The Palgrave Handbook on Art Crime [1st ed. 2019] 9781137544049, 9781137544056, 113754404X, 1137544058

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The Palgrave Handbook on Art Crime Edited by  Saskia Hufnagel · Duncan Chappell

The Palgrave Handbook on Art Crime “This Handbook, at times racy as well as scholarly, reveals not only the ingenious creativity of many recent art frauds and the brazen destruction of archaeological sites for profitable loot but the complacency of many museum curators and directors who have acquired illicitly exported and illegally trafficked antiquities in recent years without exercising adequate due diligence. Recent cases, such as the sale by the Knoedler Gallery in New York of fake Abstract Expressionist paintings for millions of dollars, the purchase by the National Gallery of Australia in Canberra of early bronze masterworks purloined from rural temples in India, and the return to Italy in recent years of looted Greek vases and other antiquities from the Metropolitan Museum of Art in New York, show that fraud and plunder continue. The extent to which some dealers, some collectors and even some museum curators remain complicit, despite protestations of ethical probity, is shocking and disquieting.” —Sir Colin Renfrew, Senior Fellow of the McDonald Institute for Archaeological Research

Saskia Hufnagel  •  Duncan Chappell Editors

The Palgrave Handbook on Art Crime

Editors Saskia Hufnagel School of Law Queen Mary University of London London, UK

Duncan Chappell University of Sydney Sydney, NSW, Australia

ISBN 978-1-137-54404-9    ISBN 978-1-137-54405-6 (eBook) https://doi.org/10.1057/978-1-137-54405-6 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2019 The author(s) has/have asserted their right(s) to be identified as the author(s) of this work in accordance with the Copyright, Designs and Patents Act 1988. This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: AlamyF504B1 This Palgrave Macmillan imprint is published by the registered company Springer Nature Limited The registered company address is: The Campus, 4 Crinan Street, London, N1 9XW, United Kingdom

Acknowledgements

The editors would like to acknowledge the support of the sponsors and various institutions involved in the creation of this handbook: first and foremost, the Arts and Humanities Research Council (AHRC, UK) in providing generous financial assistance to this project as part of the AHRC Network Grant on ‘Art, Crime and Criminals: Painting Fresh Pictures on Art Theft, Fraud and Plunder’ awarded to the editors (2016–2017). This grant contributed in particular to the hosting of the three workshops (Theft, Fraud and Looting/ Terrorist Financing) at which several papers presented formed the foundation for this publication; secondly, the German Federal Ministry of Finance, which generously provided its conference venue in Berlin for the third workshop (and especially Dr Judith Hermes and Doris Dietze for their wonderful hospitality); and finally, the School of Law, Queen Mary University of London, which provided invaluable administrative support and the venue for the first workshop. The editors thank all the authors for their high-quality contributions, angelic patience and friendly co-operation throughout the process of turning their chapters into a handbook.

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Contents

Part I Setting the Context

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1 Art Crime: Exposing a Panoply of Theft, Fraud and Plunder  3 Duncan Chappell and Saskia Hufnagel 2 One Looter, Two Looters, Three Looters … The Discipline of Cultural Heritage Crime Within Criminology and Its Inherent Measurement Problems 33 Marc Balcells 3 Art Crime Literature: A General Overview 55 Vicki Oliveri 4 The Antiquities Licit-Illicit Interface 79 Blythe Alison Bowman Balestrieri 5 INTERPOL and International Trends and Developments in the Fight Against Cultural Property Crime 89 Saskia Hufnagel

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Part II Art Theft

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6 Art Theft: An Examination of Its Various Forms109 Duncan Chappell and Kenneth Polk 7 Unsolved Art Thefts133 Vicki Oliveri 8 “Purely Bent on Mischief ”: Theft from Australian Museums 1870s–1950s149 Maryanne McCubbin 9 Protecting Works of Art from Theft187 Declan Garrett 10 Regional Overviews of the Policing of Art Crime in the European Union213 Naomi Oosterman 11 Recovering Stolen Artworks: A Practical Approach237 James Ratcliffe 12 Insurance Challenges and Art Crime253 Dorit Straus 13 Statutes of Limitation and Other Legal Challenges to the Recovery of Stolen Art271 Patty Gerstenblith Part III Art Fraud and Forgery

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14 Profiling Art Forgers289 Noah Charney 15 Examining Art Fraud301 Kenneth Polk and Duncan Chappell

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16 Case Study 1: Beltracchi and the History of Art Fraud in Germany321 Saskia Hufnagel 17 Case Study 2: The Knoedler Art Forgery Network343 Derek Fincham 18 Case Study 3: A Perspective from the Fakery Frontline—An Interview with an Art Forger363 Duncan Chappell and Saskia Hufnagel 19 Unmasking Art Forgery: Scientific Approaches381 Robyn Sloggett Part IV Art Plunder

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20 Plunder and Looting: Some Historical Reminders409 Valerie Higgins 21 The Criminal Organization of the Transnational Trade in Cultural Objects: Two Case Studies439 Neil Brodie 22 The Kapoor Case Including the Stolen Shiva463 Michaela Boland 23 Cultural Heritage Offences in Latin America: Textile Traffickers, Mummy Mailers, Silver Smugglers, and Virgin Vandals483 Donna Yates 24 Cultural Heritage Offences: A View from Asia503 Stefan Gruber

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25 Bones of Contention: The Online Trade in Archaeological, Ethnographic and Anatomical Human Remains on Social Media Platforms527 Damien Huffer, Duncan Chappell, Nathan Charlton, and Brian F. Spatola 26 Forging Antiquities: The Case of Papyrus Fakes557 Malcolm Choat 27 The Gurlitt ‘Collection’ and Nazi-Looted Art587 Saskia Hufnagel and Duncan Chappell 28 Blue Shield Protection of Cultural Property: A Perspective from the Field607 Laurie W. Rush 29 Iconoclasm: Religious and Political Motivations for Destroying Art625 Sam Hardy 30 Iconoclasm and Cultural Heritage Destruction During Contemporary Armed Conflicts653 Joris D. Kila 31 Protecting and Preserving Underwater Cultural Heritage in Southeast Asia685 Natali Pearson 32 The Development of the Heritage Crime Programme in England731 Mark Harrison, Mark Dunkley, and Alison James 33 The International Politics of Cultural Heritage Crime in Cambodia: Past, Present and Future751 Tess Davis and Simon Mackenzie

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34 Preventing Illicit Trafficking of Cultural Objects: A Supply Chain Perspective769 Mariya Polner Part V Some Ethical and Allied Challenges

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35 The Return of Looted Objects to Their Countries of Origin: The Case for Change797 David W. J. Gill 36 Illicit Antiquities in American Museums: Diversity in Ethical Standards815 Christos Tsirogiannis 37 White-Collar Crime, Organised Crime and the Challenges of Doing Research on Art Crime839 Simon Mackenzie 38 In Vacuums of Law We Find: Outsider Poiesis in Street Art and Graffiti855 Lucy Finchett-Maddock 39 Taking Culture and the Balancing Act of Power881 John Kerr Index901

Notes on Contributors

Marc Balcells  MA, is a Professor of Criminology at the Universitat Oberta de Catalunya. He holds degrees in Law, Criminology and Human Sciences and masters in both Criminal Law and Criminal Justice and a certificate in Art Crimes and Cultural Heritage Protection. As a Fulbright Scholar, he completed his PhD in Criminal Justice at The Graduate Center, City University of New York, at John Jay College. His research revolves around criminological aspects of archaeological looting, though he has also written about other forms of art crime and criminal justice. He has taught both criminal law and criminology courses as an Associate Professor at the Universitat Pompeu Fabra, in Barcelona, and was a graduate teaching fellow in the Political Science Department at John Jay College, in New York City. Michaela Boland  holds a BA (Monash University) and a Graduate Certificate in Professional Writing (Deakin University). A newspaper and radio journalist for 20 years, she was employed as an investigative arts reporter with national daily newspaper The Australian and is now working  for the Australian Broadcasting Corporation on arts matters across radio and TV.  Previously Australian correspondent for variety and showbiz contributor to The Australian Financial Review, she co-authored Aussiewood; How Australia’s leading actors and directors conquered Hollywood (2004). Blythe Alison Bowman Balestrieri  is Associate Professor of Criminal Justice in the L. Douglas Wilder School of Government & Public Affairs at Virginia Commonwealth University. With a background in classical archaeology, her research interests focus on transnational crime and the illicit antiquities trade. xiii

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Neil  Brodie  graduated from the University of Liverpool with a PhD in Archaeology in 1991 and has held positions at the British School at Athens. He was research director of the Illicit Antiquities Research Centre, Stanford University’s Archaeology Center, the Scottish Centre for Crime and Justice Research at the University of Glasgow and the McDonald Institute for Archaeological Research at the University of Cambridge. He is a senior research fellow working on endangered archaeology in the Middle East and North Africa project at the University of Oxford’s School of Archaeology, and a member of the Trafficking Culture project. He has written widely on issues concerning the market in cultural objects, with more than 50 papers and book chapters appearing in many journals and books. He has worked on archaeological projects in the UK, Greece and Jordan, and continues to work in Greece. Duncan  Chappell  an Australian lawyer and criminologist, is an honorary professor in the Faculty of Law at the University of Sydney and a conjoint professor in the School of Psychiatry at the University of New South Wales (NSW). A past president of the NSW Mental Health Review Tribunal, a former deputy president of the Federal Administrative Appeals Tribunal, and a former director of the Australian Institute of Criminology, he has also held senior academic posts in Australia, Canada and the US.  Chappell has researched and published widely on a range of crime and criminal justice topics, including art crime and trafficking in cultural property. He is a member of the Australian National Cultural Heritage Committee and a member of the teaching faculty of the Association for Research into Crimes against Art (ARCA). Nathan Charlton  holds BSc (Honours) and PhD degrees from the University of Technology, Sydney, Australia, in Forensic Chemistry. He has research interests in toxicology, forensic chemistry, chemical criminalistics, drug testing and synthetic drug identification, as well as broader interests in the use of organic and inorganic chemistry to determine authenticity and forgery of cultural property. He has methodological expertise in a range of instrumentation used in the identification of unknown substances and drug testing. He is also devoted to science outreach and communication, having several years of experience as team lead of forensic science outreach programs servicing Sydney area high schools. Noah Charney  is Professor of Art History specializing in art crime and an internationally best-selling author. His books include Art & Crime (Praeger

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2009), Stealing the Mystic Lamb (Public Affairs 2011), The Art of Forgery (Phaidon 2015) and Art Crime (Palgrave 2015). He is the author of hundreds of articles, both academic and popular. He is the founder of the Association for Research into Crimes against Art—ARCA—(www.artcrimeresearch.org) and editor-in-chief of The Journal of Art Crime, the first peer-reviewed academic journal in the field. He lives in Slovenia. For more information, visit www.noahcharney.com. Malcolm  Choat  is an associate professor in the Department of Ancient History at Macquarie University, Sydney. His research revolves around issues of authenticity and forgery as it applies to the consumption, production and reception of ancient history and ancient artifacts, and he leads an Australian Research Council Discovery Project on forged papyri. He also works on Coptic and Greek papyrology, and Christianity and monasticism in Late Antique Egypt. His recent publications include Belief and Cult in FourthCentury Papyri (Brepols, 2006) and (with I. Gardner) A Handbook of Ritual Power in the Macquarie Collection (P.Macq. I 1) (Brepols, 2013). Tess Davis  a lawyer and archaeologist by training, is executive director of the Antiquities Coalition. Davis oversees the organization’s work to fight cultural racketeering worldwide and also manages the day-to-day operations of the institute’s staff in Washington. She has been a legal consultant for the Cambodian and US governments and works with both the art world and law enforcement to keep looted antiquities off the market. She writes and speaks widely on these issues—having been published in the New York Times, the Wall Street Journal, the Los Angeles Times, CNN, Foreign Policy, the Diplomat, the Cambodia Daily, and various scholarly publications—and featured in documentaries in America and Europe. In 2015, the Royal Government of Cambodia knighted Davis for her work to recover the country’s plundered treasures, awarding her the rank of Commander in the Royal Order of the Sahametrei. She is admitted to the New  York State Bar and an affiliated researcher at the University of Glasgow. Mark  Dunkley is a marine archaeologist with Historic England, with responsibility for the protection of underwater cultural heritage. He regularly works with marine enforcement agencies to detect and prosecute underwater heritage crime, and he advises the UK National Commission for UNESCO on marine matters. He is a professional diver and a fellow of the Society of Antiquaries.

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Derek Fincham  has pursued a research interest in art law, antiquities looting, and cultural heritage. He is Professor of Law at South Texas College of Law, Houston. He serves on the Editorial board of the International Journal of Cultural Property and the Santander Art and Culture Law Review. He holds a PhD in Cultural Heritage Law from the University of Aberdeen, King’s College, a JD from Wake Forest University, and a BA in American and European History from the University of Kansas. He also maintains illicitculturalproperty.com, a scholarly blog. Lucy Finchett-Maddock  is Lecturer in Law at the University of Sussex. Her work predominantly focuses on the intersection of property within law and resistance, interrogating the spatio-temporality and aesthetics of formal and informal laws, property (squatting and housing), commons and protest. She is author of monograph Protest, Property and the Commons: Performances of Law and Resistance (2016). Her work also looks to broader questions around the intersection of art and law, resistance, legal and illegal understandings of art, property, aesthetics and politics. She is developing an ‘Art/Law Network’ (in collaboration with Sussex’s Art and Law Research Cluster), where artists, activists, lawyers, practitioners and other such agitators can share their work and ideas, create art projects on law and law projects on art, and collaborate on methodological and pedagogical approaches to law, through art, and art, through law—and anything else in between. Declan Garrett  is a Doctor of Security Risk Management. Garrett heads the Security Unit of the Louvre Abu Dhabi and was previously the security and safety manager of the National Gallery of Ireland. He is a member of ASIS, the worlds largest security association, sits on their Cultural Properties Council and chairs their Museum Committee. He is a fellow of the Institute of Strategic Risk Management and a member of their Global Advisory Council and is Director of Academic Research at the Security Institute of Ireland. Garrett is a thought leader on Private Security Career Paths and heads the Young Professionals Academic Advisory Board of the ASIS Irish Chapter. He also sat on the Irish private security regulators training advisory board. He has contributed to European research project teams that developed common EU competences and de-radicalization training for the private security sector. He is a visiting lecturer to the Berlin Institute of Economics and Law where he lectures in International Security Management for the MA degree. He is the editor-in-chief of the Journal of Security Risk Management and has spoken at seminars on topics that include training and education in security, counterterrorism, and museum security.

