I’m very much looking forward to participating in this Friday’s conference at the Capitoline Museum in Rome marking the 20th Anniversary of the UNIDROIT Convention on Stolen and Illegally Exported Cultural Property. If you haven’t registered yet, and happen to be in Rome, I’m afraid registration is closed. But I’ll be offering some thoughts on the conference when I get back home next week.
A joint Swiss and Italian investigation has resulted in a seizure of this portrait, which may be a work by Leonardo da Vinci. Whether the work is, in fact, a recently surfaced work by the Renaissance master is very much in doubt. Some have tried to attribute the work to him the Telegraph reports:
Carbon dating has shown that there is a 95 per cent probability that the portrait was painted between 1460 and 1650, and tests have shown that the primer used to treat the canvas corresponds to that employed by the Renaissance genius.
Carlo Pedretti, a professor emeritus of art history and an expert in Leonardo studies at the University of California, Los Angeles, said the tests showed there were “no doubts” that the portrait was the work of Leonardo.
However Martin Kemp, professor emeritus of the history of art at Trinity College, Oxford, and one of the world’s foremost experts on the artist, has expressed doubts about whether the painting, which measures 24in by 18in, is the work of Leonardo.
On Wednesday in Rome, Italian officials from the Carabinieri held a press conference to display a reported 5,361 objects recovered from the Swiss warehouses of Gianfranco Becchina. The staggering number of objects, many of which appear to be of museum-quality are disheartening to take in. How many tombs were ransacked? How much information lost?
The objects were, as far as I can gather,were slated for sale internationally, and presented here we can see none of their history and context. Seeing these images, I’m struck both by the destructive nature of the international trade in antiquities, and also the inability of the Italian criminal justice system to respond to these crimes and prevent this kind of theft. If the Carabinieri’s art squad, which by most accounts is one of the best-trainded and best-funded art crime policing outfits in the world cannot stop a massive looting operation like this, what are other countries without such a squad left to learn from the investigation? What does this say about the efficacy of the current approach to looting?
This press conference strikes me as yet another example of so-called “art on the table” events, though it is quite grander in its scope than the typical press conference.
These objects would have been seized nearly a decade ago, with the alleged dealer behind this operation, Becchina, left uncharged, without any criminal consequences for these actions, other than it seems losing all of his illicit merchandise. Why were no charges brought? There is certainly a high degree of likelihood that these objects were looted, but do we know all of these objects are illicit? Would more creative and pragmatic solutions have a better chance than the aggressive but sporadic policing model which is employed to the art trade at present?
Christie’s had an auction of antiquities on Dec. 11, and some of the objects up for auction were ‘matched’ with photographic archives seized from dealers and collectors who deal in illicit material. These matches have always left me a little uneasy. If an object is matched, it means it is most likely looted. But the auction houses have no good way to match these objects because these photo archives are closely held by law enforcement agencies and a group of researchers. There are claims that the auction houses could go directly to Greek or Italian officials and have these objects checked against these databases for free. As Christos Tsiogiannis answered when asked by Catherine Schofield Sezgin: “The auction houses, and the members of the international antiquities market in general, always have the opportunity to contact the Italian and Greek authorities directly, before the auctions. These authorities will check, for free, every single object for them.” But it seems they do not do this. Objects are invariably withdrawn after a match, where they disappear back into collections in most cases, and we are left with little progress in stemming future looting and protection of sites. And so each new antiquities auction continues the cycle of public shaming and return. But the looting continues.
That was the core point of a paper I presented last year in a meeting of ISPAC and the United Nations office on Drugs and Crime in Courmayeur. Some of the papers have been collected and published by Stefano Manacorda and Arianna Visconti. I’ve posted my short paper “Two Ways of Policing Cultural Heritage” on SSRN. From the introduction:
The title of this paper is, of course, a play upon the title of Professor John Henry Merryman’s well-known essay which laid out the ways of conceptualizing cultural property law there are two ways to think about cultural objects. One as part of a national patrimony, and second as a piece of our collective cultural heritage. In a similar way there are two ways to envision jurisdiction of cultural heritage crime. Criminal law can of course apply to policing the individuals responsible for stealing, looting, selling and transporting illicit art and antiquities. Or, law enforcement resources can be used to secure the successful return of stolen art, and the protection of sites. The criminal law can regulate people; and it can also regulate things. In order to produce meaningful change in the disposition of art, it must do both effectively. Focusing on art at the expense of criminal deterrence for individuals is an incomplete strategy.
