It’s worth remembering that delay: 52 years plus three weeks.
And it’s well worth revisiting the terms of the Convention because so many people these days misinterpret it for their own ends.
As its articles set out, it was designed to protect exceptional objects – national treasures specifically designated as important in published lists by the countries where they originated (Article 1). Today those campaigning against the art market argue that it covers every last commonplace artefact: it doesn’t. What’s more, few if any States Parties have submitted such lists of important works.
States Parties to the Convention make seven pledges under Article 5. These include a further commitment to keeping an updated national inventory of protected property (few, if any do); organising the supervision and protection of archaeological excavations (few do); and ensuring that interested parties such as curators, collectors and the market observe the principles of the Convention (these parties tend to do this themselves).
Article 6 commits States Parties to introducing a system of export licensing that includes the issuance of an export certificate or licence (only some do).
Article 7.b(ii) introduces one of the key elements of the Convention: “The States Parties to this Convention undertake: at the request of the State Party of origin to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property.” [emphasis added].
The words highlighted here in Article 7.b(ii) are vital. They show that the terms of the Convention only apply to a State Party after it has adopted them into its national legislation either automatically or via ratification. So, in Kenya’s case that is May 15, 2024.
Who signed up to the Convention and when?
The adoption list shows that the first countries to adopt the Convention were Bulgaria, Ecuador and Nigeria, which did so on the first day of enforcement, April 24, 1972.
Apart from Kenya, countries that have ratified or accepted the Convention much more recently include Switzerland (2004), Afghanistan (2005), Germany (2008), The Netherlands (2009), Austria (2015), Ethiopia (2018), Yemen (2019) and Malawi (2022). Many countries in Africa and Asia did not accede to the Convention until the 21st century.
An interesting case in point is Egypt, which did not accept the Convention until July 5, 1983. Up to that time, not only had Egypt overseen a system of licensed dealers selling antiquities for legal export, it even ran a saleroom from the Cairo Museum. The picture here shows a visitor inspecting items for sale there around 1965.
Why is this important? Because under numerous proposals now being made – in particular via Regulation (EC) 2019/880 within the European Union – a widespread attempt is being made to enforce the terms of the Convention on a global basis from April 24, 1972.
This means imposing its rules on States Parties that have not agreed to such a move. In Egypt’s case, it will effectively outlaw any item sold and exported legally from Egypt in the 11-year period between 1972 and 1983 for which documentary proof to the standards demanded today cannot be provided to show that the purchase and export were legal. In reality, that will mean just about everything, because the export licence, which it would be essential to produce today, probably no longer exists and, in the extremely rare cases where it did, it would probably not have sufficient identifiable detail to meet the exacting standards now imposed for import.
It should be remembered that in 1980, for instance, no requirement would have existed to retain an export licence once used – indeed it would have expired. (Even today no requirement subsists to retain such licences once used and expired.) In many, if not most cases, a single export licence would have covered multiple items, and so would not have stayed with any or all of them once the export/import process had been completed. Items then sold on to new owners legally would not have been accompanied by the export licence, and many of these items would have changed hands several times since.
The challenge for the private citizen
How would a current owner supply the required proof under such common circumstances?
The retroactive application of the 1970 UNESCO Convention terms by national law enforcement bodies such as customs would effectively outlaw objects that have been exported and traded since entirely legitimately. Such an imposition would be in direct contravention of human rights conventions (as well as basic principles of international law) to which the countries imposing these new rules are signatories. As a reminder, Article 17.2 of the Universal Declaration of Human Rights states: “No one shall be arbitrarily deprived of his property,” while Article 1 of the Protocol to the European Convention of Human Rights states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
‘Arbitrary’ has a meaning that includes “unrestrained and autocratic in the use of authority”, while “general principles of international law” include the concept of innocent until proven guilty.
By retroactively outlawing legitimate activity and doing so in a way that an individual cannot demonstrate their innocence, the authorities effectively breach the human rights conventions, yet this is what is proposed.