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Patty  Gerstenblith  is distinguished Research Professor of Law at DePaul University College of Law and director of its Center for Art, Museum, & Cultural Heritage Law. She is founding president of the Lawyers Committee for Cultural Heritage Preservation (2005–2011) and secretary of the US Committee of the Blue Shield. She served as a member of the president’s Cultural Property Advisory Committee in the US Department of State in both the Clinton and Obama administrations. From 1995 to 2002, she was editor-in-chief of the International Journal of Cultural Property. Her recent publications include the casebook, Art, Cultural Heritage and the Law (now in its third edition). Gerstenblith received her AB from Bryn Mawr College, PhD in Art History and Anthropology from Harvard University, and JD from Northwestern University. Before joining the DePaul faculty, she worked as a clerk for the Honorable Richard D. Cudahy of the Seventh Circuit Court of Appeals. David  W.  J.  Gill  is Professor of Archaeological Heritage and director of Heritage Futures at the University of Suffolk, and visiting research fellow in the School of History at the University of East Anglia (UEA). He is a former Rome Scholar at the British School at Rome and Sir James Knott Fellow at Newcastle University, and he curated the Greek and Roman collections at the Fitzwilliam Museum, Cambridge University. Before moving to Suffolk, he was reader in Mediterranean Archaeology at Swansea University where he helped to create the Egypt Centre housing part of the collection of Sir Henry Wellcome. His research embraces cultural property, archaeological ethics, the history of collecting material culture and heritage tourism. He received the Outstanding Public Service Award from the Archaeological Institute of America in 2012 for his research on archaeological ethics. Stefan Gruber  is an associate professor at the Hakubi Center for Advanced Research of Kyoto University and is based at the Graduate School of Human and Environmental Studies. He also gives frequent lectures at the Graduate School of Medicine on compliance, ethics and rights in research. Until 2013, he taught at the Faculty of Law of the University of Sydney and held visiting positions inter alia at the University of Hong Kong, the University of Ottawa and Renmin Law School of China in Beijing. He also continues to teach and research at law schools in China and East Asia on a regular basis. Stefan is further active as a consultant and is a legal practitioner and member of the World Commission on Environmental Law. He was educated at the Universities of Sydney, Frankfurt, Mainz and at Harvard Law School and holds degrees in law, philosophy and political science. Stefan’s regional focus

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is on East and Southeast Asia and particularly China. His current research concentrates on the protection of cultural heritage; sustainable development law and policy; international and comparative environmental law; armed conflicts, regional security and cooperation; and human rights. Another major focus is on the illicit trafficking of cultural property, forgery and other forms of art crime, their prevention and prosecution and the restitution of illegally exported objects. Sam Hardy  is a post-doctoral fellow at the University of Oslo and based at the Norwegian Institute in Rome. He previously worked as adjunct professor at the American University of Rome (AUR) and honorary research associate at the Institute of Archaeology (IoA), University College London (UCL). His doctoral research focused on the law, ethics and politics of cultural heritage work; destruction of cultural property and propaganda; and trafficking of antiquities in the Cyprus Conflict. Since then, he has focused on trafficking of cultural goods in the conflict in Syria and Iraq; the history of such trafficking by armed groups and repressive regimes around the world; open-source analysis of cultural property crime; and capacity building in the fight against illicit trafficking of cultural goods in the Middle East and North Africa (MENA). He blogs research and analysis of the conflict antiquities trade and other aspects of the illicit antiquities trade: https://conflictantiquities.wordpress.com/. Mark  Harrison  joined the Metropolitan Police in 1980 where he gained experience in patrol, traffic and public order policing. In 1989, he was transferred to Kent where he specialised in the investigation of rural, environmental, wildlife and heritage crime. In 2008, he became the District Commander for Canterbury District which included policing the World Heritage Sites of St Martin’s Church, St Augustine’s Abbey and Canterbury Cathedral. In 2010, Mark was seconded as the policing advisor to English Heritage in order to develop and deliver the Heritage Crime Initiative and the Alliance to Reduce Crime against Heritage. In 2011, Mark was appointed by the University of Kent as an honorary research fellow, attached to Classical and Archaeological Studies within the School of European Culture and Languages and was also elected as a fellow of the Society of Antiquaries of London. In 2015, Mark was appointed as the national policing and crime advisor for Historic England and is responsible for the management and delivery of the Heritage Crime Programme.

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Mark is an active archaeologist and historian, working in his home county of Kent. His areas of research include medieval salt-making and fishing techniques and the impact of Defence Works and Regulations on coastal communities during the Second World War. Valerie Higgins  is Professor of Archaeology at The American University of Rome and is programme director for Archaeology & Classics and Sustainable Cultural Heritage. She is also an academic consultant to the Association for Research into Crime against Art (ARCA). Her recent research has focused on the role of archaeology in contemporary identity, the threats to the archaeological heritage from uncontrolled heritage tourism growth and the difficulties of funding heritage through commercial sponsorship. Damien Huffer  is a post-doctoral fellow at Stockholm University. He holds MA and PhD degrees in Archaeology and Physical Anthropology from the Australian National University. He has research interests in bioarchaeology, isotope geochemistry, the archaeology of (and antiquities trades from) Southeast Asia and the Near East and the use of gaming (digital and otherwise) for purposes of archaeological education and outreach. His research seeks to combine methods and techniques from the digital humanities, computer science, osteology and geochemistry to better understand the historic and contemporary trade of archaeological and ethnographic human remains. Saskia  Hufnagel  is a Senior Lecturer in Criminal Law at Queen Mary University London. She previously worked as a research fellow at the Australian Research Council Centre of Excellence in Policing and Security (CEPS), Griffith University, Australia, and was a Leverhulme Fellow at the University of Leeds. During the completion of her PhD, she taught at the ANU College of Law and held a permanent teaching position at the University of Canberra. Her main research areas encompass law enforcement cooperation in Asia, North America, the EU and Australasia, comparative constitutional and human rights law with a focus on terrorism legislation and the policing of art crime. She has widely published on national and international police cooperation, security, comparative constitutional law and art crime. Dr Hufnagel is a qualified German legal professional and accredited specialist in criminal law. Alison James  is a marine archaeologist with MSDS Marine. She previously worked at Historic England with responsibility for the sites designated under the Protection of Wrecks Act 1973. Management of the sites includes work-

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ing with marine enforcement agencies on detection, prosecution and prevention relating to underwater heritage crime. John  Kerr  is a senior lecturer at the University of Roehampton, London. Prior to becoming an academic, John lived in Latin America and Spain. He also worked as an art installer in London, and it was this job that fuelled his fascination in art crimes. His book The Securitization and Policing of Art Theft: The Case of London was published in 2015. His other academic work on art crime has been published, and he has appeared in the media about specific art theft cases. Joris  D.  Kila is senior researcher at the University of Vienna’s Kompetenzzentrum Kulturerbe, Kulturmanagement und Kommunikation, an independent cultural adviser and editor-in-chief of the series Heritage and Identity from Brill publishers, as well as author and reviewer of many publications on cultural property protection in times of conflict and art crime. He holds degrees in Classical Archaeology and Art History from Leiden University and a PhD from the University of Amsterdam. He undertook cultural emergency missions to Iraq, Macedonia, Libya, Egypt and Mali and worked for the University of Amsterdam. He has acted as adviser for the Austrian Blue Shield and USAFRICOM and is chair of the International Military Cultural Resources Working Group for which he undertook several cultural emergency missions. Joris Kila received the 2012 Association of Research into Crimes against Art (ARCA) Award for Art Protection and Security and the Blue Shield “Preis” (Award) 2012. In 2014, he received the Energetic Source Award for the protection of cultural heritage (Italy) and in 2015 the Kiley Award for best Joint forces Quarterly article, from the US National Defense University. Simon Mackenzie  is Professor of Criminology and Director of the Institute of Criminology, Victoria University of Wellington, and Professor of Criminology, Law and Society at the University of Glasgow where he is a member of the Scottish Centre for Crime and Justice Research. He is part of the international research consortium Trafficking Culture, which runs a ­website at www.traffickingculture.org, including research publications, data and case studies on the international market in looted cultural objects. He is author of Going Going Gone: Regulating the Market in Illicit Antiquities, which won the British Society of Criminology book prize in 2005, and his research on art crime has been funded by the Economic and Social Research Council (ESRC), the European Union (EU), and the United Nations (UN).

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Maryanne  McCubbin is head of Strategic Collection Management at Museums Victoria. With multiple graduate qualifications in history, museum practice and information management, Maryanne has worked in archives and museums for over 30 years. Her work has centred on the development, care and preservation, use and interpretation of collections. Her position involves addressing the big, tough issues around caring for, preserving and ensuring accessibility and use of a major, multidisciplinary state collection of 17 million items. Vicki Oliveri  is a PhD candidate at James Cook University (Australia) examining the domestic and international responses to Australia’s acquisition of illicit Indian antiquities. Her 2012 Honours project, for which she received the University Medal for Outstanding Scholarship (Western Sydney University), investigated the 2007 theft of the Frans van Mieris painting, A Cavalier (self portrait). Her Honours paper, ‘A Tale of Two Cities, A Tale of Two Art Crimes’, was later published in a collection of essays on Art Crime. Vicki has also given lectures on art crime. Naomi Oosterman  is a PhD candidate and lecturer at the Department of Sociology, City, University of London. She is furthermore an academic lecturer at the Department of Arts and Culture Studies, the Erasmus University Rotterdam. Naomi is a cultural sociologist whose research interests include art and heritage crime, risk, gatekeeper theory and the policing and securitisation of art crime. Natali  Pearson  is a PhD candidate in the Museum and Heritage Studies program at the University of Sydney. Her research is focused on underwater cultural heritage in Indonesia. She is co-founder of Perspectives on the Past of Southeast Asia, a research group within the Sydney Southeast Asia Centre (www.SEAsiaPasts.com). Natali holds a Master of Museum Studies (2013, USyd), a Master of Arts in Strategy and Policy (2006, UNSW), and a Bachelor of Arts (Asian Studies) with Honours Class One in History and Indonesian Studies (2002, UNSW). She has worked at the Asia Society’s galleries in New York and Hong Kong, and as a consultant to the Asia Society Arts & Museum Summit. She is an alumni of the Australian Consortium for In-Country Indonesian Studies and the Asialink Leaders Program. Prior to this, she worked in Asia-focused defence and anti-money laundering/counterterrorism financing roles in the Australian federal government.

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Kenneth  Polk  served for many years as Professor of Criminology at the University of Melbourne (before that he was Professor of Sociology at the University of Oregon). Now retired from teaching, he is Professorial Associate in Criminology at the University of Melbourne. His writing is on various aspects of art crime. His earlier books include When Men Kill, and Child Victims of Homicide (with C. Alder). Mariya  Polner is a policy advisor at the World Customs Organization (WCO) Enforcement and Compliance Sub-Directorate since 2013. Her main areas of work include illegal trade, security and governance. Since 2015, among others, she has been working on developing a global customs response and advocacy to counter illicit trafficking of cultural objects. She represents the WCO in several specialised groups such as the Organisation for Economic Co-operation and Development (OECD) Task Force on Countering Illicit Trade (TF-CIT); EU Informal Network of Law Enforcement Authorities and Expertise, competent in the field of Cultural Goods (CULTNET); INTERPOL Expert Group on Stolen Cultural Property (IEG); and WCO PICARD Scientific Board. Mariya is also the WCO’s official point of contact with OECD. Prior to this role, she worked as a research analyst at the WCO’s Research Unit for four years. Before joining the WCO, Mariya worked at the European Commission’s Directorate General on External Relations and at the European Union Border Assistance Mission to Moldova and Ukraine. Mariya holds two degrees: an MA in International Relations from the  Central European University (Budapest, Hungary) and an MA in EU Politics from the College of Europe (Bruges, Belgium). Her articles on customs and governance matters have appeared in many publications, and she is a guest Lecturer at different universities and training academies in Europe and in the United States. James Ratcliffe  is the General Counsel & Director of Recoveries at the Art Loss Register (ALR). In that role, he pursues the restitution of stolen and looted art and antiquities on behalf of individuals, insurers, museums and nation states, handling hundreds of cases each year. Prior to joining the ALR, James was working as a litigator in London, and before qualifying as a solicitor, James studied archaeology at York and Oxford. Laurie  W.  Rush is an anthropologist and archaeologist who has lived, worked, and studied in northern New  York for over 30  years. Her area of research focuses on Native Americans of northeastern North America. She holds a BA from Indiana University, Bloomington, and an MA and PhD from

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Northwestern University, and is a fellow of the National Science Foundation and the American Academy in Rome. Rush was military liaison for return of Ur to the Iraqi People, has represented the US Department of Defense (DoD) for heritage issues in Kabul and across the Middle East, and recently co-­ directed a North Atlantic Treaty Organization (NATO) project, developing cultural property protection recommendations. She is a board member of the US Committee of the Blue Shield, has won numerous awards, and lectures and publishes internationally. Rush is profiled in Lives in Ruins and is co-­ author of The Carabinieri TPC; Saving the World’s Heritage. Robyn  Sloggett AM is director of the Grimwade Centre for Cultural Materials Conservation. She has qualifications in Art History, Philosophy and Cultural Materials Conservation. As director of the Grimwade Centre, she manages the diverse conservation, teaching and research programs of the centre. Robyn’s contribution to research and teaching has developed in both an academic and professional framework. Robyn’s research interests include programs in cultural material conservation that focus on the materials and techniques of artists (particularly in Australia and Southeast Asia), ethical and philosophical issues in cultural materials conservation and the development of scientific techniques for conservation. Brian  F.  Spatola is  Curator and Forensic Anthropologist, Anatomical Division, National Museum of Health and Medicine (NMHM), Silver Spring, MD. Spatola is a biological anthropologist and researcher interested in anthropological and historic aspects of the human remains trade for medical education. As a forensic anthropologist, he has helped identify and analyse skeletal remains for medico-legal agencies in the District of Columbia, Virginia, and for the Armed Forces Medical Examiner System. His specialisations include paleopathology, trauma analysis and museum collections management. He is a fellow with the American Academy of Forensic Sciences (AAFS), past chair of the Society of Forensic Anthropologists (SOFA) and a member of the Society for the Preservation of natural History Collections (SPNHC). Dorit Straus  Trained as a Middle Eastern archeologist at Hebrew University in Jerusalem, Dorit Straus worked as a curator and registrar at various museums, including the Museum of Contemporary Craft, Harvard University Peabody Museum of Ethnography and the Jewish Museum, before transforming herself into a fine art underwriting specialist when she joined the Chubb Group of Insurance Companies in 1982.

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Over the years, she has become a known expert in insuring museums and cultural institutions, corporate and private collections and galleries. Dorit serves on the board of the International Foundation of Art Research and AXA Art Americas Corporation, and she is a committee member of the Cultural Protection Advisory Committee of the US State Department, appointed by President Obama in 2016. Christos Tsirogiannis  is a forensic archaeologist researching trafficking networks of illicit antiquities; he regularly identifies illicit antiquities in the market and assists the authorities in repatriation processes, work for which he won the Award for Art Protection and Security by the Association for Research into Crimes against Art (ARCA) in 2013. He worked for the Greek Ministries of Culture and Justice from 1994 to 2008 and excavated throughout Greece. His expertise originates from volunteering as an archaeologist with the Greek police Art Squad (2004–2008) and subsequently employment as a member of the Greek Task Force that repatriated looted, smuggled and stolen antiquities. This research became the foundation of Christos’ PhD on the international illicit antiquities network, which he received from the University of Cambridge. He has since been employed as a research assistant in the ERC-funded Trafficking Culture project based in the University of Glasgow, where he continues as an affiliated researcher for this project and concurrently a visiting fellow at the University of Suffolk and a lecturer for the ARCA summer course in art crime. Donna  Yates  is Lecturer in Antiquities Trafficking and Art Crime at the University of Glasgow’s Scottish Centre for Crime and Justice Research. An archaeologist by training, Yates is one of the founding members of the Trafficking Culture research consortium, which conducts evidence-based inquiry into the global illicit trafficking of cultural objects. Her research broadly focuses on social aspects of antiquities trafficking, art crime, and related cultural property issues.