Fincham, Derek, Two Ways of Policing Cultural Heritage (December 10, 2013). Courmayeur Mont Blanc, Italy, edited by Stefano Manacorda, Arianna Visconti, Ed. ISPAC 2014 . Available at SSRN:http://ssrn.com/abstract=2536542
Holidays and festivals always bring increased risks to works of art. Perhaps because the usual traffic of locals and visitors is reduced, and there aren’t as many who might notice something that would be odd or uncharacteristic. I’m not sure if that is one of the contributing factors to the theft of this Guercino depicting St. John the Evangelist and the Madonna. The work was stolen from the Church of San Vincenzo in Modena Italy earlier this week. Whether the start of Italy’s Ferragosto holiday this week led to the Church being more at risk is just speculation on my part, but may have been a contributing factor. Perhaps the biggest factor is the lack of funding at the Church, and the inability to pay the bills on a security system installed to protect the works in the church. As reported by Hannah McGivern in the Art Newspaper:
According to the parish priest Gianni Gherardi, who reported the theft, the church could not afford to insure the painting. Its alarm system—fitted during a renovation in the mid-1990s that was financed by the local bank Fondazione Cassa di Risparmio di Modena—had been inactive since the funds dried up, said Monsignor Giacomo Morandi, the vicar of the archdiocese.
Church theft is a difficult problem in Italy, with so many churches filled with so much amazing art, hardening all these sites to thwart theft is an expensive and difficult undertaking. Church art theft usually involves smaller minor objects like candlesticks, smaller paintings of lesser value, and other ecclesiastical art. This theft appears to be of a much higher profile. This high profile of course makes it more of a headache for the thieves. There is no legitimate market any time soon for this work.
There has been an upswing in the use of corporate funds to preserve and rehabilitate some of the World’s great cultural heritage sites in Italy. Gaia Piangiani and Jim Yardley report for the New York Times:
While private-public partnerships are common in the United States and many other countries, the government has traditionally been responsible for maintaining historical sites in Italy, and even today some historians and preservationists worry that the shift could lead to crass commercialization. Critics complain that companies have exploited cultural sites by commandeering them for elaborate dinners or the display of luxury advertisements.
Indignation ran high in Florence after it was discovered that city officials had allowed Morgan Stanley to hold a dinner inside a 14th-century chapel for a rental price of $27,000. Florence’s mayor doubled the rent to $54,000 after the outcry, but some argued that price was not the core issue.
“There are sacred places where one can simply not hold a dinner,” said Salvatore Settis, an expert in cultural heritage law and a former director of the J. Paul Getty Research Institute in Los Angeles. “Not even for four million euros” ($5.4 million).
Many preservationists were also outraged that Rome’s mayor allowed the Rolling Stones to rent Circus Maximus for an outdoor concert last month.
Prime Minister Matteo Renzi has often spoken about the need to enlist private companies to underwrite work at sites like Pompeii, where more than $137 million in European Union funds has already been spent. In May Mr. Franceschini, the culture minister, announced a new tax deduction intended to encourage private-sector donations for the restoration and preservation of museums, archives, libraries and theaters.
To many other nations this kind of corporate assistance seems relatively benign. So long as the sites receive much-needed care, there seems to be little potential harm. The Mausoleum of Augustus, right around the corner from the Ara Pacis in Rome, is badly in need of some attention, and may it with a donation from a Saudi Prince.
Mike Boehm of the L.A. Times reports on the current status of the Fano Athlete/Getty Bronze dispute. A division of Italy’s High Court (Corta Suprema di Cassazione) is expected to weigh an appeal of an earlier forfeiture order this week. I’m quoted as the lone dissenting voice arguing the Bronze should be returned to Italy. I think a return is the just thing to do when you consider the violations of Italian patrimony laws which occurred when the Bronze was smuggled ashore, hidden in violation of Italian law, and then allegedly treated very badly before being smuggled to Brazil, then conserved in Europe before the Getty acquisition.
