Category: Antiquities

Should Cultural Property be used to satisfy judgments?


There has been increasing attention paid lately to the use of art and antiquities to satisfy unrelated judgments against nations. In 2005, Russia had a $1 billion shipment of 54 paintings from Moscow’s Pushkin Fine Arts Museum seized at the Swiss border to satisfy Russian debts owed to Noga.

Similarly, in 2003 a group of American plaintiffs won a $90 million judgment against the Islamic Republic of Iran for a suicide bombing which took place in Jerusalem in 1997. James Wawrzniak Jr., a recent Harvard Law graduate has posted an excellent working paper on bepress titled Rubin v. The Islamic Republic of Iran: A Struggle for control of Persian Antiquities in America. It is likely to be published next fall.

Hamas claimed responsibility for the bombing in question, and the Rubin plaintiffs brought civil actions against Hamas, and also to Iran for providing material support and finance for the bombing. Experts testified that Iran provided both economic assistance from between $20 and $50 million dollars, and also terrorist training. Now I’m sure many readers would be quick to point out the US has given similar aid to similar groups, perhaps even during this Sunni awakening in Iraq, in which the US is essentially paying Sunnis to stop attacking coalition forces. I imagine Iran would have had a vigorous potential defense, however a default judgment was entered, whereby Iran essentially ignored the suit. Iran has since changed their stance after the Rubin plaintiffs decided to execute the $90 million judgment by claiming Persian antiquities in museum collections across the country. I’ll defer to Wawrzniak’s analysis as to what has transpired, but this litigation seems destined to last a number of more years.

One one level I can sympathize with plaintiffs who attempt to satisfy their judgments in this way. However, such a strategy, if taken to its logical conclusion would have troubling consequences for the cross-border movement of works of art. This was an issue in the recent dispute over the Royal Academy display of “From Russia: French and Russian Master Paintings 1870-1925 From Moscow and St. Petersburg”. Russia nearly backed out of the deal, eager to avoid a replay of the Portriat of Wally litigation.

The display required an act of Parliament to grant special immunity to prevent the works from being claimed by descendants of the original owners from whom many of the works were summarily seized during the Bolshevik revolution.

The question is, are the cultural benefits Great Britain and Russia share by viewing these masterworks, many never seen in London before? I think there is, and this cross-border movement of art is an important ideal which should be preserved, the recent string of nazi spoliation, and terrorist and other claims are important, and those victims deserve their day in court. However it should not be at the expense of our collective cultural heritage.

(Photo: Wassily Kandinsky Composition VII, 1913 on loan to the Royal Academy)

Questions or Comments? Email me at derek.fincham@gmail.com

Debate on the Portable Antiquities Scheme (UPDATE)

The domestic legal and policy framework for portable antiquities in England and Wales is unique, and differs from the typical approach. Three things set it apart from most other nations of origin. First is the limited state ownership of undiscovered antiquities, the second compensation to finders of the full price of their finds if the find is acquired legally, and perhaps most importantly is the legalization of indiscriminate digging in many areas.

Metal detecting is legal in the UK, and is only prohibited in specially designated areas, known as scheduled ancient monuments.

Only limited classes of objects become the property of the crown when they are discovered. This includes objects composed of at least 10% gold or silver, multiple ancient coins, and prehistoric base-metals, which are objects such as bronze. Pottery and carved objects become the property of the finder.

All other objects become the property of the finder, and in some cases landowners and finders share the value of finds. Finders of objects encompassed under the Treasure Act are entitled to the full market value of the find, as estimated by an evaluation committee.

The PAS is a voluntary scheme which fills the gaps left by the treasure act. There exists some confusion about the scheme, as a lot of commentators incorrectly talk about the scheme as shorthand for compensating finders of antiquities. Such a measure already exists outwith the PAS. However, the PAS is a voluntary network, organized by a national network of finds liaison officers. They speak with metal detecting groups about good practice, conduct community outreach programs, and most importantly record finds. They are often based in local museums or archaeology departments. In some cases, museums approach finders and purchase these objects.

