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Illicit Cultural Property – Page 10 – art, heritage, & law

Student note on Confederate Monuments in North Carolina

‘”The monument was erected in honor of the 321 men from Alexander County who lost their lives in the Civil War. It is a single granite block 7 feet tall, 4 feet wide, and 8 inches thick with two small circles above the front inscription containing pairs of crossed confederate battle flags.”
Image courtesy of Commemorative landscapes of N. Carolina.

Kasi E. Wahlers has published an interesting student article in the North Carolina Law Review titled “North Carolina’s Heritage Protection Act: Cementing Confederate Monuments in North Carolina’s Landscape”. It takes up North Carolina’s handling of remnants of public monuments aimed at remembering and commemorating some ugly aspects of its past.

From the Abstract:

Even in 2015, the North Carolina landscape is densely populated with Confederate monuments, appearing in more than half of the state’s one hundred counties. The state has more monuments honoring the Civil War than any other event, with five Civil War monuments for every World War II monument. Most of these structures were erected between 1890 and 1930 and many are located on public property, commonly found in and around courthouses, town squares, graveyards, and University campuses. In July of 2015, North Carolina enacted the Heritage Protection Act (“HPA”). This law severely restricts the removal, relocation, or alteration of any monument located on public property. While neutral on its face, North Carolina’s Heritage Protection Act was enacted for the purpose of protecting Confederate monuments.

This Recent Development argues that the North Carolina Heritage Protection Act creates a lack of accountability on behalf of the N.C. General Assembly, usurps powers of local governments, and is amorphously vague as to what objects it applies to. Clarification of the statutory language by the General Assembly as well as a provision allowing for the erection of plaques that contextualize these monuments within local history is needed. Analysis proceeds in three parts. Part I of this Recent Development briefly sketches the propagation of Heritage Protection Acts across the South, outlines the North Carolina Heritage Protection Act, and highlights ways the North Carolina statute differs from other states. Part II discusses the confusing nature of this statute and analyzes legislative history to offer insight as to: (1) what role the North Carolina Historical Commission plays, if any, in deciding to permanently remove or relocate monuments; (2) whether this statute applies to county or city owned monuments; and (3) what constitutes a “display of permanent character.” Finally, Part III argues that this statute is in need of clarification and a provision that provides for plaques that contextualize these monuments within their local history. A brief conclusion follows.

Wahlers, Kasi E., Recent development. North Carolina’s Heritage Protection Act: cementing Confederate monuments in North Carolina’s landscape. 94 N.C. L. Rev. 2176-2200 (2016).

In Syria, looting causes faked antiquities too

Louis Vignes, Temple of Baalshamin, Palmyra, Syria (1864)

Reporting for the L.A. Times last week, Nabih Bulos indicates that with the rise in looting of ancient sites, the market demand is starting to also be met by forged antiquities:

“In the last year, we’ve caught thousands of pieces. We noticed that the percentage of fakes has risen up from 30 to 40% to over 70%,” said Maamoun Abdulkarim, Syria’s director-general of antiquities and museums.

“Bibles, coins, statues … the buyer wants a certain model of artifact. The seller doesn’t have it, so you have workshops that produce fakes.”

On his laptop, Abdulkarim played a video depicting an open-air workshop, which he said was in the town of Khan Al-Subul in the rebel-held province of Idlib. Men, their hands covered in white dust, sit cross-legged on the ground, carving delicate patterns on pieces of stone.

Off to the side, one worker washes down a column head with a wet sponge. The rivulets of liquid work their way down the stone’s surface, leaving a dark sediment that would give it the appearance of age, according to Abdulkarim.

But are the faked antiquities new, or are we just paying more attention because of the loud destruction and institutionalized iconoclasm taking place in parts of Syria.

In 2009, Charles Stanish argued that he stopped worrying about the sale of faked antiquities on internet sites such as eBay, in the hopes that antiquities fakers would ultimately put antiquities forgers and looters out of business. In Syria at least, this report indicates that instead, the art market’s failure to often sell objects with detailed and legitimate histories leads to first looting, then also a rise in faked artworks. Some of course will argue that there should not be a market for this material at all. Others argue that the market should be preserved. The inability to compromise, of these two competing interests to even discuss the possibility of the other existing has served to preserve not the sites or context, but the black market in looted archaeological material and fake antiquities.

