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Monday, November 6, 2017

State Attorneys General Should Address the Scam of Illegal Antiquities in the Marketplace

State attorneys general should address the ballooning scam of criminals using the art and antiquities marketplace to sell faked, forged, looted, stolen, and smuggled cultural property. This hijacking of the trade presents a widespread consumer protection problem that demands a concerted law enforcement response.

Private collectors and museums benefit from an artifacts trade that operates in a free market, providing an opportunity for stewardship of cultural treasures. Honest dealers, auction houses, and collectors should work together to protect the marketplace from criminal activity. But when fraudsters, fences, and hustlers regularly pollute the stream of commerce with fake artifacts, blood antiquities, and contraband cultural heritage that fail to be uncovered by industry due diligence (or the lack thereof), then public enforcement officials need to shore up the integrity of the marketplace so that it is not overrun by an illegal shadow economy, which fuels money laundering, terror financing, and other major crimes.

The US is the largest art and antiquities market in the world, and Wall Street Journal reporter Georgi Kantchev on Wednesday described how crooks use e-commerce to sell illicit antiquities to unsuspecting buyers.

In July, Oxford senior research fellow Dr. Neil Brodie published an Antiquities Coalition think tank paper specifically highlighting this risky internet trade, warning: 
While an internet shopper may indeed be purchasing a real antiquity that was scientifically excavated in accordance with national law, and left its country of origin with a valid export permit, the odds are much greater of purchasing a trafficked or fake object. [B]uyers also risk the possibility of unintentionally supporting the organized criminals, armed insurgents, and violent extremist organizations who are known to deal in antiquities.
Syrian archaeologist Dr. Amr al-Azm, who spoke at last month's conference on Preserving Cultural Heritage in Times of Conflict, showed screen shots (seen here) of a mobile phone application being used to sell an ancient mosaic and cylinder seals, saying "This is an example of how some of this stuff gets traded." "We get these messages going on back and forth all the time."

The sale of faked and trafficked cultural objects is big, requiring probing scrutiny and direct intervention by top prosecutors. "On any given day there are at least 10,000 antiquities and ancient coins for sale online, with an estimated total asking price of over $10 million," Dr. Brodie's paper reports. That is why CHL renews its call for consumer protection action by state attorneys general.

The National Association of Attorneys General's standing committee on consumer protection, headed by AG Peter Kilmartin of Rhode Island and AG Doug Peterson of Nebraska, should undertake the task of the "development of effective consumer protection programs and education for the protection of citizens and increasing consumer awareness" (in line with the NAAG's mission statement) in order to stop the sale of fraudulent and illegal cultural artifacts. Each year the NAAG holds its spring consumer protection meeting in Washington, DC, presenting an ideal opportunity to start developing a coordinated solution to tackle this urgent problem. Its next meeting is scheduled for May 2018.

Consumer protection laws are designed to uncover deceptive, unfair, unconscionable, and unlawful business practices. The states' top prosecutors wield civil and criminal tools authorized by consumer protection statutes to investigate wrongdoing in the marketplaceIn New York, for example, the heart of America's antiquities market, General Business Law § 349(a) forbids "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state," and Executive Law § 63(12) gives the attorney general power to investigate and issue subpoenas.

Attorneys general may commence legal action on behalf of affected consumers.With this authority, AGs across the country should open investigations to unveil unlawful sales and deceptive businesses practices taking place in the cultural property marketplace.

Photo credit: utah778/iStock "consumer protection"

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. Visit

Saturday, October 28, 2017

War, Antiquities, and Responses: Colgate University Conference on Preserving Cultural Heritage in Times of Conflict

Monuments Men author Robert Edsel speaking at Colgate University.

From the looters shovel to the auction gavel, large scale cultural property theft and destruction occur during times of instability. That is how Dr. Michael Danti framed the discussion for last week's conference titled Preserving Cultural Heritage in Times of Conflict, sponsored by Colgate University and the Penn Museum–Near Eastern Section.

Danti is a classics professor at Colgate, a consulting scholar with the University of Pennsylvania Museum, and an archaeologist with expertise in the destruction of cultural heritage in Iraq and Syria. He described the current wave of cultural property crime from conflict zones as "voracious."

Conference organizers Dr. Michael Danti and Dr. Carolyn Guile
Danti and Dr. Carolyn Guile organized the conference to answer questions about what threatens cultural property today, what can be done to protect cultural heritage during wartime, and what lessons can past conflicts teach.

Guile, an associate professor of art history at Colgate University, called attention to deliberate cultural cleansing, which is reflected by contemporary heritage destruction. Today's level of harm to cultural property, not seen since World War II she noted, warrants a serious look into heritage preservation.

Guile's words echoed observations made by keynote lecturer Robert Edsel, author of the best-selling book, The Monuments Men: Allied Heroes, Nazi Thieves and the Greatest Treasure Hunt in History and founder of the Monuments Men Foundation. Edsel pointed out that advance planning when armed conflict breaks out is a valuable lesson taught by General Dwight Eisenhower's Monuments Men during the Second World War, which is important because the destruction of heritage is a precursor to the destruction of peoples.

[Sidebar: A United Nations (UN) report published in 2015 signaled the annihilation of cultural and religious heritage as a feature of genocide, crimes against humanity, and war crimes.]

