An Update on Looting in Egypt

Human Remains Exposed to the Elements at El Hibeh

After the revolution and the theft of 50 objects from the Cairo Museum in Egypt last year, the New York Times reports that looting continues in a systemic way. Of the stolen objects from the Cairo museum, 29 objects have been recovered, but many of the sites in the rest of Egypt are at risk to looters.

The number of illegal excavations and thefts has worsened to the point that groups are organizing heavy machinery to carry out extensive digs. “This wasn’t just someone taking their shovels and digging holes in the sand,” said Deborah Lehr, chairman of the Capitol Archaeological Institute at George Washington University, who has been charged with helping the Egyptian government protect its antiquities. “These were bulldozers, and gangs of men over a period of time.”

  1. Farah Halime, Revolution Brings Hard Times for Egypt’s Treasures, N.Y. Times, October 31, 2012, http://www.nytimes.com/2012/11/01/world/middleeast/revolution-brings-hard-times-for-egypts-treasures.html (last visited Nov 1, 2012).
Questions or Comments? Email me at derek.fincham@gmail.com

Nemeth on strategic protection of cultural heritage

Does the citizen protection at the Cairo Museum
offer lessons for strategic protection of heritage?

Erik Nemeth makes an interesting point in a special contribution to the Chicago Tribune. Rather than just consider what museums or ‘source nations’ lose when objects are repatriated; why not consider the gain and strategic benefit returns can offer to the returning nation or museum. And what other benefits might occur during armed conflict if heritage sites are aggressively protected?

The political turbulence in Egypt, Libya and Bahrain has seen both looting of artifacts and destruction of monuments. Last year, citizens linked arms in front of the Egyptian Museum in Cairo with some success. This and other instances like it suggest potential for proactive protection of cultural artifacts, particularly in light of the U.S. ratification of the 1954 Hague Convention in 2009. Indeed, U.S. foreign policy can parlay risk to cultural property into diplomacy by insisting that military interventions, even when the U.S. is not engaged militarily, include a strategy for securing museums, monuments and sites of archaeological significance that along with tactical bombing avoids collateral damage. America might also assess objects that are likely targets for repatriation and consider offering their return as part of a strategy for relations with the nation of origin. If engaged in conflict — or even if not — an active interest in protecting the local cultural property would serve the purposes of garnering political goodwill and creating an opportunity for communication with the local government and potentially the insurgency.

  1. Erik Nemeth, Repatriating part of Saddam statue could promote diplomacy, Chicago Tribune, June 7, 2012, http://articles.chicagotribune.com/2012-06-07/news/ct-perspec-0607-artifacts-20120607_1_hiram-bingham-iii-artifacts-collateral-damage (last visited Jun 10, 2012).
Questions or Comments? Email me at derek.fincham@gmail.com

Will US Attorneys Appeal after latest Ka Nefer Nefer setback?

A judge has dismissed the federal government’s request to reconsider an earlier ruling dismissing the government’s forfeiture request for the Ka Nefer Nefer mask currently on display at the St. Louis Art Museum. Rick St. Hilaire notes the U.S. Attorney must now make the decision whether to appeal the ruling on to the 8th Circuit. 


The problem with the government’s initial case—at least in the district court’s view—was the government failed to allege the particular circumstances under which a crime took place as the mask left Egypt. This problem can be examined by referencing recent case law broadening the principle that looted and smuggled objects are considered tainted when they leave their country of origin, even in the absence of direct evidence of wrongdoing. I’m thinking for example of the Barakat ruling in the English High Court which offered claimant nations a broader platform of potential laws with which a nation of origin can claim theft. 


But in this case the federal prosecutors had a difficult prospect as Egypt was unable to offer enough evidence establishing a crime had been committed. So despite the research the SLAM conducted when it acquired the mask in 1998, the government was unable to offer enough to convince a judge to forfeit the object and force SLAM to make its case. It is an open question whether the district court would have taken such rulings on board, likely not. But an appeals court is in a more favorable position to make broader inquiries in the law based on policy and foreign authority. 

Questions or Comments? Email me at derek.fincham@gmail.com

US Government’s Claim to Ka Nefer Nefer Mask Dismissed

The Ka Nefer Nefer Mask will be staying in St. Louis for now

The Ka Nefer Nefer mask, subject of two lawsuits in federal court, seems likely to stay in St. Louis for the near future. On Monday the U.S. District Court dismissed the U.S. Government’s forfeiture claim for the mask, as Rick St. Hilaire reported. The St. Luis Art Museum also has a parallel declaratory judgment action seeking to prevent the government from pursuing a forfeiture in the future.

You can generally read the tea leaves in the first few lines of a court opinion, and when the court wrote “the Government boldly states that it seeks the forfeiture of all rights, title and interest in a 3,200 year old Egyptian Mask . . .” you have a pretty good idea that the U.S. attorney was not able to convince the court to forfeit the mask. It most certainly was involved in a crime, yet the government was unable to allege enough “circumstances” surrounding the mask’s journey from Saqqara in Egypt in 1952 to the antiquities market some time later.

