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The New Frontier of Cultural Property Protections: When Acquiring Cultural Objects Supports Terrorism

September 2, 2015

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By Timur Tusiray

Collage of Headlines
Collage of Headlines featuring recent looting and destruction of cultural heritage in the Middle East areas under the ISIL control.

The United States Anti-Terror Act, 18 USC 2331, et seq. (“ATA”or the “Anti-Terror Act”), a potent anti-terrorism law (enacted in 1991) often used to prosecute financial institutions and other organizations, has now been identified as a tool to pursue individuals who operate in the cultural property market for materially supporting foreign terrorist organizations (“FTO”). In relevant parts it reads “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned…” (18 U.S.C. § 2339B(b)). The implications of such a development are wide-ranging, and understanding them will be key for practitioners and individuals active in cultural property acquisitions.

Recent tumultuous events involving the illicit looting and trafficking of cultural objects from Syria and Iraq by the so-called Islamic State of Iraq and the Levant (“ISIL” formerly known as ISIS), an FTO, have many wondering how the illicit traffic of cultural heritage may be checked. The question is made more urgent by the tragic beheading of Professor Khaled al-As’ad, a university professor and former general manager of antiquities and museums in Palmyra, and the destruction of historic temples in the same region.

In light of these events, on August 25, 2015 the FBI released an unusual one-page alert calling for art and antiquities market leaders to aid in the international effort to prevent the sale and import of artifacts from ISIL-controlled Syria and Iraq. While such a call for cooperation echoes ongoing efforts by national and international governments and agencies to stem the flow of finances and support to ISIL, the document briefly highlights the Anti-Terror Act as an avenue of recourse for leveraging substantial civil and criminal penalties against those buying or trading in objects coming from hot zones in the Middle East. (Readers should note that the FBI document erroneously cites the law as “18 U.S.C. § 233A” instead of “18 U.S.C. § 2339A”).

The brevity with which the FBI mentions the ATA in its August 25th document, belies the potential for this law to become a robust tool in the fight against the illicit trade. Among other things, the ATA gives standing to American nationals who were victims of terror attacks, to sue those who knowingly provided material support to an FTO, or to terrorist activities, including raising funds for FTOs. (18 U.S.C. § 2339B).  With prescribed penalties ranging from fifty thousand dollars per infraction in civil cases, to life imprisonment in criminal cases, practitioners in the field would be wise to become familiar with the evolving case law around the ATA, especially with recent developments in the U.S. Court of Appeals for the Second Circuit.

In September 2014, in the case of Linde v. Arab Bank, 269 F.R.D. 186 (E.D.N.Y. 2010), a jury found Arab Bank guilty of several offenses under the ATA, including aiding and abetting terrorism by knowingly allowing tens of millions of dollars to flow through their accounts to the families of Hamas terrorists. More recently, in Weiss v. National Westminster Bank, PLC, 768 F.3d 202 (2d Cir. 2014) (“NatWest”), the Court of Appeals found that under the ATA, plaintiffs need only show that the bank had knowledge of, or exhibited deliberate indifference to, whether or not it maintained bank accounts that transferred funds to a charity organization that funneled money to Hamas. In both cases, a bank managed accounts that transferred cash to a “middle-man” organization, which in turn provided funds for both terrorist organizations and legal charitable activities. Victims of the terrorist organizations won rulings in their favor against third-party entities operating as middlemen for the FTO.

These Second Circuit cases set forth the following rules:

  1. Causation – A defendant’s acts “were a substantial factor in the sequence of responsible causation,” and that the “injury was reasonably foreseeable or anticipated as a natural consequence” of those acts. (Linde)
  2. Scienter Requirement – Defendant “knew or was deliberately indifferent” to whether the “middle-man” organization provided material support (financing) to a terrorist organization, irrespective of whether that support actually aided terrorist activities. (Weiss)
  3. Fungibility of Money – Acknowledged earlier rulings that the specific money provided to the charities from the bank did not need to directly fund terrorist activities. Instead, merely providing funds to an organization that may have applied it to both legal, and terror organization activities was sufficient to show material support of a terrorist organization. (Weiss)
  4. Applicability of Foreign Laws – Found that US laws can be applied to extraterritorial actions, and govern the applicability of the ATA, preempting foreign law. (Weiss)

These new rules highlight the expanded reach of the ATA, while the facts of these cases mirror the current structure of the illicit market in cultural property, making it directly applicable to the latest developments in international cultural property acquisition and trade.

