U.S. Museums May Serve As Safe Havens to protect ISIS-Looted Antiquities from Destruction

February 5, 2016

by Elizabeth Weber, Esq.

Following the destruction and looting of culturally significant works in war-torn areas, the Association of Art Museum Directors (AAMD) issued a number of protocols to safeguard these artifacts by granting them safe haven in AAMD member museums. The protocols, titled AAMD Protocols for Safe Havens for Works of Cultural Significance from Countries in Crisis, state that works may be brought into the United States, Canada or Mexico from countries affected by terrorism, armed conflict, or natural disaster, so long as depositors comply with applicable laws in both the country of origin and the country of deposit. The protocol is uniform among AAMD member museums, which include the Metropolitan Museum of Art, the Smithsonian American Art Museum, the National Gallery of Canada, and the Museo Nacional de Arte in Mexico City, among others. As the provisions contemplate, a hypothetical depositor must request safe haven for the cultural object with an AAMD member museum and be granted that request before sending the artifact to the museum for safekeeping until it is determined that it is safe for the artifact to be returned to its country of origin.

Admittedly, it may be difficult to pinpoint exactly who will request safe haven for cultural objects in war-torn countries. The AAMD acknowledges this uncertainty and points to four potential examples of depositors in the protocol: museums in the affected area that hold works; government entities of or within affected areas; U.S. government authorities that seized works upon entry into the United States; or private individuals, companies, or organizations who own or come into possession of works, whether in the affected area or after its removal from the area. Additionally, the protocol urges member museums to consult legal counsel before accepting any requests for safe haven objects to ensure legality of the process and to diligently inventory and document the safe haven process once the museum accepts an item.

AAMD President Johnnetta Cole, Director of the Smithsonian Institution’s National Museum of African Art, specifically named the current conflict in Syria and other affected areas as locations where the loss and intentional damage of culturally significant works are deplorable, which may have played a large part in the AAMD’s safe haven initiative. The recent destruction of UNESCO World Heritage Site Palmyra, Syria and the looting of cultural works by ISIS may have also played a part in the AAMD’s decision to safeguard cultural artifacts. Indeed, the regularity of ISIS/ISIL-looted antiquities being sold on the black market to fund terror operations reached a point where the FBI felt it necessary to issue a report on the subject.

An FBI-published ISIL and Antiquities Trafficking article warns U.S. dealers and art collectors that ISIS-looted artifacts may reach the art market stateside. According to the report, the FBI received credible intel that individuals in the U.S. had been offered potentially looted cultural property from Syria and Iraq – the sale of which may fund terror operations and subject the purchaser of looted cultural artifacts to prosecution under U.S. law. Bonnie Magness-Gardiner, manager of the FBI’s Art Theft Program, indicated that buyers interested in Syrian and Iraqi pieces should “[c]heck and verify provenance, importation, and other documents” to ensure the objects from these countries are legitimate, not looted.

In light of the AAMD’s Safe Haven initiative, individuals in war-torn countries who have access to culturally significant artifacts may undermine looting by sending these works to AAMD member museums for safekeeping. However, stakes for those involved in preserving cultural works from ISIS looting on-site are tragically high – Palmyra’s former Chief of Antiquities, Khaled al-Asaad, refused to share information about relocated artifacts and was executed by ISIS militants as a result.

Under the Safe Haven protocol, the safe haven term extends until the works can be safely returned to their country of origin, and all works provided safe haven will be treated as loans by the receiving museum. The AAMD also established a secure Safe Haven database to identify works given safe haven as part of the AAMD Object Registry. No objects have been uploaded onto the Safe Haven registry to date.

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From the Editors: The subject of looted antiquities, either stolen from known private and public collections or improperly excavated from the ground, on the ISIS controlled territory and exported through illicit channels has generated almost as much attention as the plight of the refugees from the war zones in the Middle East. In recognition of this important subject, last week there were at least three events in New York City alone, examining the results of destruction and illicit trade of antiquities.

January 26, 2016 – The Destruction of World Heritage Sites as It Concerns Cultural Property and International Laws.

Moderated by Peter Herdrich, a co-founder of the Antiquities Coalition and the founding Partner of  the Heritas Group, the panel included Colonel Matthew Bogdanos, Esq., New York County District Attorney’s Office;  Megan E. Noh, Esq., Associate General Counsel, Bonhams; Steven D. Feldman, Esq., Murphy & McGonigle; Brenton Easter, Special Agent, Homeland Security Department’s Immigration and Customs Enforcement Agency.