It should also be remembered that the articles of the UNESCO Convention were drawn up specifically to prevent such an imbalance of interests, as noted by one of its architects Mark B. Feldman in his 2023 book Footnotes to History.
Under Article 7.b(ii) of the Convention, in Kenya’s case, its terms should only apply from May 15, 2024, not 52 years ago.
As we celebrate the 52nd birthday of the UNESCO Convention on the means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, it is timely to remind those who support its aims that they should follow its terms and not abuse it for their own undemocratic ends.
•The false claim that illicit trade in cultural property is third only to that in drugs and weapons
So many conflicting claims have been made about Interpol’s art crime figures, including the looting and trafficking of antiquities, that it is difficult to know what to believe these days.
Part of the problem was that for years Interpol published conflicting claims on the Art Crime home page of its website, as the screenshots here show:
Headlining was the claim that “The black market in works of art is becoming as lucrative as those for drugs, weapons and counterfeit goods”. Earlier claims by Interpol valued the global illicit market in cultural property at around $4 billion to $5 billion annually.
This has never been true, and recent figures in the World Customs Organisation’s annual Illicit Trade Reports demonstrate this clearly. In fact, cultural property crime, which includes categories such as household goods is, by a very long way indeed, the smallest risk category.
The admission that Interpol has never had any figures to demonstrate its headline claim, nor is ever likely to obtain such figures, appeared in a click-through section lower down on the same page (see above).
Unfortunately, bodies such as the European Commission, the Carabinieri and UNESCO have promoted the headline claim while ignoring the admission lower down, leading to the widespread dissemination of what amounted to a false claim. This matters because the false claim has directly influenced new policy and further restrictions on the art market.
Fortunately, after having the discrepancy pointed out to it for several years, Interpol finally removed the conflicting claims from its website in March 2019. However, the headline claim’s pervasiveness, in what amounted to a long-term viral online campaign against the art market, means that it is still widely quoted and believed to this day.
Transnational operations (Operation Pandora etc)
For the past decade and more Interpol has co-ordinated with Europol and national police forces in dozens of countries on an annual basis to mount operations aimed at stemming the flow of illicit cultural property that might be involved in money laundering and terrorism financing.
With names such as Odysseus, Athena and Pandora, these huge operations target individuals, households, business and transport. The resulting media releases enumerate vast numbers of seizures, as well as arrests, while also providing examples, including photographs of important items that have been seized.
While this all looks impressive, what neither Interpol nor Europol have ever done is to follow these data up with the crucial information about how many of these seized items later turned out to be illicit and linked to money laundering or terrorism financing. Nor do they ever publish conviction rates for those arrested.
The ADA and IADAA have twice asked Europol for these figures.
The first occasion was in February 2017, when Europol told us: “As your questions are very detailed and some are focused on particular countries, I suggest you get in contact with the countries involved. We can only communicate on a general level and don’t hold all the details of the different participating countries.”
The second occasion was in May 2023, when Europol told us: “Unfortunately, we won’t be able to help as we do not have these figures. Europol is not a statistical organisation – Europol’s priority is to support cross-border investigations and the information available is solely based on investigations supported by Europol.”
Interpol has published numerous media releases on the same subjects and has included operational results in separate reports, including its 2020 report, Assessing Crimes Against Cultural Property.
This included data on Operation Pandora V, which took place across 32 countries and resulted in more than 56,400 cultural goods being seized and 67 arrests. 27,300 of the items seized came in a single haul in France where Customs officers arrested a man who had been illegally digging up archaeological pieces.
The leading publicised highlight from the operation was a set of three gold coins that “could have been worth up to €200,000 on the black market”, which were recovered after the arrest of two men in Spain.
Data in the Interpol report relating to global crime referred to arrests, but shed no light on convictions or how much of what was seized later proved to be illicit. No mention of terrorism financing was made.