The traditional pattern of cultural property circulating in the illicit market – often utilized by designated FTOs – is shown to work in four stages, as identified by Peter B Campbell: (1) looting; (2) trafficking by organized criminal or terrorist networks from source nations abroad; (3) laundering of objects to give them false provenances, typically through legitimate internationally-connected dealers; and (4) entry into the legal market. Each step is a sphere of activity, and there may be multiple actors within each sphere. ISIL has utilized this same traditional market structure, using well-established smuggling routes throughout Jordan, Turkey and Lebanon to sell objects to intermediary dealers who legitimize the objects, and sell through legal channels to buyers in the West. These channels may range from high-end antiquity dealers, to objects sold by individuals through online marketplaces. For example, earlier this year a Syrian coin from around 500 BC was being sold on eBay with dirt still caked on it, and was widely reported by various news sources, including the Guardian, as potentially being excavated from ISIL controlled territories.

In a contemporary development, as reported by David Kohn in the New Yorker, ISIL has also begun to take control of the intermediary steps, reportedly involved from the first stage of extraction to the final sale and exit of cultural property from their controlled territories. In some cases, there have been reports that ISIL representatives are establishing direct, one-on-one relationships with buyers in the West. (see Russell Howard, et al., Digging In and Trafficking Out: How the Destruction of Cultural Heritage Funds Terrorism)

The international community has already taken some well-publicized steps to denounce and curb this trade. The UN Security Council has passed resolutions banning all trade in antiquities from Syria and Iraq, while certain EU nations have increased their import controls for such objects. In the U.S. this year, the Protect and Preserve International Cultural Property Act was reintroduced, and has passed in the House. The Bill would, among other things, restrict imports of cultural property from Syria.

Even with this increased scrutiny, many of these transactions continue to occur, and are imperfectly addressed under traditional domestic laws (e.g. the National Stolen Property Act, 18 U.S.C. §§ 2314 and 2315; U.S. war crimes statute 18 U.S.C. § 2441(c)). However, as seen with the banks in the highlighted ATA cases, the burden of proof for wrongdoing has been significantly diminished, making successful litigation under the ATA a real possibility in the art and antiquities market. Under the ATA theory, members of the class harmed by the FTO’s activities would have to prove that an institution or collector buying a cultural object, provided some value to an intermediary (or directly to an FTO itself) knowing that object was trafficked by, or for an FTO. Or even simply showing that they were deliberately indifferent to the supply chain providing such an object would be sufficient. This is a low bar to be met with the increased media coverage, and academic and law enforcement scrutiny in the region.

Finally, the reach of the ATA is almost limitless. So long as there is some personal or financial harm suffered by a U.S. national from an act of terror, a cause of action can be brought under the ATA by the said individual, their estate or heirs against any defendant for both domestic and extraterritorial actions solely under U.S. law. (18 U.S.C. § 2333(a)). This article merely addresses regions encompassed by the conflicts in Syria and Iraq, the ATA would apply to any place in the world with operating terrorist organizations or activities as defined under the statute.

While the looting of cultural property to fund violence is a decades old practice unlikely to abate soon, the increasing global scrutiny on ISIL and the wide-reach of the FTO activities, the recent develops in the Second Circuit interpreting the ATA, and the FBI’s warning of liability under ATA seems to indicate the Anti-Terror Act’s future potential as an unexpected tool for curbing the illicit trafficking of cultural property.

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About the Author: Timur Tusiray is a recent graduate of USC Gould School of Law, specializing in art and cultural heritage laws, human rights, and business law. He is currently an Orfalea-Brittingham Fellow at the Clinton Foundation. He may be reached at timurtusiray@gmail.com.

Disclaimer: This article is being produced in the author’s individual capacity and does not reflect the views of his employer. This article is intended as general information, not legal advice, and is no substitute for seeking representation.

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