Dr. Marina Lostal, a Lecturer at Xi’an Jiaotong University, School of Law has written an article examining the potential use of individual criminal responsibility in Syria for damage to cultural heritage. Her paper, presented at Qatar University in 2014 looks at the role cultural heritage plays in this armed conflict, and looks to whether prosecution of individuals responsible is a viable option. Here is the abstract
Recent reports have confirmed damage to five of the six Syrian world heritage sites during the current armed conflict as well as extensive looting of several of its archaeological sites on the Syrian Tentative List of world heritage. This article examines the role and fate of Syrian world cultural heritage from the beginning of the conflict, maps out the different cultural property obligations applicable to Syria while illustrating, where possible, how they may have been violated. Then, it assesses if and how those responsible for these acts can be prosecuted and punished. The analysis reveals an accountability gap concerning crimes against Syrian world cultural heritage. As such, the article proposes to reinstate the debate over crimes against common cultural heritage which once arose in the context of the Buddhas of Bamiyan.
Destruction of an unidentified king of Hatra by militants in 2015
There has been a series of reports which shows self-declared Islamic State militants causing severe damage to antiquities and heritage sites in Iraq and Syria: at the museum in Mosul, perhaps causing destruction at sites such as the Nergal gate in Ninevah, perhaps destruction at Hatra, and maybe even damage to the ancient city of Ninevah as well. The volume of reporting is hard to digest fully, but the news is almost all very very bad.
Reporting on these events is exceedingly difficult as these areas are controlled by the so-called Islamic State. When we consider that foreign reporters and aid workers have been kidnapped and killed in public executions when their ransoms are not paid, we can see how precarious and difficult it will be, and how patient we all must be in waiting for confirmation of destruction.
The Temple of Bel complex in Palmyra Syria, in 2010, one of the best-known at-risk sites in Syria
As the United Nations Security Council prepares to confront the Islamic State, more reports are looking at just how much looting and destruction is taking place there, and the claims about the connection between the illicit antiquities trade continues to receive anecdotal support.
The N.Y. Times reported that a draft resolution is going to be discussed to confront the Islamic State on “oil and antiquities”:
The draft resolution, which was scheduled to be discussed by Council members in a closed meeting Friday afternoon, requires all 193 member states of the United Nations to prevent the sale of antiquities from Syria, similar to a measure the Council passed 10 years ago regarding antiquities from Iraq.
And yesterday the Wall Street Journal reported on the efforts of a group called Heritage for Peace, to document looting and work to combat the illicit trade:
In November, 30 senior members of the group were invited to travel to Turkey for training and technology after attracting the attention of NGOs and foreign governments. Only eight could make the trip because fighting with Islamic State blocked their route. The three-day training session in a secret location close to the Syria-Turkish border was run by Heritage for Peace, or HfP, a Barcelona-based NGO that sees heritage preservation as a way to bring warring parties to the negotiating table.
Leading the instruction was Rene Teijgeler, a Dutch archaeologist and former lieutenant colonel in the Dutch army, who ran heritage preservation operations in Iraq and Afghanistan, and his partner, Isber Sabrine, a Syrian-born archaeologist based in Barcelona.
“We are neutral. We adhere to the Red Cross code of conduct and we are very careful about who we operate with,” said Mr. Teijgeler, pulling on a cigarette in a hotel cafe. “We vet them carefully. You don’t want wild cowboys doing crazy things,” he said.
The training, partly funded by the Dutch government, focused on how to uniformly catalog damage at ancient sites like the Roman amphitheater at Palmyra or the crusader castle of Crac des Chevaliers. Trainees were given laptops and cameras with powerful zooms to help improve their work.
Just a portion of the antiquities on display at the Terme di Diocleziano museum in Rome, Italy. Photograph: Claudio Peri/EPA
On Wednesday in Rome, Italian officials from the Carabinieri held a press conference to display a reported 5,361 objects recovered from the Swiss warehouses of Gianfranco Becchina. The staggering number of objects, many of which appear to be of museum-quality are disheartening to take in. How many tombs were ransacked? How much information lost?