Page 14 of the report revealed that of the 567,465 items seized in Europe, 83% (or 472,933) were library materials. This single category of library items accounted for 55% of the global total of 854,742 objects seized for the whole of 2020.
Ongoing issues
Despite supposedly cleaning up its act with the 2019 relaunch of its website, Interpol has continued to promote false and unsubstantiated claims.
In the introduction to its 2021 report it stated: “The illicit trafficking of cultural property is a major source of revenue for organized crime groups and terrorists alike…” (see page 4) – It is clear from Interpol’s other statements on data that it has no evidence to show cultural property to be a major revenue source for terrorists.
Following these conflicting claims and lack of vital intelligence, what does Interpol publish on its website in 2024?
Despite providing no data, and having admitted that it has never had it, nor is ever likely to obtain it, Interpol’s headline claim on its Cultural Heritage home page is: “Trafficking in cultural property is a low-risk, high-profit business for criminals with links to organized crime.”
Click through to the section on Crimes: The issues – cultural property, and it is largely populated by general statements. The one hard claim is that “the majority of thefts are carried out from private homes”.
The related news section at the bottom includes links to other news, including the most recent release on a transnational operation, Pandora VII, from May 2023, which again limits data to arrests and seizures, but gives no information on outcomes.
Nowhere on its website does Interpol provide clear data as to the scope and value of illicit cultural property.
However, despite admitting that it does not have the data, and despite WCO and other figures showing it not to be true, and despite updating the Art Crime home page, Interpol still promotes false claims via an out-of-date video from 2015 on its web page How we fight cultural crime.
Worse still is that the person making the claims in the video is Interpol’s Secretary General Jürgen Stock, who states that the illicit trade in cultural property is as lucrative as those for drugs, weapons and counterfeit goods, and then directly links them to terrorist financing, even though no evidence of this happening has been provided beyond the very limited Abu Sayyaf case of May 2015. In doing so, he directly links these purported crimes to the international art market, despite providing no evidence to support this.
The Secretary General makes his claims based on UN sanctions relating to Syria (2199) and Iraq, but these are preventive measures, not evidence of executed crimes. At the time of adoption in 2014, the sanctions’ text stated that terrorists were benefiting from trade in cultural property but gave no examples of this happening. As noted above, the Abu Sayyaf raid in 2015 – after the sanctions were introduced – remains the only cited example of this happening, and the sums involved were small and not clearly identified.
It is not clear from the website that the video is from 2015, so viewers may think this is current thinking at Interpol. Mr Stock must surely know better now nine years on from this recording and should remove it from the website. The ADA and fellow trade association IADAA have contacted him directly recently and asked him to update the website, but so far we had no reply.
To repeat: Nowhere on its website does Interpol provide clear data as to the scope and value of illicit cultural property
Assistant District Attorney Matthew Bogdanos has been head of Manhattan’s Antiquities Trafficking Unit (ATU) since 2018. He has understood since at least 2011 – and probably earlier – that claims of a multi-billion dollar market in looted and trafficked antiquities have no basis in fact. This is evident from the opinion piece he wrote for CNN, published on July 7, 2011. In that piece he wrote:
“One of the main problems with looting is that if a site is undiscovered, you simply don’t know what you don’t know. Interpol estimates that the illicit antiquities trade is worth billions of dollars. My question is: How do they know that?
“If it is illegal and, therefore, a clandestine trade, how do you know the dollar amount? It is similar to the drugs trade, you guess from the amount you’re able to seize. It is not a scientific approach, nor one I am comfortable using in assessing the total value of the worldwide trade in illegal antiquities.”
These two paragraphs additionally confirm that Bogdanos is guessing when he associates the scale and importance of antiquities trafficking with that of drugs and weapons. He even tells us that that is exactly what he is doing and that he is not comfortable with it.
If, as he argues, that Interpol – and so anyone else – cannot possibly know the value of the illicit market, it is a logical consequence that they also cannot claim that it is of equal standing in scale and scope to markets in trafficked drugs or weapons. These are simply false claims about antiquities.
