In what is arguably the most significant article on cultural heritage in the past month, Peter Tompa’s Art Newspaper comment on July 22 explains what is wrong with US policy and how to begin to put it right.
Tompa, a cultural heritage lawyer and the executive director of the Global Heritage Alliance, analyses the United States’ approach to cultural policy and how that affects attitudes and the market.
At the heart of his argument is the need to deal with the in-built bias against the market among the advisory and decision-making bodies that help formulate policy in the US. He targets, in particular, Memoranda of Understanding that ramp up import restrictions come up against Constitutional rights.
“These restrictions deeply concern collectors and the trade because they do not focus only on artefacts proven to be illicitly exported, but also embargo any items of a similar type that enter the US from legitimate markets, particularly those in Europe,” Tompa writes.
While this can affect legitimate market activity, dealers and collectors are not the only interested parties here: “…recent MOUs with some Middle Eastern and North African governments, such as Turkey and Egypt, have riled the representatives of displaced minority religious and ethnic groups, whose personal and community property has been seized by those same authoritarian governments.”
Tompa acknowledges that the US rightly has a significant duty to take a leading role in fighting the looting of cultural objects, especially as part of its recognition of ethnic and religious minorities. But he argues that this can be done in a more effective way that is also less damaging to legitimate market interests.
Firstly to broaden the representation on Washington’s influential Cultural Property Advisory Committee (CPAC). Currently, it has no market professional on it. “The sole representative of the trade is a collector, and no dealers have been appointed to the committee for years,” he explains.
Import embargoes are also too broad and bloated rather than targeted at where the potential problem lies, and they do not help protect vulnerable sites. The incoming US Assistant Secretary for the Bureau of Educational and Cultural Affairs, Lee Satterfield, who will oversee this sector “should refocus current import restrictions back to narrow ranges of culturally significant items that have proven to be illicitly exported,” argues Tompa.
His third priority is for the US government to give at least as much consideration in policy formation to ethnic minorities and exiles living abroad as it does to foreign state interests.
“The assumption that nations are great protectors of cultural property is all too often misplaced,” he writes. “In countries where minorities have been driven into exile by authoritarian governments, it makes no sense to recognise the rights of those governments to the material culture of displaced communities.”
How far Tompa’s concerns will be listened to is not clear. What is clear, however, is that cultural property protection is not a standalone issue; it is clearly tied up with international economic and political interests that can dictate policy in what is an area of soft-power diplomacy. Because of this, the valid public interests within the cultural sphere continue to be at risk.
When Eurojust announced that a Belgian collection of nearly 800 Apulian artefacts valued at €11 million had been seized and returned to Italy, it appeared to be a major victory for the Carabinieri and EU law enforcement.
However, dig deeper and all is not what it appears.
At the heart of this case is a stele, which has been part of this collection for decades. It had some missing features that matched fragments on display in a museum in Puglia. The implication? The stele must have been exported illegally: “The missing part enabled authorities to make a link to the artefact displayed during the expositions and led to the Belgian collector,” Eurojust explains.
What came next sounds dramatic: “At his premises, the investigators found the main part of the tombstone and were able to match this to the parts displayed in the Italian museum. During the investigations, a further vast collection of illegally excavated artefacts and pieces of pottery was found, dating to between 600 and 300 B.C..”
Establishing judicial co-operation between the Belgian and Italian authorities led to the entire collection later being shipped to Italy.
However, despite the claims, questions remain over what really happened.
A separate source has told IADAA that far from being shown to be illicit, the collection was shipped to Italy “for further research”, with claims that it was illicit and seized coming only after the shipment had taken place and without any evidence being provided to support the claim. The shipment included artefacts from Turkey, with no explanation as to why they were being seized by Italy.
As CNN reported, “the stele was listed in the catalogue for an exhibition held at the Rath Museum in Geneva, Switzerland, from November 1993 to February 1994, and an exhibition at the Mona-Bismarck Foundation Museum in Paris, France, from March 1 to April 30 1994.”
