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).

Comment on in-kind payments with art

"The Revolution (Mural)" by David Alfaro Siqueiros

“The Revolution (Mural)” by David Alfaro Siqueiros

Julia L.M. Bogdanovich, a senior editor of thePennsylvania Law Review has authored an interesting comment examining how artists could pay taxes with in-kind payment. She uses a comparative approach highlighting both Mexico and the United Kingdom. From the Introduction:

According to popular accounts, in 1957 David Alfaro Siqueiros marched into Hugo B. Margáin’s office with a radical and risky proposal. There, the famous muralist bluntly told the new Director of Income Tax that the recent income tax reforms were unduly burdening Mexico’s artists because they “did not know about accounting or tax laws” and had no money with which to pay their obligations. “The only thing we have are paintings,” Siqueiros insisted. However, rather than seek a complete tax exemption for artists, he told Margáin that artists could instead pay taxes with their artwork. Because their art was valuable, Mexico could amass an enviable collection. Tasked with ensuring the success of the new tax system,8 perhaps Margáin was inclined to be creative, or perhaps he was an art aficionado. Regardless of his motives, Margáin replied, “It doesn’t seem like a bad idea.” Under Margáin’s leadership, the Mexican Ministry of Finance and Public Credit accepted Siqueiros’ proposal and launched a program called Pago en Especie (Payment in Kind) in November 1957, when it collected its first income tax payment in art.

  1. Julia LM Bogdanovich, Devising an Artful Tax: An Appraisal of Payment-in-Kind Income Taxes in Mexico and the United Kingdom, 164 U. Pa. L. Rev. 983 (2015).

Lazopoulos Friedman on Isis’s “get rich quick scheme”

The Temple of Baal Shamin, in happier times
The Temple of Baal Shamin, in happier times

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.

  1. 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).

A strong connection between looting and organized crime in Greece

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Police in Greece have announced the arrest of 26 individuals in connection with an antiquities looting network that had been operating for 10 years. The announcement showed the recovery of more than 2,000 objects, including coins, jewelry, and other objects. Two individuals were arrested last Sunday at the Greek-Bulgarian border with an astounding 1,000 coins and small portable objects hidden in the bumper of their car.

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Police also confiscated metal detectors, guns, currency, and materials used to counterfeit currency.

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The arrests on Sunday were the culmination of a 14-month investigation which may have involved as many as 50 people.

Nicholas Paphitis, Greek police break up gang that excavated, sold antiquities, US News & World Report (Oct. 5, 2016), http://www.usnews.com/news/world/articles/2016-10-05/greek-police-break-gang-that-sold-thousands-of-antiquities.
Helen Stoilas, Police in Greece arrest 26 in bust of alleged antiquities smuggling ring, http://theartnewspaper.com/news/archeology/police-in-greece-arrest-26-in-bust-of-alleged-antiquities-smuggling-ring/.