In the modern era, special challenges to cultural heritage protection are posed by the nature of the art trade, the "largest lawful unregulated business" in the world, Danti remarked. The art market is robust, and thieves middle men, and complicit experts take advantage of it, he said. Danti stated that the good news today is that "collectors may be aware that their purchases may be related to terrorism and other activity." That is why purchases have declined since 2014. The bad news, he warned, is that most of today's conflict antiquities looted from the Middle East won't hit the market for maybe five or ten years. That is because mass cultural property crime take decades to address.

Danti called attention to Article 27 of the Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948 following WWII. "Everyone has the right freely to participate in the cultural life of the community," the UDHR document recites. Terror groups, "ISIS, and extremists," by contrast, "represent the antithesis of cultural heritage protection," Danti reflected.

AHMP satellite imagery depicting over 2,000 looted sites in the Balk
 region of Afghanistan, as shown by Emily Bloak.
Emily Bloak, part of the University of Chicago's Afghan Heritage Mapping Partnership (AHMP), monitors threats to cultural heritage in some of the world' most volatile regions. "In both conflict areas [Syria/Iraq and Afghanistan], looted antiquities are believed to fund terrorism," she reported, adding that major threats to cultural heritage in Afghanistan currently are mining, development, and agriculture, particularly related to opium production.

Looting is a large threat in Afghanistan and "only one aspect of a larger, complex relationship...," Bloak observed. Mining is a problem that threatens cultural heritage, such as at Mes Aynak. Energy development, like the proposed Turkmenistan–Afghanistan–Pakistan–India (TAPI) natural gas pipeline, also poses a risk, she remarked.

When asked about arrests in Afghanistan for those who destroy cultural property, Bloak said that there were none as this was not "something that is monitored at all."

Syrian archaeologist Dr. Amr al-Azm, associate professor at Shawnee State University, drew attention to the importance of Syrian cultural heritage and the importance of non-state actors to preserve it. Syria has six world heritage sites, and al-Azm related that every Syrian lives on top of an archaeological site, near a site, or within a stone's throw of a site.

Archaeological site looting in Apamea, 2012.
Why is cultural heritage protection important in Syria? "People without their history, their culture, are lost. They are basically disconnected," al-Azm explained. There is no binary, no one or another, when choosing between saving cultural heritage or people in wartime, al-Azm argued. You focus on the humanitarian, "not stones." But "this cultural heritage is important to people on both sides of the conflict," meaning that the shared heritage of the Syrian people, no matter what side of the conflict they are on, will help people "reconnect" when the war ends. "Saving this history ... is about saving the future of Syria too."

Dr. al-Azm listed some of Syria's significant cultural heritage losses, including Krak de Chevalier, saying "it's pretty badly damaged, and St Simeon, which was damaged by air strikes.

Apamea, meanwhile, has suffered significant looting. The photo at top right, shown by al-Azm, depicts numerous looters pits that emerged over the Syrian archaeological site starting in 2012, and they have spread out since that time, he said. Compare the pockmarked site in 2012 with the image at left showing the same site in 2011.

Industrialized looting in Syria using heavy machinery, depicted by Dr. Amr al-Azm's slide.
Dr. al-Azm declared that the looting and sale of antiquities by ISIS was "very, very lucrative." The terror group didn't start it, but they institutionalized and industrialized the process, he contended. They were "involved at every stage," from looting to sale.

Oil refineries, meanwhile, have been moved on top of archaeological sites in the hope that their new locations might afford some protection against bombing.

Additionally, al-Azm reported that coin collections offered for sale in Syria are "ubiquitous," with the trade in illicit antiquities taking place on mobile phone platforms like WhatsApp.

Heritage management specialist Dr. Allison Cuneo of Cultural Property Consultants instructed that intentional destruction of religious monuments by ISIS in Syria and northern Iraq have caused noticeable damage. Cuneo displayed pie charts, shown at left, illustrating that 24% of ancient, 22% of Christian, and 13% of Yezidi monuments and sites have suffered the greatest number of attacks.

Dr. Ricardo Elia's slide chronicling the return of
Japanese appropriated books to Allied countries
Building on both the current reports from the Middle East and Edsel's presentation about how cultural protection efforts in past wars could help tackle current challenges, historian Dr. John Radzilowski of the University of Alaska spoke about the moral and legal claims to looted cultural property in East Central Europe after 1945, and Boston University professor of archaeology Dr. Ricardo Elia added fresh information from new research on the Japanese appropriation of cultural heritage during the War in the Pacific, which resulted in the return of thousands of books by the Supreme Commander for the Allied Powers (SCAP) to allied countries after World War II.

Cambodian newspapers celebrate the repatriation of cultural property
looted during that country's bloody past. Presented by Tess Davis.
Going beyond the armed conflicts of the 1940's, lawyer and archaeologist Tess Davis, executive director of the Antiquities Coalition highlighted lessons learned from Cambodia, where severe cultural property looting lasted from 1970 through 1998. Cultural cleansing in the Killing Fields by the Khmer Rouge included devastation suffered by 73 Catholic Churches, 130 cham mosques, and 3369 Buddhist temples, all while the Khmer Rouge held a seat at the UN. She noted that heritage protection was not part of UN peacekeepers' mandate in Cambodia.

Reclamation by the Cambodian people in recent years of looted cultural property--specifically ancient statues housed both in American museums and offered for sale at a New York auction house--has been a bright spot set against the backdrop of an otherwise dark past, Davis told conference attendees.

