By Alexander Herman (London, United Kingdom)
The looting of cultural objects has long been a matter of concern for the international community. And with good reason. Looting – or indeed theft – of cultural objects can have a double impact: not only does it remove important pieces of an often vulnerable nation’s cultural heritage, but it can also serve to fuel the black market in antiquities. In many places, this illicit market is closely linked to the black market in drugs and arms, as well as to money laundering. Although attempts to curb it have been numerous, the trade continues to flourish.
Recent attention has been paid to the pillage of ancient sites by ISIS in Iraq, Syria and Libya. This has occurred as a means of destroying structures in ancient cities like Mosul or Palmyra, deemed by ISIS to represent reprehensible non-Islamic gods, as well as a way to generate much-needed liquidity by filtering stolen objects onto the international black market. But the removal of cultural objects during times of war has a long history. Napoleon obtained countless treasures during his conquest of Europe, forcing his vanquished foes to hand them over through humiliating peace treaties. The works were then brought to the Louvre and displayed as symbols of French hegemony. They remained there until Napoleon’s defeat at Waterloo, and were thereafter returned to their places of origin by the victorious allies. The Nazis too were master art looters, often covering up the spoliation of Jewish families by a thin veil of “legality”. While much Nazi-looted art was located and returned by the famous Monuments Men at the end of the Second World War, many artworks are still to be returned to the original victims or their heirs. The work of returning looted art continues.
But the problem of artefact smuggling goes well beyond ISIS and other state-sponsored looters. On a global scale, most looters are independent operators, working in regions with rich cultural histories and central administrative systems unable to police the ancient sites that serve as treasure troves for priceless material. The problem is especially acute in Latin America, South-East Asia and African nations like Mali, but even arises in so-called developed countries like Italy and the United Kingdom. The looters do not discriminate. They take burial objects, sacred ornaments, vases, sculptures, hoards of valuable coins, manuscripts and even substantial architectural components.
So what can be done to prevent these activities? The area is replete with international instruments aimed at stopping illicit looting in its many forms: the Hague Convention of 1954 on the protection of cultural property in times of war, the UNESCO Convention of 1970 on the means of curbing the illicit trade in cultural objects, the UNIDROIT Convention of 1995 on the private law means of seeking restitution and, most recently, the recast of the European Directive in 2014 on the return of illegally removed cultural objects from within the European Union.
But can these nice-looking international instruments prevent actual looting on the ground? Experts are divided on the question, with some thinking that the matter is too local – and too much related to a subsistence economy – to be adequately controlled at the international level, whether by the UN, UNESCO or the European Union. Others think that the international conventions – especially the 1970 UNESCO Convention – establish a set of important guidelines that have now elicited near-universal approval at an official level. And as a result of the principles enshrined in these conventions, we continue to see returns of cultural objects taken long ago (1). But many more still remain in European and North American museums and in private collections, or indeed hidden away in the Freeport warehouses of Geneva, Switzerland.
There is of course the possibility of civil redress. This would involve a claim from a prior owner of a looted object brought against the current possessor in the courts of the place where the object is located. The prior owner could be an individual, a community, a religious group; it could also be a state. If the claim does come from the state of origin, it will be up to the state to prove ownership of the item before it left the country. From a property law perspective, this can be difficult, especially in cases where the object was taken out of the country in a clandestine fashion and currently resides with a good faith purchaser.
But prospects are not entirely bleak. In fact, the case law has begun to recognize foreign cultural heritage laws as vehicles for vesting ownership in claimant states. This has been happening for a while in US courts (2) and it happened more recently in the 2007 English case of Iran v Barakat (3). In that case, Iran was able to argue that a number of important Bronze Age artefacts looted from its territory had been the property of the state before they left the country. As a result, the objects, which had since ended up for sale at a prominent London gallery, were found by the English Court of Appeal to be the property of Iran. This decision marked a turning point in the saga of cultural property claims in England. Until that point, English courts had been unwilling to enforce foreign cultural heritage laws within their jurisdiction (4). Barakat opened the court doors – at least in principle – to foreign states looking to bring restitution claims in regards to items on the London art and antiquities market.
In a recent documentary that aired on British television (5), an investigative team uncovered cultural objects on sale on the London market that had been taken out of Syria and Iraq in unclear – and very possibly illicit – circumstances. For each of these reported examples, there will no doubt be many more behind the scenes, the ones clever journalists will never find.
So what remains for those seeking the restitution of cultural objects? Should they approach the possessor and seek a voluntary return? Should they propose mediation? Or should they play hardball and commence court proceedings? The answer of course will depend on the circumstances, and how willing the other party is to negotiate. But what is certain is that obtaining the return of a cherished cultural object, whether for an individual, a group or a state, takes both time and effort. But when the object itself is of such great value – to a nation, a people, a culture – it will undoubtedly be worth it in the end.
Alexander Herman works in the area of cultural property law. He is based in London, England and works with barrister Norman Palmer QC CBE to assist nations of origin in their claims for the return of valuable cultural artefacts. He also serves as the Assistant Director of the Institute of Art & Law (www.ial.uk.com), an educational organization that promotes awareness of art and cultural property law issues.
(1) See for example, the recent return of 60 Maori human remains from American and British collections to New Zealand (“60 Maori and Moriori heads and skulls repatriated from UK and US”, New Zealand Herald, May 12, 2016) and the return of the 10th century Koh Ker statues to Cambodia from a number of American institutions (“Last Koh Ker piece coming home”, Phnom Penh Post, January 30, 2016).
(2) See the case of the “Elmali Hoard”, Republic of Turkey v OKS Partners and Others, US District Court for the District of Massachusetts, June 8, 1994, and Schultz v US 533 F 3d 393 (2003).
(3) Republic of Iran v Barakat Galleries [2007] EWCA Civ 1374.
(4) See Attorney General for New Zealand v Ortiz [1984] AC 1.
(5) Dispatches, Channel 4, aired in the United Kingdom on April 18, 2016.
