A dark threat to commit crimes against Iranian culture

Letter, Gen. Dwight D. Eisenhower, Commander-in-Chief, AFH to All Commanders, Subject: Historic Monuments, December 29, 1943 (via).

The treatment of cultural heritage during armed conflict has received an unwelcome wave of attention after President Trump made the decision to threaten Iranian cultural sites with an attack over the weekend. In a series of tweets on Saturday, Trump stated that “if Iran strikes any Americans, or American assets,” that the United States has targeted 52 Iranian sites. This troubling threat would violate the Pentagon’s own War Manual, and the 1954 Hague Convention on Cultural Property in the Event of Armed Conflict. Article 4 of the 1954 Convention requires Parties to respect cultural property by refraining from using such property or its surroundings for any purpose which may lead to its damage or destruction.

This is the kind of shortsighted and callous thinking I never thought I’d see displayed by an American President. But sadly President Trump has joined many of the absolute worst leaders in history in choosing to threaten the culture of another people. The threat marks a sharp reversal of decades of work done by the State Department and others in American public life to protect and preserve the cultural heritage of all nations. What a disgrace.

It might be useful to compare the current President’s callous indifference to culture with that of General Dwight D. Eisenhower. In 1943, during the Second World War, General Eisenhower issued an order to his commanders to protect monuments and culture on the eve of the allied invasion of Italy:

Today we are fighting in a country which has contributed a great deal to our cultural inheritance, a country rich in monuments which by their creation helped and now in their old age illustrate the growth of the civilization which is ours. We are bound to respect those monuments so far as war allows.


If we have to choose between destroying a famous building and sacrificing our own men, then our men’s lives count infinitely more and the building must go. But the choice is not always so clear-cut as that. In many cases the monuments can be spared without any detriment to operational needs. Nothing can stand against the argument of military necessity. That is an accepted principle. But the phrase ‘military necessity’ is sometimes used where it would be more truthful to speak of military convenience or even of personal convenience. I do not want it to cloak slackness or indifference.

Note that there was no hint of military necessity in Trump’s words.

A wave of sharp condemnation has followed the President’s threats, more than I can catalog here. The Archaeological Institute of America called “upon President Trump and the U.S. Department of Defense to protect civilians and cultural heritage in Iran, and to reaffirm that U.S. military forces will comply only with lawful military orders.”

Brian Daniels and Patty Gerstenblith in a letter to the New York Times argued:

The world community, including the United States, has rightly condemned the intentional destruction of cultural heritage for decades. Hitler’s Germany, Pol Pot’s Khmer Rouge, the Taliban in Afghanistan, the Islamic State and the Assad regime in Syria intentionally destroyed cultural heritage in the absence of any military necessity. If Mr. Trump carries out this threat, the United States will join the ranks of these destroyers of the world’s cultural legacy.

Brett McGurk, the former U.S. special envoy for fighting ISIS tweeted that “American military forces adhere to international law. They don’t attack cultural sites.”

In an OpEd in the LA Times Prof. Sara Bronin argued “A nation that willfully destroys another country’s heritage would be no better than the criminals who have destroyed irreplaceable sites in Syria, Afghanistan, Iraq and elsewhere in recent years.”

Writing for the Guardian, Simon Jones argued that the “threat to destroy the sites of ancient Persia should send a shiver down the spine of any civilised person.”

Writing in the Art Newspaper, Francesco Bandarin, a former senior official at UNESCO rightly pointed out that “[t]he territory of modern Iran has been home to some of the greatest civilisations of mankind from prehistory to classical antiquity down to modern times. Iran today has 24 sites on the Unesco World Heritage List. A deliberate attack would presumably target historic cities and monuments or archaeological areas.”

On Sunday, John Bellinger III, a legal advisor for the State Department under President George W. Bush from 2005 to 2009 called on Defense Secretary Mark Esper and the Chairman of the Joint Chiefs of Staff Mark Millet to publicly affirm that the United States will still comply with the 1954 Hague Convention. He also argued that the White House should learn the domestic and international law rules that govern the use of military force.

One of those reasons that ignorance is so costly of course is that when a culture is targeted, that makes any mission or conflict existential, and makes an ultimate victory more difficult and costly to achieve. Any thinking leader would appreciate this simple fact.

