“The story of Jewish refugees and the advocacy work that we do is not only a Jewish story. It is a story of most of the religious minorities in the region. It is continuing today with the ethnic cleansing of the Yazidi and the oppression of Christians in the region… This is not just our oppression; it is sadly the oppression and the story of multiple religious minorities in the region.”
Sarah Levin, Executive Director of JIMENA, Jews Indigenous to the Middle East and North Africa, interview 2019
Five years ago, the signing of a cultural property agreement with Libya blocking entry to art and artifacts from 12,000 BCE to 1911 CE alerted Americans of Middle Eastern Jewish heritage that their rights to community, personal, and religious treasures were threatened – even in the United States. Today, all that remains of the Libyan Jewish community is in the diaspora – and only in the diaspora is this heritage kept alive. There is not a single Jew left in Libya after the community was forced out in the mid-20th century, leaving behind all their possessions and property.
By signing a cultural property agreement with Libya, the US government asserted, wrongly, that Libya was doing its best to protect the heritage of all its peoples. The US agreement also recognized Libya’s national authority over every ancient and antique object made in Libya, including those of its 2,000-year-old Jewish community. If cultural objects crossed U.S. borders without a Libyan export permit – and Libya issues no export permits – they could be seized and returned to the Libyan government, not to the communities forced to abandon them when they were driven into exile.
The 2017 ‘emergency’ agreement and 2018 Memorandum of Understanding with the Libyan government caused outrage in the Jewish community, but their protests did little to stem the tide of a misguided U.S. policy that rewarded excessive claims by nationalist regimes. This July, a hearing was held at the Department of State to renew the Libyan agreement, despite Libya’s fractured, multiple regional governments, an ongoing civil war, and the complete failure of the various parties to act to protect its cultural heritage.
Cultural property agreements may be renewed or terminated after five years, under the 1983 Cultural Property Implementation Act (CPIA). An agreement must actually be shown to be effective in protecting heritage or stemming looting for it to be enacted or renewed. The Act establishes requirements for self-help, for each nation to protect its existing heritage, and to ensure access to it by a global public. There were clearly many reasons not to renew the 2017-2018 cultural property agreements. Libya had failed to protect five ancient World Heritage sites from graffiti, damage, and encroaching illegal property development; its educational and cultural infrastructure was in ruins and its workers unpaid, and it was engaged in a civil war that was bombing antique built heritage in its cities into dust.
[For details on Libya’s failure to protect heritage and the effects of its ongoing civil war on ancient sites and historic monuments – and its governments’ toleration of corruption, gross human rights abuses, human trafficking, and slavery by warring factions, see “Will US Renew Libyan Art Embargo During Civil War?”, Cultural Property News, July 27, 2022.]
While all museums and monuments were hard hit by Libya’s lack of an effective government after 2011, minority communities’ cultural heritage has been deliberately targeted for far longer. Throughout the four decades of Muammar Gaddafi’s ‘Islamic socialist’ regime and after its collapse in 2011, Libya had sought to erase its Jewish and Christian history. Jewish graves were uprooted from cemeteries to build high-rises, synagogues were desecrated, and Tripoli’s Catholic cathedral transformed into a mosque. Today, one of the last and most important synagogues in Libya, Dar El Bishi, its interior already gutted and ornaments smashed, is secretly being turned into an Islamic center. So secretly, that one individual who helped to share a video of the reconstructed interior was imprisoned for eight months.
At a July 26, 2022 State Department hearing on the proposed 5-year renewal of the Libyan agreement, Rabbi Eric Fusfield, deputy director of B’nai B’rith International spoke eloquently to members of the Cultural Property Advisory Committee, the body that makes recommendations for the terms of cultural property agreements:
“…no issue is of greater importance to the Jewish community than the rights of the nearly one million Jewish refugees from the Middle East and North Africa. These refugee populations have been largely ignored by the international community, despite their centuries-long history in Arab and Muslim countries prior to their forced expulsion in the wake of the Middle East conflict.
“Nowhere did this Jewish presence end more tragically than in Libya, where Jews had lived since the 4th Century B.C.E. and numbered as many as 40,000 in the early 1900s, but lost their entire population as a result of anti-Semitic pogroms and immigration to Israel. A brutal pogrom in Tripoli on November 5, 1945 killed more than 140 Jews and wounded hundreds more; almost every synagogue was looted. Subsequent riots and government actions resulted in more deaths, destruction of Jewish homes, property confiscations, and the denial of Libyan citizenship, ultimately prompting thousands of Jews to flee the country in the 1950s and subsequent to the Six Day War of 1967.
“The rise to power of Muammar Gaddafi in 1969 led to the confiscation of all property belonging to Jews; the cancellation of all debts to Jews; the destruction of Jewish cemeteries; the conversion of synagogues into mosques; the denial of civil rights for Jews; and barring the return to Libya of Jews who had taken refuge abroad…
“It is with sadness, then, that I note that the cultural patrimony of the Libyan Jewish diaspora is gravely threatened by the absence of guarantees to custody of materials that are rightfully theirs.
