The new Cultural Property (Armed Conflicts) Bill must include vital changes if it is to be workable, says the Antiquities Dealers’ Association (ADA).
Most important is a clear and acceptable definition of what constitutes cultural property under the law, firstly so that everyone knows exactly what the regulations apply to and, secondly, so that the measures do not unintentionally blight artworks and objects that have nothing to do with this issue.
This is not just about the trade; implications for refugees and the military add to the importance of getting it right, says the association.
“The ADA very much supports measures that protect cultural property and archaeological sites, and we are active participants in the All Party Parliamentary Group (APPG) reviewing cultural property,” said ADA chairman Chris Martin. “That work has fed directly into the Government’s Impact Assessment for the new Bill, which acknowledges the importance of the ADA’s code of conduct in exercising robust due diligence.”
The association notes distinct improvements on the unadopted 2008 draft Bill that failed to address a number of difficulties, but argues that serious concerns remain. For example, the new Bill, announced in The Queen’s Speech to parliament last month, adopts The Hague Convention 1954, whose “cultural property” definition is not specific enough.
While it cites “property of great importance to the cultural heritage of every people”, it also includes “works of art”, which could be just about anything and would have serious implications for the entire art market.
“We have no problem with adopting The Hague Convention in principle, but would argue that Article 1 of the UNESCO Convention – already adopted by 130 countries – is more appropriate,” says Martin, “because it restricts the definition to items of ‘outstanding universal value’ in terms of cultural heritage.”
In 2008 the Government stated its intention as being to “protect the nation’s most important cultural property” in relation to ratifying the Hague Convention, so the ADA argues that the new Bill should reflect this intention and not expand its remit to cover a much wider field of artworks, even unintentionally.
“If it is not possible to alter the wording of The Hague Convention’s definition under the new Bill, then the Government should include an additional clause to clarify its intention,” says Martin.
New clause addresses military concerns
As was highlighted in the 2008 draft, the armed forces observe a ‘No Strike’ policy when it comes to significant cultural monuments, treasures and archives, which is exactly why the enemy often position themselves there. At some point, however, military commanders have to decide whether the need to strike outweighs the need to preserve the cultural property.
The new draft bill now addresses this by introducing a waiver on the grounds of “imperative military necessity”.
The draft also comes closer to defining the term ‘occupied territory’, a pre-requisite for judging whether items have been illegally exported or not. While areas of the Middle East might obviously be conflict zones or occupied territories, numerous other regions across the globe might also qualify without that being evident.
In 2008, the Government expressed its concern that people unintentionally risked prosecution for handling illegally exported items if a clear definition of ‘occupied territory” was not forthcoming.
The new Bill appears to remove that risk by making it a condition that the person involved only commits an offence if they deal in unlawfully exported property “knowing or having reason to suspect that it has been unlawfully exported”.
The Government has also narrowed the term ‘dealing’ under the Bill, defining “acquires’ as meaning ‘buys, hires, borrows or accepts”, while ‘disposes of’ covers “sells, lets on hire, lends or gives”.
“This addresses concerns that the previous, looser definition might interfere with due diligence, but people need to be aware that in several ways the definition of dealing means simply handling the objects,” said Martin.
Another area of concern is the proposed rules on returning seized property if it is not forfeit.
While the Bill states that it should be returned “as soon as is reasonably practicable”, it goes on to state that if this is not possible within 12 months, “the property may be disposed of in such a manner as the person who for the time being has custody of the property thinks appropriate”.
“We would want some clarification on this as it is possible that this clause could be exploited by the unscrupulous and could well be detrimental to the interests of refugees, not just the trade,” said Martin.
New Bill fails to tackle refugee issue
When the measures were discussed eight years ago, the Culture Select Committee also highlighted the difficulties for fleeing refugees, observing that to expect a country undergoing occupation – when most refugees would be leaving – to have a workable system of export licensing “seems a little unrealistic”.
However, the new draft Bill does not appear to tackle this issue at all. This means that without the correct paperwork, refugees are likely to find their valuables tainted and impossible to sell when they most need the money.
The ADA believes that this taint might also put the Bill in direct conflict with the Human Rights Act, which legislates for the free enjoyment of property.
“We recently raised these issues with the United Nations Security Council’s sanctions monitoring team when they consulted us on the issues of Syria and Iraq. In our view, if you can’t define what something is, then you cannot legislate for it effectively,” said Martin.
“We are keener than anyone to prevent looting, not least because it is the legitimate trade’s reputation that criminals risk tainting by their activities. The highly robust new Code of Conduct we have recently drawn up sets the standard for others to follow and illustrates the serious intent of the association in promoting honest dealing.”