She called on nations to join relevant international agreements on cultural property protection, to close borders to close to undocumented cultural objects from countries in crisis, and for international legal scholars to "develop a framework for filling gaps in the chain of title for cultural objects caused by armed conflict, regime changes, or other crises."

Image of an object found on Abu Sayyaf's WhatsApp
that is subject to a current federal forfeiture complaint.
A federal forfeiture lawsuit initiated the return of a Duryodhana and other statues to Cambodia. Now a new kind of forfeiture case is winding its way through the American court system. CHL's author informed conference participants that the case is innovative because it applies the USA PATRIOT Act to claim ownership of ISIS (aka ISIL) cultural property, ensuring that these conflict artifacts will not circulate in the marketplace and generate blood income. Unlike typical forfeiture cases that support the Department of Homeland Security's much criticized "seize and send" policy--a policy that seizes illegally trafficked artifacts and then sends them to their countries of origin after publicized law enforcement repatriation ceremonies, but without criminal prosecutions of the wrongdoers--this new forfeiture case aims to give legal support to the military's prosecution of a war that aims to take down a terror group.

The case bears the name United States of America v. One Gold Ring with Carved Gemstone, An Asset of ISIL Discovered on Electronic Media of Abu Sayyaf, President of ISIL Antiquities Department et al. It started with a US Delta Force raid on a Syrian compound occupied by Abu Sayyaf, identified by discovered documents as ISIS's minister of antiquities. About 700 cultural artifacts were found during the raid and repatriated. Four cultural heritage objects, depicted on electronic media recovered from the raid, are the subject of the forfeiture case. In their court complaint, federal prosecutors allege, "Abu Sayyaf’s electronic media had multiple photographs of other antiquities. These photographs were staged in a manner consistent with the sale of antiquities.” They attorneys argue that they "are forfeitable as foreign assets of ISIL ... as ISIL has and is engaged in planning and perpetrating federal crimes of terrorism . . . .“

Dr. Brian Brown
Shifting attention from the judicial to the executive branch, Dr. Brian Brown, a private cultural property consultant and a former cultural heritage analyst with the US State Department, outlined policy reforms that he supports. They include
  • allowing import restrictions covering at-risk transnational cultural property under  the Convention on Cultural Property Implementation Act (CPIA) to last longer than five years;
  • including explicit penalties, particularly fines, for violations of the CPIA, just like the Lacey Act, which protects endangered wildlife;
  • requiring export certificates, not affidavits, to support the lawful entry of CPIA imports;
  • having the State Department impose emergency import protection controls when needed to quickly safeguard cultural objects in jeopardy of looting;
  • assigning a specific Department of Defense office as a single point of contact on cultural heritage matters during armed conflicts; and
  • devoting more resources to the State Department, the Department of Homeland Security (DHS), and other agencies to shore up cultural heritage protection. Brown said that DHS only has one person overseeing its Cultural Property Art and Antiquities Investigations, that only three people at the State Department administer 16 CPIA treaties, and that "all relevant offices are severely understaffed."
Brown informed conference participants that the interagency coordinating committee called for by the Protect and Preserve International Cultural Property Act, which the president signed into law last year, has met four times.

FBI Special Agent Christopher McKeogh
Special Agent Christopher McKeogh, an art and antiquities crime specialist with the FBI's New York field office, was the conference's final speaker.

"We get a lot of requests for repatriation of cultural assets." But "recovered items rarely lead to prosecution of subjects." The trail is cold, he said.

He explained that his agency's goals are to identify networks of looters, their routes, and methods of object removal from countries of origin; to uncover long-term storage locations; to identify end-users and collectors; and to recover illicit cultural heritage objects.

McKeough noted that smuggled cultural property frequently is misidentified as antiques, pottery, and handicrafts on customs forms, and he revealed that looted items often are hidden in larger shipments.

The agent highlighted the connection between antiquities crime and money laundering, which is why it is important for authorities to follow the money, to compare documentation to known facts, and to investigate whether money laundering techniques (like the use of shell companies) are obscuring terrorist financing operations, he explained.

Some proactive measures to combat cultural heritage trafficking, McKeough suggested, include maintaining ties with foreign law enforcement, working closely with the FBI Counterterrorism Division, liaising with galleries and auction houses, monitoring internet sales and auctions, and fostering community outreach.

Conference discussions were lead by Dr. Richard Zettler of the Penn Museum-Near Eastern Section and by Colgate University professors Rebecca Ammerman, Robert Garland, Padma Kaimal, Xan Kam, Robert Kraynak, Elizabeth Marlowe. Additional sponsors of the conference included Colgate University's Office of the President, Center for Freedom and Western Civilization, Department of Classics, Department of Art and Art History, Global Engagements, University Studies. The conference took place took place on October 18-20, 2017.

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. Visit

Thursday, October 12, 2017

US Announces Intent to Withdraw from UNESCO

The United States will withdraw from the United Nations Educational Scientific and Cultural Organization, (UNESCO), effective December 31, 2018.

Today's announcement comes as no surprise to cultural property watchers. The US Mission to the United Nations said in July that "[t]he United States is currently evaluating the appropriate level of its continued engagement at UNESCO," prompted by the UN cultural agency's decision "to designate the Old City of Hebron and the Tomb of the Patriarchs as part of Palestinian territory and a World Heritage site despite protests by the United States, Israel, and other countries," according to the US Mission.

Nikki Haley, America's ambassador to the UN, remarked this past summer that UNESCO's vote was "tragic." "It undermines the trust that is needed for the Israeli-Palestinian peace process to be successful. And it further discredits an already highly questionable UN agency," she said.