Applicable laws appear to have been ignored by the authorities
Article 7 of the European Union’s Regulation 93/7, which applied at the time, stipulated that Italy would have one year to file a claim for its return. It did not do so. Even under the updated Regulation 2014/60, which extended the claim period by three years, the current Italian claim is at least 25 years too late.
It is also odd that the authorities state that an investigation helped them identify the collector when the collection had been published and exhibited for decades. The collector had even published his name in association with it in the process.
Regardless of the stele itself, questions remain over other items in the collection. Most notably, the numerous black figure Attic vases have origins that are particularly difficult to establish, making it highly unlikely that any evidence exists to show that they were obtained or exported illegally.
Meanwhile the Art Newspaper’s coverage sheds some more light on what appears to have happened. According to its report, “782 items were identified in the collection that could be considered Italian national heritage, and as such had been exported illegally”.
“Could be considered”? And “as such”?
What this appears to reveal is that the collection – the owner is not a dealer despite the headline – has been deemed illicit because of its quality and importance, not on the grounds of illicit export.
Did the Art Newspaper correspondent ask the authorities what actual evidence they had that the collection was illicit? If so, what was it?
Italy’s first comprehensive cultural heritage law restricting exports (Law No 364/1909) came into force in 1909. Unless the Carabinieri, Eurojust and other law enforcement are in possession of evidence that the items in this collection were exported against the law after that date, the seizure would appear to have been made on no more than supposition. If so, a legitimate collector has been deprived of his long-held collection, valued by the authorities at €11 million, as a result of what would seem to be no more than nationalism and cultural piracy.
At the very least it would seem reasonable for the authorities to publish their evidence in such a significant case.
Due process must be protected: if the collection has been looted, then it has been rightly returned; if not, then significant reparations need to be made and a public investigation launched into how such a miscarriage of justice can not only take place but be promoted by the authorities in such a misleading way.
Following her involvement in the February conference to mark 25 years of the UNIDROIT Convention, ADA chairman Joanna van der Lande was invited to contribute a major article on the history of the antiquities trade, including the issues that have dogged it over the years and how attitudes have developed along the way.
To be published by UNIDROIT later in the year, it has been previewed in three parts by Cultural Property News.
A fascinating seminar hosted by London law firm Maurice Turnor Gardner LLP on April 29 invited legal experts to consider issues arising out of the seizure and return to Iran of the Persepolis fragment in 2017 and 2018. Subscribers can read the background to the case in the Art Newspaper.
What the panellists were there chiefly to debate was conflicting jurisdictions and how to negotiate them. Although at least one of the panellists, Fionnula Rogers (Consultant lawyer in the art and cultural property group at Constantine Cannon and Chair of UK Blue Shield) argued that although the UK courts could have become involved, essentially the case initially appeared to put the Quebec civil code and New York State law on a collision course.
Alexander Hermann, Assistant Director of the Institute of Art & Law, argued that under the former, clear title is likely to have passed to the Montreal Museum of Fine Arts in 1951, thence to AXA Fine Art in 2014 and so to the dealers Rupert Wace and Sam Fogg in 2016. If that law had prevailed, there would have been no case to answer. However, under New York State law, because there is no statute of limitations for theft, title would never have passed from Iran, hence the seizure by the Manhattan District Attorney’s office when the relief was sent for display at TEFAF New York in 2017.
Setting any public disputes about who knew what and when in the process of the dealers consulting academics on the status and history of the relief fragment, and the fact that it had been publicly displayed in the museum and then at fairs in London and the Netherlands over a period of decades, Rogers noted that Iran may have waited to act until it was sent to New York because the chances of a successful legal outcome would have been greater there than elsewhere.
She cited an example where the owner of another disputed piece won her case in London because the UK court had decided to apply French law rather than Iranian law. This was because the disputed piece had been sold in France, under the application of whose law in her case she had acquired title regardless of the original theft contrary to Iranian law.
Dealers volunteered to return the relief fragment
In the end, the 2017/18 New York case never concluded as the dealers voluntarily ceded the relief fragment to Iran in the face of clear evidence of its being located in Persepolis after Iran’s 1930 cultural protection law would have prevented its legal export without official sanction.