One of the most positive impacts of the scheme is its database, an impressive accumulation of information, with over 300,000 objects recorded.

The scheme has led to a dramatic increase in the number of objects being reported, and a dramatic increase in objects which finders have always been legally-required to disclaim.

This begs the question: should the approach of England and Wales to Antiquities be adapted to other nations? I think the national network of FLO’s has been tremendously successful, and setting aside the issues of cost and implementation, would ideally be implemented everywhere. In England and Wales, nearly 90% of finds take place on cultivated land, where industrial farming practices and chemicals can potentially damage objects near the surface.

The question of whether the limited state ownership of undiscovered antiquities, the compensation to finders of the full price of their finds, and the legalization of indiscriminate digging can be adapted to other nations remains in some doubt. It should be noted that the legal prohibitions on antiquities digging in England and Wales are far more lenient than in nearly every other nation. The policy sacrifices archaeological context without question.

If we compare Scotland, which has an ownership interest in all undiscovered antiquities with England and Wales the data would seem to lend support to the notion that declaring an ownership interest of only limited classes of objects, and only prohibiting digging in limited areas has produced better results. Between 1998 and 2004, Scotland reported an average of just over 300 finds. During the same period, an average of just over 300 objects which qualify as treasure were recorded, but there was an average of nearly 40,000 finds reported by the portable antiquities scheme per year.

The scheme resulted in a dramatic increase in the reporting of treasure. A small portion of this increase may be explained by the widening of scope of the treasure act. However, I think we can draw two conclusions from the scheme:

First, if individuals are compensated for finding antiquities they will look for them, and find them, in some cases this damages the archaeological context of course.

Second, as the specter of increased criminal investigation of the antiquities trade and seems increasingly likely, with massive investigations coming to light in recent days in both Italy and here in California I think certainly the trade itself will have to find ways to justify its continued existence. Should the antiquities trade continue to exist in some form, the approach in England and Wales would seem to offer an interesting, and inarguably a successful model.

It should be noted that legally sanctioning digging, or funding digging would be politically unpopular in many nations with a strong cultural identity, such as Italy. I think cultural policy makers should approach any strategy which might incentivize digging with great caution.

There’s a couple of interesting items on the Portable Antiquities Scheme blog, and I’d like to boost the signal a bit and post them here. First is a video of Peter Twinn, a metal detectorist and archaeology student at Bristol Universtiy, who was interviewed in a brief piece on the BBC.

In addition, this afternoon at 4.30 GMT, there will be a half-hour debate in Westminster Hall on “The Future of the Portable Antiquities Scheme”, and you can watch it live here on Parliament TV. I’ll be watching, and I’ll comment here later on today.

UPDATE:

Essentially the debate was a bit of a letdown. It’s available here. It extolled the virtues of the scheme, but amounted to an argument about whether freezing the funding amounted to a de facto decrease in funding its operations.

I was struck again at how universally popular the scheme appears to be (though funding does not appear to share a correlation with popularity). There were no criticisms that it was perhaps incentivizing the looting of sites, but rather that it was as the Culture Minister Margaret Hodge claimed open to everyone from a secondary school student to doctoral dissertations. That seems the be the tremendous benefit of the scheme. I wonder if such a debate were held in Italy, or Iraq, or another source nation if there would be a similar kind of support for the program, or if its popularity may be a peculiar combination of cultural pride coupled with how and where objects are found in the countryside in most of England and Wales. I’ll confess I haven’t made my mind up on that question.

Questions or Comments? Email me at derek.fincham@gmail.com

Scotland’s Cultural Policy


I have recently come across some very interesting excerpts from Scottish Parliamentary Questions and Answers. Now, these are seldom mistaken for serious policy debate, but these reveal some shortcomings in current policy. There exists a serious gap from what Alex Salmond and the Scottish National Party are saying about repatriation, and what they are actually doing.

First, with respect to “tainted cultural objects”, the Scottish Labour Party’s Shadow Minister for Culture asks what Scotland is doing to ensure stolen or looted objects aren’t bought and sold in Scotland. The answer, it seems, is not much.