Further evidence to show claims are false
Little has changed regarding such data since 2011, except that since 2015, the World Customs Organisation (WCO) has produced annual Illicit Trade Reports assessing the size and comparative extent of risk categories, including cultural heritage. Those reports include information registered via the Customs Enforcement Network (CEN) and so are not comprehensive. However, the figures for cultural heritage, of which antiquities form a miniscule part, are so small compared with other risk categories, including drugs, counterfeit goods, tax evasion and weapons, that it is clear there is no similarity at all in scale or scope between drugs and weapons trafficking, on the one hand, and antiquities trafficking on the other.
Further, the 2020 RAND Corporation report, an independent study into open source data on the issue by what is arguably the United States’ most trusted research organisation, concluded that available evidence showed that a multi-billion dollar illicit global market in antiquities was simply unsustainable: “Simply put, while we cannot claim to measure the size of the illicit market, we can show that observable market channels are too small to act as conduits for a billion-dollar-a-year illicit trade.”[1]
That report also concluded that what had become widespread claims of the trade in illicit antiquities being linked to those in drugs and weapons could be traced back to Bogdanos as the original source.[2]
Twelve years on from publicly declaring that the multi-billion dollar claim had no basis in fact, and that the link to drugs and weapons claim was pure guesswork, we find that the Manhattan District Attorney’s office is still promoting the first claim in its media releases.
False claim repeated more than once in recent media releases
On March 21, 2023, under the headline D.A, Bragg Returns 29 Antiquities to Greece, the official media release from the D.A.’s office included the following statement: “Antiquities trafficking is a multi-billion-dollar business with looters and smugglers turning a profit at the expense of cultural heritage…”. The speaker was Special Agent in Charge for HSI New York Ivan J. Arvelo.
The same quote from Arvelo had been included in the D.A.’s earlier official media release on January 5, 2023, regarding the return of an artefact to the Palestinian authority. It is not clear whether Arvelo made his comment during the ceremony at Bethlehem, when Bogdanos was standing next to him, or afterwards, but it remained uncorrected in both releases.
It is hard to believe that in such a sensitive area of crime fighting official releases from the District Attorney’s office would not be scrutinised and signed off by its leading officer prior to release. If Bogdanos is not screening official releases, it raises the question as to why not. If he is, why is he not correcting what at best can be called misinformation that he is well aware of prior to their issue, or at least doing so once they have been released?
He has long known about how controversial and false these claims about antiquities are and, as in his 2011 opinion piece for CNN, expressed his discomfort with their use. Such oversight is crucial to the ATU’s credibility.
If we cannot rely on the D.A.’s office to issue accurate information relating to this highly sensitive area, how can we have confidence in the rest of what it has to tell us on this subject?
[1] See Measuring the international trade in antiquities, page 70 AND Issues with the Current Approach for Assessing the Antiquities Market to Terrorist Funding, page 12 AND Summary, page 84-85 AND Findings, page xii
[2]See Antiquities Trafficking Using Telegram, pages 49-50
Europol has admitted not having any reliable statistics to support its headline claim over stolen objects in Operation Pandora VII, aimed at tackling cultural property trafficking.
Many media outlets have covered the results of the latest transnational operation co-ordinated by Interpol and Europol with a view to tackling trafficking in cultural property.
Pandora VII, led by the Guardia Civil in Spain, took place over 11 days in September 2022 with two cyber weeks in May and October.
The Europol media release itself stated that the operation led to the arrest of 60 people and the recovery of 11,049 stolen objects across 14 countries.
As the ADA knows well, there is a great deal of difference between seizing items and showing that they are stolen, just as arrests do not equate with convictions.
