Do you think all nations should help protect one another’s cultural heritage?

On June 2, 2014, the Cultural Property Advisory Committee (CPAC) will begin its review of Egypt’s request that the US impose import restrictions on Egyptian antiquities in a Memorandum of Understanding (MoU), made under Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO Convention). Written public comments submitted earlier are posted here. (We urge our readers to take the time and read some of the longer submissions where the most reasoned, fact-based arguments are made. To us, substance is a clear winner here, not circular reasoning.)

SAFE has been a proponent of import restrictions as an effect deterrent to stem the trade of illicit antiquities. In Egypt’s case, we wrote on February 1, 2011, “Whether or not legislation is required, until order is restored, we believe that if the demand for Egyptian antiquities is curtailed, if not stopped, the loss of Egypt’s cultural patrimony during this tumultuous time would be curbed.” Earlier this year, we urged the Egyptian authorities to use all legal mechanisms to discourage looting, prevent smuggling, preserve and protect the most precious part of Egypt’s vast cultural patrimony by seeking an MoU with the U.S. 

Why?

Both the United States and Egypt are both states parties to the UNESCO Convention which obliges States Parties to restrict the importation of cultural property stolen from a museum or monument in another participating country (Article 7b), and allows States Parties whose archaeological or ethnological patrimony is in jeopardy from pillage to ask other States Parties for help in protecting the affected categories of materials, through measures that may include restrictions on imports and exports (Article 9). In other words, both nations have, for some decades, already decided to join with the international response to curbing looting and the illicit antiquities trade by being a part of the Convention. By imposing import restrictions on Egyptian antiquities, the US would simply be fulfilling its obligations under the Convention, as it has done since the signing of the first MoU with El Salvador in 1987.

SAFE believes that ALL nations should help protect one another’s cultural heritage. While some stakeholders — such as those who advocate for the unregulated acquisition and trade of cultural property — may question the validity of other countries’ cultural patrimony laws and criticize the effectiveness of their enforcement, no meaningful alternative to the 1970 UNESCO Convention, now joined by more than 120 countries around the world, has been proposed.

Helping to protect another nation’s cultural patrimony by temporarily limiting the importation of its cultural property is the least that any right-thinking nation can do to safeguard one of humanity’s greatest legacies.

What do you think?

 

Laundering phenomena in cultural goods trafficking

The laundering of cultural goods has become such a widespread and insidious phenomenon that it should be a separate discipline unto itself, if only to resolve certain jurisdictional problems. Indeed, cultural goods are often subject to real or fictitious manipulations aimed either at removing or hiding their true origin and provenance or obscuring their illicit exportation to a foreign territory. Both of these actions usually constitute the crime of laundering.

Laundering has recently been sanctioned in many legal systems as a form of criminal conduct, and in the near future these sanctions may receive wider application with respect to cultural property. This application will also be of more practical use to combat the offense of handling (from which laundering most certainly derives), because in many legal systems, the knowledge of the criminal provenance of the received good is required in order to prove the offense of handling. Therefore, it follows that “to turn a blind eye” is not always sufficient to assert a defendant’s criminal responsibility, on the basis of the title of the offense of handling. On the other hand, in order to charge the offense of laundering, it is often sufficient that the defendant have “reasonable grounds to suspect” the illegal provenance of the goods, and that he/she strives to conceal this provenance. Thus, the mens rea (intent) of the offenses in question (handling and laundering) may be different; but the required intent is easier to demonstrate in cases that involve laundering.

Moreover, while in many legal systems the offense of handling can exist only if this crime has a specific crime as its base offense[1]; on the contrary, laundering can be indicted insofar as it is proven that the provenance of the goods is illegal.[2]

Laundering is a useful crime to prosecute, both because, at both a global and European level, many legal instruments such as the 2000 United Nations Convention against Transnational Organized Crime (see list of states party) and the 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (see list of states party) offer a series of very strong powers, up to and including the confiscation of the property and/or profits[3]. In addition, due to the exact definition of what constitutes the offense of laundering, the cases in which this offense is perpetrated will be more and more frequent in the future.

In particular, the U.N. Convention’s provisions may prove useful if they are applied to the laundering operations that exist in the antiquities trade. As observed, where cultural property is looted in a source State, stolen, illegally exported abroad or imported using some of the techniques that are described below: the cultural artifact may be defined as property which constitutes the proceeds of a crime, and the Convention requires States Party to establish criminal offenses that penalize the intentional transfer of ownership or concealment of origin of such property (Article 6).[4] States Party are also required to establish measures to enable the seizure of such proceeds of crime, identify and trace property which may qualify as such proceeds (Article 12); respond to requests for confiscation by other State Parties (Article 13); and extradite suspected offenders (Article 16), even where the organized transnational character has not yet been completely established or the defendant has a marginal involvement into a criminal transnational organization. Moreover, according to this Convention, States Party should engage in the widest measures of mutual legal assistance (Article 18), consider conducting joint investigations (Article 19) and other measures of law enforcement cooperation (Article 27), and develop specialist training for law enforcement personnel (Article 29).

Antiquities laundering Laundering, as a crime, should occur not only in the light of monetary circumstances, but also when the nature and/or the provenance of a cultural object of illicit acquisition are altered
SAFE

It now behooves me to underline that, according to a shared experience, antiquities are often chosen by criminals in order to launder the proceeds of their crimes. In fact, there is increasing evidence that drugs barons and other offenders are able to launder their money by taking advantage of the ethical and legal twilight in which the international illicit trade in antiquities operates.[5]

Illicitly acquired cultural goods have even been used in a number of cases to obtain loans. When the loans are not repaid, the works of art end up in the vaults of the lending institution. Thus the objects are not only laundered; they lose their educational-cultural values as well.

In many cases, as Simon Mackenzie has observed, “the illicit market for antiquities operates hand in hand with a perfectly licit market. And traffickers in antiquities often find an established open and legal structure in market countries for selling those goods, which through chains of dealers and action houses operates very effectively to maximize the price which can be obtained for art and antiquities.”[6] This is in sharp contrast with the illicit trade in drugs, where the products for sale and market structures are almost always tainted with illegality. In other words, in the illicit drug trade, there is no need for a process of obscuring the drugs’ country of origin and no need to transform the goods’ ownership history, because the goods themselves are illegal on the supply side, on the demand side, and at every point in between. The same is not necessarily true for the illicit traffic in antiquities, which is handled in ways that are similar to the weapons’ trade, where lawful structures and transactions may be used to clothe illegal dealing. Obviously, as the co-mingling between illicit and licit markets becomes more sophisticated and intertwined, the more difficult will be the investigations that are necessary to prosecute these crimes.

Laundering, as a crime, should occur not only in the light of monetary circumstances, but also when the nature and/or the provenance of a cultural object of illicit acquisition are altered[7]. Let me explain this. Many of the triangulations by which cultural goods are physically transferred abroad[8] (exclusively for the purpose of hiding their true provenance), should be re-examined and condemned in view of the issue under discussion. That is: Laundering. Generally, such triangulations are carried out for the purpose of hiding the illegal provenance and relocating the artistic objects to a foreign jurisdiction, especially where the norms are more permissive, thus permitting the eventual marketing and sale of these objects in markets that offer the highest profits[9].

In fact, cultural goods are often exported to those countries which have not ratified the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (see list of states party)[10]. These countries are chosen precisely because, from that location, the goods can be transported again and resurface in States that have ratified the 1970 UNESCO Convention, with the obvious advantage that the cultural goods will not be subject to the controls and limitations in force in cases of import-export between two countries which have both signed these agreements[11].

As Stefano Manacorda has suggested, a multi-national response must be implemented to prevent cultural goods in countries with a stringent export regime from being transported to more liberal regimes, where it is very easy to obtain the required licenses, with few formal checks in place.

Most countries, acting alone, cannot tackle all the triangulations. And according to the shared experience of those who have tackled this problem in recent years, it is pointless for market countries to impose restrictions if source countries and intermediary countries do not impose similar restrictions, because the market will simply shift from one location to another, and the problem will not be solved.

As Stefano Manacorda has suggested, a multi-national response must be implemented to prevent cultural goods in countries with a stringent export regime from being transported to more liberal regimes, where it is very easy to obtain the required licenses, with few formal checks in place[12].

As Neil Brodie has observed, “on occasion, the licensing system in nations such as the UK has been abused in a different way, when for instance exporters have submitted recently imported antiquities for Waverley judgment,”[13] [14]—in effect, submitting to a more stringent process, with the intention to acquire a false provenance (i.e., to locate the cultural items in Britain for more than 50 years).

In addition, these cultural goods are often illicitly exported to another country that is less interested in such items because of their different cultural significance. Indeed, in the importer country those cultural goods often don’t satisfy the artistic criteria as prescribed by its department of national heritage and the export licensing unit will not object to the granting of a license, which would not be granted by the country of provenance[15].

Obviously, all the licenses so obtained serve to bolster the provenance of cultural items that the criminals know full well to be of illegitimate exportation. In this respect, it has been stressed that government department concerned with export licenses or even tax concessions should check provenance of cultural goods which are submitted to them, therefore informing the country of origin whenever appropriate. While this does happen sometimes, this practice should be implemented internationally.

We must also point out that the laundering process adopted by criminals does not only include concealing or disguising the source, location or movement of cultural property. In fact, another particularly insidious form of conduct has unfortunately become widespread within this sector of criminality.

At times, illicitly excavated archeological objects, even when found intact, are deliberately fragmented, or, if found in fragments, are deliberately not restored. Such conduct, which might at first appear to be against the interests of those who commercialize archeological artifacts, is instead useful to criminals who operate in this field. The exportation is, in fact, easier, because a fragmented object can be hidden more easily; and in general, fragments do not attract attention at customs controls, because little value is attributed to them. Usually, customs officials are not experts and do not appreciate the importance of the artifact fragment, which can be underestimated even by experts[16].

Frequently the fragments are subdivided amongst the various participants of a criminal group. By so doing, the group achieves three results: They split the loot of the illicit activity, and they reinforce the ties that link the members of the conspiracy[17]. On top of that, paradoxically, the criminal organization earns greater profits in economic terms, thereby creating a strong and often extortionist bond with the buyers.

Thus, the purchaser becomes part of a dangerous system of sales of fragments, mostly of vases. Generally the vases are of the highest quality and destined to be recomposed, in part or entirely, within a matter of years. This practice reveals a studied and intentional sales policy on the part of mediators and traffickers, who put only a part of the vase on the market, thus increasing the price of each new fragment that appears, making the piece more complete. At times they are used as promotion for other sales.

The purchase of these fragments, (in tomb-robber’s jargon, the so-called “orphans”[18]) which are re-assembled to complete an object of which the principal part is already in someone’s possession, enables the seller to sell, and the purchaser to acquire, as much of the object as much possible.