That has included lowering the price threshold at which the ADA requires members to carry out additional due diligence measures from £10,000 to £3000.
“We will be back in discussions with the APPG later this month and will raise our concerns with them then,” said Martin.
Ivan Macquisten, policy and media adviser to the Antiquities Dealers Association (ADA), speaks on behalf of the ADA at Destruction of Monuments and Memory in the Middle East, a seminar organised by the Iran Heritage Foundation, at Asia House in London on December 16, 2015 (video of speech)
Firstly, I would like to thank you very much indeed for inviting the Antiquities Dealers Association to speak today. I can’t tell you how much we appreciate it, especially as it so rarely happens. In fact, apart from one other conference recently, I have not seen a single instance of a panel, symposium, debate or conference giving the trade a say, so what you have done is really important.
I’m not standing here today with a view to any special pleading for the trade. I am standing here to tell you that what is going on in Iraq and Syria, first from the human perspective and then also from the cultural and historical viewpoint, is as abhorrent to members of the Antiquities Dealers Association and other honest dealers and auctioneers as it is to you and everyone else.
That is why we want to bring our knowledge and expertise to bear in fighting this evil. All we ask of you is that you allow us to do so.
The perception of antiquities dealers as the devil’s disciples is a long misplaced view that even now rears its head as unfounded accusations of dealers funding Daesh appear in the media with depressing regularity – accusations we do not take lightly.
But before we examine what could be behind these ‘blood antiquities’ and billion-dollar headlines, I want to talk about not what separates us but what brings each and everyone one of us here today together.
Principally we share your desire to see Daesh defeated, the peoples of Syria and Iraq given hope, peace and safety, and to make sure that we neither wittingly nor unwittingly contribute to the funding of terrorist activities.
It has been very hard to keep up with the proliferation of conferences and seminars on this subject, as well as all the news stories and newly formed organisations aimed at highlighting real or perceived problems with the antiquities trade.
Nonetheless, we have been monitoring the many and varied claims in the media that looted Syrian and Iraqi antiquities are being traded in London, New York and Western Europe. Aside from the Hobby Lobby investigation now underway, centring on around 200 cuneiform tablets thought to have come out of Iraq illegally, we have yet to see any claim supported by hard evidence.
We all know and understand the vital importance of provenance when it comes to trading in antiquities, but it is also important to apply the same rigour to providing evidence to support claims of wrongdoing.
We need to deal in facts, not propaganda
We are not complacent about the need to be vigilant, nor the need to prevent what looting is taking place, nor how essential it is to prevent trading in trafficked antiquities. However, we need to deal in facts, not propaganda or emotive speculation.
We should be able to rely on what the authorities tell us, but it is difficult when even they do not agree.
Take, for instance, Col. Matthew Bogdanos, whose work protecting the Iraqi National Museum formed the basis of his book Thieves of Baghdad. At a conference held at the Asia Society, New York, on September 24, he told delegates that so much information was classified he had to clear what he said in advance. Giving no source or evidence, presumably as a result of these restrictions, he told the audience, “ISIS is making tens of millions, and I am telling you that this is a low figure that is not exaggerated”.
Just five days later at the Bureau of Educational Affairs Conflict Antiquities symposium, Andrew Keller, US Deputy Assistant Secretary of State for the Bureau of Economic and Business Affairs, said: “The U.S. government assesses that ISIL has probably earned several million dollars from antiquity trafficking since mid-2014. But the actual amount is unknown.”
Meanwhile an October 28 article by Jed Lipinski on Nola.com, the website of the Times-Picayune of New Orleans, profiles Tess Davis, executive director of the Antiquities Coalition, a campaign and lobby organisation described in the article as “a Washington-based nonprofit that unites experts against global antiquities trafficking”. Lipinski writes: “The federal government estimates the group (Daesh) could be making as much as $100 million a year from smuggled artifacts, many of which may already be entering U.S. ports.”
So which is it? Bogdanos’s tens of millions? Keller’s several million since mid-2014 or Lipinski’s $100 million a year?
Maybe it’s none of these. An October 29 article on Washington website thehill.com quotes Senator Robert Casey Jr saying antiquities trafficking from Syria and Iraq is second only to illicit oil sales, which bring in up to $100m a month. He plans to introduce a new bill restricting trade in antiquities further on the strength of this.
Mauro Miedico, Chief of Section, of the Terrorism Prevention Branch of the UN Office of Drugs and Crime, followed Andrew Keller’s speech at the same symposium.
He told the gathering: “In 2011, my office, UNODC, estimated that the proceeds of transnational crime related to art and cultural property amounted to between $3.4 and $6.3 billion yearly.”