The objects were, as far as I can gather,were slated for sale internationally, and presented here we can see none of their history and context. Seeing these images, I’m struck both by the destructive nature of the international trade in antiquities, and also the inability of the Italian criminal justice system to respond to these crimes and prevent this kind of theft. If the Carabinieri’s art squad, which by most accounts is one of the best-trainded and best-funded art crime policing outfits in the world cannot stop a massive looting operation like this, what are other countries without such a squad left to learn from the investigation? What does this say about the efficacy of the current approach to looting?
This press conference strikes me as yet another example of so-called “art on the table” events, though it is quite grander in its scope than the typical press conference.
These objects would have been seized nearly a decade ago, with the alleged dealer behind this operation, Becchina, left uncharged, without any criminal consequences for these actions, other than it seems losing all of his illicit merchandise. Why were no charges brought? There is certainly a high degree of likelihood that these objects were looted, but do we know all of these objects are illicit? Would more creative and pragmatic solutions have a better chance than the aggressive but sporadic policing model which is employed to the art trade at present?
A red-figured krater withdrawn from auction at Christie’s in Dec. 2014 after Christos Tsirogannis connected the image to David Swingler, who has been investigated by US Customs Authorities and was sentenced to prison in absentia in Italy
Christie’s had an auction of antiquities on Dec. 11, and some of the objects up for auction were ‘matched’ with photographic archives seized from dealers and collectors who deal in illicit material. These matches have always left me a little uneasy. If an object is matched, it means it is most likely looted. But the auction houses have no good way to match these objects because these photo archives are closely held by law enforcement agencies and a group of researchers. There are claims that the auction houses could go directly to Greek or Italian officials and have these objects checked against these databases for free. As Christos Tsiogiannis answered when asked by Catherine Schofield Sezgin: “The auction houses, and the members of the international antiquities market in general, always have the opportunity to contact the Italian and Greek authorities directly, before the auctions. These authorities will check, for free, every single object for them.” But it seems they do not do this. Objects are invariably withdrawn after a match, where they disappear back into collections in most cases, and we are left with little progress in stemming future looting and protection of sites. And so each new antiquities auction continues the cycle of public shaming and return. But the looting continues.
That was the core point of a paper I presented last year in a meeting of ISPAC and the United Nations office on Drugs and Crime in Courmayeur. Some of the papers have been collected and published by Stefano Manacorda and Arianna Visconti. I’ve posted my short paper “Two Ways of Policing Cultural Heritage” on SSRN. From the introduction:
The title of this paper is, of course, a play upon the title of Professor John Henry Merryman’s well-known essay which laid out the ways of conceptualizing cultural property law there are two ways to think about cultural objects. One as part of a national patrimony, and second as a piece of our collective cultural heritage. In a similar way there are two ways to envision jurisdiction of cultural heritage crime. Criminal law can of course apply to policing the individuals responsible for stealing, looting, selling and transporting illicit art and antiquities. Or, law enforcement resources can be used to secure the successful return of stolen art, and the protection of sites. The criminal law can regulate people; and it can also regulate things. In order to produce meaningful change in the disposition of art, it must do both effectively. Focusing on art at the expense of criminal deterrence for individuals is an incomplete strategy.