However, as the panellists also noted, just as interesting were the arguments over the levels of due diligence carried out by the dealers. While this had been extensive, the DA’s office argued that it had been insufficient under New York standards, even though the transaction in which the dealers had acquired it had taken place elsewhere. Was it reasonable to have expected the dealers to have taken into account many or all other jurisdictions across the world in approaching due diligence at the time of buying it, Rogers asked. She suggested that although many countries have still not ratified the convention, UNIDROIT’s standards here might well help.
Also of interest was the role of the Oriental Institute in Chicago, among whose digital files the relevant photos of the fragment in situ in Persepolis eventually surfaced.
Wace and Fogg had been criticised for not checking the archive properly. However, as Rogers pointed out, when the Oriental Archives reported the 2011 theft from the Canadian museum, they themselves did not make the connection between the relief fragment and what was in their archives even though they were in the process of digitising them at the time. And it was also noted that the time and effort required to source the images in the archive was not as simple as had been assumed.
Rogers, Hermann and their co-panellist, Ed Powles, Partner and Head of Art & Heritage at Maurice Turnor Gardner, then looked at what the trade could do to avoid being caught up in these complex situations of conflicting laws. Hermann advised buyers and sellers to protect themselves with contractual clauses covering warranties of title and implied warranty of quiet possession. Rogers suggested adding a warranty of marketable title to cover situations where any challenges could delay or interfere with transactions, while all three agreed that contract terms should stipulate whether they applied to just the jurisdiction of the transaction or other jurisdictions as well. Title insurance would also be a good idea, advised Hermann.
Powles argued that the relief fragment case showed that title may not always be the robust concept that it sounds and that there is no universal concept of title.
Moral and ethical arguments took precedence
Ultimately, moral and ethical considerations overtook any legal arguments in returning the relief fragment, they agreed, but along with the changing cultural heritage landscape globally, the case pointed to the need for clarity on what constitutes reasonable due diligence across jurisdictions.
Hermann stressed that increasing regulation, such as the European Union’s new import licensing laws, would have prevented such a case arising today because it would not have been possible to import the relief into the EU (including the UK at the moment, which has enacted part of the law) without an export licence or clear evidence showing legal export from Iran.
Powles concluded that we have reached a point in time where different standards may start to apply as cultural heritage issues increasingly occupy stage centre in the political and legal sphere.
Rogers approved of UNESCO’s recent pledge to work more closely with the market in search of solutions as a more constructive way forward.
The seminar was especially successful at showing in microcosm the frequent flashpoints between the market, countries of origin, academics and others as they argue over conflicting rights.
Iraq is having a problem encouraging young Iraqis to train as archaeologists, according to the country’s internal media. The cause? Those who train cannot find work.
This is an astonishing state of affairs bearing mind the crying need for new domestic talent and expertise, a long-term plan for conservation and preservation, in keeping with the country’s Article 5 obligations under the UNESCO 1970 Convention and the vital importance of cultural heritage tourism to the future of the county’s economy.
“Many of Iraq’s world heritage sites lie in ruins three years after the collapse of the Islamic State and thousands of mounds conceal remnants of ancient cities,” says Al-Fanar Media. “The sites are under threat of looting and need teams of experts to unveil their treasures. But fewer young people want to study archaeology in what is regarded as the cradle of civilization, and jobs are scarce for those who do.”
Meanwhile field excavations continue, led by teams from the United Kingdom, the United States, France, Italy, Germany and the Czech Republic.
The experiences of one candidate explains their discouragement: “The graduates’ situation is painful,” Al-Obaidi said. “There are no public or private jobs for us. It has become a joke for an archaeologist to apply for jobs.”
The extent of the problem is illustrated by the University of Mosul intake: “only 28 students out of 17,000 students joined the College of Archaeology this year, according to its president, Kossay Al-Ahmady.”
“Usama Adnan, an assistant professor of history at Al-Mustansiriyah University, says the admission of only a handful of students in some of Iraq’s archaeology schools stems from “a lack of archaeological awareness.”
Al-Ahmady believes that poor pay is one of the reasons that put potential archaeologists off. Others experts give their reasons too.
Above: The UNESCO advert that sparked suspicion and led to the campaign being unmasked as fake.