The government undercooked its legal analysis of the illegal activities giving rise to a forfeiture in its first forfeiture attempt here. For now it may amend its complaint. If it does, it should perhaps note that Egypt has laws establishing ownership of its antiquities, and there is no set of circumstances under which this mask could have rightfully left Egypt. Perhaps noting that may lead to a different result this time around.

The Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally.

The court was concerned that the government failed to establish precisely how the mask became stolen property. There is plenty of precedent on point for this legal principle, but the lawyers for the government failed to include enough of it in the complaint. Now the U.S. attorneys will have to return to the drawing board and establish a firmer legal framework for the illegal removal of the mask from Egypt. Making the government’s task more difficult, is the lack of evidence provided to them by Egypt establishing how and when the mask was stolen. As a consequence, if I was working on the case, I’d essentially treat it like an antiquities looting case. The theft itself is lost to history. But you don’t need those facts, just enough to put the  burden back on the museum’s case to show how far back its chain of title can go.

The museum will likely respond that it had no reason to believe the Aboutaam brothers were antiquities dealers to avoid in 1998. Was it established that they routinely dealt in looted objects in 1998, even if that can be established now? The SLAM conducted a search, and while certainly not ideal, it posed questions to officials in Egypt. For lots of background on the mask, see here.

We can ask whether the Museum should do the right thing, but the government attorneys had an opportunity to force them to and failed to allege enough concrete circumstances in its complaint to trigger what would have been a very uncomfortable forfeiture proceeding for the museum—one that coupled with reasonable public pressure exerted by Egypt would have certainly made continued possession of the mask in St. Louis untenable.

Lee Rosenbaum has posted a .pdf of the opinion:
  Ka-Nefer-Nefer Opinion

Questions or Comments? Email me at derek.fincham@gmail.com

Accounts of Looting at El-Hibeh in Egypt

“Looting is ongoing, there is no protection for the site”
 -Carol Redmount, archaeologist

Marco Werman of PRI talks with archaeologist Carol Redmount about ongoing looting at El-Hibeh in Egypt. In the interview which is embedded below Redmount notes that a criminal enterprise which has “mafia-like” characteristics is systematically looting the site. The leader of the operation is allegedly an escaped prisoner. No security is protecting the site.

I recommend clicking through to see a slideshow of discarded human remains and looted graves. Site protection is the first and probably most important step which can be taken here. Protections at Egypt’s points of export and importing checkpoints cannot undo the damage being done here. The looters themselves are motivated by a vulnerable resource and economic hardship. You can follow this site on a facebook site Redmount has created to track the situation and offer assistance.

The facebook page notes a first-hand account from Redmount:

When I returned to Cairo from our dig house last week and our van passed the site heading for the eastern desert highway, we saw about ten men openly looting the mound and desert behind (we have pictures of some of them), with conveniently parked motorcycles nearby. One of our drivers took the same road this past Friday and reported that again numerous men were busy with wholesale looting of the site in broad daylight. This is an on-going crisis. They are destroying the site. The SCA officials have tried everything they could to get the looting to stop. Nothing seems to be having any effect. This is something police and security seem to be ignoring, turning a blind eye to, or worse. We started the Save Hibeh facebook page because we are at our wits end as to what else to do . . .

The solution is for Egypt’s authorities to raise the level of security at this site and sites like it, or to enlist the assistance of other agencies from UNESCO or Italy’s Carabinieri. We can all collectively pressure Egypt from afar to take these steps, but a nation controls the protection of its own heritage.

Our next-best option is to stop buying the shabtis and kinds of salable objects that come from sites like this without complete histories, adequately documented.

  1. Andrea Crossan, Egypt Looters Ransack Archaeological Sites PRI’s The World (2012), http://www.theworld.org/2012/03/egypt-looters-ransack-sites/ (last visited Mar 28, 2012).
Questions or Comments? Email me at derek.fincham@gmail.com

The Fire at the L’Institut d’Egypte a "great loss"

One of the frustrations about writing about the protection of art and heritage is the biggest news items are often really grim, and there can often be little room for optimism. On Sunday the Institute D’Egypte caught fire and burned. The Institute was established in 1798 by the French, and held an estimated 200,000 volumes, including rare accounts of Egypt in the 18th Century. I must confess I had no knowledge of the Institute before yesterday, but because I, like many privileged folks in the developed world, have access to Wikipedia, I know it is an important building, and an important repository of information. Yet most Egyptians don’t have that luxury. As Larry Rothfield points out, neither the protesters, nor the military seemed to know this was an important building containing books and manuscripts. Initial accounts describe troops throwing rocks down from the roof at protestors, and the protestors responding with molotov cocktails. It is not clear who started the exchange, but the result is clear. An important repository of knowledge has been destroyed.