Panelists discussed how the ongoing illegal traffic in looted antiquities is fueling the sectarian and other conflicts. Beautiful remnants of the past, improperly excavated and exported in violation of domestic law to financially benefit militants and looters, are poised to enter private art collections. Protection of cultural property is a perennial problem, exacerbated by the current political events on the territories of Syria and Iraq under the Islamic State (ISIS) control.

With irreparable harm inflicted by looting and demolition, panelists discussed the current events in ISIS-controlled territories and present possible scenarios for handling legal matters concerning cultural valuables that are bound for the American art market. The presenters focused on various channels of distribution available in the source countries, as well as suggested best practices on handling looted property (always ask for provenance information, credible documents from exhibitions and insurance, and cooperate with authorities).

January 27, 2016 – Special Guided Tour of “The Missing: Rebuilding the Past,” led by Dr. Erin Thompson (John Jay College, NYC)

The Exhibit entitled “The Missing: Rebuilding the Past” showcases the efforts of artists and scholars to resist the destruction of the past through creative and innovative reactions, protests, and reconstructions. In a variety of media – photography, drawing, video, 3D printing – it explores the destruction of art at many historical moments, from ancient Greece and World War II to the ISIS’ destruction of cultural property.

January 28, 2016 — Limited release of “The Destruction of Memory,” a documentary based on the eponymous book by Robert Bevan.

The film, directed by Tim Slade, reminds the audience that destruction of landmark buildings, their contents, their staff and visitors is a heartbreaking but a perennial occurrence in zones of armed conflict. Thus, “[o]ver the past century, cultural destruction – the purposeful destruction of buildings, books and art in order to erase collective memory and identity – has wrought catastrophic results on every continent. The effectiveness of what happened to the Armenians and their culture triggered the fate of the Jews and the Poles, and so it flowed.” The film includes commentary on destruction of historical monuments in the ISIS-controlled territory as well as the stance the International Court of Justice has taken in regards to crimes against cultural heritage. For  information about the film: http://destructionofmemoryfilm.com/

About the Author: Elizabeth Weber is a lawyer living in Brooklyn, NY.  She graduated from the University of Florida Levin College of Law, where she received her certificate in Intellectual Property Law and served as an active member of the Art Law Society and the Journal of Technology Law and Policy. She is the Spring 2016 Postgraduate Fellow with Center for Art Law.

Sources:

• United Nations, G.A. Res. 69/281, Saving the cultural heritage of Iraq  (May 28, 2015), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/69/281.
• United Nations, S.C. Res. 2199 (Feb. 12, 2015), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2199%20(2015).
• Bulletin, Federal Bureau of Investigation, Isil Antiquities Trafficking (Aug. 25, 2015), available at https://www.fbi.gov/news/stories/2015/august/isil-and-antiquities-trafficking/isil-antiquities-trafficking.
• Press Release, International Council of Museums, Emergency Red List of Iraqi Cultural Objects at Risk (June 1, 2015), available at http://icom.museum/fileadmin/user_upload/pdf/Press_Releases/Red_List_Iraq_EN_2015.pdf.
• Press Release, International Council of Museums, Emergency Red List of Syrian Cultural Objects at Risk (Sept. 25, 2015), available at http://icom.museum/uploads/tx_hpoindexbdd/ERL_SYRIE_EN.pdf.
• Protocol, American Association of Museum Directors, AAMD Protocols for Safe Havens for Works of Cultural Significance from Countries in Crisis (Oct. 1, 2015), available at https://aamd.org/document/aamd-protocols-for-safe-havens-for-works-of-cultural-significance-from-countries-in-crisis.
• International Scientific and Professional Advisory Council of the United Nations Crime Prevention and Criminal Justice Program, Protecting Cultural Heritage As A Common Good of Humanity: A Challenge for Criminal Justice (Stefano Manacorda & Ariana Visconti, eds., Dec. 13-15, 2013), available at http://www.unodc.org/documents/congress/background-information/Transnational_Organized_Crime/ISPAC_Protecting_Cultural_Heritage_2014.pdf.
• Melanie Gerlis, Calls to Open Looted-Art Archives Grows Louder, The Art Newspaper (June 2, 2015), http://theartnewspaper.com/comment/comment/calls-to-open-looted-art-archives-grow-louder-/.
• Mark W. Vlasic, Timbuktu, ISIS, and the Long Arm of Justice, The World Post (Oct. 3, 2015), http://www.huffingtonpost.com/mark-v-vlasic/timbuktu-and-the-long-arm_b_8239050.html.