The longstanding tension between the US and UNESCO is described in CHL's 2013 blog post, No Money, No Vote: A Closer Look at the Strained Relationship Between the U.S. and UNESCO. The events it chronicles set the stage for today's notification by the US State Department to UNESCO Director-General Irina Bokova of its intent to set up an American permanent observer mission after officially withdrawing from the UN agency next year.

"This decision was not taken lightly," the State Department explained in a press statement. The decision "reflects U.S. concerns with mounting arrears at UNESCO, the need for fundamental reform in the organization, and continuing anti-Israel bias at UNESCO."

Bokova responded with a public announcement "to express profound regret..." She touted her agency's achievements, naming six UNESCO goals that she said are "shared by the American people," including the advancement of literacy and education, the harnessing of technology, the enhancement of scientific cooperation, the promotion of freedom of expression, the empowerment of girls and women, and the bolstering of societies facing instability.

"Despite the withholding of [US] funding, since 2011, we have deepened the partnership between the United States and UNESCO, which has never been so meaningful," Bokova noted. "Together, we have worked to protect humanity’s shared cultural heritage in the face of terrorist attacks and to prevent violent extremism through education and media literacy." The director general proclaimed, "This is a loss to UNESCO. This is a loss to the United Nations family. This is a loss for multilateralism."

Ambassador Haley issued a statement later in the day, agreeing that "[t]he purpose of UNESCO is a good one," but adding, "Unfortunately, its extreme politicization has become a chronic embarrassment." Haley pointed to the UN agency's retention of "Syrian dictator Bashar al-Assad on a UNESCO human rights committee even after his murderous crackdown on peaceful protestors."

Today's State Department announcement comes at a time when UNESCO members sharply debate the selection of Bokova's replacement. Bokova has served as director general since 2009. Her term expires this year.

[UPDATE 10/13/17]  UNESCO’s Executive Board on Friday, by a vote of 30 to 28, selected Audrey Azoulay to lead UNESCO. She is a former French culture minister.  Her nomination will be brought before the UN agency's full membership, the General Conference, on November 10.

Photo credit: Eric Ortner/

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

Monday, September 11, 2017

Penn Vet Working Dog Center Celebrates Five Years of Success

Sunny, a labrador retriever in training,
with his Penn Vet handler during
a luggage search demonstration
Today marks the fifth anniversary of the Penn Vet Working Dog Center. At a special celebration held this weekend on the campus of the University of Pennsylvania, Penn Vet showcased its dogs to an enthusiastic crowd of guests.

Penn Vet’s successful research is a tribute to the energy and vision of Executive Director Dr. Cynthia Otto and her dedicated team of professionals and volunteers. Their important work has mitigated threats to the homeland and saved lives with the help of trained canines like “Hoke,” “Rookie,” “Zoe,” and “Thunder,” dogs carefully taught to sniff out fire accelerants, explosives, narcotics, and disaster victims.

Red Arch Cultural Heritage Law & Policy Research soon hopes to join Penn Vet to discover whether working dogs can spot antiquities traffickers by intercepting smuggled cultural artifacts at ports of entry.

Learn more about the K-9 Artifact Finders program at

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

Wednesday, August 2, 2017

Museum Loss Prevention: Apply Rigorous Due Diligence

Museums routinely and successfully protect their archaeological collections from threats of loss posed by theft, fire, natural disaster, and infrastructure failure. But do they effectively shield these collections from legal confiscation?

Tom Mashberg of The New York Times this week reported that the Manhattan District Attorney's Office seized a 2,300 year old vase on display at the Metropolitan Museum of Art in New York. The Paestan Red-Figure Bell-Krater was allegedly looted from a grave in Italy.

Meanwhile, cultural property watchers will remember that winter’s day in 2008 when federal agents in California raided the Los Angeles County Museum of Art, the Bowers Museum, the Pacific Asia Museum, and the Mingei Museum, armed with search warrants to “seize in place” ancient objects. Antiquities originating from Burma, Cambodia, China, and Thailand eventually were confiscated and repatriated, and the police investigation led to felony convictions in 2015 for a pair of art dealers who ran an antiquities import and tax fraud scheme.

Many similar news stories over the years serve as a reminder that rigorous due diligence needs to be applied before acquiring, and even while retaining, archaeological artifacts.

When a museum fails to acquire good title to an object because it is stolen, or when a museum finds itself in possession of illegally imported cultural contraband, then the illicit object may be legally seized. This can happen through a private lawsuit, called a replevin action; a civil forfeiture, usually brought by federal a prosecutor; a search warrant executed by police; or some other legal remedy that strips the artifact from the museum’s possession.

If the artifact is stolen, then the rightful owner—usually a country with a strong cultural property ownership law like Italy, Greece, Egypt, and Turkey—can regain the property. That is because American law generally holds that a rightful owner never loses title to property that is stolen from him. In fact, even an innocent purchaser typically cannot claim legal title to stolen property when the true owner steps forward to reclaim it. What’s more, the true owner is not required to pay compensation to a museum that is forced to surrender the stolen object to the true owner. That means a museum could suffer substantial financial loss. And most insurances won't even cover that kind of loss.

If the artifact is a specifically designated archaeological or ethnological object barred from import by U.S. customs restrictions erected under the Convention on Cultural Property Act, a museum that acquires the object may have to relinquish it to federal authorities for repatriation to the country of origin. Once again, the museum suffers a financial loss that is not covered by insurance.