In what must be one of the most stunningly cynical attacks on the international art market yet, UNESCO has been caught out promoting a fake campaign to mark the 50th anniversary of its 1970 Cultural Heritage Convention – not once but twice.
The trade first realised something was wrong in late October when UNESCO launched The Real Price of Art campaign using a bogus figure of $10 billion as the estimated annual value of illicit cultural property across the globe.
As noted in the last news report published here, the ensuing email exchange revealed UNESCO’s source, the fact that it did not support the claim at all and the further fact that no reliable alternative source existed at all for the claim.
Advising UNESCO that in the absence of a reliable source, it was promoting inaccurate information in what is a highly sensitive area, our fellow organisation, The International Association of Dealers in Ancient Art (IADAA) asked that the error be corrected before it was disseminated any further than it already had been. This was followed by a letter from the art and antiques global trade federation CINOA also protesting about the figure.
The advice was ignored and UNESCO continued to promote the figure into November. It remains on the organisation’s website.
Then came another shocking revelation: the accompanying advertising campaign was almost entirely fraudulent. IADAA worked with CINOA and the ADA to expose this when suspicion arose about part of the content. Again, CINOA has written a letter to UNESCO Director General Audrey Azoulay to complain formally.
Handled by Paris agency DDB and supervised by senior UNESCO officials Ernesto Ottone Ramirez and Lazare Eloundo Assomo, The Real Price of Art campaign featured posters showing a number of artworks presented as though in the contemporary settings of collectors’ homes. Importantly, they are also presented as looted from their source countries and sold via the art market.
However, the joint investigation revealed that the images had been taken from The Metropolitan Museum of New York and actually showed pieces that had been in the museum’s collection legally for decades or longer.
How the fake campaign was unveiled
Suspicions were initially raised by one of the images, shown here, which depicted a funerary relief from Palmyra, dated 50-150 AD. Under the headline ‘Supporting an armed conflict has never been so decorative’, the accompanying description read: This priceless antiquity was stolen in the National Museum of Palmyra by Islamic State militants during their occupation of the city, before being smuggled into the European art market. The trade in antiquities is one of the terror group’s main sources of funding.
The trade realised that such an important piece would have been widely reported in the media if looted by ISIS and later seized, but those investigating knew that it hadn’t been. This led to a Google search and within minutes the truth was uncovered: the relief is actually in the Met Collection, where it can be seen clearly on the museum’s website. It was acquired by the museum in 1901, as its provenance states.
Within another few minutes, the rest of the lie was also uncovered.
A Côte d’Ivoire Moon mask dating to around 1880 also featured in the UNESCO campaign. Also presented in a contemporary interior, it was captioned ‘How do you erase a whole culture? Piece by piece’ and was described as follows: Moon Mask Côte d’Ivoire, ca 1880 – This African art object was looted in Abidjan as fighting took place following the electoral crisis of 2010-2011. A rare testimony to the pre-colonial history of Côte d’Ivoire, its loss is irreplaceable.
Again, the mask actually appears in The Met’s current collection, where it is described as Moon Mask ca. 1880 of the Baule peoples. The listed provenance dates back to 1954, giving the names of various owners through whose hands it passed in Paris and New York. Sold at Christie’s in April 2003, it remained in a private New York collection until 2015, when it passed to The Met.
The head of a Buddha from Afghanistan, dating to the 5th-6th century AD, also featured in UNESCO’s advertising campaign. Shown resting on a sideboard among books, it featured under the headline ‘Terrorism is such a great curator’ and was captioned as follows: This antiquity belongs to the Kabul Museum. In 2001, a large part of its collections was smashed into pieces by the Taliban. As the group was overthrown later that year, this priceless item was looted by local dealers and smuggled into the US market.
Except it wasn’t. Instead, it too appears in The Met Collection. In this case, not only does the listed provenance show that it was excavated in Tibet or Turkestan during the 1927-28 Trinkler expedition and that it was sold to The Met in 1930, it also cites four Met exhibitions in which it has since appeared, in 1940, 1971, 2007 and 2012-13.