Continue reading “A dark threat to commit crimes against Iranian culture”

Erasing a Remnant of Slave History to Development outside Houston

A large Sugar purgery operated by one of Texas’ most brutal slaveowners at the Arcola Plantation, now near a master-planned suburb.

In the United States, historic preservation often hinges on the wishes of the landowner. Unless a site has been designated as a historic site by State or Federal authorities, preservation happens at the whim of a property owner. That legal regime means that some historic sites may be lost, especially if they force us to confront uncomfortable truths about our past. Writing in the Houston Chronicle, Lisa Gray walks through the history of the Arcola Plantation, and reports how its preservation may be in doubt due to a nearby master-planned subdivision.

The remains of sugar plantations have special historic significance, notes James Sidbury, a Rice professor who studies the history of race and slavery. “There just weren’t as many of those,” Sidbury said. “So blocking the ability to look at those things is a bigger blow to what we know about slavery in the U.S. than if it were a cotton plantation or a tobacco plantation.” The plantation where Sienna now stands wasn’t called “Sienna Plantation.” It was called Arcola. And it was both one of the most valuable and most brutal plantations in Texas. Its owner, Jonathan Dawson Waters, left Alabama for the Republic of Texas in 1840, and began amassing the land where he’d eventually grow cotton and sugarcane. By 1860, Arcola was one of the largest plantations in Texas, and Waters was the richest person in Fort Bend County. According to the 1860 Census, he owned 216 slaves, which made him the third-largest slaveowner in Texas. He could do much as he pleased . . . .Heavy work and inadequate food meant that sugar-plantations slaves were, “compared with other working-age slaves in the United States, far less able to resist the common and life-threatening diseases of dirt and poverty,” he wrote.

Lisa Gray, Hidden in Fort Bend’s Upscale Sienna: A Rare Plantation Building Where Slaves Made Sugar., Houston Chronicle, Oct. 23, 2019, https://www.houstonchronicle.com/life/article/fort-bend-last-sugarhouse-plantation-slavery-14556046.php [https://perma.cc/236R-GH99].

Improving Capacity for Underwater Cultural Heritage

A Portuguese ship wrecked off the coast of Oman in 1503 was studied by experts from Oman’s Ministry of Heritage and Culture, Blue Water Recoveries, and archaeology experts from Bournemouth University.

Katherine Recinos and Lucy Blue have authored an article titled “Improving Capacity Development for Threatened Maritime and Marine Cultural Heritage Through the Evaluation of a Parameter Framework” in the Journal of Maritime Archaeology. Here’s the abstract:

Maritime cultural heritage is under increasing threat around the world, facing damage, destruction, and disappearance. Despite attempts to mitigate these threats, maritime cultural heritage is often not addressed to the same extent or with equal resources. One approach that can be applied towards protecting and conserving threatened cultural heritage, and closing this gap, is capacity development. This paper addresses the question of how capacity development can be improved and adapted for the protection of maritime cultural heritage under threat. It asserts that capacity development for maritime cultural heritage can be improved by gaining a more comprehensive and structured understanding of capacity development initiatives through applying a consistent framework for evaluation and analysis. This allows for assessment and reflection on previous or ongoing initiatives, leading to the implementation of more effective initiatives in the future. In order to do this, a model for classifying initiatives by ten parameters is proposed. It is then applied to a number of case studies featuring initiatives in the Middle East and North Africa region. This is followed by a discussion of how conclusions and themes drawn from the examination and evaluation of the case study initiatives can provide a deeper understanding of capacity development efforts, and an analysis of how the parameter model as a framework can aid in improving capacity development for threatened maritime cultural heritage overall.

Katherine Recinos & Lucy Blue, Improving Capacity Development for Threatened Maritime and Marine Cultural Heritage Through the Evaluation of a Parameter Framework, J Mari Arch (2019).

HeritageDaily, BU maritime archaeology team on Oman ‘Vasco da Gama’ shipwreck, HeritageDaily (Mar. 2016), https://www.heritagedaily.com/2016/03/bu-maritime-archaeology-team-on-oman-vasco-da-gama-shipwreck/110116.

AP Reveals U.S. Investigation of Missing Venezuelan Artworks

An image of the Avila mountain by Manuel Cabre.