This was his office’s estimate, from four years ago, of crime related to the entire global art market, of which antiquities is a minute part. How does that translate to the $3 billion figure we have heard oft quoted as the value of the trade in illicit antiquities?
‘Cosy cabal of academics and others’
Later Col Bogdanos, when asked who is buying the trafficked antiquities, says: “It is a cozy cabal of academics, art historians, dealers, gallery owners, auction houses, museums and private collectors.” However, again he offers no evidence of this.
How many of these people has he prosecuted in his current role of Assistant District Attorney? Surely he could tell us a figure for that, at least? Certainly, the Hobby Lobby case aside, our monitoring of the media has yet to show up a single arrest, let alone a charge or conviction, for a US, British or Western European antiquities dealer on a charge of trading in antiquities looted from Syria or Iraq since Daesh invaded.
Perhaps Katie Paul could point the way. She is Research Director for the Antiquities Coalition and stated in her October 1 Huffington Post article: “…The American antiquities market is funding the very terror group the US government is seeking to eradicate.” I assume she has evidence of this, although, again, the article offers none.
Nor does Senator Casey, who, despite telling Washington’s thehill.com that the looted antiquities trade is second only to the up to $100m a month illicit oil trade, does not know of any specific cases of U.S. citizens who have bought stolen artifacts from ISIS, but, “wouldn’t be surprised if it is happening”.
I do not quote all of the above to be facetious, but to illustrate a fraction of the issue we are dealing with and why claims in the media need challenging if they are presented without source evidence.
If US Government representatives speaking at conferences within days of each other cannot agree on the figures, we have a serious problem.
Another US Government representative, Robert Hartung from the Bureau of Diplomatic Security, also at the Conflict Antiquities symposium, announced the “Rewards for Justice” programme would offer up to $5 million for information leading to the disruption of antiquities sales that benefit Daesh. What he didn’t say was that the programme applies to oil smuggling as well and this accounts for hundreds of millions of dollars of Daesh revenue. Has the $5 million been awarded yet? (See page 9 of 17 of video transcript)
So far I have highlighted the lack of evidence put forward together with a series of conflicting statistics when it comes to the value of looted and trafficked antiquities.
Now let’s look at what evidence does exist and where it comes from.
The 2015 TEFAF Art Market Report, produced by Arts Economics, shows the entire 2014 global Art & Antiques market reached €51 billion. (See page 15, Key Findings)
Legitimate global Syrian antiquities market worth around €20m
Current research undertaken by IADAA (the International Association of Dealers in Ancient Art) into the legitimate global trade in antiquities estimates its value at between €150 million and €200 million, so 0.4% of the global Art & Antiques market. How much of that is Syrian antiquities? Probably around 5-10%. That would be around €20 million at most. (See James Ede, ‘Dealers: Trade, Traffic and the Consequences of Demonisation’, IADAA, Articles of IADAA Members)
Commonsense tells us that the illicit trade will be smaller than this figure, so this is what we are likely to be dealing with in reality. Nothing to get complacent about but nowhere near the tens or hundreds of millions of dollars being quoted.
All sides in the debate agree that a very significant source of evidence resulted from a US Special Forces raid in Syria in May. Andrew Keller revealed this during his speech, referred to above.
The raid, at the home of Abu Sayyaf, a high-ranking Daesh officer, recovered receipts from his six-month tenure as head of Daesh’s antiquities division.
These showed that he collected at least $265,000 in taxes for antiquities – known to be charged at a rate of 20% – which would equate to an antiquities trade of about $1.3 million for a few months, perhaps amounting to $4 million over the course of a year.
Importantly, Neil Brodie, Senior Research Fellow in the Scottish Centre for Crime and Justice Research at the University of Glasgow, and highly active for decades as a campaigner for more trade restrictions, has subjected these findings to analysis in his recent article for the European Union National Institutes for Culture.
Brodie analyses the receipts and confirms the $4 million figure, although there is some confusion as to whether the receipts also encompass minerals. Certainly, Brodie notes, this “would pay for a lot of antiquities, yet very few have been identified on the destination market”.
Ben Taub, a journalist, has dug a little deeper, having some of the Arabic on the receipts that had not been made public by the US State department translated by Bernard Haykel, a professor of Near Eastern Studies at Princeton and an expert on Daesh. He says its is unambiguous; these documents urge the excavation teams to extract not only antiquities but also metals and minerals. So, what does this
$4 million figure refer to?