In this scenario, the purchaser of such fragmented objects not only avoids suspicion, and resulting criticism that comes from acquiring an important object with an illicit provenance, the purchaser even appears to be meritorious, for contributing to the “rescue” of a cultural object that would otherwise be condemned to disappear. According to this often-repeated justification, such purchasers serve as “repositories of last resort”. But this scenario also involves risk. For one thing, when purchasing cultural artifacts in fragments, it is impossible to know the total price of the object until the final fragment that completes the piece changes hands, at which point the price may be very high indeed. And if the seller is apprehended and a fragment is discovered in the seller’s possession that matches other recently sold fragments, the buyer may be forced to return the still-incomplete item.

It is both obvious and significant that the purchasers of these fragmented objects are not immune to censure[19], since the acquisition of artifact fragments without clear provenance can only come from clandestine excavation. Indeed, the market for legitimate acquisitions offers artifacts that for the most part are complete, with accompanying certification and research.

A similar case of criminal conduct is that in which a stolen painting is cut up so as to create different and apparently distinct works of art. This happens when the dimensions of the painting are large, as for example, in the case of a triptych or an altarpiece.  When the object is composed of several lots, it is easier to sell and produces greater profits. In addition, the different compositions thus created, become an obstacle for the research of the goods, precisely because it is not easy to compare the objects that finally reappear, with photographs of the originals. And it is even more difficult if, as is usually the case, the object has been touched up and restored, thus obscuring the illicit provenance of each portion (experts are at times helped in their investigative research by posture and orientation, in appearance, faces, etc. of the figures depicted, and thereby get an indication of the dismembering of the object).

Another expedient, used by criminals who operate in this field, is to touch up or otherwise disguise a cultural good over certain age and/or monetary limits, thus obscuring its national importance.  In this situation, when the dishonest dealer applies for an export license, the export adviser for the export licensing unit does not object to the granting of a license, because he or she does not believe that the cultural good satisfies one or more of the artistic and/or economic criteria as prescribed by the exporter country or by its department of national heritage.

Amenhotep III dipped in clear plastic and painted to look like tourist souvenir
Archaeology Magazine
(Left) sculptured head of 18th Dynasty pharaoh Amenhotep III was dipped in clear plastic and painted to look like tourist souvenir (right) by Tokeley-Parry, and sold in 1993 for $1.2 million

In this regard, we can remember the Schultz’s case discussed before the Southern District Court of New York[20]. The facts of this case are quite interesting[21]. As Ildiko Pogany DeAngelis has noted, “Frederick Schultz, a New York dealer and president of an ancient art gallery, arranged to purchase smuggled antiquities from a British restorer by the name of Jonathan Tokeley-Parry who reportedly smuggled more than 3,000 antiquities out of Egypt during the early 1990’s. His method was to make the objects look like cheap reproductions by covering them in plastic and then applying gold leaf and black paint.”[22]

After the cultural objects cleared British customs, Tokeley-Parry restored and sold them on the international art market with Schultz’s help. Furthermore, the Tokeley-Parry/Schultz team created fake documentation for the objects in order to have them as originating from an old collection, called the Thomas Alcock Collection, dating from the 1920’s. Labels for the collection were dipped in tea to give them an aged appearance, and Tokeley-Parry also restored some of the items using a method popular in the 1920’s.

These are the facts, and according to U.S. experts the Schultz’s case is important because after this case there seems to be little doubt that ignoring or dismissing patrimony laws of foreign country has to be deemed reckless and information about where and when the object originated, knowledge of the scope, effective dates and enforcement history of applicable foreign patrimony laws are no longer optional but necessary to avoid U.S. federal criminal liability.

In the civil context, the Schultz case has additional implications. According to a shared opinion, “title to undocumented antiquities can be subject to challenge by countries of origin in civil cases brought in the United States basing ownership on patrimony laws: The burden on a source country will be to prove ownership via the patrimony law and removal of the State owned object across its border after the ownership vesting statute was enacted. No proof of guilty knowledge of the law will be required.”[23], [24]

Thus, as assessed, countries of origin will now have ample incentive to quickly pass or amend and effectively enforce patrimony laws to ensure that they will be recognized by U.S. courts. In fact, as the Schultz case indicates, the U.S. Court will not consider foreign ownership laws to be enforceable if the laws are judged to be void due to vagueness, i.e. confusing, unclear and ineffective[25].

As Ildiko Pogany DeAngelis has observed, “source countries should be increasing their efforts to document antiquities within their borders, including those legally excavated, in private hands, and in public collections, so that every undocumented object removed after the enactment of the patrimony law may be identified by default to have been looted from an unexcavated site”. In addition, the problem of tracing cultural items to the modern day borders of a source country for civil restitution (generally speaking, it is not sufficient to say that they are State-owned because they come, for instance, from the Mediterranean area) can be successfully overcome, says DeAngelis, “if bordering countries agree to cooperate on such recovery efforts and seek return of objects as joint plaintiff.”[26]

Summing up, in the Schultz case, the U.S. Court believes that, when necessary, their Courts can evaluate foreign patrimony laws to determine whether their language and enforcement indicate they are intended to assert true ownership of certain cultural property, and thus create a barrier to the importation of cultural goods owned by a foreign government: Because there is no reason that property stolen from a foreign country should be treated any differently from property stolen from a foreign museum or private home[27].

In other words, in the Schultz case the U.S. Court applied the same principles as established by Allstate Ins. Co. v. Hague, 449 U.S. 302 (1980) decision, which says “for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating State interests, such that choice of its law is neither arbitrary nor fundamentally unfair”. Obviously, the cultural heritage of a given nation involves contacts that are as strong and significant to the State of origin as required by this case law. Recently, these same principles have been asserted by the Supreme Court of Appeal of England and Wales in the case Republic of Iran v. Barakat Galleries Ltd.

Let’s take a moment to look at other types of laundering operations. One example involves the export of cultural goods, hiding their true context, by belonging to a collection[28]. In many jurisdictions, the export licensing unit will deny a license, regardless of the importance of a particular item, if the artifact is presented as having a relationship with other goods.

Another type of laundering occurs when a cultural item is fictitiously exported in place of a similar object for which export license was obtained. This activity is especially common with respect to serial goods, such as coins or prints.

Other times, to bolster the legitimate provenance of a cultural item which the criminals know full well to be of illegitimate acquisition, the owner may request notification from data banks, such as IFAR (International Foundation for Art Research) in New York, or the ALR (Art Loss Register) in London, which document stolen works of art in their archives. Obviously, if an archaeological artifact is the fruit of clandestine excavations, the resulting research on its criminal provenance will be negative, since it can never have been registered as a stolen object. Even so, by obtaining an IFAR or ALR report, the dishonest dealer (including those who have been found to be in possession of photographs of the excavation[29]), can always show his/her buyer[30] the certificate. And should he/she be questioned, he will have the excuse and documents to sustain his good faith, since he/she had done all that was apparently “possible” to certify the licit provenance of the cultural object. In addition, the notification from data banks will report all the details given by the criminals and, as a result, the forged provenance of the artifact will appear to have been validated.

As Ildiko Pogany DeAngelis has observed, “source countries should be increasing their efforts to document antiquities within their borders, including those legally excavated, in private hands, and in public collections, so that every undocumented object removed after the enactment of the patrimony law may be identified by default to have been looted from an unexcavated site.”

Frequently, that same delinquency “introduces” a cultural good fictitiously into a private collection in order to confer upon it a legitimate provenance and thereby conceal its recent discovery in a clandestine excavation. This occurs especially with respect to serial goods (such as coins), or with collections that are not entirely documented. And one cannot forget that authentic artifacts can be substituted by fake ones, and that such collections can be quickly dismembered following the sale of the most valuable pieces. One should also not underestimate how large these collections can become during the very short time before the selling begins.

This form of laundering is the direct result of past museum policies. For instance, in 1996, shortly after the J. Paul Getty Museum passed a new policy, it acquired a large collection of more than 300 objects of Greek, Roman, and Etruscan origin from a private collector, and as Ildiko Pogany DeAngelis observed, “provenience for 90 percent of these objects was unknown. The documentation relied upon by the Getty was the museum’s own catalog from a loaned exhibition that it held a few years earlier.”[31]

As assessed, critics (and a penal prosecution in Italy) accused the Getty of manufacturing documentation to satisfy its own requirements for provenance and thereby tacitly condoning the flow of illegal antiquities[32].

However, in the penal context to maintain that the cultural goods themselves come from that collection, whereas they in fact never belonged to that universitas,[33] can in itself be considered and punished as an act of laundering.

Another safety measure that the dealer takes is that he/she loans the item to a museum, for a certain period of time. Once the loan period is over, the dealer can say that no claims have been raised by any third party during that time (the statute of limitation is usually very short because the item has been on public exhibition). This type of “ancient art laundering” was a successful practice among museums for many years, and criminals on purpose loaned the items in favour of less-known museums, before selling them to major museums.

To put an object up for auction for the purpose of selling it and repurchasing it through a front[34] or through a company of convenience is a fictitious act, aimed exclusively at “laundering” the object – the primary objective[35]- and thus attributing to it a value that is inherently false and arbitrary. Such conduct is particularly insidious, because it can alter the market value of an entire class of objects[36] (values of individual objects are often uncertain and are often determined by comparison with other works of equal cultural interest), or because, for acquisitions made on the “overt market”, the so called time limit (that is, the time one has to take action to claim the object) is very short.

In this respect, it must be stressed that the most important auctioneers currently have due diligence programs in place that should minimize the risk of selling looted art. As Thomas Kline and L. Eden Burgess have observed, “Christie’s, Sotheby’s and Austria’s Dorotheum have adopted such procedures, at least formally. But these firms remain the exception in the art market. Many smaller houses and private dealers, lacking either interest or resources, have yet to implement such checks on provenance. How to close the ‘due diligence gap’ remains an important question for art market professionals, governments and others, since many cultural items are not of high value and thus do not necessarily move through Sotheby’s, Christie’s or other premier auctioneers or dealers.”[37]

We must also stress that, at present, many of the codes of conduct concerning auction houses’ dealings require them to establish “to the best of their ability, that the objects they are dealing with or putting on sale are not stolen from excavations”. Obviously it is not possible to make good on this pledge: (a) when their sale catalogs provide no certain provenance, and only vague indications of ownership for many pieces; (b) when the items appear documented in Polaroids or other pictures depicting them just after excavation and, anyway, neither in scientific contexts nor referable to reputable collectors contexts; (c) when the same goods have never been ever studied, catalogued and inventoried by competent Authorities in their country of origin, which should be the case for objects discovered at authorized excavations, and (d) when their export has never been authorized by the Authorities of the country of origin (in this respect, the lack of suitable certification adds argument to their illicit trading).