These operations, along with others named Athena and Odysseus, have been running for almost a decade, and to our knowledge, the authorities have never published either conviction rates or figures confirming how many seizures later proved justified. The ADA and fellow trade association IADAA have sought this information from Europol more than once, but Europol has replied each time that it does not have it, which makes its official release claim this time that 11,049 seized items were stolen all the more surprising.
The twin priorities in carrying out these operations have always been to clamp down on money laundering and terrorism financing, but while there may have been limited evidence of the former across the years, we have heard of no evidence at all of the latter.
Once again we contacted Europol asking the following: a) How many arrests have led to successful convictions? b) How many seizures proved to be valid + how many had to be returned to their owners? c) How many seizures were shown to be linked to money laundering? d) How many seizures proved to be linked to terrorism financing?
As others have also argued, without these accurate clear-up figures, the data serves no purpose beyond propaganda.
Europol’s media office ADMITS IT HAS NO ACCESS TO VITAL DATA
Europol’s media office replied on May 10 as follows: “Unfortunately, we won’t be able to help as we do not have these figures. Europol is not a statistical organisation – Europol’s priority is to support cross-border investigations and the information available is solely based on investigations supported by Europol.”
Confirmation, then, yet again that Europol has no statistics to support the claims it makes, with the further emphasis that Europol is “not a statistical organisation”. If so, what is it doing making statistical claims it admits it cannot support in the introduction to its media release, claims that history tells us will influence policy at a national and international level, as with the introduction to this recent important European Commission document?
Interpol, which has also denied having any reliable statistical information in this field, compounded the error.
Arguably more shameful is the number of media outlets that have reported the unsupported claims Europol has put out in this release without checking them. Newspapers, art market websites and others – all of them experts in their own fields and trained to check their sources – have singly failed to do so in this case.
This is not the first time this has happened; these operations have been going on for a decade and the ADA and IADAA have highlighted the failure of intelligence on numerous occasions. As we showed in this instance, a single email request revealed the truth. So why can’t the experienced journalists working on this story make such a simple check as this to ensure that their reporting is accurate?
One of the worst offenders was Ursula Scheer, a journalist for Frankfurter Allgemeine, who not only swallowed everything she was told without checking, but added even more bogus data to the story unchecked: “According to estimates by the FBI and UNESCO, the annual turnover of the global black market for art and antiques is ten billion dollars, which puts the black market right behind the illegal drug and arms trade.” She also stated: “Selling art and antiques helps mafia activities finance terrorism and war.”
Those who want to know where the bogus data ends and the accurate data begins can check on our Facts & Figures page, which includes independently verifiable data through quoted sources and direct weblink.
Led by CINOA, the international trade federation for art and antiques dealers, industry bodies across the world have reacted strongly to what they see as “very alarming” proposals from UNESCO to regulate the art market.
The proposals have been drafted by a panel of academics, civil servants and legal specialists from countries that have no sizeable art market themselves; they give the impression of having no serious idea of, or interest in, how the art market operates.
The outcome is predictably draconian, unrealistic and extreme, and if passed into law by States Parties to the 1970 UNESCO Convention on illicit trade would constitute an existential threat to much of the wider art market.
Published under the heading Draft Model Provisions on the Prevention and Fight against the Illicit Trafficking of Cultural Property, the proposals even attempt to redefine the meaning of the term ‘cultural property’ so that it has a far wider meaning that that set out in the Convention. This is an early indicator of how UNESCO appears to be sanctioning an upgrade of the Convention without going through the formal process of properly consulting States Parties on it.
It is not the whole set of provisions that cause a problem. In fact, as a whole, Provisions 1 to 13 set out useful proposals for dealing with the scourge of looting and trafficking linked to cultural property. Of particular note are Provisions 6 and 7, in which UNESCO finally targets States Parties over their obligations under Article 5 of the 1970 Convention to protect vulnerable sites from criminals.