 

  1. Nabih Bulos, After Islamic State Institutionalized Looting in Syria, the Market for Fake Antiquities is Booming, Los Angeles Times, Dec. 31, 2016, http://www.latimes.com/world/middleeast/la-fg-syria-fake-antiquities-2016-story.html.

My Essay on the authenticity of ‘Go Set a Watchman’

One of these is not like the other

I expanded a bit on a blog post from last year with an essay for the Cumberland Law Review which takes up the tools of art authentication to argue that Go Set a Watchman should not be considered an authentic work by the author, and instead complicates the idea of authorship. Here’s the abstract:

For many lawyers, Harper Lee’s To Kill a Mockingbird represents an important goal to which law and its practitioners should strive. The novel describes the struggle to achieve justice for a black man in the face of deep-seated institutional racism. It stands as a beloved work of literature, widely read and deeply appreciated. Therefore, any work that Lee would have written after To Kill a Mockingbird would have sparked tremendous interest, given the beloved place her first novel holds. But many other questions have arisen since the release of Go Set a Watchman. This essay aims to address how the authenticity of the novel should be weighed by using the tools of art historians and the art market.
  1. Derek Fincham, Is Go Set a Watchman Authentic?, 47 Cumberland L. Rev. 101 (2016).

The US initiated an extraterritorial civil forfeiture of antiquities

Last week, attorneys filed a civil forfeiture action on behalf of the United States for four antiquities allegedly being held as foreign assets of ISIL. The case marks a couple firsts. For one it is the first forfeiture action targeting foreign assets of ISIL of any kind. Second, it marks the first forfeiture initiated by the U.S. government of this kind, where the objects at issue have not been seized by the government, but rather only photographic and associated evidence of their possible introduction into the antiquities trade exists. As a consequence this is an extra-territorial forfeiture which shares many similarities with the efforts of Italian prosecutors to forfeit the Fano athlete/Getty Bronze.

The best overview of the forfeiture I’ve seen can be found at chasing aphrodite. There, Jason Felch was able to speak with Arvind Lal and Zia Faruqui in the U.S. Attorneys Office for the District of Colombia:

Where are the objects? Lal and Zia declined to say whether they knew where the objects were, citing the on-going investigation of the Abu Sayyaf material. But they said the complaint makes clear they are not currently in the United States.    

Why file the complaint now? Lal said that the time between the May 2015 raid and the forfeiture complaint was necessary to conduct a thorough investigation of the records seized from Abu Sayyaf, consult with experts on the objects depicted in those records, coordinate with other federal agencies (FBI, State, Treasury and “other government agencies”) and compile the complaint. “We feel like we’ve done our homework with respect to these four items,” Lal said, suggesting that additional items may be added to the complaint in the future.

The practical implication of this forfeiture will mean that the market for these four objects, and perhaps objects like them, has been sharply diminished. The forfeiture complaint also details the ways in which looting takes place. The traditional rationales for antiquities looting may be much messier than we have thought, with women and family members forced to loot the al-Salihiyyah archaeological site to prevent harm to a young family member, as the documents seized in the Abu Sayyaf raid which have been made public for the first time in this complaint seem to show.

  1. US files first case against ISIS to recover antiquities, http://ara.tv/m65yq (last visited Dec 20, 2016).
  2. UPDATED > Inside the ISIS Looting Operation: U.S. Lawsuit Reveals Terror Group’s Brutal Bureaucracy of Plunder, CHASING APHRODITE (2016), https://chasingaphrodite.com/2016/12/15/inside-the-isis-looting-operation-u-s-lawsuit-reveals-terror-groups-brutal-bureaucracy-of-plunder/ (last visited Dec 20, 2016).
  3. Brandi Buchman, U.S. on Hunt for Antiquities Trafficked by Islamic State Courthouse News Service (2016), https://courthousenews.com/u-s-on-hunt-for-antiquities-trafficked-by-islamic-state/ (last visited Dec 20, 2016).
  4. United States Files Complaint Seeking Forfeiture of Antiquities Associated with the Islamic State of Iraq and the Levant (ISIL), https://www.justice.gov/usao-dc/pr/united-states-files-complaint-seeking-forfeiture-antiquities-associated-islamic-state (last visited Dec 20, 2016).