The Met was not the only source for images falsely represented in the UNESCO campaign.
Under the headline ‘Art knows no frontiers. Neither does organized crime’, it pictured what was described as a Vessel with head Neck Peru, 4th-6th century A.D. – Before standing here, this piece of pre-Columbian art was looted in an illegal excavation by ‘subsistence diggers’. It passed through two middlemen, crossed Costa Rica and Florida before being sold to an art dealer in Europe, who sold it himself through an auction house.
The problem is that none of this is true. Instead it is a stock image from Alamy available for marketing use for around £180.00.
UNESCO’s ‘clarification’ after being caught out
After the Art Newspaper (see https://bit.ly/3pF7c5S) published the revelations, UNESCO eventually took down the images and replaced them with others, adding the following ‘clarification’:
“In an initial version of UNESCO’s campaign, the ‘Real Price of Art’, some posters displayed items from the Metropolitan Museum of Art (MET) database, which is in the public domain. UNESCO’s intention was to alert the general public by depicting objects of high cultural value, which should be on display in museums, presented in luxurious private interiors. UNESCO had no intention of questioning the provenance of items in the MET collection.
After discussions with the MET, who is a valuable partner to UNESCO, and in order to avoid any misunderstanding, UNESCO decided to remove all pictures of items from the MET collection. Only three magazines had already been printed. The digital versions of these publications were modified.
The rationale of the campaign is to capture the attention the general public with a view to encouraging them to exercise due diligence when purchasing cultural property. The campaign has been widely spread and original posters are shown above.
UNESCO regrets the use of MET images that caused any misunderstanding.”
Despite the assurances that what had already been published via other internet sources had been modified, this was not the case. Indeed, even now the offending material is still clearly present on the web, as a simple Google search reveals (see, for example, https://bit.ly/365awiP).
UNESCO may well regret the embarrassment, but it doesn’t seem to have learned from it as the two hastily inserted replacement photos for the campaign testify. One, which retains the original caption almost in its entirety, shows another tribal mask, which UNESCO claims was looted in Abidjan in Côte d’Ivoire after the 2010 crisis. However, it wasn’t, as confirmed via email by the Director of the museum where it remains.
The other replacement advert shows an alabaster figure of a woman wearing polos headwear and an accompanying caption (under the headline Supporting an armed conflict has never been so decorative) that tells us: “This priceless antiquity was stolen from the National Museum of Aleppo when the fighting was at its peak in 2014, before being smuggled into the European market…”
Again, not true. Following the earlier debacle in which the Peruvian pottery image was lifted from Alamy Stock Photos, this one comes from one of a series of digital photo archives, such as Getty Images (see https://bit.ly/364gVL5). It has been reversed for the purposes of this advert. In addition, the actual statuette itself remains in the Aleppo Museum, appearing on display in a video to celebrate the re-opening of the museum at the end of last year. (See https://bit.ly/33ecPy6 1.24 mins in). Another video features Khaled Al-Masri, Director of Aleppo Museums and Antiquities, who states that despite the museum being attacked during the conflict, its collection was entirely saved. (See https://bit.ly/369XErv).
“During the crisis the museums was under a fierce attack of armed gangs which directly targeted the museum with different types of mortars and missiles,” he says. “The museum infrastructure was massively affects [sic], nevertheless, its entire antiquities were saved thanks to the Syrian Arab Army efforts along with the museum’s employees who kept such antiquities safe.”
UNESCO effectively admitted the error by once again altering the advert of the Woman with polos so that it now reads: “A priceless antiquity similar to this was stolen from Syria…”. In other words, not only does it acknowledge that the statuette pictured was not stolen, but it also removes any mention of the National Museum of Aleppo, which had been held up as a beacon for others to follow because of the outstanding manner in which its collection had been protected from looting.
To be caught out once misleading the public like this is bad enough, but to embark immediately on a replacement campaign that is also fabricated beggars belief. Is UNESCO really not going to take responsibility here and do something serious about it?
If the evidence exists, why not publish it?
UNESCO keeps claiming that evidence of trafficking involving the art market is so widespread and clear. If so, why persist in publishing false information and go to such lengths to do so? Why not simply publish the real evidence instead?