“This MOU legitimizes the confiscation of Jewish property seized by Libya’s government when Jews were forced from the country. It is therefore necessary to ask why the US government would put faith in Libya, a regime that has shown blatant contempt for the rights of Jews and other minorities, to act as the protector of the heritage of minority and exiled peoples.”
Other speakers at the Libyan MOU hearing from the Jewish community included Gina Waldman, founder and president of California-based JIMENA, Jews Indigenous to the Middle East and North Africa. Waldman described how, as a child, fleeing to the airport with her parents, she narrowly escaped death when the driver stopped the bus, got out, poured gasoline under it and set it on fire. The family’s lives were saved by two British Christians who rescued them. Waldman told the CPAC committee:
“In this case, Libya is the looter. Libyan authorities have looted all our Jewish religious artifacts, our private and community property. They desecrated all of our holy sites and converted all our synagogues into mosques. It makes them, the looters, the custodians of our patrimony.”
Waldman noted that a specific carve out excluding Jewish artifacts was done in the case of a cultural property agreement with Morocco and asked that – at a minimum – this carve out for both Christian and Jewish property be applied in all MOUs with Middle Eastern countries.
Dr. David Gerbi, a Libyan Jew who spent years working through diplomatic channels to obtain permission to restore Libya’s last surviving synagogue, described his several attempts to do so to the CPAC committee:
“In 2007 Gaddafi gave me permission to restore the Dar Bishi Synagogue, visit holy sites in Libya and give psychology lessons at a psychiatric hospital. During this visit I was arrested and interrogated by Libyan Security. They told me that if I talked they would kill me.”
Gerbi survived an assassination attempt in Rome and had to go into hiding in Israel. Nonetheless, he persevered. “In 2009 I met Qaddafi in Rome, he again invited me to restore Dar Bishi, but he didn’t keep his word.”
In 2011, after the fall of Gaddafi, Gerbi met with the head of the then ruling National Council, Mustafa Abdujalil, who once again told him that restoration would be possible as a step to welcome back Libyan Jews. Gerbi told CPAC:
“When I tried to restore the synagogue, a mob tried to kill me. The Italian Consul saved my life and sent me back to Rome. It was a very traumatizing experience, which will haunt me for the rest of my life.”
Raphael Luzon, an expert in Libyan affairs, and President of the Union of Libyan Jews, also spoke to the committee, noting that seized Libyan Jewish objects have been taken and stored away without records or access, and that a synagogue he attended as a child has been converted to a Coptic church.
Pnina Meghnagi Solomon, who was born in Tripoli, described having to flee the city with her family in 1967, taking only a single suitcase and being strip-searched on leaving. She said that because Jewish cemeteries were uprooted and bones tossed anywhere, she can only hope that her grandfather’s bones are somewhere in the sea. She brings flowers and tosses them in the Mediterranean to remember and honor him.
Libyan MOU is Part of a Middle East and North Africa Cultural Property Agenda at the State Department
After the announcement of the first 2017 Libya emergency MOU and Designated List of objects blocked from import, a number of major Jewish organizations arranged to meet with the Education and Cultural Affairs section (ECA) and other State Department representatives to protest the granting of rights to Jewish religious community and personal property to the Libyan government.
ECA representatives assured the Jewish organizations their concerns would be heard. State Department staff claimed to have removed explicit references to Jewish objects that had been in the December 2017 list from the July 2018 Designated List, but in fact its vague language ensured that Jewish religious, community, and personal property could be blocked from import. Instead of carving out exceptions for Jewish and Christian religious and personal property, the same all-inclusive categories remained in the Designated List. The “revised” July 9, 2018 MOU simply removed the descriptive terms “Jewish”, “Hebrew” and “Christian” while utilizing the term “Ottoman,” a political descriptive that could cover all of the cultural identities of peoples in Libya during the period of Ottoman rule. At the same time, the introductory text of the Designated List stated that “Import restrictions are now being imposed on the same categories of archaeological and ethnological material from Libya as a result of a bilateral agreement entered into between the United States and Libya.”
In December 2018, frustrated with the State Department’s continued execution of all-inclusive MOUs with countries that had forced out Jews, destroyed or converted synagogues to mosques and uprooted graves from Jewish cemeteries, eighteen Jewish organizations, including B’nai B’rith International, JIMENA (Jews Indigenous to the Middle East and North Africa), the Conference of Presidents of Major American Jewish Organizations, The American Sephardi Federation, the ADL: The Anti-Defamation League, the Simon Wiesenthal Center, the World Jewish Congress North America, Historical Society of Jews from Egypt, Yemenite Jewish Federation of America, the Iranian American Jewish Federation (IAJF) and others, signed a letter to Secretary of State Michael Pompeo. The letter stated in part:
“The recent statement by the Principal Deputy Assistant Secretary for Near East Affairs, Joan Polashick, that the State Department is working on an additional five MOUs with Middle Eastern and North African nations makes it essential that a policy is in place that protects Jewish and Christian heritage by explicitly excluding them from any import restrictions and rejecting any state claims to individual and communal property.”