The AP has a fascinating story on the investigation of missing artworks that may have been taken from the Venezuelan ambassador’s residence in Washington. At present only three works are confirmed missing, but the piece hints that others might be missing as well. The uneasy economic and political situation in Venezuela may make conditions ripe for officials and others to make off with valuable state works. Carlos Vecchio, an exiled Venezuelan politician told the AP:

This is likely just the tip of the iceberg . . . . If this is what they’ve managed to do with some artwork at a single diplomatic mission, you can imagine what they’ve done inside Venezuela.

To borrow a tired phrase, art and the status of culture is so often a canary in the coal mine. The AP story notes that:

A New York-based art dealer said that in 2012 he toured the vaults of the agency’s headquarters in downtown Caracas in the company of its vice president, who proposed unloading sculptures and paintings by well-known Spanish artists Baltasar Lobo and Manuel Valdes in exchange for kickbacks. The collection was commercially attractive but poorly cared for, with canvasses piling up on emergency stairwells and exposed to sunlight, said the dealer, who spoke on condition of anonymity for fear of reprisals from Venezuelan government officials. He showed The Associated Press photos on his cell phone of some of the works on offer.
Even in better times Venezuela was ripe for some high-stakes museum heists. A painting by the French artist Henri Matisse, “Odalisque in Red Pants,” went missing around two decades ago from the Museum of Contemporary Art and was replaced by a badly-produced fake. The original was discovered in 2012 in a Miami hotel room and returned by the FBI to Venezuela’s government two years later. A Cuban man and a Mexican woman were arrested trying to sell the painting to undercover FBI agents in Miami Beach, but who was behind the theft, and exactly when it even took place, remains a mystery.
Today, the museum, which boasted the largest collection of contemporary art in Latin America when it was founded in the 1970s, is a shadow of its former glory. Galleries are mostly empty, security guards nowhere to be found and the artwork exposed to the tropical heat after the air conditioning units were damaged in the frequent blackouts ravaging the capital.
One of the museum’s highlights, a collection of 147 works by Picasso, is no longer on permanent display, although it did make a brief appearance at a rare show last year titled “Comrade Picasso” that stressed the Spanish artist’s communist activism. For the museum’s once loyal promoters, who were removed by Chávez in a cultural purge 18 years ago, it is a recent photo that went viral on social media of a bucket collecting water from a leaky gallery ceiling that best sums up the current state of neglect.
A few blocks away, at the century-old Museum of Fine Arts, the situation is even more desperate. Only about a third of its 18 galleries are open to the public; the rest have been closed for months for renovations, although there’s no sign any are taking place.

Joshua Goodman, US helping Venezuela’s Guaido track stolen art, AP NEWS (Sept. 19, 2019), https://apnews.com/b19c195aca5445918e48142154dbc77c [https://perma.cc/YB23-3X42].

Gerstenblith on Provenance

John Myatt forged a number of prominent Old Masters, and his conspirator John Drewe invented provenance for many of the works.

Prof. Gerstenblith has a new Piece in the International Journal of Cultural Property titled “Provenances: Real, Fake, and Questionable“. Here’s the abstract:

Provenance, the ownership history of an artifact or work of art, has become one of the primary mechanisms for determining the legal status and authenticity of a cultural object. Professional associations, including museum organizations, have adopted the “1970 standard” as a means to prevent the acquisition of an ancient object from promoting the looting of archaeological sites, which is driven by the economic gains realized through the international market. The Association of Art Museum Directors (AAMD), one of the museum world’s most influential professional organizations, requires its members to list the ancient artworks and artifacts that they have acquired after 2008 that do not conform to the 1970 standard in an online object registry. The study presented here of the AAMD’s Object Registry for New Acquisitions of Archaeological Material and Works of Ancient Art analyzes the extent to which AAMD member museums do not comply with the 1970 standard and, perhaps of greater significance, the weaknesses in the provenance information on which they rely in acquiring such works. I argue that systematic recurrences of inadequate provenance certitude are symptomatic of the larger problem of methodology and standards of evidence in claiming documented provenance. A museum’s acceptance of possibly unverifiable provenance documentation and, therefore, its acquisition of an object that may have been recently looted, in turn, impose a negative externality on society through the loss of information about our past caused by the looting of archaeological sites.


Gerstenblith, P. (2019). Provenances: Real, Fake, and Questionable. International Journal of Cultural Property, 26(3), 285-304. doi:10.1017/S0940739119000171

What Blockchain can (and can’t) do for the antiquities trade

Can Blockchain help ensure the Metropolitan Museum will not acquire more looted material like this Gilded Coffin?