Brodie also notes that the more “archaeologically-rich” western areas of Syria remain under the control of forces loyal to Assad, and points to a further source of evidence showing that antiquities provide just 0.8% of Daesh’s income, which “accords well with the US Department of the Treasury’s seemingly low estimation of the antiquities trade’s financial importance”.
‘Archaeology community’s strategy risks inappropriate response’
Brodie goes on to argue that “There is an opinion within the archaeological community that highlighting the financial importance to ISIL of the antiquities trade will make it an issue of national security and ensure a strong government response. The danger with this line of reasoning is that the response might be inappropriate.” The ADA endorses this view. But it suits the agenda of those who are keen on dismantling the antiquities trade.
He echoes Keller in calling for effective strategies to eliminate demand.
If he means demand for looted and trafficked antiquities, the ADA backs him all the way.
Objects may be appearing in countries bordering Syria, principally Turkey and the Lebanon, as well as on social media; in all probability ending up with those who are not part of the known and traditional market. Why do we suspect this? Because we are not seeing anything on the market here in London.
There is a great deal of work to be done to identify exactly where looted material is going, but it is clearly not going to the traditional and established market. The types of objects – beads, coins, pottery – that we have all seen photos of are generally of very poor quality or fake and are of a type that have been on the market for many decades and in any event wouldn’t go very far in funding the rent on a London flat let alone the world’s most notorious terrorist organisation.
Of course the repeated quoting of enormous and patently absurd values of looted antiquities apparently being sold in Europe and elsewhere is only going to fuel further illegal activity in the Middle East and for this reason, alone, the media – and those prompting journalists – need to behave responsibly.
So what are we in the trade doing to make sure we do not handle illicit antiquities?
Our trade associations have actively collaborated with Government in this country to address these issues and will continue to do so. The ADA, for instance, has completely rewritten its Code of Conduct, with mechanisms in place should a member be found in contravention of the Code.
We intend to encourage non-trade association members to embrace the tenets of our Code of conduct and will work hard to ensure that all those who deal in antiquities in this country remain vigilant. You will be able to read the Code in full when we relaunch our website in 2016, as well as much else to improve transparency, clarity and due diligence, such as the links to Red Lists.
And we are also working closely with Law Enforcement, including Scotland Yard’s Art & Antiques Squad, academics and Members of Parliament to ensure that we are part of the ongoing debate. Our involvement is absolutely essential.
Clear provenance carries a premium
No other area of the international art market now prizes provenance more than we do. Best of all, clear provenance now carries a premium at auction, encouraging all concerned to establish it as often as possible.
If objects are being offered well below market value, especially by people you do not know, alarm bells should ring.
However, we too rely on information and this is rarely forthcoming from source countries. This may be for a number of reasons but this cannot continue if we are to be effective.
The trade’s critics are a little too fond of using the Becchina and Medici archives to beat us over the head with. Give us access to them and we will happily ensure they form a major part of all due diligence.
What is needed is not breast-beating and demonisation of the trade, but new and accurate data that provides better grounds for response.
As Neil Brodie warns, the response to the Syrian crisis must not be inappropriate.
It is for governments and international organisations to source this information and to pass it on to those on the ground, including law enforcement, museums and the trade. But this information must be based on facts and not spin or speculation. Only then can we assess what is actually occurring and make sure we are able to halt or reduce smuggling on the borders of these countries.
So how can we in the trade help?
There is no doubt that amidst the destruction, illicit material is being squirrelled away, as has been suggested. This really worries us… as this material will necessarily surface on the open market sooner or later. This could be some years from now.
The challenge for us is to make sure we have the correct mechanisms in place to prevent the legitimate trade from handling illicit material and, where possible, identify it and return it if and when it does appear. It is clear that the help of the trade is going to be vital in confronting this problem and it will require a long-term collaboration.
We must find ways to protect archaeological sites.
In this country there must be an effective system of communication between all parties concerned. What we are finding is that there are press leaks to different individuals with different agendas. What we do need to recognise is that in order to make sure London remains ‘clean’, there is a clear alert system to all of us who are involved from law enforcement, Customs, counter terrorism and academia to the trade. Problems cannot be resolved via the media and press briefings.
We must also find a solution for those antiquities currently circulating in the market, a line drawn in the sand that gives those objects an amnesty so they can be traded freely. It will make managing the future of antiquities a more achievable goal. If you want to suppress the illicit market, it is imperative to support the legitimate market and to encourage transparency as opposed to fear.
Those critics of the trade who find themselves unable to work with us should perhaps ask themselves if this attitude is really in the greater interest. It should be clear to all who have been following recent events who your enemy really is… and it really isn’t us. We are part of the solution and not the problem.