Q S3W-8645 Malcolm Chisholm: To ask the Scottish Executive what
legislative changes it believes are required to ensure that dealing in
tainted cultural objects does not occur in Scotland. (SP 21/01/08)

A Answered by Linda Fabiani (08/02/08): While we are not aware that
Scotland has a problem with this type of illicit activity at present, the
government remains sympathetic to such legislation and we are looking at
the options available to us, including examining legislation that already
exists such as the Dealing in Cultural Objects (Offences) Act 2003. This
will assist ministers in determining how best to proceed.

It seems Scotland are still waiting to act, but it would be regrettable indeed if they made the same mistakes that were made by their neighbors down south. The Dealing in Cultural Objects (Offences) Act 2003, in force in England and Wales, is not a criminal offence which will likely have any kind of measurable impact on the illicit trade, as I’ve argued here. The evidentiary hurdles are simply too great given the current state of the art and antiquities trade. One hopes that MSP’s don’t wait until another high-profile theft or sale takes place before they act. One would have thought the arrests following the recovery of da Vinci’s Madonna of the Yarnwinder would have at least eliminated the argument that this is not a problem, and nothing needs to be done.

More interesting perhaps, is the question regarding the repatriation of cultural objects held by Scottish museums. One would think that given the repeated claims Alex Salmond has made for the “return” of objects such as the Lewis Chessmen, his Government would have formulated a cohesive cultural policy. Not so it seems:

Q S3W-8842 Malcolm Chisholm: To ask the Scottish Executive what its
policy is on returning cultural artefacts held in Scottish museums to their
nation of origin. (SP 25/01/08)

A Answered by Linda Fabiani (07/02/08): Decisions on the repatriation of
cultural objects held by Scottish museums are for the Board of Trustees of
each museum to take. The Trustees of National Museums Scotland recently
agreed to requests to return a Tasmanian skull to Australia and other human
remains to New Zealand. Under the National Heritage (Scotland) Act 1985,
Scottish ministers approved the Australian Government and The National
Museum of New Zealand as bodies to which National Museums Scotland could
transfer objects from their collection.

Alex Salmond has been arguing for a return of the Lewis Chessmen for over a decade now. Is that the best cultural policy his government can come up with? They will simple leave it to individual Boards of Trustees.

I’ll ask again, what is the cultural or historical imperative which dictates the chessmen should be taken from the British Museum, and returned? And if so, does this mean other treasures such as the St. Ninian’s Isle treasure should be returned to Shetland? On the one hand Salmond argues against this perceived injustice which led to the current location of the Lewis Chessmen (even though they are Norwegian), but he makes no corresponding changes in Scotland for objects in its collections, which may have been taken under far more questionable circumstances.

Questions or Comments? Email me at derek.fincham@gmail.com

Did UN Troops Violate the 1954 Hague Convention?

I am just catching up on this story, but it strikes me as particularly troubling. 6,000 year-old paintings of animal and human figures have been spray-painted over by UN peacekeepers in the Western Sahara. The UN personnel with the Minurso mission in the Western Saraha signed and dated their work, and in some cases revealed their identities. As the Times reported back in January:

One Croatian peacekeeper scrawled “Petar CroArmy” across a rock face. Extensive traces of pigment from rock painting are visible underneath. Another left behind Cyrillic graffiti, and “Evgeny” from Russia scribbled AUI, the code for the Minurso base at Aguanit. “Mahmoud” from Egypt left his mark at Rekeiz Lemgasem, and “Ibrahim” wrote his name and number over a prehistoric painting of a giraffe. “Issa”, a Kenyan major who signed his name and wrote the date, had just completed a UN course, Ethics in Peacekeeping, documents show.

The Middle East Online reported that Morocco’s director of national heritage has accused the UN forces of graffiti on ancient sites, but also the theft of cave paintings, desecrating graves, and removing engraved paving stones.

Such disregard for important heritage of course implicates the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. To add to the difficulty, the head of the UN mission in Western Sahara (Minurso), seems to have bungled an apology, and served to incite more unrest between the groups he should be monitoring.