Last March I participated in Cardozo’s Arts and Entertainment Law Journal Spring Symposium on the topic of Digital Art & Blockchain. I learned a lot about this new technology, and wrote a bit about how Blockchain can impact the antiquities trade. Here’s the abstract to my essay:

Blockchain, the technology underpinning Bitcoin and other digital currencies, offers promise to shift the gathering and sharing of information in profound ways. It could help form a new kind of financial system that limits current inefficiencies, or even radically change how parties enter into contract, or monitor supply chains. The technology’s distributed ledger allows users in a network to monitor and access peer-to-peer digital transactions in real time. This digital ledger allows users to maintain this information securely by encrypting and allowing access only to those who have permission, given by cryptographic keys.

For the art market, blockchain offers a tantalizing possibility: a verifiable provenance research platform that would eliminate or minimize the problems with title history, authenticity, and looting, which have long-plagued the art and antiquities market. This essay examines whether blockchain might offer a chance for the antiquities market to remedy its persistent problems. The antiquities market has been beleaguered by the sale of forgeries, allowed stolen material to find a market, been hampered by market inefficiencies, and even been a haven for looted archaeological material. Distributed ledgers and blockchain could alleviate or eliminate these problems, but only if the market and those who shape it want to utilize them. No technology, no matter how ingenious or elegant, can end problems caused by the unprincipled actors in the antiquities trade. Such change has to come about with a culture shift and continued pressure by regulators and cultural heritage advocates.

Assessing the Viability of Blockchain to Impact the Antiquities Trade
Cardozo Arts & Entertainment Law Journal, Vol. 37, No. 3, 2019

Rub on State-Enacted Resale Rights

Chuck Close, Self Portrait, 2000, in the Smithsonian Collection. Close unsuccesfully brought a lawsuit to collect royalyy payments under the California Resale Rights Act, but the law was held to be pre-empted by federal law by the Ninth Circuit in 2018.

Guy Rub (Ohio State University, Michael E. Moritz College of Law) has posted an article from a symposium issue of the Kentucky Law Journal on: Experimenting with State-Enacted Resale Rights.

Current federal law does not require sellers of fine art to pay a share of the sale price to the artists, although Congress and federal agencies have been debating the advantages and disadvantages of such a duty, commonly referred to as Artists’ Resale Rights (ARR), since the 1970s. What is often missing from this discourse is the role that state law might play in this ecosystem. This issue, and especially California’s 1976 ARR law, the only state-enacted ARR to date, is the focus of this Article. 

States are often said to be the laboratories of democracy as they can experiment with various legal rules and produce rich comparative empirical data. The Article explores whether states can be the laboratories of ARR as well. It reaches three conclusions: First, there is a vibrant debate concerning the impacts and overall desirability of resale royalties, but that debate is driven by relatively scarce empirical data. Second, if states decide to adopt ARR they can provide some of that missing information. Third, subject to minor restrictions, states are allowed to enact ARR legislation, and the recent Ninth Circuit decisions that held the California ARR act unconstitutional are, for the most part, misguided, as it does not fully recognize the important role that states play in the markets for creative goods.

Rub, Guy A., Experimenting With State-Enacted Resale Rights (June 20, 2019). 109 Kent. L. J. 647 (2019). Available at SSRN: https://ssrn.com/abstract=3413846

Manhattan DA has Charged Kapoor and 7 Others

The Manhattan DA alleged that many illicit objects are still missing, including this grey schist Garuda Seizing a Nagini (via).

The office of the Manhattan District Attorney has charged Subhash Kapoor and seven individuals in a antiquities massive smuggling network. The arrest warrants filed yesterday allege Kapoor travelled to India to discuss the looting of objects, he then shipped these objects to London to be cleaned and restored, and finally these objects were given fraudulent histories before being sold through his galleries.

These arrests show the potential use of state and federal cooperation, unfortunately a massive investigation this large takes time. As Chasing Aprhorite pointed out, these arrest warrants come 7 years after federal agents raided Kapoor’s gallery in 2012:

The individuals arrested include two British citizens. Neil Parry Smith, an antiquities restorer was alleged to have prepared looted objects. Also, Richard Salmon is alleged to have helped restored recently looted material in New York. The five other individuals were a part of the alleged looting network in India and are Sanjeeve Asokan, Dean Dayal, Ranjeet Kanwar (aka Shantoo), Aditya Prakash and Vallabh Prakash.

