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Tuesday, November 21, 2017

Government Watchdog Says Goals Lacking for Key Cultural Heritage Committee; State Department Pledges to Fix Problems

The Cultural Heritage Coordinating Committee (CHCC) is "the principal body for coordination and implementation of cultural heritage protection and preservation initiatives across the U.S. government." That's how the U.S. State Department characterized the CHCC at a G-7 cultural ministers summit in March. Yet Congress' independent watchdog, the General Accountability Office (GAO), finds that the CHCC lacks goals and has failed to clarify participants' roles.

The CHCC is the federal interagency committee set up last year when Congress authorized import restrictions on at-risk cultural property from war-torn Syria. Signed into law by the president in May 2016, the bipartisan backed Protect and Preserve International Cultural Property Act suggested the creation of a cultural property coordinating committee, which lawmakers found to be an acceptable alternative after Congress failed to create a cultural property czar.

Congress fashioned the CHCC as a voluntary executive branch interagency committee, chaired by a State Department employee with the rank of assistant secretary or higher, and populated with representatives from "the Smithsonian Institution and Federal agencies with responsibility for the preservation and protection of international cultural property," according to the terms of the International Cultural Property Act.

Congress envisioned that the coordinating committee would "consult with governmental and nongovernmental organizations, including the United States Committee of the Blue Shield, museums, educational institutions, and research institutions, and participants in the international art and cultural property market on efforts to protect and preserve international cultural property."

The CHCC was urged to focus on four tasks that would "coordinate core U.S. interests in—
(A) protecting and preserving international cultural property;
(B) preventing and disrupting looting and illegal trade and trafficking in international cultural property, particularly exchanges that provide revenue to terrorist and criminal organizations;
(C) protecting sites of cultural and archaeological significance; and
(D) providing for the lawful exchange of international cultural property."

To learn more about the coordinating committee's agenda and membership, CHL filed a Freedom of Information Act request last year. The State Department recently replied that it would fulfill this request by February 28, 2018. In the meantime--and what's better--auditors at the GAO completed their own report.


Published in September and titled Iraqi and Syrian Cultural Property: U.S. Government Committee Should Incorporate Additional Collaboration Practices, the GAO report describes some positive attributes of the coordinating committee, observing that the CHCC "has followed key practices of identifying leadership; including relevant participants; bridging organizational cultures, such as agreeing on common terminology; and addressing resource issues. Most participants also reported that the CHCC was a helpful forum for sharing information."

But the GAO report also states pointedly that "we found that there was no consensus and no clear delineation of the specific roles and responsibilities of the entities on the CHCC and its working groups." The agency's examiners write that "representatives of one entity leading a working group described their role in initiating working group meetings, and planning and circulating meeting agendas. However, most CHCC participants said that they are unclear about their specific roles and responsibilities for CHCC, including [the Department of Defense] and [the U.S. Agency for International Development], whose representatives on the CHCC were unable to describe their roles and responsibilities on the full committee and its working groups."

The State Department says that it intends to fix these problems, according to the GAO. 

The CHCC officially met for the first time on November 4, 2016, following an informal gathering in June 2016. According to the GAO report, in attendance at the November 2016 meeting were unidentified representatives from State, the Department of Homeland Security (Homeland Security), the Department of Justice (Justice), the Department of the Treasury (Treasury), the Department of Defense (Defense), the Department of Interior (Interior), the U.S. Agency for International Development (USAID), the National Endowment for the Humanities (NEH), and the Smithsonian Institution (Smithsonian). CHCC members met again in March and June 2017.

GAO examiners write in their report, "For the first CHCC meeting in November 2016, State invited nine federal entities to participate and requested that these participants volunteer for the working groups. Representatives of these nine federal entities all attended and, with the exception of USAID, have attended at least one additional meeting since the committee’s inception." Regarding USAID's future participation,  "In July 2017, a USAID official informed us that USAID does not expect to participate in the CHCC."