List of Figures

Graph 2.1 Illegal excavations detected in Italy from 2006 to 2014 (The author, after Carabinieri 2011, 2015, 2016) 37 Fig. 8.1 Key for the Technological Industrial and Sanitary Museum, 150 Garden Palace, Sydney, New South Wales, 1879 Fig. 8.2 Motivation for Museum Thefts 159 Categories of Items Stolen from Museums 160 Fig. 8.3 Fig. 8.4 Numbers of Items Stolen per Theft from Museums. NB: Some assumptions have been made based on descriptions of items stolen 161 The twice-stolen ship’s bell from SMS Emden: HMAS Sydney (I) 161 Fig. 8.5 Fig. 8.6 £ Value of Items Stolen per Theft from Museums 163 Fears of items being melted down. Evening News, Sydney, Saturday Fig. 8.7 30 August 1930, page 1 165 Fig. 8.8 Truth, Brisbane, 9 October 1938, page 16 166 Fig. 8.9 Coveted jewel beetles: Castiarina argillacea, jewel beetle 169 169 Fig. 8.10 Barrier Miner, Broken Hill, 26 August 1953, page 7 172 Fig. 8.11 External Versus Internal Thefts from Museums 173 Fig. 8.12 Daily News, Perth, 22 April 1933, Page 1 Fig. 8.13 Planned Versus Opportunistic Thefts from Museums 174 Fig. 8.14 Day Versus Night Thefts from Museums 175 176 Fig. 8.15 Exhibition Versus Storage Thefts from Museums Fig. 8.16 Legal Outcome per Theft from Museums 178 Fig. 8.17 Recovery of Items per Theft from Museums 179 Fig. 9.1 Museum Security Officer Competency Statements (Garrett 2016, p. 157)207

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Fig. 20.1 Fig. 20.2

List of Figures

Naram-Sin Stele 411 Tank outside Baghdad Museum. Image taken by United States Department of State employee. The image is in the public domain428 Fig. 25.1 An example of common dialog between collectors and enthusiasts539 Fig. 30.1 Ras Al Margib during the assessment September 2011 photo © 670 Joris Kila Fig. 31.1 Belitung (Tang), Indonesia. Changsha bowls post-salvage 713 Fig. 31.2 Belitung (Tang), Indonesia. Some of the 57,500 Changhsa bowls (each with an approximate diameter of 16 centimetres) recovered from the Belitung (Tang) are displayed in a ceramic storage jar at Singapore’s Asian Civilisations Museum. Ingenious packing techniques meant that each large storage jar held about 130 bowls, which were coiled and padded with organic material, probably straw, for protection 714 Fig. 31.3 A small number of objects from the Belitung are on display at the new Marine Heritage Gallery in Jakarta. An initiative of the Indonesia Government and housed in the Ministry of Marine Affairs and Fisheries, the gallery aims to raise awareness about the historical and archaeological value of Indonesia’s underwater cultural heritage. It is home to about 1200 objects from three known shipwreck sites (Belitung, Cirebon and Pulau Buaya), as well as a number of unidentified sites 715 Fig. 31.4 Binh Thuan, Vietnam. The wooden structure is the base of the foremast, stepped between tabernacle partners. It is surrounded by stacks of blue-and-white and overglaze enamel Zhangzhou 716 ware. Chinese junk of c.1608 Fig. 31.5 Kelson of the Phanom Surin, Thailand. This ninth-century Arabian-style sewn ship was discovered 8 kilometres inland by a local shrimp farmer, and it is now undergoing conservation and research by Thailand’s Underwater Archaeology Division. The 17-metre kelson (the wooden beam that runs along the bottom of the boat to reinforce the keel) is shown here, submerged in water for preservation 718 Fig. 31.6 Desalination, Phanom Surin, Thailand. Ceramic objects from this ninth-­century vessel undergo on-site desalination 718 Fig. 31.7 Organic objects, Phanom Surin, Thailand. Objects found at the site of this ninth-century wreck include organic artefacts such as 719 ropes, rice grains, betel nuts and coconuts Fig. 32.1 Probable remains of the Sally, Westward Ho!, Devon. Built during the period 1752–1800, this intertidal wreck site was protected in August 2016 on account of its rarity and survival 736

  List of Figures 

Fig. 32.2

Fig. 32.3 Fig. 32.4

Fig. 32.5 Fig. 32.6 Fig. 32.7 Fig. 36.1

Fig. 36.2

Fig. 36.3

Fig. 36.4

Fig. 36.5

Under the Headline ‘U8 seen nothing yet as WWI submarine propeller is returned to Germans’, Navy News reported on the unlawful recovery of the propeller from the hull of the German U-boat U-8 sunk on patrol in March 1915 An archaeological diver working under an appropriate Approved Code of Practice for the activity intended This gun carriage was excavated from the wreck of the HMS London in 2016. The excavation and recovery were fully supported by a project design that set out the need for the work and the method to be used A map showing all 52 sites currently designated under the Protection of Wrecks Act 1973 (June 2017) The Holland 5 submarine was part of a high-profile investigation into the theft of the torpedo-loading hatch. Image Crown Copyright, Wessex Archaeology The Amsterdam protected wreck site which was the focus of the Galleonwood case in 2010 Reconstruction of Attic red-figured cup attributed to the Euaion Painter using images depicting the tondo (Museo Nazionale di Villa Giulia), and fragments from the collection formed by Dietrich von Bothmer (posted via the AAMD Object Registry). Courtesy of Professor David Gill Left: The South Italian calyx-krater by Python, depicted in a regular image in the Medici archive. Right: The same South Italian bell-krater by Python in a professional photograph from the website of the Metropolitan Museum of Art in New York while owned by the museum. © The Metropolitan Museum of Art Left: The South Italian calyx-krater by Python depicted in a Polaroid image from the confiscated archive of the convicted antiquities dealer Giacomo Medici. Right: The same calyx-krater depicted in a regular image again from the Medici archive Left: The South Italian calyx-krater by Python, depicted in a professional image from the confiscated archive of the illicit antiquities dealer Robin Symes. Right: The same calyx-krater depicted in a photograph produced by the Speed Art Museum, Louisville, Kentucky, while they owned the object, which now belongs to the Collection of the Republic of Italy The Greek black-figure neck-amphora by the Bucci Painter, depicted in a regular image from the confiscated archive of the convicted antiquities dealer Giacomo Medici. Right: The same neck-amphora depicted in a professional image from the confiscated archive of the illicit antiquities dealer Robin Symes

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737 737

738 744 747 748

820

822

825

826

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List of Figures

Fig. 36.6

The same Greek black-figure neck-amphora, currently on exhibition at the Ackland Art Museum, the University of North Carolina at Chapel Hill. ©Ackland Art Museum, University of North Carolina at Chapel Hill. Ackland Fund 831

List of Tables

Table 2.1 Table 5.1 Table 9.1 Table 25.1 Table 25.2 Table 25.3 Table 25.4

Statistics on European cultural heritage crimes 44 Records and searches of the INTERPOL Stolen Works of Art database according to INTERPOL Annual Reports 2002–2016 93 25 Techniques of crime prevention, Cornish and Clarke (2003, p. 90)198 Preliminary demographic assessment of the Instagram human remains trading community 535 Correlations between collector/dealer location and skeletal elements represented 536 Correlations between collector/dealer location and category of human remains collected 537 Correlations between the human remains trade and other collecting communities on Instagram 541

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Part I Setting the Context

1 Art Crime: Exposing a Panoply of Theft, Fraud and Plunder Duncan Chappell and Saskia Hufnagel

A Criminological Awakening? [Art] of the past has become victim to unprecedented pillage, theft, and destruction. Temples in obscure corners of the world are torn apart so that chunks of stone can be brought to museums in ‘civilized’ centres. Paintings and other artefacts are stolen from churches. An organised underground brings this loot to markets where buyers are willing to put aside their normal scruples: museums commission the pillage of archaeological sites. Otherwise honest businessmen buy without hesitation objects that can only have been stolen, tourists become smugglers, and legitimate auctioneers party to fraud. (Burnham 1975, pp. 13–14)

This appraisal of the nature of the market in cultural objects is not only rather gloomy but somewhat unique since its author seems to have been one of the first to identify and report upon both the international dimensions of this trade and the way in which it operates (see also Middlemas 1975). Writing in the mid-1970s, Bonnie Burnham’s remarks were based on an intimate knowledge of museum and cultural affairs. Her involvement with the more tawdry aspects of these affairs began in 1971 when she commenced work for the International Council of Museums (ICOM) as special coordinator for a D. Chappell University of Sydney, Sydney, NSW, Australia S. Hufnagel (*) Queen Mary University of London, London, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_1

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project called ‘Ethics of Acquisition’, a campaign against the acquisition by museums of smuggled cultural objects and undocumented art (Burnham 1975, p. 15). Upon completion of the project, she felt obliged to produce a book describing the nature of the theft and pillage she had identified and the ‘art crisis’ it had produced. Burnham did not claim to be a criminologist, but much of the research she conducted and the information she provided were of a type familiar to the discipline. Her research informants included police officials in major art centres, like Paris, New York and London, and she also made field trips to archaeological sites to see and hear first-hand how the illicit trade in antiquities was organised. Her research left her to question whether it was “indeed possible to buy art without getting involved in the vicious circle of pillage and destruction.” (Burnham 1975, p. 16). This question is still one which has resonance several decades later when, as we shall see, criminologists have finally become far more actively involved in studying the illicit traffic of cultural objects as well as the more expansive forms of art crime linked to fraud, theft and associated offences. Historically, this involvement has really only acquired any momentum and depth since the closing years of the last century and, in particular, following the publication of John Conklin’s groundbreaking book on art crime (Conklin 1994). As Conklin noted in a preface to his book, the “volume focuses on a topic that has so far escaped the attention of criminologists: crime that involves works of art” (Conklin 1994, p. ix). He defined art crime as “criminally punishable acts that involve works of art” (Conklin 1994, p. 3). Works of art, said Conklin, were objects included in the typology developed and used by the New  York-based International Foundation for Art Research (IFAR) to classify works of art that are reported stolen, namely “(1) Fine arts, including paintings, photographs, prints, drawings, and sculptures; (2) Decorative arts; (3) Antiquities; (4) Ethnographic objects; (5) Oriental and Islamic art; and (6) Miscellaneous items, including armour, books, coins, and medals” (Conklin 1994, p. 18). The volume goes on to address a wide range of issues associated with art crime, including fakes, forgeries and fraud; the distribution of stolen art; and the looting and smuggling of antiquities. On the latter topic, Conklin acknowledges and draws quite heavily upon the earlier and pioneering work of Burnham. Looking back now at the arena of criminological research and writing of the last century, it does seem rather remarkable that it did take so long for any scholarly work to emerge about art crime at large. Such crime clearly touches upon numbers of areas of considerable interest to criminologists, including property and white-collar offences, and organised criminal activity. It is also

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a form of crime which is associated with what has become an extremely lucrative global art industry (see, for instance, Thompson 2008, 2017; Thornton 2008). The transnational and wealth dimensions of the marketplace for works of art, including the types of items identified earlier in the quotation from Burnham, undoubtedly assists in explaining why the attention of both criminologists and criminal justice practitioners has finally begun to be focused on this topic. As an illustration of this awakening of international interest, there has been a surge of activity in the United Nation’s Commission on Crime Prevention and Criminal Justice (CCPCJ) in combatting the illicit trade in art and antiquities (UN Economic and Social Council 2010). The CCPCJ, comprising 40 elected nations from among the members of the UN, oversees the programme and activities of the Vienna-based UN Office on Drugs and Crime (UNODC). The latter body has now recognised that the actions of illicit traffickers in art and antiquities have many similarities to those engaged in other organised transnational criminal activities, including drugs and arms trafficking. As such, they are also activities which might be better targeted by collaborative law enforcement efforts utilising the powers already given by an international instrument like the UN Convention against Transnational Organised Crime (UNTOC), agreed in 2000 in Palermo, Italy (see UNODC 2004). The CCPCJ has also given fresh consideration to the acceptance of a model treaty for the prevention of crimes that infringe on the cultural heritage of peoples in the form of movable property—a model treaty whose terms were first proposed nearly two decades ago at the 1990 Eighth UN Congress on the prevention of crime and the treatment of offenders held in Havana, Cuba (UN Congress 1990, and reproduced in Appendix IV of Manacorda and Chappell 2011, pp.  237–242, together with other major treaties and documents relating to the protection of cultural heritage). More recently, and with the still ongoing conflicts occurring in Afghanistan, Libya, Iraq, Syria and elsewhere in the Middle East, the UN Security Council has taken a direct interest in this subject area, passing resolutions condemning the wanton destruction and looting of cultural objects and sites and seeking prohibitions on the subsequent illicit export and sale of such objects on international markets (see UN Security Council Resolution 2199, 2015a, Resolution 2253, 2015b, Resolution 2347, 2017). Criminologists have been involved in these UN-based activities, and have sought to offer advice and counsel regarding the approaches that might be taken to diminish the flourishing trade in cultural objects (see, for instance, Manacorda 2009). Even so, it must be acknowledged that the amount of research-based information available from criminological sources about the

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inner workings of this trade still remains quite restricted. For instance, the study of the illicit traffic in cultural heritage material, especially in Asia, is at a much earlier stage of development than studies of illicit markets involving drugs or the trade in women. This is not because the traffic itself is new. Indeed, one can easily argue that the plunder of antiquities predates such problems as the current issues with illicit drugs since it extends back through many centuries. The tombs of the Egyptian pharaohs were, for example, often plundered almost as soon as they had been sealed while successive conquerors from Greek and Roman times onwards consistently took home looted objects as trophies of war (Miles 2008). What is still surprising is that in addition to the commentary on the plunder of cultural heritage being so slow to evolve, there has been almost no major criminological research grant money devoted to its study. Further, researchers in this area are not helped in any significant way by the existing criminal justice system in terms of knowledge or even data. Virtually, all art crime, including cultural heritage crime, belongs to the well-known ‘dark figure’ of criminality, that is, it resides beyond the reach of current crime statistics. While there have been some who have struggled to find some information from sources such as customs records (Fisman and Wei 2009), we still have little solid evidence about its true scale and dimensions (Passas and Bowman Proulx 2011; Durney 2013). In addition, there are constraints imposed by ‘human ethics’ procedures that limit approaches that can be taken by university researchers to study illicit traffic patterns (see Wilson 2000 for an interesting case of an academic going ‘undercover’). Investigative journalists who have been active in relation to this subject, such as Peter Watson (Watson and Todeschini 2006), have much greater freedom to ask questions that university researchers are not permitted to ask (e.g. of antiquities dealers who obviously are selling plundered objects). In Watson’s case, he could, as a journalist with funding from television sources, actually entice major market players (including Sotheby’s) to engage in a range of illegal behaviour involving the smuggling and preparation of false export/import documents of proscribed cultural material (Watson 1998). Finally, it also must be pointed out that there are situations where close investigation of this illicit traffic could become exceedingly dangerous. As is true of many forms of illicit traffic, there is much money to be made, especially in the source nations. Those making that money are often well connected to police or military authorities and take a dim view of interference in their lucrative activities.