I’d really recommend those interested to have a look at what David Nishimura has to say on this, as I picked up the story from him. He notes the parallels with the coverage of the theft of objects from the Iraqi Museum, and the part coalition forces may have played in the looting of the museum in Baghdad. However he notes “the greatest damage in Iraq has been indirect, a consequence of civil disorder, rather than the direct result of military action. The vandalism in the Sahara is particularly shocking due to its deliberateness and the identity of those responsible, along with the complete lack of mitigating circumstances.”

I think that’s exactly right, and this story has received very little media attention in the West, particularly in the United States. There was a lot of legitimate outrage at the actions of the US military on the heels of the looting of the Baghdad Museum, however the actions of these UN forces deserves an equal measure of outrage in my view, and the troops responsible should be subjected to criminal penalties for looting and vandalizing these sites. Sadly, I think this reveals just how ineffective the international legal regime has been in protecting sites during armed conflict.

I know by monitoring the url logs that this site attracts some interest of journalists, notably when some of my ideas may prove useful for a story, which is great. However rather than writing the same story about Marion True for example, why not broaden coverage to encompass the full nature and extent of the antiquities problem?

Questions or Comments? Email me at derek.fincham@gmail.com

Repatriation and Universal Museums

Drake Bennett has a good article in yesterday’s Boston Globe titled Finders, keepers. It’s a lengthy overview of the back and forth between museums and nations of origin regarding looted artifacts, and other objects taken during colonial times. It’s worth a read, as it features comments from James Cuno, the director of the Art Institute of Chicago, Ricardo Elia from the archeology department at Boston University, and others.

Cuno gets featured prominently, perhaps because of his strong arguments that many objects should remain in museums in market nations. He also extends the argument of the late Paul Bator, who in his seminal “An Essay on the International Trade in Art” 34 Stanford Law Review 275 (1982), argued that many restrictions on antiquities, including strong export restrictions serve to increase the black market.

Bennett’s piece is a good overview, and a good introduction to some of the core debates in the antiquities trade. By necessity he paints many of these restitution claims with too broad a brush though. He writes

Along with Italy, the governments of Greece, Guatemala, El Salvador, Peru, Turkey, China, and Cambodia, among others, have pushed to reclaim prized artifacts from collections around the world. They have tightened their laws governing the export of antiquities or intensified the enforcement of existing laws and international agreements; they have made impassioned public cases on the world stage.

I don’t think these nations of origin have in fact increased their domestic legal schemes; in nearly every case he mentions here these nations have had very strong legal regimes for many decades, some dating to the very beginning of the 20th century. Italy for example has a national patrimony law dating to 1939. In some cases they are working more closely with the US State Department under the Cultural Property Implementation Act. However, the main difference is the prominent Italian claims of late, which were the result of one fantastically successful criminal investigation which implicated an Italian dealer named Giacomo Medici, and by association his buyers Robert Hecht, Marion True, the Getty, MFA Boston, and the Met.

This allowed for the return of these implicated objects; of course the claims for return were bolstered by photographic evidence of many of the Nostoi objects, which clearly indicated they were illegally excavated on a massive scale. This is a far different argument than the one for say the return of the Parthenon Marbles, or other objects acquired during colonial times, or for the return of other objects which may have been acquired legitimately. I think we need to be particularly careful not to lump too many of these restitution arguments together, and indeed to be honest about how and why objects are returned. The salient issues remain: how are nations of origin protecting sites domestically, how do market nations respond to illegal activity, how are museums acquiring new objects, and is the market conducting the needed provenance checks? That is the only way to prevent future illegal activity.

Questions or Comments? Email me at derek.fincham@gmail.com

Stolen Egyptian Antiquities Arrest


Edward Earle Johnson, aka “Dutch” has been arrested in Alabama and charged in Manhattan for wire fraud and selling stolen goods in connection with a 2002 theft from the Ma’adi Museum near Cairo in Egypt. Johnson is an active duty Chief Warrant Officer with the US Army, serving as a helicopter pilot.

