an upright man your late father was?]

.

Photo below: The flag goes up on the Reichstag - note the soldier wearing two wristwatches, one was later removed in the official version of this iconic photo by Yevgeny Khaldei/ITAR-TASS/AP