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 he Handbook and the Interface Between the T Worlds of Art and Crime Having touched upon the context in which the subject of art crime has finally awakened the contemporary attention and interest of criminologists, we turn now to the raison d’être for this Handbook and introduce its invited contributions. A handbook has been described as “a book that contains instructions or advice about how to do something, or the most important and useful information about a subject” (Cambridge Dictionary 2018). In this instance, our focus is principally upon the latter part of this definition, and in selecting the most important and useful topics and contributors to include in the Handbook, we have also been mindful of the multi-disciplinary interest the subject area now attracts. As the list of contributors illustrates, in addition to criminology the author’s professional backgrounds include ancient history; archaeology; forensic science; heritage conservation; investigative journalism; law; law enforcement; the military; museum curating and administration; papyrology; physical anthropology; sociology; membership of international organisations, like the World Customs Organization; and art crime itself, including former art forger John Myatt, whose manifest talents as an artist can now be admired on the cover of this handbook! The interface between the worlds of art and crime is often characterised by controversy, conflict and complexity, as John Myatt’s own story as a painter of fake works, outlined in Chap. 18, illustrates. It may also be salutary to recall that some of the individuals now lauded as being among the world’s greatest artists also engaged in criminal behaviour of varying types during their careers. It is claimed, for instance, that Michelangelo Buonarroti (1475–1564), the Renaissance artistic genius, commenced his career as a forger. As Charney (2015, pp. 36–38; Chap. 13) indicates, before gaining his fame as a sculptor of works like the Pietà (1498–1499), Michelangelo carved and then doctored a marble statue, Sleeping Eros (1496), to make it appear to be of ancient origins. The statue was successfully passed off as such when sold to Cardinal Raffaele Riario, a great collector of art at the time. The Cardinal subsequently discovered he had bought a forgery, but he was so impressed by Michelangelo’s work that he kept the fake statue and commissioned further sculptures from him. The original Sleeping Eros was eventually acquired in 1631 by King Charles I of England and then disappeared, probably destroyed in a fire at Whitehall Palace in 1698 (Charney 2015, pp. 36–37). While Michelangelo Buonarroti’s demonstration of his skill as a forger was ultimately beneficial to his career, the criminal activities of a near contemporary

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Renaissance artist, Michelangelo Merisi da Caravaggio (1571–1610), were far less so. Described by a recent biographer as “one of the most electrifying original artists ever to have lived” (Graham-Dixon 2012, p. 3), his paintings have also been presented as “spotlit moments of extreme and often agonised human experience. A man is decapitated in his bedchamber, blood spurting from a deep gash in his neck. A man is assassinated on the high altar of a church. A woman is shot in the stomach at point blank range” (Graham-­ Dixon 2012, p. 3). It would seem that Caravaggio’s life was very similar to his art. The information that is known about him has apparently been mainly discovered in criminal archives of the period in which he lived and, apart from his art works, the majority of his recorded acts are crimes and misdemeanours, many of them associated with considerable violence. At the moment of his death, he was a convicted murderer and fugitive from justice having been sentenced to indefinite exile from Rome in 1606 and made subject to a capital penalty which allowed anyone in the papal states of the time to kill him with impunity (Graham-Dixon 2012, p.  3 and pp.  324–325). Despite these manifest liabilities of character, Caravaggio remains among the identified giants of the art world. Caravaggio was undoubtedly viewed in his day as a difficult man to deal with, an outsider and troublemaker in regular conflict with the law. Artists in more recent times are not immune from a similar response, especially when they seek to test or shift the boundaries of acceptable artistic expression and cultural freedom. At the level of scholarship and academe, these boundary wars can form the grist of much lively intellectual discussion and debate, while in the broader community they tend to promote attention to the framework of existing laws and societal mores. In this Handbook, we have chosen not to include contributions on the already well-documented censorship of art and the seemingly ever-enlivened dialogue about where the legal boundaries lie between art and pornography. We note, however, how changing mores in society can affect these boundaries in a dramatic fashion. As we write, Amedeo Modigliani’s 1917 painting, Nu couché (sur le côté gauche), has just been auctioned in New York by Sotheby’s for US$157.2  million, just short of the record of US$170  million paid in 2015 at Christie’s for another of Modigliani’s nudes, Nu couché (Helmore 2018). In 1917, both of these paintings had originally been commissioned and offered for sale in a series by the Parisian art dealer Léopold Zborowski. When first displayed publicly in Paris, they caused a furore, prompting scandalised authorities to order the police to shut down the entire show. The highest price paid at the time for any of the series of paintings of nudes was

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300 francs (US$60, or US$1097  in contemporary dollars). The paintings have, a century later, become Modigliani’s most coveted and influential works, “modernising the female nude, committing fully to placing the woman in a contemporary context, rather than setting a nude in a historical context—say, a Roman orgy—that would justify the nakedness” (Freeman 2018). In deciding on the final structure and content of the Handbook, we have been very much influenced by a series of invited papers, presentations and allied discussion and debate that arose from them during the course of three intensive art crime-related workshops we commissioned. These international and multi-disciplinary proceedings were made possible by a network grant from the United Kingdom’s Arts and Humanities Research Council (AHRC). The first of these workshops, on the subject of art theft, was held in London at Queen Mary University of London in June 2016. The second workshop, on art fraud, was held at the Royal United Services Institute in London in January 2017 and the third workshop, on cultural heritage plunder, in Berlin at and with the support of the German Ministry of Finance in September 2017. All of the workshop proceedings were recorded and many of the papers and presentations given have subsequently been refined and submitted for inclusion in the Handbook. We have elected to group and present the selected chapters under six broad headings or parts: setting the context; art theft; art fraud and forgery; art plunder; and some ethical and allied challenges. We turn now to a brief summation of the content of each.

Part 1: Setting the Context In our opening remarks above, we have already referred to the broad-based definition of art crime suggested by Conklin and the use of the IFAR categorisation of art objects included within it. No serious objections have since been made to this definition, although it is clear that it may not fit with great comfort into all of the multi-varied areas of interest and study associated with objects labelled as art. Indeed, as Marc Balcells explains in Chap. 2, there has been a recent tendency to refer to this category of criminal offending as ‘cultural property’ or ‘cultural heritage’ crime. Whatever the label, these clearly are not harmless offences, and they include both tangible and intangible losses. Balcells goes on to explain, using the looting of Italian antiquities as an example, how what is new is the criminalisation of looting behaviours, which were for many centuries viewed as unwelcome, but still lawful, acts.

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Balcells also tackles the vexed and still largely unanswered question about the true nature and extent of cultural heritage crime, and the merits and demerits of both quantitative and qualitative research approaches to gain more knowledge and information on the subject. He concludes with a timely comparison to the uptake of white-collar crime research and analysis and ponders how far this still relatively youthful field of art crime will have advanced by its 50th birthday in 2044. In her comprehensive and penetrating introduction to the art crime literature in Chap. 3, Vicki Oliveri emphasises that in this age of global interaction and dissemination of knowledge through social media and related sources, offences against cultural heritage have finally become recognised as crimes against all of humanity. She traces the way in which this change in attitudes has proceeded and notes that, until quite recently, scholarly attention failed to keep up with this change in attitudes. She too acknowledges the pioneering role played by Bonnie Burnham in identifying and publicising the issues surrounding the trafficking of looted antiquities and in pointing to the role played by dealers in the art and antiquities trade in stimulating and facilitating this behaviour. In Chap. 4, Blythe Alison Bowman Balestrieri examines the antiquities market’s status as a part of the ‘grey’ or ‘dirty’ economy and discusses how it imperils the world’s cultural heritage. In identifying it as a form of modern transnational crime, she also acknowledges that the international movement of both crime and criminals is anything but new, as exemplified by smuggling, piracy, brigandage and other historical examples. What is different about the modern version of such criminality is the way in which both legitimate and illegitimate enterprises have been able to take advantage of the interconnectedness of modern life to further their aims and objectives. Bowman suggests that much more intensive research is needed to track and understand these developments as well as interdict their criminal elements. In Chap. 5, Saskia Hufnagel considers the way in which the world’s major law enforcement body, Interpol, views this area of international crime and seeks to assist with ways to combat it. It is important to remind readers that Interpol lacks investigative powers and functions—it is only an advisory body, but one with substantial global influence and reach. Interpol is, in this chapter, compared and contrasted to other law enforcement bodies active in the area of art crime policing, such as Europol and the World Customs Organization. It is concluded that international law enforcement cooperation facilitators are crucial in the fight against art crime as they link and support national agencies and promote collaboration between different actors in the field.

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Part 2: Art Theft Duncan Chappell and Kenneth Polk, in Chap. 6, examine the various forms of art theft and point to the major deficiencies which exist in our knowledge base about this type of crime. As they indicate, from the viewpoint of official published crime statistics, art theft is contained largely within a black hole labelled the ‘dark figure of crime’. When an art theft is reported to law enforcement officials, it will almost certainly be identified and recorded according to its legal categorisation as a larceny, burglary, house breaking or robbery without specific reference to the nature of the item(s) stolen. Gleaning information about the nature of the specific items stolen requires a separate analysis which is at present rarely undertaken by law enforcement agencies, as emphasised by Interpol (see Chap. 5). Thus, art crime researchers at present have to resort to other sources of information, like media reports, to document and describe this particular aspect of criminal behaviour. Chappell and Polk utilise media reports as the substance of their art theft analysis, concluding that a proper understanding of this crime requires recognition of the social dynamics involved. They suggest that many art thefts are committed by persons who are completely ignorant of the workings of the art market and that once in possession of a stolen art object(s), they find it extremely difficult to realise any financial gain from their criminal endeavours. Vicki Oliveri, in Chap. 7, delves into issues associated with the investigation and detection of art thefts. She observes that most art thefts, sadly, remain unsolved. The US Federal Bureau of Investigation (FBI), for instance, calculates the recovery rate for stolen art at from 2% to 6%, while the Art Loss Register (ALR), the largest private database of stolen art in the world, claims a recovery rate of high-value works of around 15% after 25 years. Oliveri goes on to analyse five cases of major art theft which remain unsolved, including the high-profile 1990 art heist from the Isabella Stewart Gardner Museum in Boston in the US, labelled as the most costly crime of its type ever committed with the loss of paintings by some of the most famous artists in the world including Rembrandt, Vermeer, Manet and Degas. The FBI’s investigation into the crime continues. In Chap. 8, Maryanne McCubbin presents an analysis of patterns of theft of cultural heritage objects from Australian museums over many decades, commencing in the 1870s, when a number of the country’s major colonial (now state) museums emerged, through to the 1950s. As she indicates, the subject of theft from museums, whether in Australia or elsewhere, has scarcely

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been studied. As such, McCubbin’s research is truly pioneering and a fine example of a study, which can throw light on the dark figure of art crime. Like Bonnie Burnham before her, McCubbin is an experienced museum curator and administrator with a keen interest in art crime. In this instance, utilising media accounts of museum thefts, she has been able to document their nature and prevalence over an 80-year time period. McCubbin acknowledges the deficiencies of her research methodology and reliance solely on media sources, a situation familiar to students like her working at full-time jobs while seeking to complete post graduate courses. But her findings show that museums do have a theft problem and many of them are ill prepared to deal with it. Indeed, in some cases, the media was the first to alert museum administrators to the occurrence of a theft, while on other occasions the media uncovered thefts which were known or suspected by museum officials but concealed from public purview. McCubbin concludes that almost without exception all of the state museums included in the study had experienced multiple incidents of theft, almost all of which occurred in two contexts. Most common were opportunist thefts committed by locally based and largely unorganised criminals involved in the more general stolen property market. The second context involved the theft from collections of items for the development of usually very substantial personal collections of cultural heritage objects. This included ‘insider’ theft by persons with privileged access to museum collections. Declan Garrett, in Chap. 9, considers directly the important question of how best to protect works of art from theft. Applying crime prevention theories and measures, his chapter focuses on art works held in the collections of museums, but as he emphasises, these approaches are equally applicable and adaptable to private art collections, archaeological sites and houses of worship. He cites evidence from the ALR which reveals that 50% of art thefts recorded in their register are in fact from private collections rather than museums. Garrett points to numbers of case examples, including the Isabella Stewart Gardner Museum heist mentioned by Oliveri, to illustrate the nature of the challenges facing museums in protecting their collections against the costly and very real risks of theft, vandalism and allied dangers. Mirroring the findings reported by McCubbin’s study of museum thefts, Garrett concludes that the common theme running through such cases is that of ‘opportunity’. Utilising what is typically referred to by criminologists as the opportunity theory, Garrett suggests museums contain suitable targets that motivated offenders desire and, as a result of deficient guardianship, are able to seize. He also suggests that there is no such thing as a typical art thief, and no one

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reason why people choose to steal art works. While no one would probably dispute these suggestions, at a general level, they might require some refinement in light of McCubbin’s finding, referred to above, that ‘insider theft’ presents a particular problem for museums—a problem which is not detailed in Chap. 9. Mention has already been made of the generally very discouraging art theft detection rates reported by law enforcement agencies in many jurisdictions across the globe. In Chap. 10, Naomi Oosterman provides a unique insight into the work performed by the international police organisation Interpol in the arena of art crime investigations. She suggests, tellingly, that the images the public have of art crime and criminals are largely a chimera produced by Hollywood, and that art crime policing itself often seems no more than a figment of imagination. Building upon the earlier analysis conducted by Block (2014), she also examines the policing efforts devoted to art crime within member states of the European Union (EU). She concludes that in the field of EU law enforcement policy, while art and cultural property crimes have been the subject of considerable official discussion and attention, these activities have had intangible operational impact. The policing of art crime at national, regional and international levels is still to be developed. In Chap. 11, James Ratcliffe describes the significant role played by the ALR in recording, publicising and assisting with the recovery of stolen art works. Established as a private limited company in 1990, the ALR now has a database of over half a million objects. The vast majority of the ALR’s work, and revenue, is provided by searches it conducts on request to assess whether objects moving through the art market are registered as being stolen. Ratcliffe acknowledges the limitations of the ALR’s database and also addresses a number of criticisms made of it. In the field of antiquities theft, for example, the ALR has been criticised in the past for issuing certificates that an object was not registered on its database without querying the provenance or origin of the item concerned. As he indicates, it will always be impossible for the ALR to record archaeological material that has been plundered directly from the ground and then finds its way onto the antiquities market. The ALR has now tightened its search criteria to require all one-off search requests of its database to be accompanied by a minimum level of provenance data which may, at the ALR’s discretion, also have to be supplemented by documentary proof. Ratcliffe refers to the major difficulties which still exist in regard to the repatriation of stolen art to its rightful owners. He suggests that stolen art is simply not protected adequately by existing laws, especially when, as often is the case, it disappears from view for very long periods after a theft.

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Challenges of a rather different nature form the gist of Chap. 12, contributed by Dorit Straus, a highly experienced insurance underwriter who discusses numbers of issues which the insurance industry faces associated with the contemporary globalisation of the art market and the treatment of art as a commodity. While insuring against the risk of theft of art works remains an important component of the underwriting business, Straus indicates that some of the most sensational and costly art heists, including the still unsolved 1990 heist from the Isabella Stewart Gardner Museum in Boston described in Chap. 7, were not covered by insurance. It also appears that for the insurance industry the major driver of what is said to be a poor loss ratio in this segment of their business is not linked to claims for outright theft but rather to overpayments of claims because of dubious appraisals, or overstating the value of a partial loss. She goes on to question the practical utility of the insurance industry’s involvement and support for art crime databases, like the ALR described in Chap. 11, while also querying the merits of offering rewards for the return of stolen art works. She also refers to the tricky legal questions that can arise when claims are made for an alleged financial loss because of the discovery that an insured art work is in fact a fake. Straus also touches upon a number of other difficult and challenging problems presented to the US insurance industry by various complex requirements set by the US Treasury Department and the Office of Foreign Assets Control (OFAC). OFAC administers and enforces international economic sanctions against both nations and individuals engaged in or supporting acts of terrorism, narcotics trafficking and like activities. OFAC also requires insurance companies to verify ownership and avoid insuring any art that is used to facilitate money laundering, tax evasion and like matters. Straus refers in particular to the major problems that the insurance industry has encountered in recent years in establishing the true identity of their insured art-related clients, as the highly publicised revelations of the leaked ‘Panama Papers’ demonstrated in 2016. The inadequate protection of art by existing laws discussed by Ratcliffe in Chap. 11 is taken up and discussed in far greater detail by Patty Gerstenblith in Chap. 13. Gerstenblith examines the way in which statutes of limitation and other legal challenges impede the recovery of stolen art. As she stresses, the law has been developed to respond to the temptation of theft by criminalising the conduct of a knowing wrongdoer and assisting recovery of a stolen work by the original owner through a civil action. But this process can find itself in tension with the policy of encouraging commercial transactions to occur freely between seller and buyer with the rapid transfer of title to the current possessor.