The fact is that despite all of the claims over the past few years, very little evidence indeed has come to light linking the legitimate market in Mediterranean Classical civilisation, Middle Eastern and North African artefacts to looting and trafficking. The only evidence we are aware of at all of terrorism financing links is that from the documents linked to the Abu Sayyaf raid in 2015, and that showed that funds raised projected across a specific 12-month period from trafficking in antiquities, precious metals and minerals combined would be around the $4 million mark. Note that this is also not connected to the legitimate market in any way.
What this means is that a) the legitimate art market, including collectors, is being targeted and harassed by UNESCO and others in an entirely unreasonable manner that breaches their human rights and b) precious time and resources that should be spent on the priority of protecting vulnerable sites, stemming the growing tide of internet crime and carrying out effective research are being wasted on creating confected scenarios to explain politically driven campaigns for which there is no justification. This has potentially dangerous consequences for the poor and vulnerable in source countries. How does this fit with UNESCO’s UN mandate?
The UNESCO advertising campaign is a case in point. During his speech to the Latvia-sponsored conference Opportunities and Challenges of Art and Antiques Market Management in late November, UNESCO’s Director of Culture and Emergencies, Lazare Eloundou Assomo, stated that the art market claims trafficking is decreasing and has never financed terrorism. The art market does not argue either of these points. Instead it simply states that no evidence has been presented to support the levels of trafficking claimed by anti-trade campaigners and that the only clearly demonstrated link to terrorism financing so far shown is that stated above. This is what available data shows. Independently, the RAND Corporation report, published in May 2020 and based on open source data, also concluded that the claims over trafficking are exaggerated (See https://bit.ly/3fFnaIt).
Dismissing criticism of UNESCO’s The Real Price of Art campaign, Director Assomo said it had been “largely applauded” by all member states – presumably because they were not aware that it had been faked. It will be interesting to see how they react when they find out how their money has been spent.
Calling for more co-operation between the market and other stakeholders and the overcoming of division, he also stated that he wanted to make a clear distinction between the legitimate art market and traffickers. Readers will judge for themselves whether UNESCO’s campaign does this, especially bearing in mind that three of the confected stories in the adverts – those relating to the funerary relief, Buddha head and Peruvian vessel – all specifically accuse the art market of direct involvement in crime, including the funding of terrorism. We reproduce the offending adverts and the originals here to allow for a transparent comparison. While UNESCO’s online ‘clarification’ regrets any ‘misunderstanding’, it stops short of claiming that it did not intend to mislead. Director Assomo expressed his confidence in the success of the campaign, which he helped to supervise, during his Latvian conference speech. Others are far less sanguine about its intentions and consequences because the messages it gave out were clear and unambiguous, leading to a series of questions:
- How did the UNESCO supervisors supervise this campaign?
- Who decided to use the Met images in this way?
- Who knew about it and signed off the campaign and the replacement campaign?
- What is UNESCO doing about it?
- What measures are UNESCO taking to make sure that this doesn’t happen again and that those responsible are held to account?
- How does UNESCO rebuild public trust and confidence after this?
- How satisfied is UNESCO that it has followed ethical practice here?
Either the UNESCO officials – including its Director of Communications – knowingly deceived the public via this campaign or they were astonishingly incompetent and dangerously unaware of its likely impact. Neither scenario is reassuring.
Let’s not forget that UNESCO gave as its source for the $10 billion figure the Renold study, a joint venture with the European Commission. Setting aside Renold’s own denial that the figure could have come from him, surely any joint project should also abide by the Commission’s guiding principles.
In November last year, incoming President of the European Commission, Ursula von der Leyden, set out six guiding principles. One, relating to Interinstitutional relations and better policy making, states: “Proposals must be evidence based, widely consulted upon, subject to an impact assessment and reviewed by the Regulatory Scrutiny Board… A stronger relationship with citizens starts with building trust and confidence. I will insist on the highest levels of transparency and ethics[her emphasis] for the college as a whole. There can be no room for doubt about our behaviour or our integrity.”
So what does the European Commission President think about its partner, UNESCO’s campaign?