Martin Wilson is the former Chief General Counsel for Christie’s, the auction house at the centre of this case. Now as Chief General Counsel for Phillips, who do not trade in antiquities, his interest in the subject is academic. Here he shows a firm grasp of the relevant arguments at hand in a detailed article published on Linked In.
Wilson gives the back story to how Turkey ended up launching a legal claim for the return of the Guennol Stargazer, an Anatolian marble figure dating to around 3,000 BC. It also explains why Turkey lost its claim in the District Court. A lack of evidence to support its claim combined with its failure to act for years when it could have done so weakened Turkey’s case beyond hope here.
Arguably Wilson’s most important observation is as follows: “It is sometimes assumed that, because of the complex ethical, political and historical issues which surround them, cultural restitution claims are not subject to the same evidential requirements and rules of justice which apply to other claims or at least that these rules should be applied less rigidly. This ruling illustrates that this will not be the approach where the parties bring their dispute before the US Courts. It confirms that in common with any ordinary civil ownership dispute, a party claiming restitution must, if it hopes to prevail in a US court of law, be able to satisfy the evidential burden of proving the facts necessary to establish ownership in accordance with the requirements of the law.”
This may also explain why Italy has avoided going to court in its claim against Alan Safani.
Wilson notes the increasingly commonplace arguments used by source countries in their attempts to reclaim artefacts: “It is not uncommon for the parties on either side of the debate in cultural property restitution cases to assume bad faith and wrongdoing. The Turkish government followed a line of argument which is commonly used in cultural restitution cases – that an antiquity outside of its country of origin without evidence of how it came to leave that country should be treated by collectors as a red flag and that there is a presumption of illegal export or excavation which arises in such circumstances.”
Fortunately, although source countries’ attempts to reverse the burden of proof in this way may work under the terms of their Memoranda of Understanding with the United States, it is a different matter when these claims go to court, as this case shows.
Wilson also reminds us that statutes of limitation do count, although they are constantly overlooked.
Crucially, he concludes with some sound advice: “While the judgment does not say so, the outcome of the Stargazer case highlights the shortcomings of the debate over cultural property being expressed as a question of “ownership”.” Certainly, while source countries continue in their attempts to ride roughshod over individuals’ legal rights, no one will be satisfied.
The media was abuzz with claim and counter claim over the row concerning Christie’s sale of the 3,300-year-old quartzite head of Tutankhamun in early July.
Initially, the Egyptian government said it would call for the head’s return if it could be shown that it had been stolen and illegally exported, but this soon changed to a simple demand for it to be handed over regardless. The country’s former head of antiquities, Zahi Hawass, was reported as stating that the law didn’t matter and it should be returned on moral grounds alone, later adding that it had been stolen from Karnak after 1970, but failing to provide any evidence of this.
Appeals to the British Government to intervene fell on deaf ears, presumably because the Egyptians had provided no evidence to support their claim and nothing emerged to show that Christie’s were acting unlawfully.
That did not stop numerous media reports implying that Christie’s were acting improperly, however. Typically, they led on how Christie’s were pressing ahead ‘despite’ objections from Egypt, but without explaining that the objections were groundless owing to lack of any evidence.
Events were soon overtaken by an article by Owen Jarus in Live Science. Headlined Exclusive: Controversial King Tut Statue Has Sketchy Origins. Now Christie’s Is Selling It, it claimed that one of those listed as a previous owner, the late Prince Wilhelm von Thurn und Taxis, never possessed it or any antiquities collection. Jarus’s June 25 article attributed the claims to the prince’s son and niece, although the latter believes the head may have been owned by the prince’s cousin Prince Raimondo Torre e Tasso. The Live Science article stated that a family spokesperson said Raimondo never owned it either.
Having said this, Live Science also noted that Egyptologist Sylvia Schoske, who is the director of the State Museum of Egyptian Art in Munich and studied the head and published an article in a book on it in 1986, cautioned that “questions concerning the provenance of objects were not so much in the focus 30 or 40 years ago as they are today”.