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Gerstenblith, using numbers of case examples, goes on to review the often highly complex legal issues that can arise in civil litigation by parties involved in disputes about the ownership and repatriation of stolen art works. Her analysis, appropriately, is focused largely on the approach taken by US legislatures and courts since the US, and in particular New York, represents the location of the major market in art works of all types.

Part 3: Art Fraud and Forgery We now discuss the arena of art fraud and forgery, which tends to attract not only public attention and interest, as evidenced by long-running and popular media programmes like Fake or Fortune (BBC 2018), but also concern within the global art market, as its integrity seems threatened by the appearance of significant numbers of fake paintings, sculptures and other art works. With prices for art works both ancient and modern reaching stratospheric heights and speculative trading of art rampart, the climate is also ripe for fraudsters to ply their trade. In a wry and insightful appraisal in Chap. 14 profiling art forgers, Noah Charney suggests that the motivational drive and direction for the majority of famous art forgers he has studied in considerable depth (see, in particular, Charney 2015) is to have failed in some way to follow their intended path to become a famous creator of original art works. Charney states that “the consistency of [art forgers’] motivations is so remarkable that it is almost easier to spot the outliers, those who do not exhibit this ‘forger’s profile’, than it is to count those that do”. Charney goes on to describe the profiles of a number of prominent art forgers, many of them of British origin. He suggests that this particular type of criminal activity is beloved of the British, and that when a forgery is detected, there is scant, if any, public outrage. Instead, the forger is often portrayed as a folk hero who has outwitted the Establishment. In Chap. 15, Kenneth Polk and Duncan Chappell address the topic of art that is deemed to be ‘non-authentic’, or, in more typical and popular parlance, art that is a ‘fake’ or a ‘forgery’. For reasons which they explain, they suggest that criminologists should try to avoid the use of these latter terms. They go on to suggest that to understand what is meant by ‘non-authenticity’ in this context requires a grasp of what underlies ‘authenticity’—a status that requires a combination of evidence from experts, both artistic and forensic, as well as information about the provenance of an object. They conclude that most cases where art is believed to be non-authentic will involve situations of mistaken identity, in the form of ‘honest mistakes’ or ‘disputed identity’,

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rather than dishonesty. As such, and somewhat controversially, they surmise that despite a number of well-publicised cases of fraudulent works being placed on the international art market, this type of crime is still quite rare. This assertion is none the less tempered by their acknowledgement that the evidence regarding reported crimes of this type is largely dependent upon criminal justice sources, and that the victims of art fraud may not for a number of reasons report their victimisation to law enforcement agencies. We now turn our attention to three specific case examples of established art fraud, each of significant longevity and magnitude as well as international media coverage and comment. In Chap. 16, Saskia Hufnagel discusses the case of Wolfgang Beltracchi and his associates in Germany; in Chap. 17, Derek Fincham considers the so-called Knoedler Gallery case in New York City; and in Chap. 18, a conversation is presented with convicted British art forger and painter John Myatt. Chapter 16 by Saskia Hufnagel outlines the story of the art forger Wolfgang Beltracchi in the specific context of art fraud in Germany. While the Beltracchi case is one of the most recent and with his help certainly most prominent cases, there have been numerous case studies in Germany that are less well known, but have had a more significant impact on the art market and prevention strategies of museums. One in particular concerns forgeries of metal works, which led to an international awareness of museums regarding such pieces. The chapter furthermore goes into the legal history of forgery, which was not considered an offence as such until the emergence of copyright laws in the eighteenth century. Albrecht Dürer, however, invented a mechanism to protect his works already in the fifteenth–sixteenth centuries. The chapter concludes that both market and victims play a non-negligible role in fostering art fraud. The market, on the one hand, by facilitating utopian prices of paintings, while not ensuring authenticity and provenance research, which make it an easy target and art fraud a classic low risk—high-profit crime. The victims, on the other hand, by discarding clear warning signs, even when given by both law enforcement and experts, as the potential profits and the exotic history of the works invented by clever forgers are too seductive not to be wanted to be believed. It is probable that no single art fraud case has aroused more anxiety and attention in the contemporary art market than the closure in November 2011 of the highly regarded and long-established Knoedler Gallery in New York City. The Gallery was said to be the oldest continuing business of its type in New  York City, having operated there for 165  years. Its downfall and the causes and impact of its closure are the subject of Chap. 17 by Derek Fincham. His chapter is titled ‘The Knoedler Gallery Art Forgery Network’. Fincham, a

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lawyer, notes at the outset that in the US, forgery of art has never been listed in any criminal code and, if it is a crime, it is the law of fraud that offers a remedy to victims. Even so, in popular parlance, the term ‘art forgery’ is very widely used and adopted in his analysis as it is throughout the Handbook despite reservations as to its accuracy and clarity. The principal reason for the ultimate collapse and closure of the Knoedler Gallery was undoubtedly the public disclosure that for years it had been selling for millions of dollars forged art works purporting to be by an array of famous American painters like Jackson Pollock, Robert Motherwell, Willem De Kooning and others. Fincham discusses the ways in which such paintings were able to be sold to unsuspecting buyers, referring as well to the authentication process mentioned earlier. He emphasises and explains in some detail that securing an attribution that a painting is authentic can be a delicate problem, especially because experts are often inaccessible or unwilling to assess works because of the fear of being sued if the prospective purchaser or seller is unhappy with the expert’s verdict. The persons who provided fake works of art to the Knoedler Gallery for onwards supply to its customer base have been identified and in at least one instance convicted of fraud, tax evasion and knowingly selling fake works of art. In addition, a number of civil suits for reparation and damages brought by persons who purchased fake works from the Knoedler Gallery are proceeding their way through the New York courts. Chapter 18 is somewhat unique in the context of the Handbook, in that it is the only chapter which contains a direct personal account by an art crime offender of the motivation and circumstances surrounding their offending. In this case, the offending involved the creation of fake works of art for placement on the art market by a British painter, John Myatt. Myatt acted in concert with a consummate fraudster, John Drewe, as described in the excellent book about their crimes by Salisbury and Sujo (2010). Following his apprehension, prosecution, conviction and the serving of a prison sentence for his art forgery activities, Myatt has now resumed work as an artist. His paintings ‘in the style of ’ other notable artists, as evidenced by the cover of this book, are now highly sought after. Chapter 19 by forensic scientist Robyn Sloggett completes the Handbook’s concentration on art fraud and forgery. Sloggett has substantial practical experience in bringing her scientific skills and methods to bear in both civil and criminal legal proceedings, involving art works whose authenticity is in question. As she stresses, scientific analysis cannot operate independently of art historical and provenance studies to unmask art forgery. Scientific approaches can, however, provide the methodology that builds a context in

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which authenticity claims can be tested. Her chapter contains a helpful overview of the types of scientific tests and analysis that might be utilised in cases of suspected art fraud and fakery. It seems highly likely that in the future these scientific tools will be in much greater demand as the art market confronts the ever-present risk of fresh art forgeries being placed in the art market by highly skilled forgers. Due diligence inquiries involving scientific testing may well become all but mandatory in the high end of the art market—a possibility reinforced by the recent decision by the auction house Sotheby’s to establish its own scientific in-house research unit, following an embarrassing case in which the sale of a painting previously thought to be by the Dutch master Frans Hals was determined by scientific analysis to be a modern forgery. Sotheby’s were obliged to rescind the sale and reimburse the client in full for the reported US$10  million purchase price (Calnek 2016). The auction house has subsequently initiated legal proceedings to recover this sum from a London-based art dealer and his associates who were also involved in the sale. It would seem that this forgery scandal is not limited to the Frans Hals painting, and that other related fake works may also have been placed on the US market (Siegal 2017).

Part 4: Art Plunder It is really no accident that this part of the Handbook contains by far the largest array of material since, as noted earlier in this introduction, the prevailing and increasing trend has been to see art crimes through a cultural heritage or cultural property lens. Valerie Higgins, in Chap. 20, provides us with a fine introduction to the historical underpinnings of concern for the protection and preservation of cultural property. As she indicates, the movement from the ancient world, where plunder and destruction of cultural artefacts and structures was the norm for those victorious in battle, to the present day, when such behaviours are considered to be war crimes or crimes against humanity, has been far from smooth. Higgins suggests that an understanding of the changes in attitudes towards the looting and trafficking of antiquities will inform us a great deal more than the history of criminal behaviour. She contends that western society has a long history of collecting and valuing cultural heritage, but that contemporary attitudes were largely forged during the age of enlightenment in the eighteenth and nineteenth centuries. In her words, “the most challenging cultural heritage problems that confront us today stem from the huge symbolic importance of heritage as an expression of

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collective values of particular communities. When the community is attacked, the heritage is attacked”. Higgins reviews in some depth the developments that have taken place in the arena of cultural heritage protection following the establishment of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in November 1945. She points to the leading role UNESCO has played since that time in promoting international collaboration on cultural heritage issues, including the seminal agreement reached in 1970, in the form of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO 1970), to deter the illicit trade in antiquities. She goes on to mention the still ongoing movement to repatriate plundered objects to their original owners as well as considering the massive damage, destruction and despoiling of cultural heritage sites and objects which have taken place in war-torn regions like the Balkans and the Middle East. Valerie Higgins is an archaeologist who continues to undertake field observations and excavations. So too is Neil Brodie who is the author of Chap. 21, which explores the criminal organisation of the international trade in cultural heritage, utilising two case studies for illustrative purposes. The first of these cases is that of the former New York City-based antiquities dealer, Subhash Kapoor, who is also the principal actor in the immediately succeeding Chap. 22 by investigative journalist Michaela Boland. Kapoor established his business in the 1970s and dealt in artefacts from South and South East Asia. His business extended to providing cultural objects to a Who’s Who of museums around the world, including the New York Metropolitan Museum of Art, the Smithsonian’s Arthur M. Sackler Gallery, the Museum of Asian Art in Berlin, the Guimet Museum in Paris, the Ancient Civilisations Museum in Singapore and the National Gallery of Australia in Canberra. In October 2011, Kapoor was arrested in Germany on an Interpol warrant and subsequently extradited to India in July 2012 where he remains in prison in Tamil Nadu, awaiting trial on charges relating to his alleged trafficking in cultural objects. However, in the US, the Immigration and Customs Enforcement (ICE) agency became aware of Kapoor’s activities and in 2012 launched its own investigation, labelled Operation Hidden Idol, into his illicit trafficking and to recover stolen material. In a number of subsequent raids carried out in New  York City, ICE discovered and seized more than 2600 cultural heritage objects with a value exceeding US$100  million. These seizures led to the arrest and prosecution of a number of Kapoor’s business associates, including his manager who later pleaded guilty to charges of criminal possession.

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The Kapoor saga is still far from concluded, but Brodie contends that his case and that of the two dealers he also describes operating in the Freeport of Dubai in the United Arab Emirates illuminate what he terms ‘the importance of brokerage’, both for moving material between jurisdictions by concealing its true nature from customs control and for duping those seeking to conduct any due diligence regarding its provenance. Kapoor seems to have had an extensive network of aides and collaborators (brokers) built up over the years in India and elsewhere who facilitated targeted thefts of vulnerable objects and then laundered their identity and provenance in order to ship them to markets in the US and elsewhere. Brodie refers as well to the work of Tijhuis (2006) who also contends that understanding the interfaces between licit and illicit markets forms a key to developing any successful countermeasures against this type of crime. The Kapoor case is considered further in some depth and from a rather different perspective in Chap. 22. The chapter’s author is Michaela Boland, an Australian journalist working at the time of her analysis as the national arts reporter of Australia’s influential national newspaper, The Australian. It is often overlooked how great has been the contribution made to our knowledge and understanding of the international trade in illicitly obtained cultural property by journalists like Boland. In the Kapoor case, she, together with assistance from other internationally based journalists Jason Felch, formerly with the Los Angeles Times, and Vijay Kumar, located in Singapore, patiently spent five years unravelling the intricate details of the case which were entangled with the actions of two of Australia’s most important art museums— the National Gallery of Art (NGA) in Canberra and the Art Gallery of New South Wales (AGNSW) in Sydney. Both institutions were found to have acquired a number of Asian antiquities from Kapoor’s Art of the Past gallery in New  York. Foremost among these works was a large bronze alloy Dancing Shiva statue, crafted between 800 and 1200 years ago and acquired in 2008 by the NGA for US$5  million. The piece was subsequently placed in a prominent position at the head of the NGA’s Asian art display. Investigations into Kapoor’s long-standing antiquities dealing activities in India, led by the Tamil Nadu police, soon revealed that the Dancing Shiva had been stolen, together with other valuable pieces, from a temple situated in a small and remote village in southern India. This revelation, coupled with the suspicions that many if not all of the other items acquired from Kapoor by both the NGA and the AGNSW, could have come from similar illicit sources, prompted a flurry of inquiries into the nature and adequacy of the acquisition policies and practices of the two institutions directly involved. Boland describes and discusses these developments which, in the case of the

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NGA, revealed woeful adherence to due diligence principles and practices including a failure to follow the advice of the gallery’s own lawyer about the necessity to undertake further research to affirm a good chain of title to the Dancing Shiva statue before accepting its multimillion-dollar purchase price. Ultimately, the Kapoor scandal led, in 2014, to the introduction of new and far more rigorous collecting guidelines for all of Australia’s public institutions. Their effectiveness in preventing similar scandals remains untested while a number of the cultural objects purchased from Kapoor still remain as virtual orphans in Australia, their true provenance yet to be established so that they can be restored to their true owners. Chapters 23 and 24 offer two regional perspectives on the trafficking of cultural heritage—the first in Latin America by Donna Yates and the second in Asia by Stefan Gruber. Yates indicates that there is a strong internal and external demand for Latin American cultural heritage in all of its forms. Even so, there is no uniformity among legislative and allied measures taken by individual states to regulate or control this demand and scarcely any effective measures taken to enforce the laws that are in place. Yates states that the strong market demand for ancient Latin American objects has directly resulted in the systematic devastation of archaeological sites by looters and traffickers for the past 60 years. She offers little hope that this situation will improve until, in particular, there are improvements in the quality of life enjoyed in a region afflicted at present by poverty and all too often wracked by violence and corruption. Gruber emphasises the importance of understanding the significance of massive economic and related development which is currently ongoing throughout the Asia region in Chap. 24. The region is also rich in cultural heritage with countless sites and objects of cultural interest and importance to the more than one billion people resident in this part of the world. This development can and does create real clashes with the conservation of heritage sites and settlements which must be torn down to make space for new projects and investment. Gruber notes that despite these challenges, specialised heritage protection laws are in place throughout the region although the effectiveness of these laws is very much open to question. The illicit excavation and trafficking of cultural property remain widespread, as Gruber illustrates by a number of case examples. He also refers to the risks associated with the insertion of fake cultural heritage objects into the market—risks which are growing in tandem with the immense sums already paid for highly sought-after Asian antiquities. Chapter 25, jointly written by an interdisciplinary team comprising Damien Huffer (bio-archaeologist), Duncan Chappell (criminologist and