Fincham, Derek, Two Ways of Policing Cultural Heritage (December 10, 2013). Courmayeur Mont Blanc, Italy, edited by Stefano Manacorda, Arianna Visconti, Ed. ISPAC 2014 . Available at SSRN:http://ssrn.com/abstract=2536542
The IAL blog has a terrific preview of an upcoming interview with Kathryn Morgan, a PhD candidate and archaeologist who has dug at the ancient site of Gordion in Central Turkey. Nina Nieuhaus asked Morgan what can be done, from an archaeologist’s perspective to stem looting of sites. Here’s a brief excerpt:
Education and economic incentives are probably the two most effective anti-looting “measures,” if they can be called measures. Education, because if people value the past for itself and think that it’s important, they don’t want to loot; and economic incentives, because if they are reliably prosperous without relying on looting, they don’t have to. Alternatively, you can try to foster the idea that an excavation itself and/or the tourism that it brings is a more sustainable long-term alternative source of income than a quick loot-and-sell operation. As far as I understand it, looting often isn’t that profitable a business for the looter: he’s giving whatever he finds to a middle man, who may be giving it to someone else, and him to someone else, until it finds a legitimate seller and a legitimate buyer who hasn’t dirtied his hands with any of the illegal activity. So, for the little guy, it’s dangerous – because looting is of course illegal – and he’s not making that much money off of it; he’s not going to do it unless he has to. If you can foster a good relationship with locals – providing them with employment opportunities, buying food for the project from within the village, some projects get students to teach English or organize pick-up soccer games with the workmen – those personal relationships are key to the long-term success of your project. But that’s kind of a warm and fuzzy answer that doesn’t deal with all of the complicated motivations that real people have in the real world.
Realistically, what do we do? What can we do? The Gordion project employs a site guard year round who checks on the site. We give a map of the area to the local Jandarma, the police force, of the “most sensitive” areas archaeologically, that they need to keep an eye on. Also, in Turkey, sites that are looted or in danger of looting can be eligible for special “salvage excavation” permits. Near Gordion, several tunnels were dug into a large tumulus, looking for the burial chamber, over the past few winters. Last year, the Turkish authorities decided to excavate the tomb themselves, in a careful, scientific fashion with conservators on call – rather than allowing looters to make another attempt. The Gordion project was invited to contribute to the effort, which we did gladly. So, sometimes pre-emptive excavation is a necessary solution.
And there are other interesting insights, so I look forward to reading the whole exchange. Practical change is slow in coming to the antiquities trade.
Jason Felch has an excellent piece examining the claims that ISIS has made massive profits off of illicit antiquities. He effectively critiques the claim that illicit antiquities have become the second-largest revenue stream for ISIS. Having seen the destruction and looting in Syria, we can see theft and destruction is taking place. But how can we estimate the size and scope? He notes getting accurate estimates of an illicit trade is not easy:
I have spoken with imprecision about the link between terrorism and the antiquities trade. UNESCO officials frequently cite a $7 billion dollar figure for the global illicit antiquities trade that has a very shaky foundation. The Antiquities Coalition has referred to $3 – $5 billion generated by looting in Egypt alone since 2011 (or in some instances, per year), but the research supporting that claim has yet to be published. Rajendra Abhyankar, a professor at Indiana University and former Indian Ambassador to Syria, declared in the Huffington Post earlier this month that “thirty to fifty percent” of ISIS income comes from the theft and looting of antiquities. When asked for a source, he told me it was based on notes he had taken while reading articles that he could no longer find. The problem is significant enough that Dr. Sam Hardy at Conflict Antiquities has made a cottage industry of debunking such claims.
The truth is we have very little reliable data on the global revenue generated by the illicit antiquities trade, and even less on the role it plays in funding terror groups. It is, to paraphrase Donald Rumsfeld, a known unknown: we know it happens, but not much more. Claiming otherwise may in the short term bring attention to the issue of looting, but ultimately saps it of credibility – and the urgency to answer those important questions with well-documented research. It can also taint important policy decisions, as Patty Gerstenblith, chair of the State Departments Cultural Property Advisory Committee, noted in response to Danti and similar claims: “Commentators and scholars should avoid sensationalism…Exaggerated [or] baseless claims hinder rational policies to restrict trade in illegal antiquities.”
Larry Rothfield responds by basically arguing, who cares so long as awareness is raised:
In the long term we are all dead, said Keynes, and in the short term getting attention paid to archaeological looting has had very positive stimulative effects in the area of heritage protection at least (witness the White House Coordinator law just proposed). More generally, the notion that credibility will be sapped by the flogging of dubious factoids is not supported by any evidence I know of in public policy studies, and indeed there’s plenty of evidence that even outright lies have very long tails and only sap credibility when they lead to what are retrospectively recognized to have been disastrous policy decisions.