These risks have been limited by some cultural institutions that have taken noteworthy proactive steps. Boston’s Museum of Fine Arts set the gold standard in 2010 with its addition of a curator for provenance, a full-time professional who carefully checks the collecting histories of objects.

Operational improvements, like this one, have proven beneficial in today’s legal and social environment where law enforcement and the public are more keenly aware that recently surfaced and undocumented ancient objects likely are the fruits of destroyed temples, plundered tombs, and vandalized ceremonial centers, which are sold on an art and antiquities market that lacks transparency.

Law enforcement and legal watchdogs, meanwhile, remain on elevated alert after the FBI's warning that antiquities trafficking may supply financial support to terrorists in the Middle East.

For cultural institutions still lacking solid protective measures that guard against collecting illicit artifacts, they are expected to face acute risk—both legal and reputational—particularly in cases where collected objects come from countries that suffer from, or that have recently experienced, widespread or highly publicized heritage site looting (e.g., Afghanistan, Egypt, Greece, Iraq, Italy, Mali, Syria).

Typically what causes a museum to acquire illicit artifacts is a lack of rigorous due diligence. Due diligence is the term used to describe the background investigation that cultural institutions should be employing to discover an artifact’s origin and its collecting history, especially the details of its excavation, ownership, possession, transportation, conservation, sale, and so forth. This inquiry may be referred to as a provenance check. It is a pre-acquisition investigation meant to uncover whether an object is authentic or fake, whether its export and import were compliant with applicable laws, and whether its title can transfer to the museum cleanly. Flawed due diligence may result in a museum acquiring an antiquity or other object that later could be removed from the collection by police, lawyers, or a court order.

To prevent such a loss—and the bad publicity that ultimately follows—a museum first should understand its fiduciary duty of care, which is the legal obligation imposed on trustees of all nonprofit institutions that demands the exercise of reasonable care when managing assets. This duty requires artifact accessions to be done lawfully and in good faith. The duty of care is embraced, in some measure, by museum codes of ethics like those published by the American Alliance of Museums (AAM), the Association of Art Museum Directors (AAMD), and the International Council of Museums (ICOM), which outline specific due diligence standards.

These standards, nevertheless, are neither uniform nor sufficiently rigorous in many cases. For example, while ICOM’s due diligence rule properly asks museums to “establish the full history of the item from discovery or production,” AAMD’s diminished rule limits a museum’s background check to “compliance with the export laws of the country of immediate past export to the U.S,” ignoring compliance with the laws of every country of export and import.

There is also disagreement in the museum community about the standard of due diligence review that should be applied. For example, one major museum’s collections policy declares that there must be “clear and convincing evidence” to prove that an object, already in the museum’s collection, had been stolen, looted, or smuggled before the object will be removed (deaccessioned) from the collection. Yet this same scrupulous "clear and convincing" standard is watered-down when the museum wishes to add a new archaeological object to its collection.

The best due diligence, in all cases, is rigorous due diligence. It is the kind of diligence that directs museum personnel to ask pointed and comprehensive questions and to insist on sufficient and credible documentation from dealers, auction houses, and donors. It is the kind of diligence that demands answers about whether an artifact has been stolen, illegally exported, or smuggled before an object is acquired and after an object is acquired. Rigorous due diligence easily satisfies museum trustees' duty of care and serves to prevent the loss of objects from a museum’s collection.

So what rigorous due diligence is actually due? One answer comes from a recommendation presented by collectors in 2009 to the Ancientartifacts Yahoo! group. Titled A Code of Ethics for Collectors of Ancient Artifacts, it offers the following suggestions identified in the quotes below with CHL's commentary below each suggestion:

"Ask the vendor for all relevant paperwork relating to provenance, export etc.”

That means asking for the bills of lading, invoices, customs entry forms, export permits, and all other paperwork that track the object’s movements.

“Take extra care if collecting particular classes of objects which have been subjected to wide-scale recent looting.”

For example, avoid acquiring artifacts that are listed on one of ICOM’s publications known as RedLists, which identify at-risk cultural heritage originating from countries that suffer severely from cultural heritage looting and plunder.

“Verify a vendor’s reputation independently before buying. Assure yourself that they are using due diligence in their trading practices, and do not support those who knowingly sell fakes as authentic or offer items of questionable provenance.”

Learn more about the dealers, auction houses, and donors offering artifacts by getting client references, scanning publicly available court records for criminal or civil claims against them, and reviewing corporate records (available on many secretary of state offices’ web sites) to verify legitimacy.

“Do not dismember any item, or acquire a fragment which you believe to have been separated from a larger object except through natural means.”

For instance, beware of acquiring a single object that would have been paired with another object. You would be suspicious if a salt shaker were sold without its companion pepper shaker, so be suspicious if a single statue that is commonly found a part of a pair is offered for sale.

"Consider the implications of buying an item from an associated assemblage and the impact this could have on study."

Be cautious when considering the purchase of one portion of an entire temple wall or a single cut-out from a complete ancient papyrus roll, for example.

“Liaise, where possible, with the academic and broader communities about your artifacts.”

Have open conversations about the object and its collecting history in order to learn more perhaps about its provenance from experts.

A recommendation not suggested by the Ancientartifacts group, but which is absolutely important, is conducting a visual inspection of the object. Use a black light to spot unusual marks or cover-ups like nail polish, which can be used to remove an identifying registration number from an inventoried museum object. Examine edges to see if they are straight and smooth to help determine whether an object has been cut recently from its original archaeological source as when looters use diamond-tipped steel circular saws to cut decorative slabs from ancient tomb walls.