We have talked today a lot about looting and have seen many illustrations, but it is clear that the greatest crisis currently facing world heritage is the destruction taking place in Syria and Iraq. The major causes of the destruction are two-fold: war with indiscriminate shelling and bombing and deliberate destruction of monuments by fanatics in the name of their religion.
Looting comes a poor third. Recent lurid headlines have suggested that the funding of ISIS through the sale of illicitly excavated antiquities is the foremost problem. Clearly it is not. Wild speculation that tens of millions, even sometimes billions of pounds worth of antiquities are entering the market from Syria is common. No-one with any knowledge of the market could give a moment’s credence to such ideas.
Although we have no doubt that amidst the destruction there is a lot of clandestine excavation taking place, there is no evidence to date of any significant material surfacing on the market. In any event, the licit market is small and the vast majority of antiquities have relatively modest value. Best estimates show that the global annual turnover for all classical and pre-classical antiquities is less than €200m per annum. The proportion of that consisting of objects from Syria is a small fraction, probably less than 10%. The illicit market must necessarily be smaller than that. As an ex-soldier I can attest that these sums of money don’t buy many arms.
At this point I need to emphasise the difference between the licit trade and illegal traffic. The licit antiquities trade has no interest in the illegal traffic in stolen antiquities. The preservation of our ancient heritage is as vital to us as it is to anyone else here. The fact that we come from a different perspective does not mean that our reverence for world cultural heritage is any less real than yours. Indeed, at its best, the trade is a positive force, devoting large resources to conservation and research. The earliest roots of archaeology start with collectors; the first museum were founded by collectors. It is the job of museums to collect and conserve for the benefit of the public. This is impossible without a trade.
The trade has not always had a good record in the past in dealing with smuggled material, but things have changed dramatically in the last 10 to 15 years and continue to do so. Our trade associations have actively collaborated with Government in this country to address these issues. I also acknowledge that much of this change has been driven by our critics. Yet they should also acknowledge that in recent years we have made huge strides; no other area of the art market now prizes provenance more than we do. The proof of this lies in the high price at auction fetched by those objects with fine demonstrable ownership history. But we too rely on information and this is rarely forthcoming from source countries, sometimes through a misplaced sense of pride, sometimes because of corruption, sometimes because of lassitude. Even close to home we are deliberately denied access to information – the so-called Becchina archive (named after a man who has not even been convicted) is jealously guarded, and morsels of information drip fed. How on earth are we supposed to conduct our necessary due diligence in the face of this attitude?
The present question for all of us is ‘how much can be salvaged from these wars and by what means?’
What is needed is not breast-beating and demonisation of the trade, but new and accurate data that provides better grounds for answering these questions. It is for governments and international organisations to source this information and to pass it on to those on the ground, including law enforcement, museums and the trade. But this information must be based on facts and not speculation. Only then can we halt or reduce smuggling on the borders of these countries. Perhaps the attention should be targeted on the countries directly bordering the conflict zones.
So how can we in the trade help?
There is no doubt that amidst the destruction, illicit material is being squirrelled away. This really worries us as this material will necessarily surface on the open market sooner or later. This could be some years from now. The challenge therefore is to identify it and, where possible, to return it when it is safe to do so. It is clear that the help of the trade is going to be vital in confronting this problem and it will require a long-term collaboration. Those critics of the trade who find themselves unable to work with us should perhaps ask themselves if this attitude is really in the greater interest. It should be clear to you following recent events who your enemy really is; it isn’t us.
The key to the problem lies in information. The technology now exists to record objects cheaply, and we would suggest that UNESCO should provide the support to allow vulnerable museums, and in particular off-site storage facilities, to photograph all their holdings. Once an object is recorded, the chances of recovery improve to an enormous extent. The same applies to above-ground archaeological sites. This is of course no help in the case of clandestine excavation, but it is a start.
This issue can also be tackled from another direction. My trade Association is working on a project which is intended to record objects which are on the market, in perpetuity. This is intended to build up a database of those objects which can be legally traded while providing an opportunity for potential claimants to identify those which are stolen. This is a huge demonstration of good faith. It will also make life much more difficult for those who deal illegally.
We are prepared and willing to play our part. It is a vital one. If you want to suppress the black market, support the white.
Finally, I have to say that the best way of curtailing this mayhem would be by returning the region to peace. At least we dealers cannot be blamed for the war: that is something our governments have to think about.
When I think of Nimrud, I feel like weeping. I have never been there and now never will. I have saved the last 15 seconds of my allotted time for a moment of silence. RIP Nimrud.
Speech at the Culture In Crisis Conference
London Conference on Culture in Crisis
London Declaration on Culture in Crisis