Better methods of protection
“This is something that the art market has reiterated for many years,” says IADAA chairman Vincent Geerling, who has been very vocal on the point. “Fulfilling those obligations are the most effective actions in the fight against illicit trafficking and are long overdue, especially the establishment of digital inventories of protected cultural property (Provision 7) and should include the temporary warehousing at archaeological excavations. Photographing and recording archaeological finds before they are stored would provide a more effective means of reporting possible thefts quickly to INTERPOL (as obliged) for uploading onto their database, thereby making them unsaleable and thus preventing trafficking.”
It is when we arrive at provisions 14 to 18 that the trouble starts. These attempt to regulate the art market, something that has nothing to do with UNESCO and should be excised from the proposals.
Provision 15 proposes: “Only private individuals or legal entities, holders of a license issued by the competent authority, can exercise a professional activity directly or indirectly related to the art market.”
This astonishing power grab effectively imposes compulsory licensing on the global art market in a way that it would be impossible to comply with and which, if followed to the letter, would risk exposing art market operators to legal action from their clients.
It also constitutes a serious threat to human rights as, by default, it would remove the commercial value of countless items in private ownership around the world, as well as depriving their owners of the ability to dispose of them how they see fit.
As one art market lawyer responded: “This provision is highly unrealistic. It envisions that only licensed businesses will sell art; however, most countries do not have the capacity or will to create the necessary bureaucracy for such an endeavour. There is an expectation for these individuals to hold legal degrees and be experts in foreign law when such laws are often unavailable or are not consistently applied in practice. They are also expected to maintain a register of movements or transactions, but such record keeping is of little use unless it is maintained in a database, which again would require a major undertaking.”
Risking breach of trust among states parties
The enforcement of this set of proposals would effectively undermine the existing UNESCO Convention because it would supersede its powers and remit. This would constitute a catastrophic breach of trust of States Parties that had not expressly acceded to the changes as formal alterations to the Convention.
Several countries have already made it clear that they will not accede to these proposals. Australia has said it will not oblige dealers to maintain a register of cultural property and those they trade with; Belgium, France, Sweden and the UK do not accept the wider definition of cultural property; and the United States has reserved the right to determine whether or not impose export or import controls and does not accept that the Convention can be applied retroactively. These reservations alone, which include three of the world’s largest art markets, effectively make the proposals unworkable.
It is telling that not only was no member of the art market co-opted onto the panel of ‘experts’ and not one of them hails from a leading art market nation, but also that leading trade bodies such as CINOA were not directly informed or consulted on the matter – CINOA only learned about the proposals because it was tipped off by someone who found out about them.
Reactions from other leading figures and organisations in the market have been equally damning. The European Federation of Auctioneers points out that the industry is already subject to extensive legal restrictions, including over due diligence.
The draft provisions come at the same time as UNESCO is finalising its code of ethics for the art market, another set of rules that it wishes to impose on traders while ignoring the concerns they expressed during the consultation period.
Deeply flawed questionnaire
The questionnaire involved was also deeply flawed because it failed to consider different circumstances for trading artworks, while also assuming that all restitution claims were valid, when so many are not, and that any export not accompanied by a licence is illicit, when that is not the case.
CINOA has pointed out to UNESCO that its consultation over the code of ethics elicited a very poor response from States Parties (only 12%), with only 27 responses from across the entire art market, which it argues “cannot accurately represent the art trade”.
Although UNESCO’s policies are only advisory, many fear that they will be imposed, first by declaring the code of ethics obligatory, then by using that to force through the Model Provisions. While leading art market countries may not support the measures, active source countries like Mexico, who already operate extremist policies regarding cultural property, would be only too delighted with them.
The summary impression conveyed by the UNESCO proposals and the organisation’s approach to these matters is that they are driven by an extreme ideology that is prepared to trample human rights to achieve its ends rather than an honest desire to fight crime and protect the vulnerable. Coupled with numerous examples of breaches of trust – from the fraudulent advertising campaign The Real Price of Art to its continued promotion of bogus data about the art market – UNESCO’s expressed wish to work with the art market ring increasingly hollow.
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