Abiding by these codes of conduct, the dealers and/or auction house staff should be certain of the licit circulation and have no doubt about provenance: Indeed, according to their own ethical codes, these firms must have positive evidence of clear, genuine and licit provenance in order to vaunt good faith that is necessary to proper dealing. Yet this is frequently not taken into consideration by dealers and staff of many important and/or small auction’s houses. With proper international checks, the required information could be verified and “bad actors” prohibited and punished.

All the above leads us to conclude, without hesitation, that targeted regulation of the crime of laundering is indispensable, particularly when such criminal conduct trades in cultural goods, where laundering mechanisms and maneuvers are so numerous and the profit potential is so high, The establishment of an independent, international anti-laundering agency to monitor the art trade is a method that national and international law enforcement agencies would do well to consider.

Finally, as noted in the preparatory agenda proposing a model law for the protection cultural property to the UNIDROIT Governing Council, “many of the above mentioned laundering maneuvers and mechanisms take place thanks to the permeability of inter-state borders, to the greater fluidity of communications and to the emergence of new markets and purchasers.”[38] In other words, among the many costs and benefits of globalization and trade liberalization, we should count the global trade in cultural goods, i.e., an issue of ever increasing proportion.


[1] For instance, the English legal system acknowledges the offense of handling only if the provisions of the Theft Act are infringed.

[2] Both laundering and handling require that a crime be committed before receiving the goods. But the base or predicate offense (i.e., the crime committed prior) can vary. For example, in order to commit the crime of handling, the goods must come from theft (predicate offense); but in order to commit the crime of laundering, the predicate or base offense can involve any one of variety of crimes. One thing that laundering and handling have in common: both crimes are committed only when a person deals with goods that are the proceeds of other crimes.

[3]Often the cultural object is the profit of other crimes. In fact, they may, for instance, come from illegal excavation, clandestine exportation and so on.

[5] See the introduction by Stefano Manacorda to “Organized Crime in Art and Antiquities, edited by Stefano Manacorda. Selected papers and contributions from the International Conference on “Organized crime in art and antiquities” Courmayeur Mont Blanc, Italy — 12-14 December 2008″ See also “The Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, 18-25 April 2005: report prepared by the Secretariat (United Nations publication, Sales No.E.05.IV.7),” chap.1, resolution 1; endorsed by the General Assembly in its Resolution 60/177 of 16th December 2005. 

[7] In this regard, many countries seem to punish every laundering manoeuvre.

[8] I have been investigating a case in which a statue of an Artemis was first exported from Italy towards Japan; then this same statue resurfaced in Switzerland where a very well-known dealer sent this archaeological item to the U.S. market. Asked to return the object, the Swiss dealer was so bold that he/she firstly surrendered a fake, but in the end he/she contributed to return the object.

[9] Up until recently, customary routes for Italian cultural goods have been Italy-Switzerland, Switzerland-London and London-U.S.-Japan-Australia or elsewhere.   

[10] As in the past Switzerland, Germany, the United Kingdom and Japan.

[11] The red flag theory discussed in the Michael H. Steinardt case, before the U.S. Federal District Court for the Southern District of New York. See the facts, procedural history and decision of the United States v. An Antique Platter of Gold 991 F. Supp. 222 of November 11, 1997; decision upheld and reasoning substantially affirmed (184 F. 3d 131 -2nd Cir. 1999) by U.S. Court of Appeals for the Second Circuit. The defendant in-rem in this case, the “antique platter of gold,” was a circa 400 BC libation bowl of Sicilian origin known as a phiale mesomphalos. In its decision, the U.S. Court stressed that concealment or misrepresentation is material if it has a natural tendency to influence or was capable of influencing the decision of the decision-making body to which it was addressed. In other words, “a false statement is material if it has the potential significantly to affect the integrity of operation of the importation process as a whole, and neither actual causation nor harm to the government need to be demonstrated. For a trier of fact to determine whether a statement can significantly affect the importation process, it need ask only whether a reasonable customs official would consider the statements to be significant to the exercise of his/her official duties”. For instance, the designation of Switzerland as the phiale’s country of origin and the listing of its value of $ 250,000 were objectively false and relevant. 

[12] As Stefano Manacorda has observed, “the diversity of penalties applied between authorities and jurisdictions can lead to ‘forum shopping’ among the most cunning criminals, who adopt strategies to avoid prosecution and administrative entanglements in those States and jurisdictions known for the severity of their penal responses.” See Stefano Manacorda, “Criminal Law Protection of Cultural Heritage: An International Perspective,” in Crime in the Art and Antiquities World: Illegal Trafficking in Cultural Property, edited by Stefano Manacorda and Duncan Chappell, page 23.

[13] See “The Licensing of Archaeological Material for Export from the United Kingdom,” a memorandum submitted by Dr. Neil Brodie to the UK Parliament, 16 May 2000.

[14] A Waverley judgment is named after Viscount Waverley, who served as Chairman of a 1950 Committee that was appointed to consider and advise on export policy. As result of the Waverley Report published in 1952, two separate categories of material are recognised by the licensing system: Material which has been in the UK for over 50 years and material imported within that time. Thus, according to UK experts, a distinction is drawn between what is considered to be part of the national heritage (material in Britain for more than 50 years) and what is considered to be traded material (in Britain for less than 50 years). The operation of the licensing system pays great attention to the first category. Indeed, the system is designed specifically to protect the national heritage so that many objects will be reviewed individually. Vice versa, for the second category, the traded material, the requirements are less stringent and licenses are granted more or less automatically. A commentator has observed that the system functions to protect the heritage of the United Kingdom while at the same time allowing the British economy to benefit from marketing the heritage of others.     

[15] During my investigations I also ascertained that criminals import into another country a fake work of art they want to pass as genuine. In these cases criminals are relying on the inexperience of the persons deputed to the checks, as their field of expertise is often only on national works of art.

[16] According to a shared experience, customs officers are estimated to lack professional training in art history, being often unable to identify an ancient artifact and, particularly, to indicate the limit of the legal age of artifacts, as compared to an obviously precarious artistic value. On the contrary, criminals are fully aware of the cultural good values in their possession, and during a search done in Paris in the apartment of a famous dealer I have found a fragment well wrapped in a little leather bag, purpose-built for this fragment.

[17] I and my experts have been able at tracing the criminal links of a conspiracy thanks to the documents collected, and through the fragments and their sub-division amongst the various participants.

[18] The main part or core of an archaeological good (the “mother”) is elsewhere and the fragments are orphans of it. In the past this jargon has been so common that during my investigation I had the chance to see that this same expression had been used in a letter written by a famous U.S. museum curator to a colleague of him/her. He/she claimed that, having firstly acquired a part of a kilix, he/she was the only one entitled to buy all the other orphans (fragments) that were about to appear on the market. 

[19] Once, a curator of a museum said to me and I quote verbatim: “… It is true that I come to realize that we were blackmailed, I mean people knew they had a fragment, and that was an extremely unpleasant part”. However, the curator could have broken his or her ties with criminality denouncing the illicit affairs. In this regard, “… no effort should be spared to avoid giving in to ransom demands, so as to discourage the theft or illegal appropriation of movable cultural property carried out for that purpose. The persons or institutions concerned should consider ways and means of making this policy known” (see, the UNESCO Recommendation adopted in Paris on 28 November 1978).  

[20] See, U.S. v. Frederick Schultz, U.S. Court of Appeals for the Second Circuit 333 F. 3d 393; 2003 U.S. App. LEXIS 12834.

[21] However, the facts of this case are not unusual. In fact, I have recently ascertained that two paintings of a famous Maestro had been covered with a yellowish patina, in order to deceive the Officials for the Italian export licensing unit.

[23] Ildiko Pogany DeAngelis, ibid, pages 6 and 7.

[24] In Ratzlaf v. United States (510 U.S. 135, 149, 126 L. Ed. 2d 615, 114 S. Ct. 655, 1994) the U.S. Court relied on the venerable principle that ignorance of the law is no defence to a criminal charge. 

[25] See, the case of Government of Peru v. Benjamin Johnson. In this case, as said, the Court suggested that Peru’s statutes could be interpreted to be export restrictions, not assertions of title.

[26] Ildiko Pogany DeAngelis, ibid, page 7

[27] As assessed by presiding U.S. district judge Jed S. Rakoff in his ruling of the Schultz’s case: “If an American conspired to steal the Liberty Bell and sell it to a foreign collector of artifacts, there is no question he could be prosecuted … the same is true when … a United States resident conspires to steal Egypt’s antiquities”.   

[28] If a cultural good is presented at the export control hiding such a provenance (for instance, from a collection), and then this good is found in another country, there are some who do not see this object as being illicitly traded, and restrictions such as non-alienability or trust have often not been enforced in a foreign jurisdiction.   

[29] Once, I seized some frescos and their photos which show two walls of a room pertaining to a rich Roman villa of the Vesuvian areas, of Pompei or Herculaneum, or of those sites which disappeared with the eruption of Vesuvius in 79 AD. According to the opinion of my experts, they were undoubtedly photographed during a phase of the clandestine dig. That we are looking at an illegal dig is obvious from an examination of the photos which show the conditions of the dig itself: The site of an archaeological excavation carried out by specialist technicians has very different characteristics from those shown in the photographs in question, in which the removal of the earth to free the frescoes is being conducted without any scientific criterion whatsoever, but instead with the one and only aim of being able to remove the paintings as quickly as possible. The photographs themselves also show beyond doubt that we are dealing with a room of a Vesuvian villa; the typology of the frescoes themselves is indisputably Campanian, but also because the pile of earth mixed with lapillae (clearly visible in the photos) is exclusively typical of the Vesuvian areas. Accordingly, the request to the Art Loss Register with regard to the frescoes in question was fictitiously submitted by the dealers; since these came from an illegal dig (circumstance of which all the players were well aware thanks to the photographs), they could never have been amongst listed stolen art works.

[30] Often museums, especially if one considers their past policies.

[31] See Ildiko Pogany DeAngelis, ibid, page 15. 

[32] As observed, at the end, the Getty Museum suffered not only a moral loss, but a financial one, even if the objects had not been totally purchased but partially donated, due to the costs expended to acquire, curate, conserve, and maintain objects in its collection.

[33] Universitas, meaning “a collection of goods.

[34] As assessed, traders often try to take lower risks and they do not buy the item from the liaison dealer but they take it on consignment.         

[35] During my investigations I have found a little page in the premises of a well-known dealer I searched. It reads: “The amphora we bought at auction is not ours!” (the word “ours” was underlined).

[36] The high market value of looted art can induce the criminality to do their “best” in order to excavate more and more archaeological items. In this regard, the museum curators have been the purchasers who often paid more, either because sometimes they split with dealers the illicit gain; or because they had to pay the silence of dishonest dealers; or because the laundering operations called more and more intermediaries into the affairs, thus increasing the prices.