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lawyer), Nathan Charlton (forensic scientist) and Brian Spatola (forensic anthropologist), examines a very different cultural heritage issue, namely the nature of the online trade in archaeological, ethnographic and anatomical human remains on the social media platform Instagram. Building upon earlier research (Huffer and Chappell 2014) regarding the online sale of such objects on eBay, the present study, demonstrates that a thriving and complex international market for human remains exists on Instagram—a market that is at present scarcely regulated and open to abuse. At threat, in particular, are ancient burial sites in many parts of the world which are targeted by looters seeking valuable items like jewellery and gold objects interred with the remains of their owners. Not only are these grave sites desecrated in the process, but their utility as a source of knowledge and information about ancient civilisations is also destroyed. In the past this market frequently included the sale of mummified remains taken from graves in Egypt and its near environs. While mummified remains from this part of the Middle East now rarely appear on the market, they are still being illicitly trafficked from other regions, such as Peru, as reported by Yates in her chapter. Chapter 26, contributed by ancient history scholar and papyrologist Malcolm Choat, examines another rather unusual topic, namely the faking or forging of papyrus. As Choat explains, papyrology as a discipline embraces the study of all texts written in ink on moveable material from the ancient Mediterranean world. It includes texts written not only on papyrus but also on parchment, pottery and wood. While once limited to texts in Greek and Latin from Graeco-Roman Egypt, it now embraces texts from numerous places, although, because of its dry climatic conditions favouring preservation, 90% of the known papyri still come from Egypt. Choate’s fascinating and detailed analysis of the market for this type of artefact suggests that it has been riven by the problem of fakes throughout its lengthy history. In exploring the motivations for such fakery, he suggests that they are numerous, but apart from the financial rewards that may accrue, they include attempts to perpetuate a grand joke on the academy or a rival, or to bolster a particular scholarly position. While the majority of forged papyri entered collections over a century ago, contemporary events and conflicts in the Middle East have resulted in a surge of the plunder of archaeological sites and, especially since the Egyptian revolution of 2011, both authentic and non-authentic papyri are flooding onto the market. The market is also apparently a lucrative one with high prices in the hundreds of thousands of US dollars being paid by collectors and especially those interested in Judeo-­ Christian scripture fragments. Despite this fact, prosecutions for fraud, forgery or any other offence are all but non-existent—a situation which Choat

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concludes is because the law is not adequate to deal with this type of case; proof is wanting and very difficult to establish; and for the most part the fakes are the anonymous creations of unknown forgers, sometimes long deceased and well beyond the reach of any worldly justice system. Chapters 27, 28, 29, and 30 are all concerned with the impact and consequences of armed conflict on the plunder, destruction and repatriation of cultural property and especially with the still lingering repercussions of World War II.  In Chap. 27 Saskia Hufnagel and Duncan Chappell undertake an analysis of the so-called Gurlitt Collection and its links to art works looted by the Nazi regime. The chapter discusses the legal problems of repatriation of Nazi-looted art in both an international and a more specifically German context. While repatriation between nation states is possible under the Washington Conference Principles on Nazi-looted art of 1998, the Gurlitt case opened for debate the question whether the Principles should be applicable to individuals. Gurlitt’s collection of nearly 1600 art works, many of which were bought by his father during World War II for the Nazi regime, had been discovered by police in a search of his house in 2012 and immediately confiscated. What followed was a legal battle that lasted beyond Gurlitt’s death in 2014. According to his will, the collection was to go to the Kunstmuseum in Bern, Switzerland, likely a consequence of Gurlitt’s distrust towards the German authorities after the confiscation of his art. Bern accepted four months later, but the question about restitution continues. Germany had started trying to find the rightful owners of the paintings in 2012, a work which continues to date, but so far only four paintings have been restituted. Gurlitt had finally agreed to abide by the Washington Principles and return any paintings that were proven to be Nazi-looted, but the case shows how difficult it can be to bring justice to the rightful owners, when the conflict lies more than 70 years in the past. In Chap. 28, archaeologist Laurie Rush describes the development, in the wake of World War II, of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and subsequent Protocols. With the Hague Convention came the recognition and use of the Blue Shield symbol to identify and protect cultural property in the same way the Red Cross and Red Crescent are used to protect medical assets and facilities. Later, the International Committee of the Blue Shield (ICBS) was formed, representing non-governmental organisations and people active in the field of archives, libraries, monuments and sites like museums. The establishment of national committees of the Blue Shield has followed in 26 nations with many others considering such action. Rush examines the way that various national Blue Shield bodies have carried out their mandate, as well as other alternative and analogous organisa-

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tions, like the Austrian Society for the Protection of Cultural Property and the Italian Carabinieri Command for the Protection of Cultural Property. She also gives a critical account of the work of the US military’s Combatant Command Cultural Heritage Action Group (CCCHA), suggesting that, while it is full of good intent, it does not provide institutional solutions to the challenge of establishing robust protective practices right across the very broad spectrum covered by military operations. The need for the military to establish effective cultural property protection (CPP) measures has become of even greater urgency and importance in recent times with the increasing resort by extremist groups to the deliberate destruction of archaeological sites and monuments in the conflict in the Middle East. The specific subject of the religious and political motivations for the iconoclastic destruction of works of art is taken up by Sam Hardy in Chap. 29. As he notes, iconoclasm can be variously defined, including consisting of the “motivated annihilation of any presence or power, which is communicated by a symbol, through the annihilation of that symbol”. He also notes that iconoclasm has been practised from “revolutionary France to revolutionary China to revolutionary Ukraine”, and that the motivations for the practice can range “from the imposition of monotheism and restoration of polytheism in ancient Egypt to the deposition of one autocratic regime and the consolidation of another in modern Egypt”. Hardy goes on to conduct a scholarly analysis of the utilisation of iconoclastic justifications and practices in both ancient and more modern times, including the Cultural Revolution in China; conflicts in Cyprus and the Balkans; and conflicts in Afghanistan, Iraq, Iran and Syria. He concludes with a warning as well as a more encouraging suggestion: “[Iconoclasm] may be an act of resistance to local power or protest in international politics. And it may be an early warning sign for and constituent element of genocide. Particularly, as some acts of iconoclasm may be peaceful, celebratory and popular, such as breaking down the Berlin Wall, it may indeed help to think of iconoclasm as transforming signs instead of breaking images. However, it is conceived that it will persist as a fundamental component of social action”.

Finally, in Chap. 30, Joris Kila, a specialist researcher and writer on cultural property protection (CPP) issues, as well as a person with field experience with the military in assessing and guarding such property in places like Libya during periods of armed conflict, undertakes a critical review of contemporary policies to deal with iconoclastic destruction by non-state groups like Islamic State—IS (Irshaid 2015). He emphasises that the international community

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should be aware that CPP “in times of conflict is a highly complicated, multi-­ disciplinary topic with many stakeholders that, apart from terrorist movements, includes transnational organised crime”. Such awareness, and the experience to deal with the situation it presents, is at present sorely wanting among bodies like Europol, Interpol, NATO and academia. The protection and preservation of cultural heritage that is located underwater forms the subject of Chap. 31 by art historian Natali Pearson. This is an issue of particular current interest and concern to the nations of Southeast Asia where numerous ancient shipwrecks are still located containing booty that is often of both high heritage and commercial value. Major advances in the technology of underwater search and retrieval methods have also now made many wrecks vulnerable to looting that were previously protected by their deep-sea resting place, as well as increasing the rates of detection of previously uncharted wrecked vessels. Pearson’s chapter contains a wealth of detailed information about the nature and prevalence of looting in this region and the measures being taken to try and limit its scope and impact. At the international level, the provisions of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (UNCPUCH) is of direct relevance, as she indicates, although there are significant weaknesses and controversies surrounding its implementation and effectiveness. In fact, at the present time, of the 58 states that have ratified the UNCPUCH, only one, Cambodia, is among the Southeast Asian nations identified by Pearson. The controversies centre largely on the application of the Convention’s Principles of in situ preservation and no commercial exploitation within the context of the region. These ethical questions remain largely unresolved at present and are likely to remain so in the absence of any concerted agreement on the policy direction to be taken by the leading regional political association, Association of South East Asian Nations (ASEAN). Chapters 32 and 33 move away from regional cultural property protection issues to consider those more directly affecting single nations, England and Cambodia, respectively. The authors of Chap. 32, Mark Harrison, Mark Dunkley and Alison James, are all associated with Historic England, “a public body that assists people to care for, enjoy and celebrate England’s spectacular historic environment” (Historic England 2018). In their chapter, they outline specifically the work of Historic England in the field of underwater cultural heritage preservation, which they conduct in cooperation with other important agencies in the field, such as local police forces. They, furthermore, give detailed insights into UK legislation in the area of cultural heritage protection and present a number of case studies illustrating that with their help the law in the books seems to have become the equivalent to the law in action.

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In Chap. 33, Tess Davis and Simon Mackenzie provide an in-depth inside view into cultural property protection in Cambodia. They assert that “international diplomatic and legal dialogues have been instrumental in securing the return of major cultural artefacts to their ‘source countries’ from ‘market countries’, where it can be shown or reasonably inferred that those objects were looted”. Such a positive view on dialogue appears to be unique to this volume with most chapters concluding on a more pessimistic note. However, Davis and Mackenzie put into question the relationship between international diplomatic discourse and the actual repatriations that follow. They use the Southeast Asian nation of Cambodia as a case study, focusing on the contemporary diplomacy that the Royal Government of Cambodia is practising to recover its stolen heritage from overseas collections. Connections between repatriation claims, market sensibilities and the prevention of looting at the local level are considered, shedding light not only on successful diplomatic missions but also the realities of the trade. Chapter 34, the final chapter in Part 4 of the Handbook, has been contributed by Mariya Polner, a policy analyst on trade and related matters working for the World Customs Organization (WCO). Polner’s chapter gives a rare and valuable insight into the approach now being taken by the WCO and Customs administrations in many parts of the globe to the issue of combatting the illicit trafficking of antiquities. As she indicates, in the past, these administrations were only marginal players in combating this category of crime, but a tectonic shift in the situation occurred after the commencement of the so-called Arab Spring in 2011 when the world became much more aware of the magnitude of the pillaging and destruction of cultural property occurring in the Middle East and North Africa region. For the first time the protection of cultural heritage was addressed from a new perspective—that of being of paramount importance to the maintenance of peace and security, and particularly in the context of possible linkages between looting and terrorist financing.

Part 5: Some Ethical and Allied Challenges The concluding section of the Handbook, labelled in rather broad terms, gathers together five chapters that are concerned with some ethical and allied challenges posed for those engaged in the study of art crime. These challenges range from the often highly controversial issues associated with the repatriation of looted objects to their countries of origin (Chap. 35), to the contentious

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questions raised in cases involving the taking of cultural objects by people with specific political motivations (Chap. 39). In Chap. 35, David Gill, Professor of Archaeological Heritage at the University of Suffolk and a tireless and doughty campaigner for the application of ethical standards and practices in the world of cultural heritage protection at large, discusses the looting of classical sites around the Mediterranean region since the passage of the 1970 UNESCO Convention. He notes the lessons learnt from a number of scandals over recent decades, involving the acquisition of illicitly obtained artefacts by major institutions like the Getty Museum in California and the Metropolitan Museum of Art in New York. He suggests that, as a result of the exposure of these cases of major malpractice, there is now a need for the art market, museums, antiquities dealers and collectors to all observe much more rigorous due diligence practices to ensure artefacts “that are fresh out of the ground do not appear in museums”, or elsewhere in private collections. Interestingly, he also observes that there have been few sustained legal challenges, at least to museums, by those seeking repatriation of looted artefacts. Instead, as has been well illustrated by the approach and tactics adopted by the Italian government to secure the return of looted cultural heritage treasures, very effective use has been made of ‘naming and shaming’ publicity campaigns, in both the regular and social media. In Chap. 36, forensic archaeologist Christos Tsirogiannis also considers the reactions of museums to pressures of various kinds to restore looted antiquities to their country of origin. He limits his analysis to US museums and to their response in relation to antiquities which lack “a legal pre-1970 collecting history and are depicted in confiscated archives of convicted dealers”. The archives to which he refers are those seized by Swiss and Italian authorities in 1995  in a raid on a warehouse at the Geneva Freeport used by the Italian antiquities dealer Giacomo Medici (see, in general, Watson and Todeschini 2006) and a raid by Greek authorities in 2006 on a villa complex on the island of Schinoussa occupied by antiquities dealers Robin Symes and Christos Michaelides. The Medici archive included about 4000 photographs depicting freshly looted antiquities, while the Symes-Michaelides archive depicted some of the highest quality illicit antiquities supplied to museums and private collectors in the post-1970 time frame. Tsirogiannis has had research access to both of these archives and, over a period of ten years, as he explains in his chapter, has been able to identify 744 objects from the Symes-Michaelides source and 360 from the Medici collection. Using four of these identifications from three US institutions as case studies, he goes on to highlight significant differences in levels of cooperation when the museums in question were confronted by this evidence and a request made for

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assistance for academic research aimed at reconstructing the real collecting history of the objects. Least cooperative was the Met, “the most reputable museum of the American continent”. Tsirogiannis suggests that this lack of response was in fact a deliberate strategy, and one familiar as a technique used to obscure responsibility by those engaged in crimes of the powerful. In Chap. 37, veteran art crime researcher and leading art crime scholar Simon Mackenzie affirms the difficulties of researching such crimes of the powerful, or white-collar crime, as it is probably more typically described. In an analysis that should become standard reading for anyone considering engaging in art crime-related research, he states, unequivocally, that studying “art crime is not easy work” since it frequently takes “place across the boundaries of white-collar crime, organised crime and policing research”. Among other things, casting light on the dubious practices of the rich and powerful runs the risk of defamation litigation, while seeking to uncover the illicit activities of organised crime can be an even more hazardous occupation. Despite presenting challenges like these, Mackenzie still remains positive about undertaking art crime research. His central proposition is that “the criminology of white collar and organised crime is an essential context to the study of global art crime, but also the studies of art crime can contribute important context to the broader fields of study in white collar and organised crime”. Chapter 38 has been contributed by Lucy Finchett-Maddock, a legal theorist at the University of Sussex. Drawing inspiration from a local ‘StreetLaw’ project in which she participated, designed to explore questions about the legality or otherwise of street art and graffiti, she suggests that the topic is one which is challenging and controversial, going well beyond simple consideration of the multi-various aspects of the law that may apply to other issues, like the relationship “between artistic expression and ownership, between crime and creativity, between law and its outside”. Finchett-Maddock reviews briefly the already well-documented history and origins of street art and graffiti. She also mentions the academic focus on the subject which has exploded from the negative attention given to it by “early conservative criminologists” to the situation today when it has increasingly become co-opted and mainstreamed. Her analysis then turns in depth to the way in which, in particular, UK (English and Welsh) legal provisions impact upon street art and graffiti from the perspective of criminal, copyright and real property laws. In Chap. 39, sociologist John Kerr addresses another interesting and potentially controversial topic—the taking of cultural objects by people with specific political motivations. Using a historical context, he examines two case

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studies of incidents like this that took place in London during the 1950s. The first of these occurred in the early hours of Christmas Day in 1950 when Scottish nationalists removed from Westminster Abbey the Stone of Scone, a historically significant symbol of Scottish power and nationalism. The removal of the Stone was executed by four Scottish students who successfully transported it to Scotland. They subsequently sent a petition to then King George VI for it to remain in Scotland. However, in April 1951, the Stone was left by them for recovery under a Scottish flag at the ruins of a Scottish Abbey. The second case involved the removal by two Irish students in April 1956 of a single painting, part of a larger collection, from the Tate Gallery in London. The background to the painting’s importance as a symbol of Irish nationalism is complex, as described by Kerr. In this case the offenders made no attempt to conceal their identities and, having announced the removal and their motivation for it to the Irish press, they left the painting at the Irish Embassy for return to the Tate. In neither case did any prosecution of those responsible occur. As Kerr observes, the British government was aware that a balancing act existed in how to proceed because of three main concerns—first, a successful prosecution was far from certain; second, such a prosecution would expose the deficiencies of the security in place at two important locations; and third, the act of prosecuting would raise even more publicity for the nationalist causes represented regardless of its outcome. The two key conclusions of contemporary relevance that Kerr draws from the historical incidents described are that legal deterrents have scant effect in dissuading people from perpetrating such acts, and that they also highlight how, when they do try to remove cultural objects that have a contested ownership claim attached to them, they will try to look after that object rather than to damage or destroy it. The reason for this is that the whole removal effort, successful or not, gains more favourable publicity and empathy for their cause if the targeted object is well looked after.