Obama could still save Bears Ears

Cedar Mesa, one of the estimated 100,000 archaeological sites in the proposed Bears Ears monument
Cedar Mesa, one of the estimated 100,000 archaeological sites in the proposed Bears Ears monument

Former Senator and U.S. Representative Mark Udall argues President Obama could still set aside the “Bears Ears” National Monument:

The president has a rare opportunity to advance this proud tradition by protecting a spectacular area critical to our western heritage: Bears Ears, a 1.9 million-acre area in southern Utah replete with thousands of historic and cultural sites.

President Obama has already demonstrated his commitment to preserving and protecting unique public treasures for generations to come. He did so with Chimney Rock in southwest Colorado and again with Browns Canyon in Chaffee County. I was proud to champion both bipartisan efforts to protect these landscapes for future generations.

The president now has the chance to preserve lands vital to our nation’s heritage and history with the support of five Native American tribes whose heritage is memorialized in this area. He should utilize the Antiquities Act to protect the Bears Ears region in southeast Utah — a site that represents our western pioneering history and that of the tribal communities across the region, including the Ute Mountain Ute Tribe.

Numerous Native American tribes trace their roots to Bears Ears. In fact, the strongest voices in favor of a designation have come from the Ute Mountain Ute, Hopi, Navajo, Uintah and Ouray Ute, and Zuni tribes. The site also is home to artifacts from pioneers who made a home in the American West.

One of the prominent natural features in the landscape is Jacob’s Chair, named after my great-great grandfather, Jacob Hamlin, who was known as the Mormon Pathfinder. Hamlin spent his life working tirelessly to resolve conflicts that arose between the newly arrived settlers and the deeply rooted Native American tribes and bands already living in the area. His vision encompassed a future where both groups lived and worked together collaboratively, respecting each other’s traditions and beliefs, and living in harmony with the land. A Bears Ears National Monument would be a 21st century investment in that vision.

  1. Mark Udall, Still time for President Obama to save Bears Ears, The Denver Post (Nov. 20, 2016).

Stone on UK ratification of the 1954 Hague Convention

 

Peter Stone argues in the Art Newspaper that the UK ratification of the 1954 Hague Convention really is a big deal:

Is this really a big deal? Actually, yes it is, on all sorts of levels. Those of us in the heritage community are often told to stop complaining and to understand that in war things get damaged and destroyed. True, but from Sun Tzu in sixth-century BC China to Dwight Eisenhower in the 20th century, generals and military strategists have argued that the destruction of cultural heritage is bad military practice (not least because it frequently provides the first excuse for the next conflict).

There are at least seven different risks to heritage during conflict: lack of planning; spoils of war; collateral damage; military lack of awareness; looting; enforced neglect and specific targeting. All of them can be addressed to a greater or lesser extent, thereby reducing overall the impact. Protecting cultural heritage is not only important to specialised academic interests, heritage represents communal memory, and access to it has recently been argued to be a human right by the UN’s special rapporteur for cultural rights. It contributes to well-being and can foster post-conflict economic stability by encouraging tourism.

Finally, it is increasingly recognised as a military “force-multiplier”—protecting the heritage of your enemy may not win you many friends but it should ensure you do not make more enemies: a lesson hard-learnt from numerous recent cases where cultural heritage was ignored and not protected by occupying forces leading to unnecessary problems and casualties.

  1. Peter Stone, Why ratifying the Hague Convention matters, The Art Newspaper (2016.11.29).

Responses to criticism of heritage destruction trial at ICC

A traditional mud structure stands in the Malian city of Timbuktu May 15, 2012. Picture taken May 15, 2012. REUTERS/Adama Diarra
A traditional mud structure stands in the Malian city of Timbuktu May 15, 2012. Picture taken May 15, 2012. REUTERS/Adama Diarra

Apollo Magazine offers two brief but insightful Op-Eds on the recent heritage destruction trial at the ICC. Brian Daniels notes some of the controversy and responses to the guilty plea of Ahmad Al Faqi Al Mahdi of intentionally destroying cultural heritage in Timbuktu in 2012. He notes the difference between crimes against people and crimes against art, but then rightly points out that the perpetrators of these acts see them differently:

Those who intend to do civilians harm have two goals: to eliminate that population and to remove any material evidence of that people’s existence. Mass killing and cultural destruction are simply two different stages in the same violent process of ethnic cleansing and genocide. If we consider the intent of violence against civilians, then the division collapses between crimes against human life and crimes against culture. Present-day oppressors and terrorists do not see this distinction in their actions. Neither should we.