Effective loss prevention involves the application of this kind of rigorous due diligence. It helps cultural institutions acquire valid legal title to licit cultural objects and protects museum collections from legal seizures, all while instilling public confidence in museum collecting practices that aim to preserve humanity’s precious cultural heritage.

To learn more about this topic, register for IFCPP's annual conference here. It will be held in September on the campus of Yale University in New Haven, Connecticut.

Photo credit: Szorstki/

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited.

Wednesday, July 19, 2017

Watch CPAC Live on July 19, 2017 at 1PM EDT

The Roman Libyan site of Leptis Magna.
The Cultural Property Advisory Committee (CPAC) meets today to consider a request to erect American import protections on endangered cultural property from Libya.

The meeting will take place today at 1 p.m.  EDT. Viewers can watch live by clicking here.

The May 30 request asks the United States to impose import restrictions on archaeological and ethnological objects objects dating from prehistoric, Greek, Roman, Islamic, and Ottoman times.

Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property permits such a request, and CPAC makes a recommendation to the president or his designee pursuant to its authority under the Convention on Cultural Property Implementation Act.

Photo credit: Faruk Seta/

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

Monday, July 10, 2017

Hobby Lobby Forfeiture: $3 Million is Not a Fine. So What Is It?

The case of United States v. Approximately Four Hundred Fifty (450) Ancient Cuneiform Tablets and Approximately Three Thousand (3,000) Ancient Clay Bullae--the Hobby Lobby cultural artifacts case--involves two parts:

(1) the court forfeiture of 3,450 cuneiform tablets and clay bullae illegally imported into the United States, and specifically named in the caption of the civil case, and

(2) the administrative forfeiture of $3 million in proceeds along with 144 unlawfully imported cylinder seals, which is outlined in the companion settlement agreement filed with the federal district court in Brooklyn, New York.

So how did prosecutors arrive at this $3 million figure, because, as stated in CHL's July 6 blog post, the amount is not a fine or a penalty levied against Hobby Lobby, contrary to what has been widely reported in the media.

Cultural property forfeitures typically involve the seizure and forfeiture of hot cultural objects, not cold cash in lieu of the objects themselves. That is because cultural property seizures usually are civil in rem actions, meaning the lawsuits involve the U.S. v. The Actual Stuff to be Forfeited, rather than criminal in personam actions like U.S. v. John Doe, where fruits and contraband of John Doe's crime may be forfeited to the government after conviction, including any illegal money derived from the proceeds.

Cuneiform tablet seized by U.S. Customs.
While it is easy to understand how 3,594 specific tablets, bullae, and cylinder seals may be civilly forfeitable in the Hobby Lobby case because they are illegally tainted cultural property, it is not easy figure out the mechanism and the source of the forfeitable $3 million proceeds based on the currently available pleadings.

We do know a little bit. Termed "Forfeited Funds" by the Stipulation of Settlement filed with the court by the U.S. Attorney's Office for the Eastern District of New York and Hobby Lobby, the $3 million represents proceeds derived from illegal conduct and/or is a substitute for illegal cultural property that already has been dissipated. In particular, the agreement says that the money represents forfeitable proceeds under 18 U.S.C. § 981(a)(I)(C) that were generated by one or more violations of 18 U.S.C. § 542 (entry of goods by false statement), 18 U.S.C. § 545 (smuggling), or 19 U.S.C. § 1595a(c)(1)(A) (merchandise introduced into the country in violation of law).

Were some illegally imported artifacts transferred and converted to cash in the amount of $3 million? Were $3 million worth of artifacts purchased but undelivered to Hobby Lobby, as might be implied by the Stipulation? Was there a $3 million financial benefit derived by some party as a result of the illegally imported antiquities? Or was there something else? We simply do not know.

At this juncture, the only cash amounts related to the court case or to any donations made by Hobby Lobby to its supported museum--The Museum of the Bible--are found in the prosecutors' forfeiture complaint and in the the Form 990's filed by the museum. These documents include the following information:
  • Hobby Lobby agreed to purchase 5,500+ artifacts in December 2010 for $1.6 million (cuneiform tablets and bricks, clay bullae, cylinder seals), which a Hobby Lobby consultant thought might be appraised at $11,820,000.
  • The Museum of the Bible legally formed in 2010 and received 501(c)(3) tax-exempt recognition from the IRS in 2011. While the museum's 2010 Form 990EZ shows no receipt of antiquities, Form 990, which covers July 1, 2011 through June 30, 2012, reports the museum's possession of "works of art, historical treasured, or other similar assets," declaring that the institution acquired $23,038,000 (reported fair market value) in non-cash "DONATED ARTIFACTS," which was given in one contribution. The source of the contribution is unlisted.
  • The following tax reporting year discloses that the museum received $61,633,000 worth of historical artifacts from a single donation. Again, the source of the contribution is unlisted.
  • The museum's 2013 Form 990 explicitly reveals that Hobby Lobby Stores, Inc. donated 526 "biblical artifacts," specifically 496 "scroll items" and 30  "non-scroll items," having a fair market value of $50,294,500. (Putting that amount in perspective, the building and land acquired by The Museum of the Bible in July 2012 cost $50,360,855, according to publicly available tax documents.)
  • From July 1, 2013 through June 30, 2014, Hobby Lobby donated 408 artifacts that included 265 scroll and 143 non-scroll objects having a fair market value of $65,368,000.
  • The museum's latest Form 990 covering 2015/2016 reports no artifact donations but lists artifact assets held by the museum in an amount of $201,212,721.
Hopefully, government lawyers will offer an explanation about the source of the $3 million non-fine forfeiture.