Concluding Remarks Having reached the end of our introductory remarks as editors, we would like to once more express our deep gratitude to our numerous contributors without whom none of this would have been possible. The production of this Handbook in itself has been a most challenging process with so many different aspects of the subject area to be given recognition and so many disciplines involved. There will no doubt be some issues that we have missed highlighting

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or mentioning, but in the array of chapters which are included, and the wealth of information they contain, we believe readers now have access to an authoritative and unique contemporary reference source about the subject of art crime.

Bibliography BBC. (2018). Fake or fortune. BBC One. Retrieved May 27, 2018, from https:// www.bbc.co.uk/programmes/b01mxxz6/episodes/guide. Block, L. (2014). Policing art crime in the European union. In D.  Chappell & S.  Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp. 187–206). Farnham: Ashgate. Burnham, B. (1975). The art crisis. London: Collins. Calnek, A. (2016, December 1). The scientist of the art world: James Martin Joins sotheby’s. Sotheby’s at Large. Retrieved May 20, 2018, from http://www.sothebys. com/en/news-video/blogs/all-blogs/sotheby-s-at-large/2016/12/scientist-artworld-james-martin.html. Cambridge Dictionary. (2018). Meaning of handbook in the English dictionary. Cambridge Dictionary. Retrieved May 11, 2018, from https://dictionary. cambridge.org/dictionary/english/handbook. Charney, N. (2015). The art of forgery. The minds, motives and methods of master forgers. London: Phaidon Press Ltd. Conklin, J. (1994). Art crime. Westport, CT: Praeger. Durney, M. (2013). Reevaluating art crime’s famous figures. International Journal of Cultural Property, 20, 221–232. Fisman, R., & Wei, S. (2009). The smuggling of art, and the art of smuggling: Uncovering the trade in cultural property and antiques. American Economic Journal: Applied Economics, 1(3), 82–96. Freeman, N. (2018, May 11). This Modigliani nude has the highest pre-sale auction estimate of all time. Here’s Why. Artsy. Retrieved May 27, 2018, from https:// www.artsy.net/article/artsy-editorial-modigliani-nude-highest-pre-sale-auctionestimate-time. Graham-Dixon, A. (2012). Caravaggio. A life sacred and profane. New York: W. W. Norton and Company. Helmore, E. (2018, May 15). Modigliani nude fetches $157.2 million at Sotheby’s setting auction record. The Guardian. Retrieved May 27, 2018, from https://www. theguardian.com/artanddesign/2018/may/14/modigliani-nude-auctionsothebys-new-york-record. Historic England. (2018). Home page. Retrieved May 24, 2018, from https://historicengland.org.uk/.

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Huffer, D., & Chappell, D. (2014). The mainly nameless and faceless dead: An exploratory study of the illicit traffic in archaeological and ethnographic human remains. Crime, Law and Social Change, 62(2), 131–153. Irshaid, F. (2015, December 2). Isis, Isil, IS or Daesh? One group, many names. BBC Monitoring. Retrieved May 20, 2018, from http://www.bbc.com/news/worldmiddle-east-27994277. Manacorda, S. (Ed.). (2009). Organised crime in art and antiquities. Milano: ISPAC. Manacorda, S., & Chappell, D. (2011). Crime in the art and antiquities world. Illegal trafficking in cultural property. New York: Springer. Middlemas, K. (1975). The double market: Art theft and art thieves. Farnborough: Saxon House. Miles, M. (2008). Art as plunder: The ancient origins of debate about cultural property. New York: Cambridge University Press. Passas, N., & Bowman Proulx, B. (2011). Overview of crimes and antiquities. In S. Manacorda & D. Chappell (Eds.), Crime in the art and antiquities world. Illegal trafficking in cultural property (pp. 51–68). New York: Springer. Salisbury, L., & Sujo, A. (2010). Provenance. How a con man and a forger rewrote the history of modern art. London: Penguin Books. Siegal, N. (2017, February 7). Sotheby’s files second lawsuit over works it calls fakes. New York Times. Retrieved May 20, 2018, from https://www.nytimes. com/2017/02/07/arts/design/sothebys-forgery-lawsuits.html. Thompson, D. (2008). The $12 million stuffed shark. The curious economics of contemporary art. New York: Palgrave Macmillan. Thompson, D. (2017). The orange balloon dog. Bubbles, turmoil and avarice in the contemporary art market. Madeira Park, BC: Douglas and McIntyre. Thornton, S. (2008). Seven days in the art world. New  York: W.  W. Norton & Company. Tijhuis, A. (2006). Transnational crime and the interface between legal and illegal actors. Nijmegen: Wolf Legal. UN Security Council. (2015a). Resolution 2199, S/Res/2199. Retrieved May 29, 2018, from http://www.un.org/en/ga/search/view_doc.asp?symbol=S/ RES/2199%20%282015%29. UN Security Council. (2015b). Resolution 2253, S/Res/2253. Retrieved May 29, 2018, from http://www.un.org/fr/documents/view_doc.asp?symbol=S/RES/2253 (2015)&TYPE=&referer=http://www.un.org/fr/sc/documents/resolutions/2015. shtml&Lang=E. UN Security Council. (2017). Resolution 2347, S/Res/2347. Retrieved May 29, 2018, from https://undocs.org/S/RES/2347(2017). UNESCO. (2001). Convention on the protection of the underwater cultural heritage. Paris: UNESCO. [Manacorda and Chappell Appendix XI: 295–314]. United Nations Congress (Eighth) on the Prevention of Crime and the Treatment of Offenders. (1990). Model treaty for the protection of crimes that infringe on the

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cultural heritage of peoples in the form of movable property. New  York: United Nations. [Manacorda and Chappell Appendix IV: 237–242]. United Nations Economic and Social Council (ECOSOC). (2010). Protection against trafficking in cultural property. Report of the secretary general. New York: ECOSOC. United Nations Educational, Scientific and Cultural Organisation (UNESCO). (1970). Convention on the means of prohibiting and preventing the illicit, export and transfer of cultural property. Paris: UNESCO. [Manacorda and Chappell Appendix X: 275–294]. United Nations Office on Drugs and Crime (UNODC). (2004). United nations convention against transnational organized crime and the protocols thereto. Vienna: UNODC. Watson, P. (1998). Sotheby’s: The inside story. London: Random House. Watson, P., & Todeschini, C. (2006). The Medici conspiracy. The illicit journey of looted antiquities from Italy’s tomb raiders to the world’s greatest museums. Prahran, VIC: Hardie Grant Books. Wilson, D. (2000). Undercover in antiquities. Culture Without Context, 6, 5–6.

2 One Looter, Two Looters, Three Looters … The Discipline of Cultural Heritage Crime Within Criminology and Its Inherent Measurement Problems Marc Balcells

Introduction As this volume illustrates, paintings, sculptures, temples, books and other artistic manifestations can easily become the targets of crime as much as any human or any other mundane object. Paradoxically, not much empirical research within criminology has been devoted to this form of crime, despite the devastating effect these criminal phenomena have on our collective cultural heritage. Finding information on crime is always a daunting task: after all, it is not an activity that in most cases is done publicly. Finding information on crimes that have rarely been subject to academic research is even more a complex task, and this is the case for cultural heritage crime. However, this statement does not imply there is no criminological research at all in this field. Luckily, as time passes, more and more articles contribute to the scholarly debate on this broad topic with different fields, such as art theft, looting, forgeries or iconoclasm, among others. As such, the field of cultural heritage crime is quite young when compared to the study of other delinquent behavior. The goal of this chapter is to illustrate the relationship between criminology and the field of cultural heritage crime with a focus on the difficulties of obtaining proper data to measure its different manifestations. This chapter begins with a short introduction outlining the field of cultural heritage crime in order to move on to how cultural attitudes regarding this form of crime have shifted M. Balcells (*) Law and Political Science Faculty, Universitat Oberta de Catalunya (UOC), Barcelona, Spain © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_2

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from permission and tolerance to criminalization and how this particular and pivotal change has boosted research. In a logical progress, the chapter then turns to briefly explain criminology as a discipline and its relationship with cultural heritage crime. The chapter continues addressing the core problem of how criminologists often encounter serious, daunting difficulties regarding the measuring of crime and assessing its prevalence and incidence. Because in some instances cultural heritage crime intersects with other criminal phenomena, and/or expands across time and space (becoming transnational), counting these criminal activities is a challenging task for criminologists. As such, the chapter presents the different ways in which both criminologists and researchers from other disciplines assess the impact of these crimes. The chapter ends by addressing qualitative analysis of case studies on trafficking of cultural artifacts, in particular geographical areas, as an alternate way of gathering information. Throughout the chapter, the particular phenomenon of archaeological looting and antiquities trafficking is used as an example.

 he Object of Study: From Art to Cultural T Heritage Crime Cultural heritage (legally referred as ‘cultural property’) has been threatened by crime worldwide with an alarming frequency (Kila and Balcells 2014, p.  366). Precisely in that direction, Conklin, when ‘officially’ creating the criminological discipline of ‘art crime’, defined it as criminally punishable acts against works of art (Conklin 1994, p. 3). Recently, the shift is to label this form of crime as ‘cultural property crime’, as the label ‘art crime’ does not cover both the current reality of the situation and its perception. Mostly, there are two reasons for this change of label: on the one hand, there is the question of what should be considered art, which by itself opens an ongoing debate. Thus, ‘cultural heritage’ is better than ‘art’ or ‘cultural property’ (a legal term in accordance with the Hague Convention drafted in 1954 for the protection of cultural property in the event of armed conflict), provided it has a broader meaning that also includes intangible cultural heritage, defined as aspects of human expression that go beyond physical objects. On the other hand, cultural property does not only include art, but also objects that per se are loaded with historical significance, value or symbolism (Kila 2014, pp. 168–169). Whatever the label applied, these are not harmless crimes: to begin with, the loss of cultural heritage goes beyond a mere tangible one. In other words, the destruction of art and antiquities has both material and intellectual con-

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sequences (Gill and Chippindale 1993, pp.  601–604). As an example, the recent destruction of many Mesopotamian antiquities in the museum of Mosul by the terrorist group Islamic State of Iraq and Syria (ISIS), or of the archaeological complex of Palmyra, clearly depicts this situation. The destroyed items are finite and irreplaceable, and they also have an identity component: cultural heritage plays a fundamental role in the formation and perpetuation of national identity and self-image (Passas and Proulx 2011, p. 53). Obviously, there is a legal regime concerning the protection of cultural heritage: during the last decades, there has been a growing awareness of the need for protection of both artistic and archaeological assets. One of the multiple manifestations is the inclusion of cultural property offenses within many penal codes (Merryman 1990, pp. 6–8). This is a logical step as legal doctrine considers cultural heritage as a section of humankind’s rights, both in the form of an individual right, but also as the right of the people to a historical and cultural identity with special attention paid to religious objects (Francioni 2004, p. 1212). An important question to be answered is what kind of criminal activities comprise this umbrella term of art and cultural heritage crime. Criminologists who have studied the topic have not agreed upon what is encompassed within the term (see, e.g., Chappell and Hufnagel 2014, p. 3). However, most works on the topic tend to include, broadly, the following: • • • • • •

Art theft; Art forgeries and fakes Cultural destruction during armed conflict or civil unrest Archaeological looting White-collar crime within the art market Vandalism and malicious destruction of art

F rom Tolerance to Criminalization: The Case of Looting in Italy as an Example As stated in the previous section, the process that resulted in the regulation and criminalization of cultural heritage crime is relatively recent compared to the centuries of tolerance when different forms of attacks against artworks were condoned. In other words, cultural heritage crimes are not a new phenomenon (e.g., tracing plundered art will take us as far as the beginning of history, such as the plunder of the victory stele of Naram-Sin (Miles 2008, p. 16)): it is their criminalization and relating legal frameworks that are recent.

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This specific paradox can be seen in many examples. One of them relates to antiquities looting in Italy. Tombaroli (the Italian term referring to tomb raiders) are responsible for unauthorized archaeological diggings in particular zones of Italy: these actions are defined as the illegal excavation of archaeological sites, either in the subsoil or in underwater areas (Iannizzotto 2006, p. 25). Abusive archaeological excavations are executed throughout Italy, provided they are lucrative. However, crime varies depending on the geographical area. There is a bigger involvement in poorer regions (the most active regions being Lazio, Puglia, Basilicata, Campania, Calabria and Sicily (Carabinieri 2008, p. 22)). Evidence of tomb raiding during the Roman Empire can easily be found, and the activities of looters do not reveal many differences regarding motives and goals when compared to today’s looters in Italy: their primary concern was to obtain gold and valuable pieces that were put in the more important tombs as a token of the nobility of the deceased. For centuries, farmers and shepherds would use both tombs and Etruscan caves as shelters for themselves and for their flocks, or as deposits for harvests. Also, long before modern agricultural vehicles existed, floods had washed away the soil, leveling the lands and bringing out a lot of waste ceramic. These chance discoveries of a few fragments left almost anyone working the fields indifferent, provided urns and Etruscan vases were used as containers or troughs (Tagliaferri and Rupi Paci 1992, pp. 62–64). Then, when travelers such as William Hamilton or George Dennis went to the several states that nowadays conform unified Italy as an important stop of their grand tours (travels that the nobility engaged in, in order to educate themselves in the art and history of continental Europe), they gave first-­person accounts of the activities of the tombaroli (Mead 2007, p. 58). The following paragraph by Dennis, written in 1848, is quite explicit about the activities of the tomb raiders around the area of Vulci: Here, about a mile from the castle, towards the Cucumella, we came upon a gang of excavators, in the employ of the Princess of Canino […] our astonishment was only equaled by our indignation when we saw the laborers dash them to the ground as they drew them forth, and crush them beneath their feet as things cheaper than seaweed. In vain I pleaded to save some from destruction; for, though of no marketable worth, they were often of curious and elegant forms, and valuable as relics of the olden time, not to be replaced; but no, it was all roba di sciocchezza—foolish stuff—. The capo was inexorable; his orders were to destroy immediately whatever was of no pecuniary value, and he could not allow me to carry away one of these relics which he so despised. It is lamentable that excavations should be carried on in such a spirit; with the sole view of gain, with no regard to the advancement of science. (Dennis 1848, 2016)

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As it can be seen, the activity of Italian tomb raiders went unpunished for many centuries, with some minor exceptions. Probably the most important turning point during the twentieth century was the fact that Mussolini enacted a law in 1939 (not the first on the protection of Italian cultural heritage) that made every archaeological finding the property of the Italian state, as the dictator realized how looting started to be a problem, furnishing both international institutions and private collections (Iannizzotto 2006, p. 122). The phenomenon still exists, but law enforcement during the last 50  years (the Italian police art squad was created in 1969) had an impact on looting, as can be seen in the following graph on the Carabinieri’s Tutela Patrimonio Culturale’s most recent reported activity, which will be critically discussed in a later section in the chapter (Graph 2.1). Operation Teseo has been, up to this day, one of the most ambitious police operations from the Nucleo Tutela Patrimonio Culturale section of the Italian police. This police operation finished in 2015. It concluded with the restitution of no less than 5361 exceptional archaeological items, ranging from the seventh century BCE to the third century CE, which had been looted and trafficked out of the country to the city of Basel, Switzerland. The economic value of the pieces totals €50,000,000 (approximately US$56,245,000). All the pieces, as stated above, have a commonality: they were illegally dug from sites all over Italy, and specifically from Puglia, Sicily, Sardinia and Calabria (Ferrante 2015). Cultural property offenses were included in many national criminal codes, showing the necessity for a legal regime concerning the protection of cultural heritage at the national level. Nowadays, and following the case of archaeoNumber of illegal excavations 300 200 100 0 2006 2007 2008 2009