I think accuracy matters, as exaggerated claims will only harm the cause in the long run.
James Cuno, President of the Getty Trust, has authored a short essay revisiting his arguments against repatriation. Those familiar with his arguments will see many of the same kinds of arguments he has made in the past. Mainly he criticizes repatriation as an exercise in nationalism:
Such claims on the national identity of antiquities are at the root of many states’ cultural property laws, which in the last few decades have been used by governments to reclaim objects from museums and other collections abroad. Despite UNESCO’s declaration that “no culture is a hermetically sealed entity,” governments are increasingly making claims of ownership of cultural property on the basis of self-proclaimed and fixed state-based identities. Many use ancient cultural objects to affirm continuity with a glorious and powerful past as a way of burnishing their modern political image — Egypt with the Pharaonic era, Iran with ancient Persia, Italy with the Roman Empire. These arguments amount to protectionist claims on culture. Rather than acknowledge that culture is in a state of constant flux, modern governments present it as standing still, in order to use cultural objects to promote their own states’ national identities.
Though he acknowledges the looting and destruction that has taken place and this was the impetus for a number of returns from his current institution, he’s attempting it seems to hold a firm line against calls for repatriation which pre-date 1970. While he does obliquely criticize looting, he offers no other solution to the problem. How can we prevent site destruction and looting without national legislation and domestic initiatives (which he has called nationalistic)? That question is left largely unanswered. He does make calls for more Universal museums in nations of origin.
He ends with a call for exchange and cooperation:
For encyclopedic museums to fulfill their promise of cultural exchange, they should be established everywhere in the world where they do not now exist. And existing encyclopedic museums should aid in their development. Already, there are laudable examples of how great museums in wealthy countries can foster a more comprehensive kind of cosmopolitanism. The British Museum established a program in 2008 to promote partnerships with institutions in Africa, Asia, and the Middle East. In addition to loaning collections and exhibitions from British museums, it focused on training: in conservation, curating, and archiving. In all, some 29 countries were involved. The program was supported by the British government’s Department for Culture, Media, and Sport. But after three years, the British government cut the program’s funding. The partnerships continue on a smaller scale supported by grant funding, including from the Getty Foundation.
This process of exchange and cooperation should build trust among museums and national authorities. It will be a long, slow process, but if successful, it would lay the foundation for a greater understanding of the values represented by the encyclopedic museum: openness, tolerance, and inquiry about the world, along with the recognition that culture exists independent of nationalism.
Cuno, James. “Culture War” Foreign Affairs, December 2014.
A Silver Rhyton depicting a stag, ca. 14th-13th C BCE. One of the objects Turkey has reportedly inquired about from the Met.
Disputes over works of art continue to hamper relationships between major Museums and nations of origin. One example is what appears to be a strained relationship between Turkey and the Met.
The Met is planning a major exhibition on the Seljuk Islamic empire. But the show
looks to be hampered by Turkey’s cultural embargo which demands a return of works of art before any new material will be loaned. As Tim Cornwell reports for the Art Newspaper:
Without loans from Turkey, and with Iranian loans unlikely unless there is a sudden improvement in relations between the US and Iran, the Met will have to rely on major loans from British and European institutions instead.
. . .
But Turkish loans could have ranged from manuscripts from the Topkapi Palace Museum in Istanbul and trophy items, such as an extraordinary steel mirror with gold inlay also housed there, to reliefs from the walls of Konya, the Seljuks’ historic capital in Anatolia.
A tile from the Seljuk Ceramics Museum in Konya
Turkey has asked for a number of objects back from the Met, the British Museum and other institutions. Some of them removed from Turkey very early in the 20th Century.
According to reporting at Chasing Aphrodite, those objects requested by Turkey from the Met include objects with no history before from the Norbert Schimmel collection acquired them in the 1960s-70s. The ongoing dispute is a pity, as it harms both the ability of curators at the Met to secure Seljuk material for the exhibition, and hampers Turkey’s opportunity to present its heritage to new audiences.