[UPDATE>: Tracy Connor of NBC News reported on July 13: "An attorney for the [Hobby Lobby] confirmed to NBC News that the $3 million it will pay the federal government to settle a civil case isn't a fine but a payment to cover unspecified items that were improperly brought to the United States before the 2010 acquisition. Hobby Lobby didn't forfeit those purchases because it doesn't have them any longer."]

Photo credit: Dömötör Gergely / and U.S. Attorney for the Eastern District of NY.

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

Thursday, July 6, 2017

Cultural Property Forfeiture: Hobby Lobby Could Pay $2000/Day if U.S. Attorney's Agreement Violated

Cuneiform tablet subject to forfeiture.
After a six and a half year probe by federal authority into ancient cultural property imports acquired by Hobby Lobby, the U.S. Attorney's Office in Brooklyn yesterday filed a forfeiture complaint as part of a settlement agreement with the arts and crafts company. The agreement, filed today in federal district court, confiscates Hobby Lobby's antiquities purchases, compels the Oklahoma-based corporation to forfeit cash proceeds related to the unlawful imports, and mandates the company's personnel to follow ethical collecting guidelines. Failure to comply with the settlement terms could cost Hobby Lobby $2,000 per day.

The forfeiture complaint—docketed in the Eastern District of New York as United States v. Approximately Four Hundred Fifty (450) Ancient Cuneiform Tablets and Approximately Three Thousand (3,000) Ancient Clay Bullae (17-CV-3980)—alleges that shipments of ancient Iraqi artifacts were smuggled through both the international mail facility at New York's JFK International Airport and the FedEx facility located in Memphis, Tennessee. The items were shipped from the United Arab Emirates and Israel and misleadingly described on customs forms as “Tiles (Sample),” “hand made clay tiles (sample),” and “hand made [sic] miniature clay tiles." The complaint goes on to say that the antiquities were significantly undervalued in order to skirt formal customs entry procedures. They also were falsely invoiced and labeled with either a false or no country of origin.

[UPDATE 7/11/17> cultural property expert Dr. Neil Brodie breaks down the shipments in his blog post, Hobby Lobby Forfeits More Than its Reputation].

To gain title to the cultural property specified in the court complaint, which U.S. Customs and Border Protection already seized several years ago, federal prosecutors use 19 U.S.C. § 1595a(c)(1)(A). That's the often applied federal customs law that says:
Merchandise which is introduced or attempted to be introduced into the United States contrary to law shall be treated as follows: The merchandise shall be seized and forfeited if it is stolen, smuggled, or clandestinely imported or introduced.
Prosecutors additionally cite the companion criminal statutes of 18 U.S.C. § 542 and 545 to argue that the merchandise was imported by means of false statements or other criminal means.

While government lawyers allege criminal activity, they have chosen not to pursue a criminal conviction against any wrongdoer. It should be mentioned too that federal prosecutors have deliberately singled out the shipper, not the importer, as the party who reportedly violated Title 18, arguing in their complaint that "the shipper knowingly made false declarations as to [the property's] value, description and country of origin" and "the shipper knowingly made false declarations as to its value and description and, in failing to file formal entry declarations, omitted the required declaration as to country of origin."

The forfeiture complaint, nevertheless, recites broader facts than what is captioned in the court case's title or in the complaint's claim for relief, describing the sale of at least 1,500 cuneiform tablets, 500 cuneiform bricks, 3,000 clay bullae, 13 extra-large cuneiform tablets and 500 stone cylinder seals. The seller pitched these artifacts as “legally acquired" by the father of an Israeli dealer during the 1960's, according to the U.S. Attorney's pleading.

The complaint goes on to note that in October 2010, in-house counsel at Hobby Lobby received an expert's memorandum that explained the federal import restrictions on endangered cultural property from Iraq, the criminal penalties for their import, and an additional warning:
I would regard the acquisition of any artifact likely from Iraq ... as carrying considerable risk. An estimated 200-500,000 objects have been looted from archaeological sites in Iraq since the early 1990s; particularly popular on the market and likely to have been looted are cylinder seals, cuneiform tablets . . . . Any object brought into the US and with Iraq declared as country of origin has a high chance of being detained by US Customs. If such an object has been brought into the US in the past few years and was not stopped by US Customs, then you need to examine the import documents to see if the country of origin was properly declared; an improper declaration of country of origin can also lead to seizure and forfeiture of the object.
Prosecutors explain that the purchase of the Iraqi antiquities nevertheless went forward in the winter of 2010. Prior to that, in July 2010, Hobby Lobby’s president and a consultant traveled to the UAE in to view many of the artifacts. The consultant thought the total collection might be appraised at $11,820,000, according to the complaint. Hobby Lobby made a deal for $1.6 million and wired payment to seven bank accounts held in the names of people other than the seller, according to the court document.

