Stolen, Smuggled, Sold

by Nancy Moses

  Actually, law enforcement officials and others have been working for decades to end trafficking in looted and stolen antiquities, to return Jewish property to descendants, and to protect museums, archives, and libraries from crime by insiders and outsiders. UNESCO, the most important international agency in this field, has worked collaboratively with the International Council of Museums, and both have been supported by national law enforcement agencies. A number of countries have their own cultural police squads. For example, Italy’s Comando Carabinieri per la Tutela del Patrimonio Culturale, better known as the Carabinieri Art Squad, is responsible for combating art and antiquities crimes. Moreover, the Italian Ministry of Finance has an office that investigates art thefts and illegal excavations. The FBI has a dedicated Art Crime Team of fourteen special agents, supported by three trial attorneys responsible for art and cultural property crime, which consists of theft, fraud, looting, and trafficking across state and international lines. The Internet has become an enormously powerful tool for expediting research and information sharing. Interpol’s website is one of many that list looted antiquities and stolen artwork. A number of nongovernmental agencies and university centers focus on aspects of the problem. There are newspaper reporters and bloggers who offer insight and some who simply share their paranoia.

  Moreover, the nations of the world are papered in applicable laws. Hundreds of national laws govern cultural property: a UNESCO website[6] lists 1,087 acts and laws, 136 agreements, 38 codes, 27 conventions, and 162 regulations in many different languages addressing such themes as good faith acquisitions, illegal trafficking, importation, statutes of limitations, and reparations. There are 50 such laws in the United States and 148 in the United Kingdom, both of them major markets for such property, and source countries are protected with legal instruments as well: for example, Cambodia 18 laws, Nigeria 7, and Bolivia, which has a surprising 114. In the United States, art crimes and cultural heritage are prosecuted under statutes that cover mail fraud,[7] wire fraud,[8] smuggling,[9] and entry of false statements.[10] We have specific statutes governing stolen property[11] and theft of major artwork.[12]

  Despite all these law enforcers, do-gooders, and legal instruments, the fact remains that only the tiniest of fraction of the gigantic number of suspicious cultural objects makes its way back to the original owners. The seven objects profiled in this book are the very lucky, very few.

  Is it possible to stop the flow of illegal antiquities? Could there be an international tribunal to resolve competing claims between source nations and market nations? Let’s consider each of these questions.

  It is as impossible to end the illicit market for cultural property as it is to end to the illicit markets for drugs, weapons, or human beings. As we saw with the Sumerian golden vessel, war spawns looting and looting spawns black markets; in turn, black markets give rise to dealers, who lead to buyers. We cannot hope to end war, defeat the hydra-like criminal networks that traffic in cultural property, or redeem every notorious dealer. It is virtually certain that there is no international will to finance a large enough international army of antiquities agents as clever and dedicated as the Italian Carabinieri or our own FBI Art Team. We cannot stop looting of archaeological sites or stealing from unprotected museums. All we might be able to do is to stop ourselves: the buyers. As Michael Müller-Karpe, who rescued the Sumerian vessel, said, “We must stop the antiquities trade at the buyer’s end.”

  Institutional buyers—collecting institutions—should no longer be buying suspicious objects, at least according to their professional associations. The Codes of Ethics of the Archaeological Institute of America, American Alliance for Museums, International Council on Museums, and the Association of Art Museum Directors explicitly discourage member museums from participating in the trade in undocumented objects. Still, while all museums try to avoid acquiring suspicious objects, some are more proactive than others in searching out those already in their collections. Archaeology and anthropology museums, whose work depends on strong relationships with source countries, have been at the forefront of the repatriation movement, while art museums have been slower in adopting a proactive stance.

  In fairness to the art museums, one must remember that the interest in repatriation is relatively recent; indeed, it represents a sea change for collecting institutions, as I learned from Victoria Reed, the Monica S. Sadler curator of provenance at the Museum of Fine Arts, Boston. She said of past practice, “I think the most consistent mistake was not asking questions. Or if we did ask questions, accepting the word of the dealer or donor at face value without probing further. For many years, that was just the way the art world operated. Nobody asked questions.” And we must remember that the mission of collecting institutions is to collect, not to give things back. Their future is optimized if their donors are happy, and it is a rare donor who is happy to learn that the treasure he or she has so generously offered is not acceptable because of a fuzzy title.

  Now that collecting institutions have become much more vigilant when approached by dealers and donors offering questionable acquisitions, the next target is in sight. It is the individual buyers, the collectors who, wittingly or unwittingly, purchase artwork without looking carefully at its paperwork. The purchasing practices of collectors are important to museums, since collectors are the source of most new acquisitions.

  In a market economy like ours, art collectors have considerable freedom in purchasing artworks and antiquities. But, perhaps there is one tool that can be used to advantage: shame. The fear of negative publicity has already worked with institutions. The Italians directed a negative publicity campaign against the Metropolitan Museum and the Getty Museum, a campaign that resulted in repatriation of some very significant artifacts. The Peruvian government lobbied President Obama and staged large public demonstrations; eventually Yale University sent back the four hundred thousand objects from Machu Picchu that it had been holding since 1911. To encourage better purchasing practices among individual art and artifact collectors, one can imagine a public service campaign that would paint the acquisition of undocumented antiquities as being as déclassé as buying ivory or endangered species. Sometimes shame works.