In September of 2002 370 “pre-dynastic artifacts” were stolen from the museum, some dating to 3000 BC. Around 80 of those objects have been recovered by US authorities.

ABC News has a good overview of the story, with pictures, and has helpfully posted the unsealed complaint, sworn out by Senior Special Agent James McAndrew of the Homeland Security Department, specifically the Immigration and Customs Enforcement. The ICE press release announcing the arrest yesterday is here.

An interesting question to ask here is whether Johnson used military ships or aircraft to somehow smuggle these objects back into the United States. That would be particularly troubling. That’s just speculation on my part at this point, but it seems like a potential way for him to get those object into the US.

It is also important to note I think that this arrest stems from a theft from a museum. These objects were excavated in an archaeological dig in the 1920’s-30’s, and had been in a state collection. One interesting aspect of the case which may come to light later is how McAndrew and the ICE discovered these thefts. Did a scrupulous dealer come forward? Did someone notice these objects for sale? Were these objects cataloged and documented by the Egyptian culture ministry?

It can be extremely difficult to track stolen antiquities generally even where they have been excavated and on display, however the problems grow increasingly acute when we consider looted and illegally excavated objects, which are new to the market.

Questions or Comments? Email me at derek.fincham@gmail.com

US Criminal Penalties and Antiquities


To a casual observer, the recent searches in California would perhaps indicate that American criminal prosecutions and investigations can have a substantial impact on the illicit trade in antiquities. I certainly think they are a welcome sign, and hope that more of them will be supported by investigators and prosecutors. However, that investigation took five years to materialize, and there is still no indication if there will be any arrests. It certainly seems likely, but even this dramatic show of force and investigative might will not, I think, end or even put a substantial dent in the illicit trade. The current regulatory framework in both nations of origin and in market states puts far too much pressure on customs agents, prosecutors, and investigators.

At least that’s what I argue in my now-available article in the Cardozo Arts and Entertainment Law Journal, WHY U.S. FEDERAL CRIMINAL PENALTIES FOR DEALING IN ILLICIT CULTURAL PROPERTY ARE INEFFECTIVE, AND A PRAGMATIC ALTERNATIVE. 25 Cardozo Arts & Ent. L. J. 597-695 (2007)

The pragmatic alternative is the approach in England and Wales with its Treasure Act, Portable Antiquities Scheme, and limited export restrictions. This legal framework and attendant cultural policy is unique, in that it effectively incentivizes obeying the relevant cultural heritage laws. It adopts a carrot and stick approach, while many nations use too much of the stick. I argue that the criminal penalties can be brought to bear in cases of clear and egregious violations, or where there are a great deal of investigative resources available. Such was the case in the California searches, in which an undercover agent posed as a buyer. However, it took five years of investigations, and it’s still not clear what the result of these investigations are.

The image above is an Egyptian antiquity which Jonathan Tokeley-Parry bought and sold to Frederick Schultz, who later sold it for $1.2 million in 1993. It’s an image of 18th Dynasty pharaoh Amenhotep III (ca. 1403-1354 B.C.). Tokeley dipped the sculpture in clear plastic and painted it to resemble a cheap tourist souvenir. I discuss prosecutions of both men, which took place in England and the US respectively in the article. A lot of articles discuss the Schultz prosecution, but surprisingly no articles have discussed in any real detail the corresponding prosecution of Tokeley-Parry in England, which I think is key to understanding the international nature of the illicit trade, and the kind of complex multinational criminal investigation which is difficult where criminal investigation and prosecution are time-consuming and expensive. Not to mention the substantial pressures of other and often more-pressing matters such as drugs, violent crime, terrorism and the like.

I would be quite eager to hear any comments or reactions to the piece at derek.fincham “@” gmail.com.

Questions or Comments? Email me at derek.fincham@gmail.com

The PAS

This is the “Staffordshire Pan”, a copper alloy “patera” which is decorated with enameled scrollwork. It was found in 2003, and reported to the Portable Antiquities Scheme, and later acquired by the British Museum, Tullie House, and the Potteries Museum. You can read more about the patera at the PAS website. For those interested in the PAS, I highly recommend their blog.