For a full discussion of my understanding of the history of the case and the reasons why I think Italy stands a good chance of having the Bronze returned soon, you can have a look at my forthcoming piece in volume 32 of the Cardozo Arts and Entertainment Law Journal.
Both Stephen Urice and Patty Gerstenblith seem to see the case differently:
“I’m baffled by this,” said Stephen Urice, a professor at the University of Miami School of Law who’s an expert on art law and cultural property law. “Even if you apply our ethical norms today, I don’t see a problem.”
Patty Gerstenblith, a leading advocate of protecting archaeological sites and sending looted art back to nations of origin, said that “Victorious Youth” shouldn’t be considered a looted work and needn’t be returned. Italy never had a legally valid ownership claim, she said, because the statue wasn’t found in Italian waters or on Italian soil, and it wasn’t made or owned by modern Italy’s Roman and Etruscan forebears.
Gerstenblith, a professor at DePaul University in Chicago and director of its Center for Art, Museum and Cultural Heritage Law, said the fishermen who netted the statue did break Italian laws by hiding their find instead of reporting it to authorities. So did the original buyers who shipped “Victorious Youth” out of Italy without a proper export permit.
Although those illegalities raise ethical questions that might make a museum in 2014 steer clear of a purchase, Gerstenblith said, they have no bearing on the fishermen’s right to have owned and sold the bronze statue, or the Getty’s right to keep what it bought.
In any case, the forfeiture effort is persistent, and the Italian authorities seem inclined to use every tool at their disposal to help secure a return, including cultural diplomacy, mutual assistance treaties, and domestic Italian court proceedings.
In the meantime here is my analysis of how Italy could successfully use its Mutual Legal Assistance Treaty with the United States to secure repatriation.
From the Introduction:
Italy has been engaged in an ongoing fifty-year struggle to recover an ancient Greek bronze. The “Bronze Statue of a Victorious Youth” has a remarkable story. It was lost at sea in the Adriatic in antiquity; found by chance in international waters; smuggled into the Italian seaside village of Fano; hidden first in a bathtub, then a cabbage field; smuggled and hidden in Brazil; later conserved in Germany and London; and ultimately purchased by the Getty Museum only months after the death of the Trust’s namesake, J. Paul Getty. Getty refused to allow his museum to purchase the statue during his lifetime without a thorough and diligent inquiry into the title history of the Bronze, a step the trustees of the Getty did not take prior to acquisition of the Bronze.
The question is not whether the Bronze was illicit when the Getty trustees made the decision to acquire it. It most certainly was, and still is. The question now is whether the Getty will be able to continue to retain possession. In the press and in cultural property circles, the Bronze is considered nearly un-repatriatable given this convoluted history. But an Italian forfeiture action in Pesaro has quietly set in motion a means by which Italy might repatriate the Bronze through a Mutual Legal Assistance Treaty. This transnational forfeiture marks the creation of a useful new tool in the struggle to repatriate looted and stolen cultural objects. And perhaps more importantly, the dispute signals a continuing trend reflecting the importance of domestic law in source nations in cultural heritage law.
Today Italy’s Corte di Cassazione will hear the Getty’s appeal in the dispute over this “Bronze Statue of a Victorious Youth”. The Bronze was acquired by the Getty in 1977, and has been a cornerstone of its collection. But in 2007 a new seizure suit was brought in Pesaro. The most recent ruling ordered the Bronze seized, wherever it is located.
The question then must be, if the High Court in Rome upholds the seizure, will an American court enforce it? I wrote an essay titled “Transnational Forfeiture of the Getty Bronze“, soon to be published in the Cardozo Art & Entertainment Law Journal, examining this question.
My conclusion is that yes, the Mutual Legal Assistance Treaty between the United States and Italy, in conjunction with U.S. law, does provide for U.S. assistance in an American court. The law in question, 28 U.S.C. § 2467, provides a framework for enforcing these foreign orders. But the Office of International Affairs in the State Department still has discretion in determining whether to bring suit to help enforce these foreign orders. The only guidance given in the law is to let the “interest of Justice” guide the decision made by the official. The Getty no doubt will be arguing today in Rome in the hopes that the case ends today before Italy inevitably requests assistance from the State Department.