[37] See Thomas Kline and L. Eden Burgess, “Art Market,” in The 2010 Yearbook of Cultural Property Law, page 120.

[38] See “Item No. 9 on the agenda: Triennial Work Programme 2009-2011; Proposal for a Model Law on the Protection of Cultural Property (submitted by the Secretariat)” at the 88th session of the UNIDROIT Governing Council in Rome, 2-23 April 2009, page 6.


Edited by Paul Kunkel, SAFE/Saving Antiquities for Everyone.

Protecting Egypt’s cultural heritage – repatriation efforts alone will not suffice

Given the well documented role of auction sales in the legitimization of unprovenanced artifacts, which translates as “no questions asked,” or possibly looted or looted, should anyone be surprised that a major source country such as Egypt would follow the examples set by Italy, Cambodia, Iran, and non-state actors such as Native American tribes in the United States, to stop the impending sale of artifacts that departed its country of origin without the benefit of a valid export certificate? The answer is: no.

The Egyptian Antiquities Ministry has made a concerted effort in recent months to pour over auction house catalogs in a global search for stolen antiquities and is pursuing in “all legal and diplomatic means to recover smuggled artifacts,” according to a story published in the online journal Al Monitor.

Egypt’s decision is understandable. Pressuring auctioneers to withdraw undocumented artifacts from sale sends an unambiguous message to would-be consignors that the risk of offering such material at public auction is rising. This, in turn, reduces the incentive to dig up and smuggle these items in the first place.

One would hope that the authorities concerned with antiquities in Egypt would further reduce the incentive to loot artifacts by paying more attention to prevention and enforcement efforts before these treasures appear for sale at auction houses.

To date, the most effective mechanism is found in Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO Convention).

As a state party to the Convention, Egypt can request the United States to impose temporary restrictions of the importation of the most endangered categories of Egyptian archaeological and ethnographic material into the largest market for such material in the world, the United States, by requesting the U.S. to enter into a bilateral agreement (Memorandum of Understanding or MOU), under Title 19 U.S.C. 2600 et seq, known as the Convention on Cultural Property Implementation Act (CCPIA) enacted in 1983.

Given the deteriorating situation on the ground in Egypt, it is likely that Egypt will qualify for emergency import restrictions under CCPIA, which the Government of Mali received from the U.S. in September 1993.

Secretary-General of the Supreme Council of Antiquities Mustafa Amin recently told Al-Monitor, “All international laws and conventions grant the competent authorities concerned with antiquities in Egypt the right to preserve the artifacts and to track [the pieces] illegally smuggled outside the country.”

We urge the Egyptian authorities to follow through and use all legal mechanisms to discourage looting, prevent smuggling, preserve and protect the most precious part of Egypt’s vast cultural patrimony: the still-intact evidence of its undiscovered past that remains in the ground. Repatriation efforts alone will not suffice. Efforts to encourage Egyptian authorities to seek an MOU with the U.S. are underway. The decision that Egyptian officials must make is clear.

Photo: Pharaonic artifacts are seen on display at the Egyptian Museum, Cairo, Sept. 30, 2013. (photo by REUTERS/Mohamed Abd El Ghany)

How much looting needs to happen before we start to think twice?

In an atmosphere of general unrest and lack of control or safety provided by government, looting frequently rises to unprecedented levels as those desperate for quick cash plunder from the coffers of our global heritage. However, it is not the looters who stand to gain the most from such a timely situation, but rather the collectors who are able to add another invaluable piece to their collections, ripped from the fabric of civilization.

Yet even before the events of the Arab Spring raged across the Middle East and enraptured the world, the market for Syrian and Egyptian antiquities was booming. Many lots (objects for sale at auctions) were selling for above their estimated prices, with one pair of carved stone capitals from Syria selling for GBP 313,250 – more than five times its pre-sale estimate of GBP 60,000. With no provenance at all listed in the lot’s record, it’s incredible that a collector would nevertheless spend over a quarter of a million pounds on artifacts that could have been illicitly excavated or exported.

My process

I was curious as to how the looting and destruction that swept the Middle East during the Arab Spring might have impacted sales of Egyptian and Syrian antiquities, so I decided to compare pre-2011 and post-2011 sales in the hopes that this would shed some light on the issue.

I conducted this research both online and in libraries, accessing catalogues from past auctions from the Sotheby’s and Christie’s websites, as well as in the National Gallery of Art Library in Washington, D.C. and the National Art Library in London. I found the websites quite difficult to navigate, and it feels as though the online catalogues are there for casual perusing rather than serious research. There is no means of collating relevant items or auctions, and the information listed online leaves quite a lot to be desired.

Techniques used by auction houses

sothebys Unprovenanced Syrian stone capitals sold at Sotheby’s

Many of the artifacts, like the stone capitals described above, have no provenance listed, or will have an incredibly sparse record, like this Syrian limestone head which was simply “acquired prior to 1987” or this basalt torso of Herakles “said to have been found prior to World War II” (both pieces auctioned in 2010). The Herakles statue sold for 230,000 USD, twice its estimate. Many other pieces sold for over their estimates, indicating that a healthy appetite for Egyptian and Syrian artifacts still exists.

One of the thinnest provenances I saw was simply a listing of previous auctions, as if having made it through the system once before is enough proof that an artifact is fair game to be auctioned again. (If you’re interested in seeing some of these techniques in action, check out any catalogues from auctions of antiquities at Sotheby’s or Christie’s and you will quickly come across them.)

I had hoped that perhaps things would have improved after the events of 2011, but this was not the case. Provenance listings were no more specific or accurate than they had been previously, and there was no indication from any major auction house that they were taking into account the uncertainty in the Middle East when it came to acquiring objects for auction. In auctions taking place immediately after the Arab Spring, there were no reassuring notices placed in the front of the glossy antiquities catalogues confirming that the auction house had ensured the legality of all pieces (although perhaps they had — I’m not making accusations, just observations).

Even if an auction house deigns to ask a country if it believes an item has been looted, there are no public records from illicit excavations, and therefore no way for that country to prove that it was taken, from where, or even when.

Another way auction houses shift attention from an artifact’s physical origins to its aesthetic qualities is by listing multiple countries as the possible place of creation. As Colin Renfrew explains in Loot, Legitimacy and Ownership, having an unclear place of origin prevents any one country from laying claim to the item. Moreover, even if an auction house deigns to ask a country if it believes an item has been looted, there are obviously no public records from illicit excavations, and therefore no way for that country to prove that it was taken, from where, or even when.

I had expected to see a huge increase in the number of items placed for sale following the 2011 revolutions. However, there actually appears to have been no increase, which surprised me. Auction activity was relatively uniform from 2009 to 2013. Had there actually not been any items looted during the general state of instability and anarchy that seized much of the region? My suspicion is that these objects just haven’t had enough time to reach the international market. Looting is absolutely happening, as evidenced by photographs of sites speckled with large holes and scattered artifacts.

Evidence for looting

Indefatigable Egyptian archaeologist Monica Hanna has been single-handedly exposing an incredible amount of looting in Egypt, even going so far as to confront some of the armed looters herself. Hanna sent me some pictures of the landscape at Abu Sir el-Malaq, where looters have left behind piles of ravaged bones and mummies in favor of more saleable and attractive artifacts. This is just some of the damage that she has documented at that site:

abu sir el malaq 4 Bones left behind as looters uncover graves
abu sir el malaq 3 A child carries an artifact tossed aside by looters
abu sir el malaq 2 Archaeologists survey the damage at Abu Sir el-Malaq
abu sir el malaq 1 The pockmarked lunar landscape left by looters

The reality is that looting is definitely happening in Egypt. We haven’t yet seen these artifacts reach a public market, but they are out there. Or — even worse — as the events of the last week have shown, stolen artifacts may have actually been destroyed by those who took them, like we saw at the Malawi Museum. Hanna herself was at the Malawi Museum when looters stormed its doors, and defended its treasures against armed attackers. Some of the artifacts taken have since been returned, but hundreds remain missing, and it is possible that many of those still at large have been irreparably destroyed.

Trafficking Culture, a research programme into the global trade of looted artifacts based at the University of Glasgow, advocates using Google Earth as a means of tracking looting. This screenshot from Google Maps seems to show holes dug by looters south of the Great Pyramids at Giza:

Giza Holes

Conclusion

There has yet to be a “boom” in the number of Near Eastern antiquities for sale because dealers can afford to wait. As demonstrated by the mere existence of the Swiss Freeport (and its shameful role in Giacomo Medici’s looting empire, documented in The Medici Conspiracy), it’s fairly easy to have such a backlog of illicitly obtained items so as to not need to immediately sell newly acquired ones. Moreover, dealers aren’t dumb: they know that flooding the market with unprovenanced antiquities not only looks suspicious, but also will devalue each item as supply increases. Just as the Mugrabi family carefully plays the market to keep Warhol’s value high, so antiquities dealers know when to buy and when to sell.

It is disturbing that the public appetite for antiquities is so great that one can easily buy a faience figurine for just a few hundred dollars and no thought of import laws.

Tess Davis, a member of the “Trafficking Culture” project, is researching the process that many artifacts go through as they are essentially smuggled into legitimacy. It will be interesting to see the conclusions that her research yields, and I hope that it will shed some light on the process that looted artifacts have — and are still — undoubtedly been going through for the past two years.

Even searching for something as simple as “Egyptian antiquity” on eBay turns up multiple results for unprovenanced objects. While it is very likely that these are fakes rather than looted originals, it is disturbing that the public appetite for antiquities is so great that one can easily buy a faience figurine for just a few hundred dollars and no thought of import laws, UNESCO or otherwise. (Luckily, UCLA archaeologist Charles Stanish believes that eBay’s large selection of fakes is actually helping to stop looting, estimating that 95 percent of the archaeological artifacts listed on eBay are forgeries).

“The only Good Collector is an ex-Collector.” – Colin Renfrew

The idea of a benevolent collector has been problematized many times, including by Renfrew, who concludes that “the only Good Collector is an ex-Collector” (Public Archaeology, 2000). Renfrew does not have a problem with the act of collecting (identifying Old Master paintings and cigarette cards as hypothetical items exempt from his condemnation), but rather the practice of collecting specifically unprovenanced antiquities. But beyond just provenance, are there other issues at hand when it comes to looting and sales?

My conclusion is not that this research proves that the sale of Middle Eastern antiquities is out of control due to a single incident or period of conflict (as satisfying a conclusion as that would have been). Rather, it is that the looting specifically is out of control. It is likely that some will make the counter-argument that until we see these artifacts on the market, there is nothing we can do, or perhaps even that until such objects turn up at an auction, there isn’t any real proof that damage to the cultural record is happening.