The
GAO report identifies three concrete problems faced by the coordinating committee. "First, the CHCC and two of its three working groups have not developed short- and long-term goals." Second, "the CHCC has not clarified participants’ roles and responsibilities on the committee or its working groups." Lastly, the report finds that "CHCC participants have not documented agreements related to collaboration, such as developing written materials to articulate common objectives," commenting that doing so "could help participants work collectively, focus on common goals, and organize joint and individual efforts to protect cultural property...."
The GAO's auditors more fully explain:
In the first formal meeting in November 2016, the chair of the committee articulated that the CHCC’s role was to coordinate antitrafficking efforts and to tackle a wide range of cultural heritage challenges worldwide. However, subsequent to that meeting, the CHCC has not produced documents identifying specific CHCC outcomes or goals. CHCC participants also indicated that no clear consensus on the CHCC’s stated goals has emerged from CHCC meetings. Many CHCC participants noted that the CHCC had not developed short-term and longterm goals, with some adding that the CHCC was working on doing so. Other officials had different views of the short-term and long-term goals. For example, one participant stated that a short-term CHCC goal was to establish working groups and understand the roles of the different entities, while another participant said that a long-term goal was to solidify information sharing among participants. 
The GAO's critique of the CHCC might explain why Treasury, Defense, and USAID have not been active participants in the working groups. The auditors describe how these agencies "stated that they did not volunteer for and have not participated in the new working groups because they did not clearly see how their entities could contribute to the topics of focus." In fact, "most CHCC participants said that they are unclear about their specific roles and responsibilities for CHCC," according to the GAO report.

In 2016, the CHCC established two working groups, one called Technology and one called Partnerships and Public Awareness. The coordinating committee also absorbed the existing intergovernmental Cultural Antiquities Task Force (CATF), transforming it into a third working group under CHCC's umbrella.


The Technology working group reviews the "application of new and existing technologies to combat cultural property trafficking," explains the GAO report, and the working group is chaired by someone at the FBI, part of the Department of Justice. Other members, all unidentified by the GAO report, include representatives from State, Homeland Security, Interior, NEH, and the Smithsonian. The group met in February and May 2017.

The Partnerships and Public Awareness working group, meanwhile, "focuses on public outreach and public-private partnership." It too met in February and May 2017 and is chaired by an unidentified representative from the Smithsonian and includes unknown persons from State, Homeland Security, Justice, Interior, and NEH.

The GAO notes that the Partnerships and Public Awareness working group's May meeting included participation from the National Endowment for the Arts, the National Archives and Records Administration, and the President’s Committee on the Arts and Humanities. "According to Smithsonian officials, the Smithsonian also invited the Library of Congress, the Institute of Museum and Library Services, the National Science Foundation, DOD’s National Defense University, and the Wilson Center to participate ...." However, the GAO observes that "the CHCC has not clarified the roles and responsibilities of the additional federal entities ... including whether these entities would be members of the full committee or participants of only one CHCC working group," adding that the "CHCC full committee meeting in June 2017 did not include these additional federal entities as invitees."

CATF, an established stand-alone task force operating since 2004, is CHCC's third working group. It "focuses on efforts to support local governments, museums, preservationists, and law enforcement to protect, recover, and restore cultural antiquities and sites worldwide, particularly in Iraq and Afghanistan," according to the GAO. In the past, CATF worked with and funded activities supporting Justice, INTERPOL-US National Central Bureau, FBI, and Homeland Security to battle antiquities trafficking.

CATF met in June 2016 and again in June 2017. It is chaired by State and has members from Homeland Security, Justice, Defense, Interior, and Treasury's Internal Revenue Service. Of significance, "State officials explained that [Defense] had been invited to CATF meetings in the past but had not participated extensively," the GAO report indicates, and "[a]ccording to the [Defense] representative on the CHCC, [Defense] had not participated in the CATF in years but attended the CATF meeting in June 2017," which was hosted by the Criminal Division at Justice.


A recent legislative measure that would spur greater CHCC participation by Defense is H.R. 2810, the National Defense Authorization Act, adopted by the House of Representatives on November 17. It instructs the Secretary of Defense "to designate an employee of the Department of Defense to serve concurrently as the Coordinator for Cultural Heritage Protection" and requires the Coordinator to be responsible for "coordinating with the Cultural Heritage Coordinating Committee convened by the Secretary of State for the national security interests of the United States, as appropriate."

GAO conducted its audit of the CHCC by reviewing "meeting agendas, lists of invitees and attendees, and meeting notes for the CHCC and its working groups produced between November 2016 and June 2017, as well as "working documents resulting from the committee and its working groups." The auditors also interviewed "U.S. federal entities that participated in the CHCC’s first meeting in November 2016."


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: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. Visit www.redarchresearch.org.

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: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. Visit www.redarchresearch.org.

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: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. Visit www.redarchresearch.org.

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/freeimages.com

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: culturalheritagelawyer.blogspot.com. 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 www.redarchresearch.org..

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: culturalheritagelawyer.blogspot.com. 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/freeimages.com

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: culturalheritagelawyer.blogspot.com. 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/freeimages.com

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: culturalheritagelawyer.blogspot.com. 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 / freeimages.com 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: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.