Kapoor is currently jailed in India where he has been awaiting trial under the Indian criminal code for nearly 8 years. But his alleged looting network is vast, including an alleged 2,600 antiquities from Afghanistan, Cambodia, India, Nepal, Pakistan, and Thailand. Helen Stoilas at the Art Newspaper compiled many of the images of still-missing objects provided by the Manhattan DA. Those objects are now presumed illicit, dealing a big blow to their future market.

For a terrific account of this looting network, you should seek out the work of S. Vijay Kumar:

Rogers on the Unique Property Status of Native American Remains

Jim Thorpe at the 1912 Summer Olympics (via). In 2010 Thorpe’s children and the Sac and Fox Nation sued the town of Jim Thorpe, Pennsylvania seeking to repatriate his remains under the Native American Graves Protection and Repatriation Act.

Alix Rogers (Stanford Law School fellow, and PhD candidate at the University of Cambridge) has posted an article titled “Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains” on SSRN.

This article unifies two areas of property scholarship that have not historically intersected. In the field of biotechnology and the law, it is generally understood that human remains and many body parts are not objects of legal property. This general rule has a startling exception, which heretofore has gone unnoticed in the literature and relevant case law. The bodily remains of Native Americans were, and I argue, continue to be, objects of legal property.

With the passage of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) Native American remains are classified as familial and tribal property. The distinction and significance of property status under NAGPRA has been overlooked in the Native American legal scholarship. The perpetuation of property status is surprising given that NAGPRA was passed to address the systematic disrespect for Native American burial grounds and commercialization of Native American remains. Property status is all the more striking and important because some federal circuits have also interpreted NAGPRA to apply to contemporary individuals with Native American ancestry. With the rise of genetic testing technologies, application of this property rule takes on some surprising implications.

At first glance, we might condemn the property status of Native American remains as continued evidence of dehumanization. Property is traditionally associated with rights of alienability, exclusion, commensurability, and commodification. The understanding of property in Native American human remains advocated for in this paper challenges classic property constructs of wealth-maximization and an individually centered right of exclusion. Instead, after re-considering the paradigm of property, I argue that the communal property approach embodied by the Act enables Native Americans to more effectively protect their dead compared to any other American group. NAGPRA, therefore, represents an intriguing pathway for human biological materials regulation reform more broadly.

Rogers, Alix, Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains (June 11, 2019). Available at SSRN: https://ssrn.com/abstract=3402650 or http://dx.doi.org/10.2139/ssrn.3402650

Pilot Project by the German Lost Art Foundation

Catherine Hickley reports for the Art Newspaper that a new study has shown that serious state-sanctioned seizures of privately-held artworks continued long after the conclusion of World War II, particularly in east Germany. The study examined acquisitions between 1945 and 1989 by four museums: the Viadrina Museum, and museums in Strausberg, Eberswalde, and Neuruppin. The study was conducted by the German Lost Art Foundation, and was intended as a pilot project to guide further research.


One of the most common ways that art confiscated from individuals wound up in East German museum collections was through the clearance of the residences of people who had fled the country, especially in the second half of the 1950s, Sachse says.
At the end of 1961, just a few months after the Berlin Wall was erected, East German Minister for State Security Erich Mielke gave orders for a secret operation to force open and empty unused, privately rented bank vaults, safety deposit boxes and safes at around 4,000 locations across the country and empty them of their contents.
The stealth operation, known as Aktion Licht (Operation Light), amounted to an orchestrated, state-sanctioned mass theft from people who had left the country. The treasures belonged to East Germans who had escaped to the West, but also to Jewish people forced to flee or who were taken to concentration camps during the Third Reich. The Stasi valued its findings at 4.1m deutschmarks (around $10m at the time).
After 1970, the preferred method of theft by the East German authorities was to invent astronomical tax bills and then seize art when the victims could not pay.

Catherine Hickley, Mass theft of art from East German citizens revealed in new report, The Art Newspaper (Jun. 12, 2019), http://theartnewspaper.com/news/mass-theft-of-art-from-east-german-citizens-revealed.