This is wrong - looting is happening now, and without more awareness, it will continue to happen until there is nothing left to be learned from the decontextualized and ravaged objects. Monica Hanna told me that “raising awareness is really what we need,” so please help SAFE spread the word. A community on Facebook called Egypt’s Heritage Task Force has done a tremendous amount of work to track and stop looting and destruction of heritage sites, and it is that cooperation that we will continue to need in the coming months.

You can also join SAFE’s latest campaign, Say Yes to Egypt, and read more about our efforts to raise awareness about the looting going on in Egypt here.

Why China’s MoU request should be renewed: its undiscovered ancient past

On our Facebook group yesterday, attention was brought to a mysterious stone animal uncovered this past January at an excavation site in Sichuan, China. Weighing 8.5 tons, and at 10ft 10in long, 3ft 11in wide and 5ft 7in tall, what else do we know about it besides its vastness?

What animal is it?
Media reports have called it a horse, a lion, or a panda, a cow, a pig. The latest “conclusion” is that the animal is a mythical rhinoceros, or a hippopotamus.

How old is it?
While most Chinese reports have the statue dating to the Qin Han dynasties 221 B.C.–A.D. 220, other reports speculate that it could have come from the Tang dynasty 618–907, or even Ming Qing 368—1840.

Perhaps most important, what was its purpose?
Archaeologists are reportedly baffled. At this writing, we have not found the discovery in Kaogu, or Archaeology journal, published by Institute of Archaeology, of the Chinese Academy of Sciences.  On China’s State Administration of Cultural Heritage web site, there is one report from Sichuan Daily  mentioning a possible connection to calming floodwaters. What we do know is that the statue has ow become a symbol of good luck during the Lunar New Year, and lovingly nicknamed “史上最萌石兽” or “the most adorable stone animal in history.”

It will take some time for archaeologists to decipher the markings found on the statue’s surfaces, study the skeletal remains of other animals in its vicinity and make sense of the many other artifacts also discovered, including pots and reportedly ceremonial objects. For now, we have to contend with speculations, and hope that the site had not been looted, and will remain intact.

Stone horse and tiger Stone horse and tiger narrowly escaped looters

In 2008, four other stone animals in Guangxi province narrowly escaped being dug up and carted away by looters, thanks to reports from the villagers. Although not as big as the Sichuan animal, these statues appear equally difficult to steal, and equally mysterious. As mentioned in our earlier post about a looted 27-ton stone coffin measuring 4 meters long, 2 meters wide and 2 meters high,  when it comes to looting for profit, size no longer matters.

The public hearing to review a five-year renewal of the 2009 Memorandum of Understanding that restricts certain categories of antiquities from importation into the US takes place today at the Department of State. For SAFE, the most important reason for the Cultural Property Advisory Committee to recommend the renewal to the President is this Most of China’s vast ancient history remains undiscovered. There is much more mystery than there is knowledge about a civilization that spans more than 7,000 years. And the decision must be based on this: Do we want to know more?

We do, because China’s ancient cultural heritage is our shared cultural heritage. As Donny George said, cultural heritage is a human right. We all deserve to know more about our own humanity, knowledge is our right. As such, we must do everything we can to stop the plunder of cultural heritage. The UNESCO 1970 has its flaws, import restrictions alone will not end looting and the illicit antiquities trade that feeds it. But until a better alternative is recommended and implemented, the US must do what it can to safeguard our cultural heritage—not only for China—but for all of us. Anything else is just an excuse.

“Declaration on the Protection of Cultural Property in the Event of Armed Conflict” to be unveiled at WAC-7 in Jordan

Amid the many discussions that will take place at the Seventh World Archaeological Congress (January 13-18 , 2013) being held at the King Hussein Convention Centerat the Dead Sea in Jordan, under the royal patronage of His Majesty King Abdullah II Bin Al Hussein of Jordan an important four-session series titled “Archaeology as a Target” will begin on January 14, 2013. with a forum entitled “The Protection of Cultural Property in the Event of Armed Conflict and Civil-Military Cooperation: Lessons Learned from a Civil Perspective,” organized by Professor Friedrich T. Schipper (University of Vienna) and professor Patty Gerstenblith (DePaul University College of Law).

During the forum, Professors Gerstenblith and Schipper will propose a “Declaration on the Protection of Cultural Property in the Event of Armed Conflict” to the Assembly at the Plenary Session and invite serious contributors to review the text and submit comments via this website link.

The fifteen recommendations included the draft text could hardly be more relevant or complete:

1. In regard to the damage to cultural property in the most recent conflicts, e.g. in Syria, Mali and other countries around the world, WAC expresses its serious concern at the ongoing disregard by States as well as conflict parties, state and non-state, of the instruments of international humanitarian law and subsequent principles to protect cultural property.

2. WAC states that intentional destruction of the cultural property of others – constituting a basic tangible aspect of cultural heritage and identity – is increasingly becoming a central element and high priority target in armed conflicts, and the cultural cleansing of whole regions as a prime goal of warfare, which has to be considered as an aspect of ethnic cleansing and a crime in terms of international humanitarian law.

3. WAC calls on all States to ratify the various instruments of international humanitarian law to protect such cultural property, above all the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague 1954) and its two Protocols (1954 and 1999) as well as the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris 1970) and others; to swiftly and efficiently implement them into national legislation and in the sense as originally intended by the conventions, and to observe and enforce them.

4. WAC calls on non-state actors involved in armed conflicts to observe the principles of these international conventions and of customary international law; to respect the cultural property of others, and to refrain from negligently or intentionally destroying or damaging cultural property during conflict.

5. WAC voices its concern about the increasing use by States of private military/security companies in armed conflicts and calls on such States as well as on above said companies to ensure that the principles of international law in general, and such international law concerning cultural property protection in particular, are observed by such companies.

6. WAC reminds individuals as well as conflict parties – state and non-state actors including private military/security companies – that destruction of cultural property has served as a basis for criminal tribunal prosecutions following both World War II and the Yugoslav Wars and that destruction of cultural property in armed conflict will continue to serve as a basis for criminal prosecution.

7. WAC calls on the United Nations to include the principles of cultural property protection in the authorization of any forces deployed under UN mandate; to ensure that cultural property protection is integrated into all Rules of Engagement of forces deployed under UN mandate; to require pre-deployment training in cultural property protection of such forces in general, and of their officers in particular, deployed under UN mandate, and to create the position of expert/liaison officers for cultural property protection in such forces deployed under UN mandate. WAC calls on States that participate in missions under UN mandate to do their utmost to preserve cultural heritage in the areas subject to this mission. WAC further calls on other multinational, international, intergovernmental, supranational etc. treaty organizations, under whose auspices forces may be deployed into conflict areas, to adopt the same principles listed here.

8. WAC calls on the United Nations to explicitly prohibit trade in cultural materials illegally removed from all areas of conflict and occupation (as it did during the Iraq war of 2003).

9. WAC calls on all States and actors – considering the Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict – to refrain from any interference with cultural heritage – that is to refrain from cultural property preservation, conservation, renovation, archaeological excavation and other forms of such work – in occupied territories, except where strictly required for salvage purposes.

10. WAC calls on all nations and actors to respect the pluralistic religious and cultural heritage of their regions and, in particular, to preserve historic structures, religious buildings and other forms of cultural property of minority groups located within their territory.

11. WAC calls on market nations – considering the First Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict and Article 11 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – to prohibit the import of cultural objects from areas subject to armed conflict and military occupation and – further considering the principles of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – to prohibit the import in any way of cultural objects whose provenience is not clearly and thoroughly proven according to best practice international standards.

12. WAC calls on all States that suspended their funding of UNESCO to resume its funding, which constitutes the basic requirement for the fruitful and pacifying work of UNESCO in general and its cultural heritage work in particular.

13. WAC calls on all States Parties to the Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict and moreover to all States Parties to the said Convention to regularly and substantially meet their obligation to contribute to the Fund for the Protection of Cultural Property in the Event of Armed Conflict established in Article 29 of the Second Protocol.

14. WAC calls on all scholars, in particular its members, to study the instruments of international law that protect cultural property, to consider them in their scholarly work where appropriate, to promote them within their communities and towards the governmental authorities in their home countries, and to carefully and responsibly use them and to refrain from abusing them in a polemic mode.

15. WAC invites all scholars, in particular its members, to actively get involved in UNESCO affiliated NGO-work fostering cultural property protection whenever and wherever feasible and appropriate, in particular via ICOM, ICOMOS, and Blue Shield.

SAFE applauds this galvanizing thought-provoking effort. We eagerly await the final Declaration and the reception by WAC-7 participants and the world at large.

“Retentionist” or just doing the right thing?

According to KVAL.com article “Stolen Italian antiquities recovered from Oregon home” Phillip Pirages, the book dealer whose manuscript pages were forfeited by U.S. Immigration and Customs Enforcement “was very impressed with how serious the (Italian) government was about reclaiming these[.]”

AP Photo/Jacquelyn Martin
A Roman Marble Janiform Herm, circa first century, showing a depiction of an old and young satyr, is one of several cultural artifacts taken from Italy that are being returned to Italy, seen during a repatriation ceremony at the Italian Embassy in Washington, Thursday, April 26, 2012. The objects were seized by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and Italy's Carabinieri.

Indeed, Italy is not alone in its determination to reclaim its cultural patrimony. In recent years, many culturally rich “source” countries are quite serious as well in their call for repatriation. While dealers, collectors, and other stakeholders— such as those who advocate for the unregulated acquisition and trade of cultural property— may question the validity of other countries’ cultural patrimony laws and criticize the effectiveness of their enforcement, no meaningful alternative to the 1970 UNESCO Convention, now ratified by some 120 countries around the world, has been proposed.

With the widely publicized repatriation of antiquities and a general increase in public awareness surrounding these issues, failure to respect national and international laws makes the acquisition of dubious artifacts a high-risk venture. This fact, plus the increasing willingness of source countries to sign long-term reciprocal loan agreements with foreign museums, are bringing decades of pushback to an end. Criticism of source countries as “retentionist”; legal actions to impede the implementation of the 1970 UNESCO Convention in the United States by CPAC; calls for fewer restraints on the importation of artifacts to benefit “hobbyist” collectors and “world museums” to stock their galleries with “artistic creations that transcend national boundaries” are being replaced by a new question in the cultural property debate. The question today is: how to reconcile the growing claims made by source countries in Asia, Africa, South America and the Middle East, on cultural property in museum collections outside the countries of origin?

“Once we established that they were stolen, he voluntarily agreed to surrender them,” said ICE special agent Melissa Cooley. “He didn’t fight the forfeiture.”

Citing cooperation, the book dealer will not be charged. Perhaps Pirages has the right idea: doing the right thing is never wrong.

