Marc Masurovsky, cofounder of the Holocaust Art Restitution Project (HARP) has published “A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects” in the North Carolina Journal of International Law and Commercial Regulation. The Piece is an ambitious and serious look at the different kinds of State-sponsored taking of art and heritage, and attempts to connect the different kinds of takings across different historical periods and cultural groups.
From the introduction:
The dispersal of Jewish collections during the Nazi years interestingly compares with the recycling of looted cultural property from conflict zones and the plunder of ritual objects from indigenous groups worldwide. There should be a common response by the international community to cultural plunder and crimes committed against culture, within the framework of State-sponsored persecutions of entire groups. And there should be common standards for prevention, seizure, and restitution. This Article explores these issues.
Nina Siegal has written a terrific story on that recent theft of a work by Vincent van Gogh from the Singer Laren Museum. That theft was likely a quick crime of opportunity, as the thief must have underestimated the chances of turning that work into a future profit. That’s the big takeaway from the well-reasoned piece by Siegal, who gets a former thief Octave Durham, Ursula Weitzel the lead public prosecutor for art crimes for the Netherlands Public Prosecution Service, and the art theft investigator Arthur Brand to reveal the hard truths of art theft: the art itself is a silly thing to steal.
As ‘Okkie’ Durham is quoted:
“I just did it because I saw the opportunity,” Mr. Durham said. He noticed a window at the museum that he thought would be easy to smash. “I didn’t have a buyer before I did it,” he said. “I just thought I can either sell them, or if I have a problem I can negotiate with the paintings.”
As Weitzel points out: “Unless it’s a crime of passion, usually the motive is to make money,” she said. “It’s as simple as that. People don’t steal it because they want to hang it on the wall. That kind of theft for pride or status, I haven’t seen that. It’s usually for money. Or, for safekeeping, in the event that it may be necessary.” And the hard truth of the difficulty in seeing a profit off of a theft means those stolen works stay hidden with a very low return on the market value of the work according to Brand.
Today the United States Attorney for the Eastern District of New York announced the filing of a civil forfeiture action against a cuneiform tablet which was most recently purchased by the Museum of the Bible. The Government’s allegations show a familiar pattern: fake the history of an object, have the object published in a scientific publication, earn the endorsement of a prominent expert, and conduct the sale in secret. The complaint is docketed at Civ. No. 20-2222. Here are some of the best allegations from the government’s complaint, available here.
First off, the Government rightly points out the scourge of looting in Iraq, and the discovery of the epic of Gilgamesh in 1853:
This tablet was seized from the Museum of the Bible in September, and is storing the tablet at at U.S. Customs and Border Protection in Queens, which may help explain why the EDNY U.S. Attorney’s office has filed this action and not another office. It may also be because this office is one which has good track record of successful civil forfeiture actions.
HSI Special Agent-in-Charge Peter Fitzhugh stated in the press release:
“We are proud of our investigation that led to this reclaiming of a piece of Iraq’s cultural history. This rare tablet was pillaged from Iraq and years later sold at a major auction house, with a questionable and unsupported provenance, HSI New York’s Cultural Property, Arts and Antiquity Investigations program will continue to work with prosecutors to combat the looting of antiquities and ensure those who would attempt to profit from this crime are held accountable.”
The laws at issue here are parts of the Customs laws and the National Stolen Property Act:
One interesting aspect here, and I’m not sure what the appetite for the Museum of the Bible will be to defend this action in court given the absolute devastating series of seizures, investigations and scandals, but they may have some legal defenses due to the difficulty in tracing an illicit antiquity to its point of origin. Federal law still hinges in many ways on pinning a specific time and place for a criminal act involving a piece of cultural heritage, whether that act is looting from context, theft, smuggling, etc. The government will have to show I think that this tablet did originate in Iraq after an applicable Iraqi heritage or patrimony law. Of course if the Museum of the Bible wants to do the right thing and just let this object be returned, those legal arguments are moot. But the complaint does I think leave open the specific origin for the fragment, and when. A very typical problem with illicit objects like this one.
The best argument the government laid out in the complaint is that the Museum of the Bible and the Auction House engaged in some really clumsy post-sale due diligence which only made the problems worse, and acknowledge Iraq as the origin:
The forfeiture here alleges some serious fraud and wrongdoing by a prominent new museum, the Museum of the Bible; but also dealers, antiquities experts, and prominent auctioneers.
United States Attorney for the Eastern District of New York Richard P. Donoghue also stated in the release:
“Whenever looted cultural property is found in this country, the United States government will do all it can to preserve heritage by returning such artifacts where they belong, In this case, a major auction house failed to meet its obligations by minimizing its concerns that the provenance of an important Iraqi artifact was fabricated, and withheld from the buyer information that undermined the provenance’s reliability.
The forfeiture action is a very powerful and useful remedy to police specific objects, but it really may not do all that much long-term to disincentivize actors from doing this kind of thing in the future. A forfeiture every now and then is just the cost of doing business.