In response to Live Science’s claims, Christie’s reported that it had confirmed the provenance to the prince.
Claims amount to no more than unprovable hearsay
What the claims amount to, then, is hearsay based on memories dating back several decades that can be neither proved nor disproved because they are based on establishing a negative.
If Jarus and Live Science believe that Christie’s should not have gone ahead without incontrovertible proof of when and how the head was exported legally from Egypt, it is not a standard they applied to themselves in another recent article.
On June 5, Live Science published an article by Jarus under the headline ‘Blood Antiquities’ looted from war-torn Yemen bring in $1 million at auction – a very serious claim indeed. Read the article, however, and not only does it not provide any evidence of this, but it does not even make the headline’s claim in the article itself, something neither Live Science nor Jarus have seen fit to correct at the time of this article being posted almost six weeks later.
The introduction states: “At least 100 artifacts from Yemen have been successfully sold at auction for an estimated $1 million in the U.S., Europe and the United Arab Emirates since 2011, according to a Live Science investigation into the country’s so-called ‘blood antiquities’.”
By the third paragraph, the article concludes: “Some of the artifacts have detailed provenance information that suggests they were taken out of the country decades ago, while others have little or no provenance information, raising the question of whether they were recently stolen or looted.”
This is as far as it goes in establishing any criminal activity – in other words, nowhere – yet this has been translated into the compelling headline listed above.
The article continues by noting a surge in shipments of artefacts, antiques and art from Saudi Arabia (“a country that borders Yemen and is involved in the conflict”) since 2015, with just under $6m worth of them shipped to the United States.
Quite apart from the fact that this does not show that the items came from Yemen, it also fails to consider that other reasons may explain the exports. Jarus is reduced to claiming nothing stronger than the items are “potentially smuggled” – in other words, as with the Tutankhamun article, his “evidence” is no more than speculation, with nothing credible to substantiate his claims at all.
It is difficult to see how this lends any credibility to either Jarus or Live Science. Nevertheless, the claims have been repeated, unqualified, by Yahoo News and others. Far from being scientific, this amounts to fake news. Bearing this in mind, how much credibility should be given to Jarus’s article on the Tutankhamun head?
Protestors’ claim over history fly in the face of facts
The Art Newspaper, meanwhile, scooped other media outlets with a photograph of protestors outside the auction. The protestors reportedly came from a group calling itself Egyptian House and described as a “community-based organisation”.
The Egypt Independent later reported that the Egyptian Antiquities Association had organised the protest, although there is no indication of the nature of that organisation, which was listed in a July 3 article by the Egypt Independent as The British Association for the Preservation of Antiquities.
One protestor named as Magda Sakr was quoted as saying “Egypt would never willingly sell our history”, although, of course, that is exactly what it did, as the article goes on to report in quoting IADAA chairman Vincent Geerling. Reminding readers that “Christie’s has long been co-operative with the Egyptian authorities and this piece has been widely published before without the Egyptians making any challenge over it”, he added that “the Egyptians have provided no evidence at all of the piece having been stolen or trafficked, having said that they would insist on the claim if they could do so”.
He continued: “It should be remembered that the Egyptian government licensed the sale of antiquities through dealers and benefited from the income for more than 150 years. More than 100 licensed dealers were active in Egypt, including a saleroom in the Cairo museum, and they shipped out antiquities under licence by the crate-load. This trade was legal under Egyptian law right up until 1983.”
The New York Times also covered the story, making reference to the Live Science article before quoting Mr Geerling.
Tatiana Flessas, an associate professor of law at the London School of Economics, who specializes in cultural property, told the NYT that Christie’s sale of the Tutankhamen head was a significant moment. “It showed that a claim like Egypt’s continues to be open to dispute,” she said. “Not every antiquity is cultural property.” She added that Egypt’s call for the return of the sculpture was a “nationalistic claim, an anticolonial claim, with a moral rather than legal justification”.
• Following the sale of the head for $6 million, the Egyptian Government said it would take legal action against Christie’s. Nearly six weeks later, all is quiet on that front.