Captain Gunter’s "loot": Antiquities from China’s Summer Palace continue to sell at auction

The sale of a 8.5 by 5.8 centimeter Qing dynasty (late 18th- early 19th century) gold box for £490,000 ($764,694.00) at London auction house Woolley and Wallis has provoked an international debate. The gold box, embellished with seed pearls, enamel glass panels, and floral motifs, inscribed in 1860 “Loot from Summer Palace, Perkin, October 1860, Captain James Gunter, King’s Dragoon Guards.”This engraving not only increased the box’s value by 50%, but also sparked a passionate dialogue about looting during war, the Chinese art market, and auction house responsibility.

All is Fair in Loot and War?

Whether we regard items such as the Captain Gunter box as “stolen,” “plundered,” “contraband,” “spoils of war,” “ransacked,” “pillaged,” or as Gunter appropriately chose “looted,” the taking of valuable goods from invaded areas during war is as old as war itself. Art Law: Cases and Materials perhaps says it best:

This historical sketch [referring to Roman activities] emphasizes the problem that can arise when the army of one nation occupies another. Historically, the world community did very little to protect national patrimony from plunder and destruction. Conquering armies believed they possessed the right to despoil a apparently defeated enemy. What about the interest of future generations in their nation’s cultural property? Should they be deprived of their national artistic heritage merely because their country was defeated in battle? The protection of national patrimony from plunder has ramifications beyond the preservation of cultural heritage for future generations. (Leonard D. DuBoff, Sherri Burr, Michael D. Murray, Art Law: Cases and Materials, 2004, 32).

The looting of the Summer Palace on October 18th and 19th, 1860 is considered by many as one of the most embarrassing events in Chinese history. The Opium War, also known as the Anglo-Chinese War, occurred in two stages between 1839 and 1860 after trade relations broke down between the Qing Dynasty and the British Empire. During the war, British forces razed historic Chinese sites and looted Chinese “souvenirs.”

Interesting enough, the looting and destruction of the Summer Palace occurred under the orders of the British High Commissioner to China, James Bruce, the Eighth Lord Elgin, son of Thomas Bruce, the Seventh Earl of Elgin responsible for the “preservation” of the metopes, friezes, and pedimental sculptures of the Acropolis, now in the British Museum. The destruction of the Summer Palace, a brash act of pyromania, led to the death of hundreds of eunuchs trapped inside the compound and the “pillaging” of some 1.5 million relics. This signaled the end of the Opium War. In October 2010, China lamented the 150 year anniversary of the Opium War and the burning of the Summer Palace.

Captain Gunter’s inscribed box is only one of the many items that he “looted” from the Summer Palace. On May 19th, 2011, Duke’s Auctioneers of Dorchester Captain Gunter’s descendants sold eleven pieces from the Summer Palace, including a 18th Century Qianlong period yellow jade pendant with a carved dragon for £478,000. In the auction catalogue, Duke’s identified the pieces as “acquired” from the Summer Palace, rather than the more controversial term “looted.” The Gunter family still holds possession of an extensive collection of artifacts– ivory chopsticks, jade boxes, jade chimes, bowls, and a jadeite belt hook estimated to be worth over £2 million. Guy Schwinge, an expert from Duke’s, recounts his visit to the Gunter estate in May 2011. He stated in The Daily Mail:

When I arrived at the house and was shown into the sitting room, I was not sure what I was going to see. We discussed the market for Chinese works of art over a cup of coffee and the results we had achieve at our recent Melplash Court sale, which included many Chinese works. The family then began to pull the most stunning pieces of jade from the back of a display cabinet in the corner of the room. I was stunned by the quality and number of pieces of jade that emerged from the cabinet. I felt the hairs at the back of my neck stand up. (The Daily Mail, May 4, 2011).

The future of these items is still not known.

The “looting” that took place at the Summer Palace is not an isolated incident. In fact, the Chinese Cultural Relics Foundation predicts that over ten million cultural objects were “plundered” from China between 1840 and 1949. The 150th anniversary of the Summer Palace looting, coupled with China’s growing wealth and status has ignited a strong and unified movement to return Chinese antiquities to their homeland.

The Chinese Art Market

However, instead of going to public museums, most Chinese antiquities enter private collections, displayed as a sign of wealth and power, not patriotism. Andrew Jabobs, a reporter for The New York Times, wrote in 2009:  

At its core, such mixed signals [of the Chinese search for relics] are an outgrowth of China’s evolving self-identity. Is it a developing country with fresh memories of its victimization of imperial powers? Or, is it the world’s biggest exporter, eager to ensure good relations with the outside world to protect its trade dependent economy? (The New York Times, “China Hunts for Art Treasures in U.S. Museums,” December 17, 2009).  

The China Daily, agreed that the motives of China’s wealthy class to purchase of antiquities is questionable. They wrote, Although patriotism is playing a part in this hunting to recapture looted treasures, experts say that majority of buyers are in fact more interested in the investment potential of ancient works–and the glamour (Cheng Yingqi, The China Daily, December 15, 2010).

The trade of Chinese antiquities is big business. The sale of Chinese artifacts has now surpassed the purchase of Old Master paintings (Scott Rayburn, “China Antique Sales Raise Record Sums”, The China Daily, May 23, 2011). The revenue from the sale of Chinese works now exceeds $10 billion annually. After the October 2011 sale of “looted objects” from the Summer Palace, Tom Flynn, author of the blog ArtKnows, stated:

Recent auctions in the UK–even those held in the British Provinces–have demonstrated the lengths to which Chinese dealers and collectors will travel– and indeed how high they are prepared to bid–to secure Imperial wares. Their buying power has now reached a level at which few Western dealers can compete (Art Knows, October 27, 2011).

In recent years, major auctions houses such as Sotheby’s and Christie’s have opened locations in China, Singapore, and Hong Kong– each enjoying enormous success. For example, a 2010 auction at Sotheby’s Hong Kong specializing in Asian art totaled a record $447 million (Giles Turner, “Buying Frenzy for Chinese Art,” Financial News, May 12, 2011).

Government Regulation

The sale of artifacts “looted” from the Summer Palace is complicated by China’s export laws and Memorandum of Understanding (MOU) with the United States. China’s Ministry of Culture issued “Interim Provisions on the Administration of the Import and Export of Art” on July 17, 2009. Article 5 of the provision states: “Art works are prohibited from being imported or exported if they contain content which:  

(1) violates the basic principles of the Constitution of China;

(2) endangers the unification of the country, national sovereignty or territorial integrity;

(3) divulges state secrets, endangers state security, honor or interests;

(4) incites ethnic hatred, discrimination, or harms ethnic unity or habits and customs;

(5) propagates or publicizes cults or superstitions;

(6) disrupts social order or stability;

(7) advocates or publicizes obscenity, pornography, gambling, violence, horror, or instigates crime;

(8) libels, slanders or harms the legal interests of others;

(9) deliberately tampers with history or severely distorts history;

(10) harms public morals or ethnic cultural traditions; or

(11) other content prohibited by laws, regulations and rules.” (Nancy M. Murphy, “Provisions on the Managements of the Import and Export of Art,” July 17, 2009).

These provisions, in summary, give the government complete control over any and all works of art which enter or exit the country. These rules can be broadly interpreted and make it almost impossible to export Chinese antiquities from the country. The provisions also have created an underground trade, or black market, for Chinese antiquities.

Furthermore, the United States entered into a Memorandum of Understanding with China on January 14th, 2009, “acting pursuant to the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit import, export, and transfer of ownership of cultural property, to which both countries are party; and desiring to reduce the incentives for pillage of irreplaceable archaeological material representing the rich cultural heritage of China.” (United States, Department of State). For this reason, the trade in Chinese antiquities, particularly items that are newly discovered or have no established provenance, has shifted from the United States to the United Kingdom, Europe and Asia. For more information on the China MOU visit  SAFE’s web site here and SAFECORNER’s coverage at “Bilateral Agreements at Work,” “Trying to put ‘Humpty Dumpty back together again,” and “Cultural Heritage in Danger: Reacting to the New York Times.”

Yuanmingyuan Park, which houses the remaining Summer Palace relics, recently called upon foreign museums to return the “looted” relics. According to the United Kingdom’s The Daily Telegraph, the main target of this action was the British Museum (Peter Foster, “China to Study British Museum for Looted Artefacts,” The Daily Telegraph, October 19, 2009). Experts, however, are doubtful that items will ever be returned from international museums. Instead, some argue that the government’s public campaign is an attempt to encourage private collectors in China to return or donate the antiquities to the Yuanmingyuan Park. In November 2011, the Yuanmingyuan Park called for a boycott of auctions selling “looted” relics. This, along with the founding of several non-governmental organizations such as the Lost Cultural Relics Recovery Program, has led to aggressive action to retrieve the 1.5 million relics “stolen” from the Summer Palace (“China Experts to Search Abroad for Looted Relics,” France 24, October 19, 2009).


Questionable Auction House Sales

The art world was stunned on March 7, 2009 by what is now being called the “Yves Saint Laurent Fiasco.” The Times’ Richard Morris reported: “The fury of the reactions to an act of sabotage by an incensed Chinese bidder has rocked the art world” (The Times, March 7, 2009). At an Asian sale at Christie’s Paris a pair of bronze animal heads, once of a set of twelve that made up a water clock at the Summer Palace, achieved a hammer price of £28 million. The bidder, Cai Mingchao, a once trusted Christie’s client, promptly refused to pay. In a statement he said his intentions were to “draw attention to this sale of looted treasure…. There is an indignation in China that Chinese bidders have to spend millions simply to retrieve artifacts that were looted from the country” (The Times, March 7, 2009).

Christie’s options included: (1) sue for the payment, drawing attention to the fact that they are selling known “looted” goods; or (2) attempt to re-auction the heads to buyers now aware of the questionable provenance and potential for a title claim. Both options would damage Christie’s image, respectability, reliability, and result in extreme legal fees. The bronze animal heads were returned to the consignor. However, unconfirmed reports indicate that Christie’s may receive some form of payment. Cai Mingchao was, therefore, successful in his statement about “looted” goods. This episode served as a wake-up call. As a result, auction houses in the United Kingdom now require pre-registration applications, financial references, guarantees, and deposits at least three days before Asian art sales. Such measures limit the possible economic losses for auction houses. Yet, these pre-registration requirements they do not prevent the loss of reliability and reputation that are key to the auction business.

This brings us back to Captain Gunter’s gold box.  Was the risk of auctioning an obviously “looted” item worth Woolley and Willis’ premium return on $764,694? Granted, the Gunter family currently has possession, but who truly owns such “looted” items? Where should they go, what should happen to them? These are questions not only relevant to the Captain Gunter case, but to the all the artifacts “stolen” or “looted” from the Summer Palace.