  The second question is this: is it possible to establish an international tribunal to adjudicate disputes over cultural treasures? If such an international tribunal had existed in 2003, for example, Marie Altman would not have had to spend years trying to secure Portrait of Adele Bloch-Bauer I or her other possessions.

  Establishing a legally binding international tribunal for cultural objects seems as pie in the sky as ending their trafficking. For one thing, there would have to be some actual laws to enforce. Today, international cultural heritage law is not law at all but is rather based on UNESCO conventions. Conventions have no teeth. The United Nations Office on Drugs and Crime does not consider illicit cultural property important enough to be included as a subject of its Convention Against Transnational Organized Crime.[13]

  One can only imagine the political challenges of establishing a specialized international tribunal that adjudicates disputes over cultural property; in fact, one need look no further than the International Criminal Court, which adjudicates cases in The Hague.[14] The International Criminal Court has jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes. There are 122 member nations—but Great Britain, Russia, Germany, and the United States are noticeably missing. Wealthy market countries might see similar disincentives to bringing cultural property disputes to an international tribunal. Moreover, in order for an international tribunal to work, there would have to be not just laws—which are missing now—but subsidies to source nations that currently can ill afford the costly legal talent it would take to level the playing field.

  Some international cultural property disputes are resolved through the Art and Cultural Heritage Mediation Program, which is sponsored by the International Council of Museums and the Arbitration and Mediat
ion Centre of the World Intellectual Property Organization. This approach, while far from a binding international tribunal, might suggest a direction for the future.

  Focusing on the end buyer in the fight against stolen and smuggled cultural property and establishing an international tribunal are long-term solutions. There are, however, actions that can be taken more quickly. We can ensure that collections professionals are equipped to address the challenges of the twenty-first century. We can educate, especially in the three critical areas discussed in this book: ethics, security, and provenance.

  The Smithsonian Institution hosts a database of certificate, bachelors, masters, and doctoral degree museum training programs in the United States, by state and by discipline.[15] Some of these appear to offer training in museum ethics. Law schools now offer courses in art law. In contrast, there seem to be very few college courses on how to guard against security breaches of the type that led to the theft of 4,800 audio discs at the National Archives. Collections professionals who did not receive training in ethics or security as students can now opt for continuing education at professional conferences and seminars.

  There seem to be fewer courses in provenance research, which I find surprising. Museums and other collecting institutions are vulnerable to fakes and frauds as well as stolen goods, unless someone is equipped to stand at the gate, examine the object and its paperwork, and ask the tough questions. As Victoria Reed told me, “We need to ask more from dealers and donors, to ask for shipping documents if they are available, to look for publication history, and to create whatever paper trail we can before we make an acquisition rather than after the fact.” There is a week-long, intensive provenance research training program sponsored by the European Shoah Legacy Institute, which was created by the Czech Ministry of Foreign Affairs.[16] Not surprisingly, it focuses on Holocaust material. There is also training available in implementation of the Native American Graves Protection and Repatriation Act that calls for repatriation of certain types of Native American materials to tribal people.

  Reed questions whether Holocaust or any other type of provenance research can be taught in a university, since each case she encounters as a provenance curator is unique. Perhaps that is the point. One can imagine a practicum in which teams of students are presented with collections objects and charged with conducting provenance research: uncovering obscure information sources, chemically analyzing materials, replicating the artistic process, and asking tough questions of dealers and donors. Architecture students learn through design studios. Law students learn through mock trials. Tomorrow’s curators and registrars can learn through provenance research practicums.

  But, even without these advancements, things are changing for the better. For example, the Trafficking Culture project at the University of Glasgow’s Scottish Centre for Crime and Justice Research[17] is conducting groundbreaking research on such topics as the laundering of looted antiquities into legitimate artworks, the dynamics of the illicit art market in Latin America, and regulatory effects on the illicit market in West African cultural objects. One study of items looted from Cambodia beginning in the 1970s, around the time of that country’s civil war, shows how the market actually works. In 2013, two researchers traveled to Phnom Penh and visited six major Cambodian archaeological sites—one with no intact statues—before crossing into Thailand and ending in Bangkok.[18] Working with local contacts, the two conducted oral histories of diggers, middlemen, and dealers in both real and fake antiquities. Their findings suggest that a small number of middlemen tightly controlled much of the market, playing different types of roles at different times. Trafficking Culture’s pioneering research is bringing new methods and findings to a field that has been woefully lacking in empirical studies. The center is funded by the European Research Council, and one can only hope it will continue long into the future.