Below is an interview conducted by Chris Vallance of Radio 4 with Roger Bland, the Director of the PAS, and Roy Clare of the Museums, Libraries and Archives Council which currently oversees the program. The object Bland discusses is none other than this very patera. The PAS has received a great deal of attention of late, because it is in jeopardy of funding cuts, as the MLA is itself absorbing a 25% budget decrease this year. The PAS is a remarkably successful program, and as Bland notes in the interview below, utterly unique.

On a related note, there will likely be light posting this week as I will be headed to sunny Los Angeles to discuss some of the policy implications of the PAS. Though it is a remarkable program, and very successful, I’m not sure it is necessarily a solution to looting of antiquities in all source nations, especially in the developing world. I hope to post some more detailed thoughts on that when I return early next week.

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More on the California Searches


“I have rarely seen Federal agents come out in such force as they did today”.

That’s what LA Times staff writer Jason Felch remarked yesterday on KCRW. He also has a very nice overview of the investigation so far, with links to the search warrants in today’s edition of the LA Times.

The massive search yesterday of the LA County Museum of Art, along with Pasadena’s Pacific Asia Museum, the Bowers Museum in Santa Ana and the Mingei Museum in San Diego has yet to result in any arrests or indictments. However it seems to be just a matter of time. It goes without saying that when Federal agencies and prosecutors get involved, they seldom lose.

Much of the allegations were established by the undercover work of a National Parks Service employee. Based on the search warrants, it seems the investigation started in response to looting of Native American sites, and quickly expanded.

Robert Olson, who spends a lot of time in southeast Asia is known in the affidavits as “the smuggler”. The other main target appears to be Jonathan Markell, of the Silk Roads Gallery.

This is a powerful image which appeared in the LA Times today, with agents from the IRS, Immigration and Customs Enforcement, and the National Park Service searching prominent California art institutions. Even if this search does not amount to a criminal prosecution, it sends a powerful message to the antiquities trade, including museums that purchase these objects, that federal agents are watching, and the trade needs to quickly and efficiently change the way it does business.

I think we can take a few things away from this investigation. First, the alleged objects were of limited value. These aren’t comparable to the Euphronios Krater for example. They are smaller objects, but were bought and sold in greater quantities. Objects were allegedly illegally excavated from Thailand (most from the Ban Chiang site), China, Myanmar and Native American sites in the US.

Second, I think this is compelling evidence of a systemic problem with the antiquities trade. Many have discussed these problems before. The lack of provenance, and the ease with which smugglers can elude customs agents makes policing the trade difficult. However, it would seem now that those who would buy and sell objects can no longer afford to cut corners, and must now conduct far more detailed investigations into how objects came to market.

Finally, I think this investigation reminds us that Roman and Greek objects are not the only classes of antiquities that are smuggled, despite the attention the recent returns from US institutions have indicated. Clearly, the question now is how many indictments or convictions will ensue, and how will the individual art institutions and the relevant industry codes of practice evolve to prevent this kind of criminal activity in the future.

Other Links:

Questions or Comments? Email me at derek.fincham@gmail.com

Breaking News: Major Antiquities Investigation

In what may result in the next large-scale antiquities smuggling prosecution in the United States, federal agents today served search warrants on four California museums and an art gallery. Warrants were served on the Los Angeles County Museum of Art, Pasadena’s Pacific Asia Museum, the Bowers Museum in Santa Ana and the Mingei International Museum in San Diego. Jason Felch has the story in the LA Times. The Silk Roads Gallery is apparently a major focus of the five-year investigation.

This could be the first major antiquities prosecution in the United States since the conviction of antiquities dealer Fred Schultz. It goes without saying though that this kind of massive investigation is unprecedented. The warrants claim Southeast Asian and Native American artifacts were looted and smuggled into local museums.

Questions or Comments? Email me at derek.fincham@gmail.com