Photos Courtesy of Woolley and Wallis, The Daily Mail, and The Times.

Do Bulgarians want import restrictions on antiquities into the US?

Secretary of State Hilary Clinton at the signing of the US-Greece MOU

SAFE received the following letter written by the Chairman of Buditel Circle, a non-governmental organization, to US Secretary of State Hilary Clinton in support of Bulgaria’s request for a bilateral agreement with the US to protect its cultural heritage.

SAFE, a US based non-governmental and nonprofit organization which advocates for these bilateral agreements as a deterrent to looting (under article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property to which both Bulgaria and the US are state party) is pleased to share the letter with our readers:

София 1303,
ул.  “Опълченска” № 66
тел.:, 0886339909
buditel@mail.bg

Hon. Hilary R. Clinton, Secretary
United States Department of State
2201 C Street NW
Washington, D.C. 20520

2 November 2011

Dear Madam Secretary:

We would like to take this opportunity and strongly support the request submitted by the Government of the Republic of Bulgaria to the Government of the United States of America to sign a Memorandum of Understanding between our two countries that aims at conserving the Bulgarian cultural heritage from theft. The United States is the most prominent champion of upholding international law, conventions, and norms, principles about which you have spoken with much elegance, eloquence and passion. Having this in mind we hopeful that your Government will grant this request.

Our organization, Buditel Circle, is a Bulgarian NGO dedicated to the preservation, development, promotion and research of the culture, history and intellectual achievements of the Bulgarian lands. Initially created around the Buditel magazine, Buditel Circle today includes prominent scholars, celebrities in the field of arts and culture, intellectuals and businessmen from around the world.

Buditel Circle is also very pleased to inform you that starting November 2011, we will have a representative in the United States. Mr. Dimitar Georgiev will serve as a liaison between the organization’s board and Washington. He may be reached at dg343@georgetown.edu or (646) 275-4685. We look forward to a friendly and constructive partnership.

Thank you for your time and consideration.

Most Respectfully,

Plamen Georgiev – Kraisky
Honorary Chairman

This letter is supported by a myriad of individuals and organizations. The most prominent of those include:

Individuals:

Prof. Andrey Pantev
Ms. Albena Taneva, Ph.D.
Mr. Alexander Vulchev
Prof. Bojirad Dimitrov, Director of the National Museum of History
Mr. Atanas Orachev, Ph.D.
Prof. Valeria Fol, Cultural Anthropologist, specialist in the Thracian Civilization
Ms. Valeria Sarieva
Mr. Vassil Gyuselev, Member of the Bulgarian Academy of Sciences
Ms. Galya Pindikova
Prof. Georgui Bakalov
Prof. Georgy Markov, Member of the Bulgarian Academy of Sciences
Ms. Gergana Yordanova
Ms. Daniela Agre, Archaeologist
Prof. Evgueny Sachev, Head of Department in the University for Library and Information Sciences
Mr. Ivan Hristov, Ph.D.
Mr. Ilya Prokopov, Ph.D.
Ms. Irena Aleksandrova
Ms. Malvina Ruseva, Ph.D.
Mr. Yordan Vassilev, Ph.D.
Ms. Katya Tzekova, Ph.D, Director of National Polytechnic Museum
Prof. Kalin Porojanov, Scientific Secretary, the Institute for Thracology: “Alexander Fol,” Bulgarian Academy of Sciences
Mr. Krassimir Nikolov
Mr. Kamen Velkov
Prof. Kiril Yordanov, Director of the Institute for Thracology: “Alexander Fol,” Bulgarian Academy of Sciences
Mr. Krum Kasabov, Ph.D.
Mr. Ludmil Stanchev
Prof. Mila Santova
Prof. Margarita Vaklinova
Mr. Nikolay Markov, Ph.D.
Mr. Pavel Petkov
Mr. Petar Garena, Ph.D.
Mr. Petur Kunev
Mr. Plamen Kraisky, Founder of Buditel
Ms. Rossitza Ohridska-Olson, Cultural Heritage and Tourism Consultant
Ms. Roumiana Pashalyiska, Ph.D
Mr. Stoyan Prodanov, Ph.D.
Ms. Svetlana Leneva
Prof. Serguey Ignatov
Prof. Simeon Nedkov
Prof. Stoyan Denchev, Dean of the University for Library and Information Sciences
Ms. Sonya Purvanova, Literary Eidtor of Buditel Magazine
Ms. Teophana Matakieva, Ph.D.
Prof. Christo Haralampiev
Mr. Hristo Temelski, Ph.D.
Mr. Hristo Drumev
Mr. Dimitar Georgiev, Representative of Buditel Circle to the United States

Organizations:

The Institute for Thracology “Alexander Fol”
The Bulgarian Academy of Sciences
The Bulgarian National Museum of History
The National Polytechnic Museum
The Bulgarian National Museum of Literature
The Regional Museum of History in the city of Kurdjaly
ELCO Inc.
STS Print Inc.
3M Bulgaria.

CPAC to review requests by Bulgaria and Belize for Memoranda of Understanding with the U.S.

The U.S. Department of State has issued a Notice of the Meeting of the Cultural Property Advisory Committee to take place November 15-17, 2011. The Committee will begin its review of new cultural property requests from the Governments of the Republic of Bulgaria and the Republic of Belize seeking import restrictions on archaeological and ethnological material. On November 16, an open session to receive oral public comment on these requests will be held from 9 a.m. to 12 noon. If you wish to attend the open session, you must call and notify the Cultural Heritage Center of the Department of State no later than November 2, 2011, 5 p.m. (E.D.T.) to arrange for admission. If you wish to speak at the public session you must request to be scheduled and must submit a written text of your oral comments no later than November 2.

If you cannot attend the open session, you can still support the requests of both Belize and Bulgaria by visiting SAFE’s Say YES to Bulgaria page and Say YES to Belize page for guidelines on how to write and send an informed and effective letter expressing your hope that the U.S. will sign bilateral agreements with both Bulgaria and Belize. Also, add your name to the list of people supporting the preservation of the cultural heritage of Bulgaria.

Click here for more information on bilateral agreements and why SAFE supports them.

Is this a $4 million fake?

As Mexico’s struggle to stem looting of historic sites was reported last month, the auctioning of the allegedly fake Mayan statue sold for $4 million (2.9 million euros) at the Paris auction house Binoche et Giquello a few days ago. Arguing for its authenticity, the auctioneers date the object between A.D. 550 and 950 while Mexico’s National Institute of Anthropology and History considers it “a recently manufactured piece that does not belong to any of Mexico’s pre-Hispanic cultures.”

Mexico, a party to the 1970 UNESCO Convention since 1972, has strict laws against the illicit excavation and export of pre-Hispanic artifacts. Still, as reported, “the demand from abroad for pre-Hispanic pieces, especially the US, shows no signs of abating.” The example of the Mayan statue suggests that this demand is giving rise to the manufacturing and the sale of fakes.

The International Council of Museums (ICOM) acknowledges that the pre-Hispanic and colonial cultural heritage of Mexico and Central America as “severely endangered”. We do not know whether the contested object is a fake. We do know that this is real: As long as the market hungers for these items, ancient sites remain vulnerable to looting. Not only in Mexico, but around the world.

Photo: Binoche et Giquello

Should market countries stop buying antiquities from Egypt until order is restored?

In response to the looting which took place in the aftermath of the invasion of Baghdad in 2003, the United States House of Representatives proposed HR 2009 (initiated by Congressmen Phil English and James Leach and later implemented as S. 671), to prohibit the importation into the United States of any archaeological or cultural material removed from Iraq without appropriate documentation. This law works to keep the cultural heritage of Iraq in Iraq, and seeks to eliminate the supply of freshly looted or stolen materials to the antiquities trade. Will similar legislative actions be taken given the current situation in Egypt?

The circumstances in Egypt are different in many regards from that which existed in Iraq in 2003. Absent the sense of responsibility which came from an overt US presence on the ground and a UN Security Council Resolution, where is the political will to back up the need for such legislation? Congressmen Phil English and James Leach are no longer in office; who might sponsor such a bill?

Are emergency legislative reactions necessary? Given the Schultz decision clarifying Egypt’s national ownership law, there already exists the legal basis for seizing looted Egyptian antiquities in the US.

Whether or not legislation is required, until order is restored, we believe that if the demand for Egyptian antiquities is curtailed, if not stopped, the loss of Egypt’s cultural patrimony during this tumultuous time would be curbed. We are happy to see that Salima Ikram, professor of Egyptology at The American University in Cairo, agrees.

Also, we hope that Egypt (as of 1973, party to the 1970 UNESCO Convention) would make a request for a bilateral agreement to restrict importation of antiquities into the US.

What do you think? Please cast your vote.

Import restrictions on Italian antiquities extended

Today’s Federal Register announced that import restrictions imposed on certain archaeological material originating in Italy have been extended for another five years. The material represents the pre-Classical, Classical, and Imperial Roman periods of its cultural heritage, ranging in date from approximately the 9th century B.C. through approximately the 4th century A.D. The determination was made under the terms of the Convention on Cultural Property Implementation Act that implemented the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

In addition, coins have been added to the list of items covered by the restrictions.

SAFE supports the decision and applauds the Cultural Property Advisory Committee for continuing to recognize import restrictions as an effective deterrent against the destruction of cultural heritage, and the fact that coins “are an equally important historical source and are no less important ‘antiquities’.

Sebastian Heath’s account of CPAC Meeting

On November 13, Vice-President for Professional Responsibilities of the AIA Sebastian Heath attended the public hearing in Washington DC to review Italy’s request that the bilateral agreement with the US to restrict importation of antiquities be renewed. His account of the hearing has just been posted on AIA’s web site.

Such hearings [as well as bilateral agreements, or Memoranda of Understanding (MoU), Cultural Property Advisory Committee (CPAC), Cultural Property Implementation Act (CPIA) and the 1970 UNESCO Convention] have been the subject of much discussion and debate on SAFECORNER. Our organization SAFE advocates for import restrictions as an effective deterrent to looting; a detailed report of the China hearing can be found here.

Thank you, Dr. Heath, for sharing your insights.

The US signs bilateral agreement with China to protect cultural heritage

After nearly four years and amidst much anticipation and speculation, the US has agreed to grant China’s request to implement import restrictions on antiquities into the US, as fellow state parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO 1970). This bilateral agreement, or Memorandum of Understanding (MOU), takes effect beginning January 16, 2009, and will be considered for renewal in five years. The details of the agreement can be found here.

SAFE applauds the US decision to uphold its commitment to safeguarding cultural heritage and continues to support the implementation of import restrictions as an effective tool to curb the devastation of the world’s shared cultural heritage.