Helen Walasek links the criticism of the Al Mahdi trial to similar criticism which took place during the Bosnian conflict:

Human-rights organisations commenting on the Al Mahdi case have all agreed that the intentional destruction of cultural property during armed conflict is a war crime. While some wished the indictment had been widened to include other war crimes, others gave unqualified support. The conviction of Ahmad Al Faqi Al Mahdi, said Human Rights Watch, sent ‘a clear message that attacking the world’s historical treasures will be punished’. Mark Ellis, chief executive of the International Bar Association and a war crimes expert, observed: ‘Destruction of cultural heritage is not a second-rate crime. It’s part of an atrocity to erase a people.’

  1. Is the destruction of cultural property a war crime?, Apollo Magazine (Nov. 28, 2016).

Note on Islamic State antiquities profits

Louis Vignes, Temple of Baalshamin, Palmyra, Syria (1864)
Louis Vignes, Temple of Baalshamin, Palmyra, Syria (1864)

Hannah Willett, a JD candidate at the University of Arizona has published a student note examining what U.S. criminal penalties could be used to prosecute the market end of antiquities which may pass through the Islamic State. Though many student notes can suffer from not having a full understanding of the scholarship examining illicit cultural heritage, this piece rises above the typical student note; perhaps owing to the fact that Ms. Willett undertook study at the Tulane-Siena summer program.

From the abstract:

The illicit antiquities market is a thriving international enterprise that has the potential to fuel wide-scale criminal and terrorist activity. Nonetheless, the economic and symbolic impact of cultural property exploitation has been largely overlooked.

This Note explores the role that the illegal antiquities market can and does play in facilitating terrorist activities, particularly in ISIS-controlled areas of the Middle East. It addresses the regulatory obstacles uniquely inherent to the trade of cultural property, and examines international, national, and online intermediary responses to looting and the market.

Finally, this Note proposes a multi-faceted, counteractive response to the trade. First, the Note highlights the potential for online intermediaries to serve as powerful choke points. It then draws attention to the undertheorized and underutilized mechanisms of U.S. domestic law that are readily employable to combat the illicit trade. Lastly, this Note emphasizes the important function that education can have in reducing consumer demand, and consequently, in disincentivizing participation at every step along the trade.

  1. Hannah D. Willett, Ill-Gotten Gains: A Response to the Islamic State’s Profits from the Illicit Antiquities Market, 58 Ariz. L. Rev. 831 (2016).

New article on Vietnam and the antiquities trade

Damien Huffer, Duncan Chappell, Lâm Thị Mỹ Dzung, and Hoàng Long Nguyên have published a work in Volume 14 of the Journal of Public Archaeology looking at the looting of antiquities in Vietnam. From the introduction:

The exact nature of the illicit antiquities trade from ground to market in Southeast Asia remains poorly known outside of Thailand and Cambodia, where most research has been focused. This paper helps to address this imbalance by documenting and contextualizing looting activities at the Bronze and Iron Age site of Vườn Chuối, located within urban Hanoi. A brief excavation history is provided so as to place recent looting into archaeological context. The methods used to document the recent and on-going looting observed are then discussed, followed by the nature of the current threat to Vườn Chuôi and a summation of what little is known about the Vietnamese antiquities trade in general and its relationship to regional antiquities trafficking. Finally, we discuss the current regulatory landscape in terms of constitutional, ownership, penal and international law, difficulties with enforcement and prosecution, and what course of action is needed not only to protect Vườn Chuôi and similar sites in and around Hanoi, but also to continue to raise public awareness of the archaeological repercussions of the trade itself.

  1. Damien Huffer et al., From the Ground, Up: The Looting of Vưườn Chuối within the Vietnamese and Southeast Asian Antiquities Trade, 14 Public Archaeology 224 (2015).