Government lawyers charge that Hobby Lobby circumvented its company protocols to obtain the objects, writing:
Commencing on or about November 9, 2010, a Hobby Lobby employee tasked with receiving and cataloguing artifacts purchased for the Collection (the “Curator”) began working with Hobby Lobby’s International Department and the Executive Assistant [to the President] to coordinate the importation of the Artifacts. The International Department advised the Curator and Executive Assistant that the Artifacts should be imported using the Customs Broker. However, after the Customs Broker reported that the Artifacts could be detained by CBP, the Curator and Executive Assistant decided to bypass the International Department and Customs Broker and have Israeli Dealers #1 and #2 handle the shipping arrangements for the Order.
Hobby Lobby began to collect cultural property around 2009. Because its arts and crafts stores do not sell ancient cuneiform tablets or bullae, the company likely imported the antiquities so that they could donate them to the company-supported museum, The Museum of the Bible. The museum incorporated as a nonprofit under Oklahoma law on September 13, 2010 and is scheduled to open its doors in Washington, DC in a few months.

To conclude its case with the U.S. Attorney's office, Hobby Lobby agreed to terms contained in a stipulation of settlement filed with the court. The agreement's terms do not bind The Museum of the Bible. According to the settlement, Hobby Lobby agrees to
  • not challenge the government's forfeiture action;
  • assist with the delivery of the artifacts to the government;
  • surrender 144 cylinder seals as forfeited assets for the same legal reasons just explained;
  • not to assert any legal interest in any cultural property purchased, but not already acquired by Hobby Lobby in the $1.6 million deal, and to notify the U.S. Attorney if the company learns where the artifacts may be;
  • have the personnel listed in the company's new Antiquities Policy (unavailable in current court records) receive training within six months, and at least once a year thereafter, on customs regulations, provenance, and due diligence with regard to the purchase and import of cultural property;
  • retain customs counsel to offer or supervise this training and give advice regarding modifications of the Antiquities Policy and any cultural property acquisitions;
  • secure the services of a qualified customs broker; and
  • provide regular and detailed reports to the U.S. Attorney over eighteen months that describe in detail the company's cultural property imports, including the invoice price, vendor, Harmonized Tariff Schedule code, mode of transport, etc.
Failure to comply with these conditions could result in a fine costing the company $2,000 each day.

Assistant United States Attorneys Karin Orenstein and Ameet B. Kabrawala represent the government. Hobby Lobby is represented by litigator Barry Berke of the New York firm of Kramer Levin and cultural property lawyer Michael McCullough of Pearlstein, McCullough & Lederman in New York.

View a copy of the forfeiture complaint and the agreement below

Photo credit: U.S. Attorney's Office, Eastern District of New York

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

Tuesday, June 27, 2017

[VIDEO] Yes, Art and Antiquities Sellers Should Be Subject to Anti-Money Laundering/Counter-Terrorist Financing Laws

Last week the House Subcommittee on Terrorism and Illicit Finance held a hearing titled, “The Exploitation of Cultural Property: Examining Illicit Activity in the Antiquities and Art Trade.” View the video below.

In light of the subcommittee's  important discussion, Congress should revisit the question: Shouldn't Art and Antiquities Sellers Be Subject to Anti-Money Laundering/Counter-Terrorist Financing Laws? The answer, of course, is yes.

Testifying at the June 23, 2017 hearing were
  • Dr. Brian Daniels, Research Associate at the Smithsonian Institution and Director of Research and Programs at Penn Cultural Heritage Center.
  • Alyson Grunder, Deputy Assistant Secretary for Policy, Bureau of Educational and Cultural Affairs, U.S. Department of State.
  • Raymond Villanueva, Assistant Director for International Operations, U.S. Immigration and Customs Enforcement, Homeland Security Investigations.
Forward the video to 11:03, which marks the start of the hearing.

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

Tuesday, June 13, 2017

Cultural Heritage MoU with Peru Extended

The United States government last week extended import restrictions safeguarding ancient archaeological and ethnological materials originating from Peru. The restrictions, which took effect June 9, last for five years and cover cultural heritage objects “in jeopardy from pillage.”

The archaeological site of Moray, an Inca ruin located in Peru.
Particular cultural artifacts dating from 12,000 B.C. through 1532 A.D. are covered under the new federal rules. The designated list encompasses Pre-Columbian textiles such as Chimu´ feather cloth panels, Nazca sashes, and Inca slings; Pre-Columbian metal objects like necklaces and penachos, metal feathers made of gold, silver, or copper used to decorate crowns; Pre-Columbian lithics such as stone bowls and cups; Pre-Columbian human remains like mummies; ethnological objects like Catholic liturgical items such as chalices and crucifixes; and Colonial manuscripts and documents like wills and books—a new category appearing on the designated list. The entire designated list can be found here.

Import controls protecting Peruvian heritage objects, enacted under authority of the Convention on Cultural Property Implementation Act (CPIA),  have remained in place for 27 years. The CPIA is the federal law that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

The U.S. first promulgated emergency import restrictions on May 7, 1990 to conserve at-risk archaeological material from Peru’s Sipan Archaeological Region. Later, in 1997, the U.S. and Peru entered a Memorandum of Understanding (MoU) that set up import restrictions on objects from Pre-Hispanic cultures and on ethnological items from the Colonial period. The U.S. extended this bilateral agreement with Peru in 2002, 2007, and 2012.

Now that the MoU has been renewed for another five years, cultural property lawyers and importers must take note, keeping in mind the 1972 law that is still applicable to Peruvian artifacts, the Importation of Pre-Columbian Monumental or Architectural Sculpture or Murals Act.

Photo credit: getye1/

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.