2009 SAFE Beacon Award Recipient Prof. Colin Renfrew: "I’m much in favour of collecting…"

“…so long as it doesn’t involve objects recently taken from the ground. In my opinion all too many collections are scandalous for this very reason. I don’t mind so much people buying antiquities looted a century ago, but not if the items in question entered the market post-1970 when the convention on the illegal trade in antiquities was signed.” Professor Renfrew said in Sarah Jan Checkland’s article in the Financial Times My favourite things in which he was described as “archaeologist and campaigner against the trade in illicit antiquities.”

This coming January, Prof. Renfrew will receive the 2009 SAFE Beacon Award in a rare visit to the United States. He will give a lecture “Combating the Illicit Antiquities Trade: the 1970 Rule as a Turning Point (or How the Metropolitan Museum lags behind the Getty)” and also discuss the ethics of excavating and collecting, and the merits of the once popular but now rare “partage” system in the SAFE Tour “Collecting the Right Way” at the University of Pennsylvania Museum.

Photo: Ben Stansall

U.S. Department of Homeland Security to look into "Ka-Nefer-Nefer" mask case

The AP article “St. Louis museum proud of its ancient mask purchase, but Egypt calls it a steal” reports that the U.S. Department of Homeland Security is now looking into the case of the “Ka-Nefer-Nefer” mask, which many people believe to have been stolen from Egypt. The article recounts the meticulously documented discovery of the mask by Mohammed Zakaria Ghoneim, which “resurfaced in 1998 when the St. Louis Art Museum in Missouri acquired it.”

“Egypt has a right to the mask.” Zahi Hawass, head of Egypt’s antiquities authority, demands, while Brent Benjamin, Director of the the Saint Louis Art Museum asserts that “[t]o date, we have not seen information that we believe is compelling enough to return the object.”

Mr. Benjamin has been nominated by President Bush to join the US Cultural Property Advisory Committee (CPAC), which makes recommendations to the President regarding importation restriction requests from state parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO 1970).

The saga continues. Photo: AP file

To own or not to own: Is that the question?

“Who Owns the Past?” “Who Owns Antiquity?” “Who Owns Culture?” “Who Owns Art?” “Who Owns Objects?” “Who Owns History?” A flurry of similar-sounding questions has been circulating in the media for some time now. Varying on the same theme, they are used as headlines in an array of formats: books, articles, lectures, panel discussions, etc.

While these questions raise some interesting points, we would like to ask some of our own:

1. “Who Owns __?” advocates imply: The right to ownership and possession of artifacts trumps all other considerations.

SAFECORNER asks: By focusing on ownership, are we neglecting the single most important point: the discovery of our yet-unknown past through protection, and the proper excavation of, ancient sites and tombs and burial grounds? What about the “past” / “antiquity” / “culture” / “art” / “objects” / “history” that remains underground? What part do these arguments have in stemming the plunder of cultural heritage caused by looting and the illicit antiquities trade?

2. “Who Owns __?” advocates contend: International conventions and national laws have failed because looting persists.

SAFECORNER asks: Instead of challenging the best legal mechanisms we have, should not more effort be made to observe and respect them? We don’t throw away the criminal justice system because crimes are committed, do we?

3. “Who Owns __?” advocates insist: The importance of archaeological context is overstated, because virtually everything we need to know is inherent in the object.

SAFECORNER asks: If not found in graves, or in context, what could the Tilya Tepe hoard tell us about ancient Bactria if it had been discovered as loose pieces of beautiful gold jewelry? One doesn’t need to be an Afghan to appreciate the value inherent in discovering an untouched ancient site. Conversely, aside from speculations, what do we know about who was buried in the now-looted tombs of Cerveteri? What do we really know about the Vicús culture, which has been looted to near-extinction, or the civilization that created the artifacts looted from Batán Grande, now on display at the Met?

4. “Who Owns __?” advocates suggest: The stakeholders in these debates are archaeologists versus acquirers: museums, dealers, and private collectors.

SAFECORNER asks: What about the rest of us? Many people from all walks of life who are not archaeologists, collectors, museum curators, dealers, nationalists, or socialists also feel very strongly about these issues. Our opinions also matter. After all, it is public opinion that shapes politics and policies and the politicians who create them. UNESCO is an organization of member nations that choose to join. And sovereign nations are governed by politicians who exercise power on behalf of the public, for the most part.

5. “Who Owns __?” advocates argue: Nations that did not exist in ancient times have no inherent right to ancient artifacts found within their territories. For example, does Italy really have the right to claim objects taken from institutions such as the Metropolitan Museum of New York, which was actually built before the Italian state was formed?

SAFECORNER asks: Is a nation ever too young to assert its sovereignty or jurisdiction? What about the United States? Barely over a couple hundred years old since our founding fathers created the nation, should we give up all claims to Native American artifacts? Revoke the Native American Graves Protection and Repatriation Act (NAGPRA)?

Finally, we recommend that ALL stakeholders ask themselves this question: what are we going to do to stop the continued destruction of our “past” / “antiquity” / “culture” / “art” / “objects” / “history”?

What happened to the China MOU request?

Three years ago, on February 17, 2005, the U.S. Cultural Property Advisory Committee held public hearings to consider China’s request for a Memorandum of Understanding (MOU) that would restrict importation of certain types of cultural property from China to the United States for a limited period of time (five years, subject to renewal).

China made the request of the U.S., as both countries are parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO 1970). Among other things, this convention obliges State Parties to prohibit the importation of cultural property stolen from a museum or monument in another participating country (Article 7b), and allows State Parties whose archaeological or ethnological patrimony is in jeopardy from pillage to ask other State Parties for help in protecting the affected categories of materials, through measures that may include restrictions on imports and exports (Article 9). Furthermore, the U.S. enacted the Cultural Property Implementation Act to make adherence to the UNESCO 1970 into law in 1983.

According to the U.S. State Department’s website on cultural property:

“The U.S. State Department must consider the committee’s findings and recommendations when the committee’s report is submitted …within 150 days of referral of a request to the committee for an agreement”

But more than 1000 days after the hearings, we hear nothing about a decision.

What we are aware of, is that since February 17, 2005, MOU agreements with Italy, Bolivia, El Salvador, Mali, Guatemala, Peru, Cyprus have been renewed, and Colombia became the twelfth country to have been granted a request. Cambodia’s Agreement is being considered for a third renewal right now, as we speak. In other words, not only has every request for a Memorandum of Understanding been granted, but each one has been extended, at least once, except for Canada.

So, why not China?

We urge the U.S. Department of State and the President to put this request from China back on the agenda. We ask those in whom we entrust to protect our most important non-renewable resource to put aside any political or economic reasons that have derailed the decision to consider this: Every day that goes by without the import restrictions is another day we are not doing everything we can to protect the evidence of our undiscovered past.

As a sovereign nation, China has the right to seek assistance from the international arena to protect its cultural heritage. Like the U.S., China is a State Party to the UNESCO 1970. When other countries such as Greece, India, Italy, Peru, the Philippines have signed similar bilateral agreements with China, perhaps the question should be:

Why not the U.S.?

“All the news that’s fit to print”?

A few important omissions in Jeremy Kahn’s “Coin Dealers Sue State Dept. for Details on Import Bans” in the New York Times, on November 17, 2007 should be pointed out:

In the article, Mr. Kahn claimed, “It was the first time the government had barred trade in a broad category of ancient coins…” But this is not true. While the US/Cyprus bilateral agreement does represent the first time that ancient coins have been subject to temporary import restrictions under the Cultural Property Implementation Act, coins have been subject to government-mandated import restrictions for many years in other contexts. For example, Executive Order 12722, which prohibits the importation of ancient coins from Iraq, went into effect on August 2, 1990. This order has been renewed several times, e.g., see section 4 of the renewal dated July 29, 2004. This prohibition remains in effect. In addition, antiquities, coins and other artifacts of Iranian origin have also been subject to trade restrictions for a number of years; importing such items to the U.S. is currently prohibited, and the US Customs and/or the Department of Justice does confiscate such items. In addition, according to the US Customs and Border Protection’s website, “gold coins … originating in or brought from Cuba, Iran, Iraq, Libya, Serbia, and Sudan are prohibited entry” under regulations administered by the Office of Foreign Assets Control.

Mr. Kahn wrongly characterizes import restrictions on Cypriot coins as a sweeping ban. For example, the photo caption in the article reads: “Importing Cypriot coins like this one is now banned.” But according to the U.S. Federal Register, the coins restricted from entering the US under the bilateral agreement are quite specific and listed as:

Coins of Cypriot types made of gold, silver, and bronze including but not limited to:

1. Issues of the ancient kingdoms of Amathus, Kition, Kourion, Idalion, Lapethos, Marion, Paphos, Soli, and Salamis dating from the end of the 6th century B.C. to 332 B.C.

2. Issues of the Hellenistic period, such as those of Paphos, Salamis, and Kition from 332 B.C. to c. 30 B.C.

3. Provincial and local issues of the Roman period from c. 30 B.C. to 235 A.D. Often these have a bust or head on one side and the image of a temple (the Temple of Aphrodite at Palaipaphos) or statue (statue of Zeus Salaminios) on the other.

Coins minted in Cyprus outside of the categories specified are not affected. In addition, no import ban exists for these types of coins, or any coin of Cypriot type, if the coin is accompanied by a valid export permit from the Government of Cyprus. Any bona fide museum, university or organization with a need to access and study Cypriot coins, can apply to the Cyprus government for a long-term loan, as described in Section 27 (subsections 1 and 2) of the Cyprus Antiquities Law.

The State Department operates under the provisions of the Cultural Property Implementation Act, the enabling legislation passed on January 12, 1983 and amended December 22, 1987, which implements into US law the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO 1970). As parties to the Convention, Cyprus and the US, as well as more than 100 countries, have agreed to abide by Article 1(e), which includes under the definition of Cultural Property subject to protection, “antiquities more than one hundred years old, such as inscriptions, coins and engraved seals”. Parties to the Convention have also agreed to abide by Article 9: “Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties … to participate in a concerted international effort to determine and to carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned. Pending agreement each State concerned shall take provisional measures to the extent feasible to prevent irremediable injury to the cultural heritage of the requesting State.”

In other words, the US-Cyprus bilateral agreement is fully in keeping with an international legal mechanism that has been in place for decades.

To describe the import restrictions of ancient Cypriot coins without including the proper background information and circumstances does not serve the purpose of pursuing “greater disclosure”, reportedly the basis for bringing the lawsuit. Context does matter. We believe the public deserves better from The New York Times.

As for the lawsuit itself, the 15-page complaint speaks for itself. But consider this fact: it costs as little as $100/month to hire an archaeological site guard; an FOIA attorney in Washington, D.C. typically receives $400 per hour, or more, to sue the federal government.