The background for the destruction, which may or may not have been intentional, are rising tensions once again in Cairo near Tahrir Squar. The best current accounts of the destruction and attempts to rescue some of the volumes is the Ancient World Bloggers Group. And so there is at least some room for optimism. Many of the protesters were seen carrying books to a nearby church to attempt to salvage some of them. Also, William Kipycki, Tield Director of the Library of Congress–Cairo, Egypt at the U.S. Embassy photographed the stamps used at the Institute so antiquarian book buyers and sellers will be on the lookout.

Employees at the U.S. Embassy and the American University in Cairo have been reported as offering assistance to do what can be done to minimize continued destruction.

From the AP:

Zein Abdel-Hady, who runs the country’s main library, is leading the effort to try and save what’s left of the charred manuscripts. “This is equal to the burning of Galileo’s books,” Abdel-Hady said, referring to the Italian scientist whose work proposing that the earth revolved around the sun was believed to have been burned in protest in the 17th century. Below Abdel-Hady’s office, dozens of people sifted through the mounds of debris brought to the library. A man in a surgical coat carried a pile of burned paper with his arms carefully spread, as if cradling a baby. The rescuers used newspapers to cover some partially burned books. Bulky machines vacuum-packed delicate paper. At least 16 truckloads with around 50,000 manuscripts, some damaged beyond repair, have been moved from the sidewalks outside the U.S. Embassy and the American University in Cairo, both near the burned institute, to the main library, Abdel-Hady said. He told The Associated Press that there is no way of knowing what has been lost for good at this stage, but the material was worth tens of millions of dollars — and in many ways simply priceless.

Questions or Comments? Email me at derek.fincham@gmail.com

Not Just Bad Paperwork

In July, Immigration and Customs Enforcement announced that it had indicted four men and dismantled an entire antiquities smuggling network. The indictments in what I’ll call the “Lewis Smuggling Network” alleged that the four men sent objects from Egypt to Dubai before coming to America. The case brings to mind another similar kind of prosecution in which an individual was accused of not properly declaring the history and value of antiquities being imported into the United States. The case offers a number of similarities to an older case involving customs declaration.

In 1980 a gold phiale, called the golden phiale of Achyris, pictured here, probably of Sicilian origin, was sold by a collector in Sicily to another collector and coin dealer, who in turn sold the work to William Veres, an art dealer based in Zurich, Switzerland (it gets confusing and we still haven’t reached the ultimate endpoint). The phiale was offered to Robert Haber, a New York art dealer. Haber acted as a middle man in an eventual sale to Michael Steinhardt for $1.2 million. In December 1991, Haber flew to Switzerland to retrieve the phiale. Upon his return to New York, the customs forms declared the work’s country of origin as Switzerland and its value a mere $250,000. Why did the customs forms lie? To hid and disguise the object’s history.

In 1995, Italy began asking for formal assistance, and the Federal government intervened with a civil forfeiture action. A federal magistrate in New York issued a warrant for the seizure of the phiale from Steinhardt. The U.S. government then instituted a civil forfeiture action against the phiale in federal district court in New York. The district court held that the phiale was subject to forfeiture under 18 U.S.C. § 545. The importation of goods “by means of false statements” is prohibited by 18 U.S.C. § 542 and renders them subject to forfeiture under 18 U.S.C. § 545. The court found that falsely listing the work’s country of origin as Switzerland tainted the importation process and violated § 542. Steinhardt defended on the grounds that he had no knowledge that the object was looted or stolen. The court disagreed, finding that 18 U.S.C. § 545 does not afford an innocent owner defense. Steinhardt appealed the district court’s decision. The Second Circuit affirmed on the grounds that the misstatement of the phiale’s country of origin was material and thus subjected it to forfeiture under 18 U.S.C. § 545.

There are some differences between Steinhardt and the pending case against Mousa Khouli (Windsor Antiquities, NY), Salem Alshdaifat (Holyland Numismatics, West Bloomfield MI), Joseph A. Lewis, II (collector of Egyptian antiquities), and Ayman Ramadan (Nafertiti Eastern Sculptures Trading, Dubai).

This recent case has the Federal prosecutors pursuing charges against the dealers and collector in this case. They are not pursuing the object by itself, but rather they have a case against the whole network. Irrespective of whether Steinhardt, and his intermediary should have known and asked more closely about what they were buying, there were false statements made on the importation documents, just as false statements were alleged to have been made in this recent sting. Both Steinhardt and Lewis held esteemed positions, with power and influence. In Lewis’ case however, the Federal Prosecutors feel they have a much stronger case, with information on the entire smuggling and looting network, not just an isolated false statement on an importation document. In any event, neither Lewis nor Steinhardt will likely consider their cases bad paperwork. Misrepresenting the value and nation of origin is a deliberate attempt to circumnavigate heritage law. And if the government can make its case, there may be some real custodial sentences imposed.

Questions or Comments? Email me at derek.fincham@gmail.com