“We ask that the State Department’s Bureau of Education and Cultural Heritage adheres to the limitations set by Congress under the Cultural Property Implementation Act by denying broad, excessive import restrictions to nations that have neither valued nor cherished the ancient heritage of Jewish, Christian, and other minority peoples. We further request that all future MOUs from the region include provisions that list and name specific Jewish and Christian items to be excluded from the restricted list of items. Such items include: Torah scrolls, Torah cases, Jewish prayer books, Jewish manuscripts, religious ceremonial articles, and all Jewish ritual and prayer materials that include Hebrew inscriptions or references to original Jewish owners – whether they be individuals or Jewish institutions.”
This letter references a public presentation by then Principal Deputy Assistant Secretary for Near East Affairs, Joan Polashick, at a Smithsonian conference held October 23-24, 2018, Ms. Polashik noted that the State Department helped MENA countries to request MOUs and held up the Egyptian and Libyan MOUs as models.
Since Ms. Polashik’s statement, a number of new MOUs with North African nations have been signed and Egypt’s has been renewed. Only one Designated List, for Morocco, specifically excludes Jewish religious objects. The proposed 2022 Libyan renewal appears to continue a pattern of actions at ECA to implement a policy to sign all-inclusive MOUs with as many Middle East and North African countries as possible, continuing to deny rights to community and personal property to persecuted and expelled religious minorities.
Sarah Levin, executive director of JIMENA described the fundamental issues in a December 2019 interview:
“I would like to say that we work with the State Department – but we actually aren’t able to work with them at all…
“My perspective is that this is an issue of justice. Jews from the Middle East and North Africa have been deprived of their property. That is an actual violation of Article 17 of the Universal Declaration of Human Rights, which says that no community or individual should be arbitrarily deprived of their property. Jews from the Middle East and North Africa were forced to leave everything behind. Everything. They have been deprived of access to their property and ownership of their property, and even accessibility to their property.”
Five years after the first Libyan MOU, Rabbi Fusfield called the Libyan MOU “a de facto U.S. recognition of Libya’s confiscation of Jewish properties in 1958 and 1969.” He urged that the US take a stand in defense of persecuted minority communities instead of conciliating nationalist, authoritarian regimes:
“B’nai B’rith strongly urges the Committee to include a derogation, or carve-out, for Jewish personal and communal property should this MOU be renewed. We have seen a precedent for this in the Morocco MOU, which clearly and explicitly excluded Jewish property from its scope. To do less would be nothing short of a betrayal of American values. The United States of America, the world’s indispensable protector of religious freedom, must safeguard the cultural heritage of Libyan Jewish refugees by protecting it from the very government that persecuted its minorities and by upholding the rights of the persecuted.”
The Committee for Cultural Policy and Global Heritage Alliance joint testimony on the extension of the Proposed Memorandum of Understanding (MOU) and the continuing imposition of import restrictions between the United States and the Government of Libya.
Art and Heritage Law Report: Jewish Minorities in the Middle East, 55 pages, by Katherine Brennan and Kate Fitz Gibbon, Committee for Cultural Policy; Cultural Property News, November 2020.
 Kate Fitz Gibbon, Controversy: How US Recognizes Middle East Government Ownership of Jewish & Minority Heritage, Cultural Property News, December 12, 2019, https://culturalpropertynews.org/controversy-us-recognizes-middle-east-government-ownership-of-jewish-minority-religious-heritage/.
 Statement by Rabbi Eric Fusfield before Cultural Property Advisory Committee, Public hearing on Libyan MOU renewal, U.S. Department of State, July 26, 2022, also available https://www.regulations.gov/comment/DOS-2022-0015-0030.
 Statement by JIMENA President Gina Waldman before Cultural Property Advisory Committee, Public hearing on Libyan MOU renewal, U.S. Department of State, July 26, 2022.
 Emergency Import Restrictions Imposed on Archaeological and Ethnological Materials from Libya, 82 Fed. Reg. 57346, Dec. 5, 2017, available at https://www.federalregister.gov/documents/2017/12/05/2017-26278/emergency-import-restrictions-imposed-on-archaeological-and-ethnological-materials-from-libya.
 Import Restrictions Imposed on Archaeological and Ethnological Material from Libya, 83 Fed. Reg. 31654, July 9, 2018, available at https://www.govinfo.gov/content/pkg/FR-2018-07-09/pdf/2018-14637.pdf.
 See: 18 Jewish Organizations Protest MENA Nationalization of Heritage to State Department, Letter to Pompeo on Cultural Property Agreements with Syria, Iraq, Egypt and Libya – and Future Agreements with Algeria and 5 Other MENA Nations, December 20, 2018, Cultural Property News, https://culturalpropertynews.org/18-jewish-organizations-protest-mena-nationalization-of-heritage-to-state-department/
 Personal communication from Peter K. Tompa, who attended and made notes during the conference.
 Imposition of Import Restrictions on Categories of Archaeological and Ethnological Material from Morocco, Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021, p 6562.
 Kate Fitz Gibbon, Controversy: How US Recognizes Middle East Government Ownership of Jewish & Minority Heritage: JIMENA’s Sarah Levin Talks About Cultural Property Policies Against Human and Religious Rights, Cultural Property News, December 20, 2019
 Supra, note 2.