Are Syrian Artifacts protected under the NSPA?Lindsey Lazopoulos Friedman has written an article discussing the possibility of using the McClain Doctrine and the NSPA for objects illegally removed from Syria.
From the abstract:
This article explores how an individual importing a looted artifact may face prosecution and liability in the Eleventh Judicial Circuit. The article begins with a background section that provides additional information about the history of ISIS and ISIS’s current plundering scheme. The background section also provides the legal framework and historical treatment of looted art and stolen artifacts. In particular, this section explains the Eleventh Circuit doctrine on this issue, the McClain doctrine. The McClain doctrine applies the National Stolen Property Act (“NSPA”) to foreign found-in-the-ground claims. Supporters of the doctrine argue that it helps “prevent looting internationally without placing an unacceptable burden on the cultural objects trade.” The analysis section hypothesizes that a looter of a Syrian artifact would not be prosecuted in the Eleventh Circuit under the McClain doctrine. The analysis section also includes possible alternative means for prosecuting a trafficker of Syrian cultural property.
- Lindsey Lazopoulos Friedman, ISIS’s Get Rich Quick Scheme: Sell the World’s Cultural Heritage on the Black Market—Purchasers of ISIS-Looted Syrian Artifacts Are Not Criminally Liable Under the NSPA and the McClain Doctrine in the Eleventh Circuit, 70 University of Miami Law Review 1068 (2016).
This article does not address the power disparity between the typical claimant and the government. It’s unlikely any seizure of an article suspected to have been illegally removed from Syria would be contested due to the low value of such articles compared to the high cost of legal services and/or the ability of the government to bring a host of criminal charges against anyone involved. It’s also of concern that the author has not done their homework about questions about the values of articles looted by ISIS or the likely involvment of individuals associated with the Assad regime with looting in Syria. Or, ask if it is appropriate to repatriate artifacts to that regime which has brought so much misery to the Syrian people and destruction of Syrian cultural heritage.
Peter Tompa, thank you for your thoughtful comment. You are correct–I could have done a better job exploring the considerations that may increase or decrease the likelihood of prosecution of an individual selling, importing, or buying looted Syrian artifacts/cultural property. I think one thing that became clear in my research was the dearth of prosecution in the Eleventh Circuit in general-no matter what country the cultural property is coming from-it certainly is less prevalent than I expected before writing this paper. As to your second point regarding the value of articles looted by ISIS. Unfortunately, because Syria and Iraq have remained so unstable over the last five years and because there is a significant amount of forged provenance, we do not have an accurate sense of what the value is. I mentioned in my article that we do know–based on recovered/seized flash drives–that from only one region of Syria, ISIS “netted up to $36 million” from looted artifacts. Here’s the article I cited if you’re interested: http://news.nationalgeographic.com/news/2014/06/140626-isis-insurgents-syria-iraq-looting-antiquities-archaeology/
Thanks, again, for the feedback!
Lindsey, thanks for your kind note. As for the $36 million figure, that has been debunked although big numbers keep on getting cited, probably to get attention. For more, see https://gatesofnineveh.wordpress.com/2016/10/14/house-homeland-security-committee-releases-report-on-isis-financing/
Happy to correspond with you further to the extent you move forward in your study of this area. Peter Tompa, pkt@becounsel.com