  In addition to university-based institutes like Glasgow’s Centre, there are also some innovative models of institutional collaboration. Yale University’s partnership with a university in Peru is a case in point. Within the last few years, Yale University returned the four hundred thousand artifacts that Hiram Bingham had rediscovered at the ancient site of Machu Picchu in the Andean jungle and turned over to Yale. The return was accompanied by a promise of long-term collaboration. Today, the Universidad Nacional de San Antonio Abad del Cusco-Yale International Center for the Study of Machu Picchu and Inca Culture operates at Casa Concha, an historic Inca palace. It houses artifacts storage and a laboratory and research area to facilitate collaborative investigations of the Machu Picchu collections by both researchers from the two institutions and visiting scholars.

  A second example comes from the University of Washington’s Burke Museum of Natural History and Culture. In 1967 and 1968, a university graduate student, J. David Cole, acquired a very significant collection of artifacts while undertaking an archaeology project in the Eastern Highlands of Papua New Guinea. A portion of the artifacts were supposed to be returned to Papua New Guinea, but political upheaval and other factors delayed the return. To resolve the status of the collection, the Burke invited the PNG National Museum Archaeology Curator to evaluate it and negotiate an arrangement to share ownership and catalog information. This invitation is envisioned as the beginning of a long-term, two-way cultural exchange that will provide museum and archaeology training for researchers.

  Back in the museum world, more institutions are stepping forward in ways never seen before. For example, the Museum of Fine Arts, Boston, recently repatriated stolen artifacts to Nigeria. The Norton Simon Museum, Metropolitan Museum of Art, and Sotheby’s returned to Cambodia statues that had all been looted from the same temple.

  Another example is that the small Kunstmuseum in Bern, Switzerland, recently accepted a vast trove of artwork bequeathed by Cornelius Gurlitt, the son of Hitler’s main art dealer,[19] that includes masterpieces by Claude Monet, Pierre Auguste-Renoir, and Henri Matisse. Gurlitt’s remarkable trove of artwork came to light in 2012 when German investigators broke down the door of his Munich apartment and confiscated more than 1,300 paintings as part of a tax probe. Additional paintings were found in his home in Salzburg, Austria. The Kunstmuseum has promised to restitute as much as possible as quickly as possible to the paintings’ Jewish owners.

  There is little financial benefit for the board of the Kunstmuseum in acquiring such a controversial trove of Holocaust artwork, only to give some or all of it away again. Repatriation can be very expensive in terms of staff time, opportunity costs, and, often, shipping fees. In the same way, there is no financial reward for a woman well into her eighties who decides to spend years trying to get a ceremonial Ghost Dance Shirt back from a Scottish Museum or for a German archaeologist who stands firm against dealers and government agents in order to assure the safety of an object he plans to return to Iraq. Dealers and middlemen get rich from stealing antiquities and artworks. No one gets rich from giving them back.

  That is why I celebrate those who save the stuff. I honor those North Carolinians who refused to turn their beloved Bill of Rights into a commodity and instead seized it the moment they could get it back for free. I stand in awe of the tenacity of Hubertus Czernin, the Austrian newspaper reporter who uncovered the Austrian National Museum’s treachery, and of Maria Altman and Randol Schoenberg, who yanked the Portrait of Adele Bloch-Bauer from the museum’s clutches and set a landmark precedent for others to follow. Who would have imagined in 2003 that ten years later, Austria would be recognized as one of the nations doing to the most to return Jewish artworks to the heirs of Jewish victims of Nazi persecution? But that is just what Austria is doing.[20] They are heroes.

  Some heroes do not see themselves as such: people like David Goldin, the collector who caught the archivist stealing the audio recordings he was supposed to protect, and David Ferriero, who turned tradition on its tail when he publicly acknowledged the failings of the National Archives’ security systems and has since placed a priority on setting thing
s right. But I do. I also believe that we in the United States carry a special responsibility—for when illicit treasures appear on the market, in many instances their ultimate destination is us.

  You, the reader, and I, the author, have met each of seven objects at its home base and joined it in its circular journey back again. We have traveled the world, surfed the Internet, met the experts, and encountered the cops and robbers. We have observed the circumstances of the objects’ removal and learned the laws and practices that condition their transfer, sale, and return. We have considered policies and practices that might lead to fewer missing and more returned.

  Our world is too full of too many cultural objects that have been stolen, smuggled, or illegally sold. We need to think about how to reduce the crime and educate the collectors. We need fair and affordable legal instruments with which to resolve international cultural property disputes. We need generations of collections professionals eager and able to address security threats and suspicious objects within and outside their collections. We need staff and board members equipped with the empathy and analytical power to face tough ethical issues and arrive at decisions that are fair and right.

  At the same time, we need to remember that every object should not necessarily return to its place of origin. Even the great Egyptologist Zahi Hawass would not expect the encyclopedic Metropolitan Museum of Art to empty an entire wing of its vast, rich, visually evocative, and educationally compelling collection of Egyptian treasures. But we don’t have to choose between two competing viewpoints: the art museums, which want to leave the museum door ajar a bit, and the archaeologists, who want to shut it tight. We don’t have to believe in a slippery slope theory. We can follow the lead of Victoria Reed and her former colleague, Peter Lacovara, formerly of the Carlos Museum. They believe in a middle ground, where such matters are decided by both evidence and ethics.