2010

2011

2012

2013

2014

2015

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Number of illegal excavations

216

207

238

58

46

52

37

49

59

21

Graph 2.1  Illegal excavations detected in Italy from 2006 to 2014 (The author, after Carabinieri 2011, 2015, 2016)

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logical looting in Italy, according to Italian criminal law, anybody who takes possession of any archaeological material in a clandestine excavation site can be charged with the crime of illegal excavation of archaeological material and punished according to article 176 of the Codice dei Beni Culturali e del Paesaggio—the law that protects cultural artifacts. Purchasers of illegally excavated items can be charged with fencing or acquisition of stolen goods, according to article 648 of the Italian Criminal Code (Carabinieri 2008, pp. 19–20). Several international treaties address the issue of cultural heritage protection: for example, the Universal Declaration of Human Rights, or the International Covenant on Economic, Social and Cultural Rights. UNESCO is the agency that, according to article 1 of its statute, is in charge of protecting the common heritage of mankind, which includes monuments and works of art, among others. The agency sponsored the famous 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, or the 2003 Declaration on the Intentional Destruction of Cultural Heritage, adopted by the General Conference of this organization. Out of the sphere of UNESCO, the Commission for the Prevention of Crime and Criminal Justice, the principal policymaking body of the United Nations in the field of crime prevention and criminal justice, recognized the protection of cultural heritage in 2010. In its draft resolution, the Commission refers to the significance of cultural ­property as a part of the common heritage of humankind, and therefore, the necessity of protecting it. In 1995, the International Institute for the Unification of Private Law (UNIDROIT) created the Convention on Stolen and Illegally Exported Cultural Objects, providing a legal framework for privately initiated legal actions relating to restitution (as opposed to the intergovernmental cooperation underlying the 1970 UNESCO treaty) and protecting objects illegally excavated, but not inventoried (Brodie et  al. 2000, p.  40; Efrat 2012, pp.  125–127). In Europe, on 30 May 2013, the European Commission adopted a proposal for a new Directive aimed at enabling member states to recover any cultural object identified as a ‘national treasure’ that was unlawfully removed from their territories after 1 January 1993. As such, all citizens, local and regional authorities, religious institutions, EU countries and the EU as a whole benefit through the improved protection of their cultural heritage (European Commission 2014). However, taking a more criminological approach, the United Nations Office on Drugs and Crime (UNODC) has increasingly been paying attention to looting, influenced by the United Nations Convention on Transnational Organized Crime: as a result, the black market in antiquities is now a matter of discussion at UNODC in order to craft effective policies, attempting to

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curve the traffic in cultural property (Mackenzie 2011b, p. 135). As such, in early 2014 the organization issued a series of guidelines aimed at boosting prevention, criminal justice responses and law enforcement cooperation related to cultural property trafficking. These guidelines aim at preventing the transfer of properly collected and catalogued data, and implementing best practices in both cultural institutions and the private sector while also raising public awareness and monitoring the importation and exportation of cultural heritage. Regarding criminal justice policies, the guidelines recommend the adoption of legislation criminalizing trafficking in cultural property, the application of effective and dissuasive sanctions, and the coordination between law enforcement agencies, among other provisions (United Nations Office on Drugs and Crime 2014). With the more recent phenomenon of terrorism and the destruction of cultural heritage in nations such as Libya or Syria, a new set of laws and policies has been enacted recently to prevent further damage to sites and to mitigate the trafficking of antiquities originating from these areas (Balcells 2016, p. 46).

 riminology as a Discipline: Researching C and Interpreting Cultural Heritage Crime Once cultural heritage crimes established themselves in national and international criminal legislation, both legal scholars and criminologists (among other disciplines) paid more attention to this form of crime. Sutherland defined criminology in 1947 as the study of the entire process of law making, law breaking and law enforcing, or, in other words, the body of knowledge that regards crime as a social phenomenon with the objective of developing a body of knowledge of generally verified principles concerning the process of law, crime and prevention of the latter (Sutherland et al. 1992, p. 3). However, as will be shown, the direction of criminological research in this field proved to be slightly erratic. People, and above all media outlets, tend to agree that cultural heritage crime is a very fascinating topic: movies have been made about art heists, books (both fiction and nonfiction) have been written, and, as stated, even the most serious news outlets devote their art pages to this topic. However, the attention paid to this phenomenon by scholars is quite recent, as the first major published book on the topic written by a criminologist is the already mentioned publication Art Crime by John Conklin, which dates from 1994. As the study of other forms of crime was advancing by then, art crime started to develop toward an empirical analysis of its different manifestations.

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Criminology has paid a great deal of attention to predatory, ordinary street crime. Paradoxically, other forms of crime that have worse repercussions have been largely ignored. An example are state crimes, which have been defined by a plethora of scholars, yet not many of them were criminologists. As political scientists, historians and legal scholars wrote on the topic, just a bare handful of criminologists were doing so (Watts et al. 2008, pp. 209–210). Likewise, within art crime, while archaeologists, historians, art historians and legal scholars (to name but a few) created a body of literature in their own disciplines, the contribution of criminologists has been very sparse (Kila and Balcells 2014, p. 366). A similar development occurred with regard to white-­ collar crime when Sutherland started researching it in 1939. As such, just as those who studied and controlled criminal offending overlooked the relationship between crime and upper-class status, the association between art and crime has suffered a lack of attention (Bazley 2010, pp. 3–4). The reasons for this ‘omission’ are numerous: art crimes are considered victimless crimes, only affecting the few who can afford to own art; there is a lack of reliable and comprehensible data and existing data are considered to be unreliable; there is an assumption that the number of crimes per year and their recovery rate are very low; there is a lack of consensus on the definition of art or cultural property crime and conflicting implementations into legislation of different countries around the world, among other reasons. As will be seen later in the chapter, even though nowadays books and articles have been written by criminologists in the field of art/cultural property crime, empirical research still needs to be done to document magnitude, nature and impact of this form of crime, and boundaries (both geographic and jurisdictional) and its relationship with other forms of crime, such as organized crime, money laundering, trafficking or tax fraud, among others (see, e.g., the works of Mackenzie 2005; Tijhuis 2009; or Chappell and Hufnagel 2014).

 roblems Concerning the Assessment P of the Extent of Cultural Heritage Crime Compiling crime statistics is not an easy task: to begin with, crime is a social phenomenon difficult to trace as it is secretive per se. With some exceptions, criminals are interested in hiding their activities in order to avoid a response from the criminal justice system; thus, it is very complicated to measure crime and deviance through direct observation. Also, crimes are committed over a

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period of time, and might only be detected a long time after. Globalization has furthermore internationalized crime. Transnational crimes (involving several countries, such as trafficking of cultural heritage) occur in different legal jurisdictions, further complicating data collection (Dammer and Albanese 2011, p. 15). These three reasons affect data compilation on cultural heritage crime. However, it is worth examining the third one more closely: globalization has affected many facets of our lives, including crime, and has also had an effect on the compilation of crime statistics. As such, when crime went from local to global, it resulted in two effects. On the one hand, markets and the transnational movement of people, goods, capital and services have been integrated and increased. Criminal networks and law enforcement had to adapt to this changing landscape, cooperating more increasingly beyond national borders (see, among other authors researching this topic, Joyce 1999; Naylor 2002; or Passas 2002). On the other hand, the scope of activities of transnational crime has diversified: for any given old product that has been trafficked until now, new ones and their respective markets have been opening in order for c­ riminals to increase their profits. Examples of these ‘new’ forms of crimes are cybercrime, environmental crime, wildlife crime, trafficking of luxury vehicles and, of course, art and antiquities (see, among others, Williams 1999; Robinson 2000; or Mueller 2001). Criminologists use the concept of the ‘dark figure of crime’, implying the amount of crime occurring unknown to police or the general public and thus not recorded (Dammer and Albanese 2011, p. 18). In any case, criminologists need to assess both the prevalence and incidence of crime: the former refers to the percentage of people committing crimes; the latter to the average number of crimes committed by every person. The problem with prevalence is, once again, the fact that not all crimes might be detected by law enforcement, thus having an impact on the incidence of crime. In fact, a critical assessment of the criminological literature will demonstrate that most of it refers to particularly well-known categories of offenders. In other words, street crime will always trump white-collar crime in official statistics, as many white-collar offenders will remain in the shadows of the dark figure of crime: after all, their modus operandi is much more sophisticated and secretive, and the status of this kind of criminals makes them less prone to police detection (Aebi 2006, pp. 31, 109). The same is apparent with regard to cultural heritage criminals. It has already been pointed out in the previous section how cultural heritage crime follows a pattern similar to white-collar crime. Sutherland highlighted this when he started researching heritage crime: cultural heritage crime is con-

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sidered quite an ‘obscure’ criminal phenomenon by many police forces, which leads to a misrepresentation of the offenders in the statistics. Whichever the difficulties may be, it is important to measure crime in order to determine the extent of crimes through longitudinal patterns, estimate the risk of a particular crime occurring and its potential harm and develop crime prevention techniques (Dammer and Albanese 2011, pp. 15–16). How do we know that the indicators to measure crime are apt to do so? Criminologists refer to the validity and the reliability of the indicators in order to assess how well data measure a particular criminal phenomenon. The former refers to the ability of an indicator to aptly measure any studied phenomena; the latter refers to the ability of an indicator to obtain intersubjective and reproducible measurements. In other words, an indicator is valid if it measures a phenomenon correctly, while it is reliable if, when measuring that phenomenon multiple times, the obtained results are the same every time. However, in criminology, validity is highly affected by the studied phenomenon and the discipline: they do not exactly measure crime, but rather the societal reaction toward crime (Aebi 2006, pp. 15, 26). It is established that there are three forms of counting crime, leading to three different kinds of crime data. Therefore, data can be gathered from a police perspective (e.g., the above-mentioned statistics from the Carabinieri), the victim perspective (gathering data on crime from the victim) and the offender perspective (gathering data on crime from the offender) (Dammer and Albanese 2011, p. 17). As stated above, it is difficult to directly observe a criminal phenomenon, whatever it might be. Therefore, data refer most of the time to indirect manifestations of crime such as arrests, convictions, sentences or statements from victims and/or offenders. Within this catalogue of data, we can assess two important thresholds: on the one hand, official indicators (named aptly as they come from police, courts and correctional services) which record the offenses known to the criminal justice system and, on the other hand, surveys, reporting the viewpoint of either the offender (self-­ reported delinquency surveys) or the victim (victimization surveys). These two surveys have been probably the biggest advance in measuring crime and ‘attacking’ the dark figure of crime in the second half of the twentieth century. Many criminologists have detected the relationship between official statistics and surveys, establishing that, when comparing them, in most cases official indicators of crime underestimate the real number of perpetrated crimes (Aebi 2006, pp. 16–17). However, once again, the picture looks grim for statistics regarding cultural heritage crime, as there are no surveys on victims or offenders of this form of crime, and, as will be shown below, statistics are limited due to the aforementioned reasons.

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One of the first problems to be encountered regarding data in the field of cultural heritage crime is that some of the statistics presented are used more as a publicity stunt rather than factual information. It is often cited that up to US$6 billion per year relate to illegal profits in illegal transactions concerning art. Many researchers in the field acknowledge that this amount lacks any given substance. The dark figure of crime is especially relevant here (due to reasons such as owners of stolen art deciding not to report the loss, or the case not being detected by law enforcement). Also, statistics, when collected, are centered on the crime committed rather than what object has been attacked. In other words, it is more important to know, for official statistics, whether the act was a robbery or a burglary, rather than what was stolen and the specific characteristics of the stolen cultural item (Manacorda and Chappell 2011, p. 3; Passas and Bowman 2011, pp. 60–61; Kind 2011, p. 177). Finally, talking about the value of an artwork might eventually be a futile endeavor as its value may shift dramatically depending on particular elements, such as its rarity, authenticity and others. Therefore, the US$6 billion amount is nothing but a best guess, and the actual number is certainly higher (Charney 2009, pp. xvii, xxiv). Agencies like the International Criminal Police Organization (INTERPOL) warn that there is not enough data to allow substantiating that claim. On their website, the international police organization mentions how they do not possess enough data to obtain an exact idea of how many items of cultural property are attacked yearly throughout the world, adding that it is unlikely there will ever be any accurate statistics (INTERPOL 2016). Counting crime becomes more complex when assessing crime rates internationally. Both developing and developed countries collect crime statistics (with different levels of accuracy), yet, comparing them is a challenging (if not impossible) task. There are international surveys regarding crime, yet, not all countries participate due to several reasons, such as administrative staff not being able to handle requests, armed conflicts, lack of systems of collecting data or technical resources and public image (e.g., how crime data can, affect tourism). However, one of the biggest problems when comparing data internationally is the lack of standardization of legal definitions of crime (such as prostitution, gambling, the consumption of alcohol, among others). Also, the fact that statistics are differently constructed (i.e., definition, collection and archiving of the data) from country to country implies that cross-national differences in crime rates exist and that variations in data gathering are not properly reflected in the statistics, including different nations. As a result, criminologists have to be aware of the potential pitfalls created by the production of criminal statistics and adjust the data they have to better serve their

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purposes while avoiding these flaws, when internationally comparing official statistics (Aebi 2011 p. 472; Dammer and Albanese 2011, p. 19). The following example is very illustrative of this situation: in 2011, the Law Enforcement Working Group, a part of the Council of the European Union, published some statistics on art crime (ranging from 2007 to 2010) gathered from a questionnaire administered to 20 countries of the Eurozone in the European Union Council Law Enforcement Working Group. Table 2.1 presents the results (the author, after Block 2012). Two relevant methodological flaws of the questionnaire are, first, the fact that there is no standardized definition of art crime, which varies depending on the country, and second, the different ways these countries compile data on the issue also differ. Several elements might attract the attention of the reader: the reporting, for example, was not at all stable, with some missing years throughout; some of the countries suddenly had a spike in cases regarding this particular form of crime (e.g., see the Czech Republic after 2008,), among others. However, it can be noticed how Italy is one of the countries where the incidence of art theft is higher, second only to Germany and France, due to the extent of its cultural heritage. Another relevant fact is the decrease of art crimes in this country—a trend similar in countries such as Poland and France. In sum, Table 2.1  Statistics on European cultural heritage crimes Year EU member state

2007

2008

2009

2010

Austria Belgium Bulgaria Cyprus Czech Republic Denmark Estonia France Greece Spain Netherlands Lithuania Latvia Malta Germany Poland Portugal Slovakia Slovenia Italy Total

131 229 206 8 370 57 8 2714 75 443 Missing data 15 46 9 2003 1132 164 24 28 1085 8747

125 223 164 7 639 62 9 2223 87 432 Missing data 13 94 8 2265 776 233 25 55 1031 8471

113 252 204 10 1527 50 8 1751 72 489 Missing data 14 79 9 2055 814 200 26 42 882 8597

Missing data 175 191 14 954 82 7 1442 91 543 831 12 100 6 Missing data 804 159 29 66 817 6323

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although the table is a commendable effort to both analyze the prevalence of art crime in Europe and compare it cross-nationally, it shows many of the above-mentioned potential shortcomings and pitfalls that may surface when comparing crimes internationally. Measuring the prevalence and incidence of cultural heritage crime is always fraught with difficulties, but probably even more so in the specific field of archaeological looting, due to its specific characteristics. This form of crime presents particular measurement problems, compared to other types of crime. This is due to the clandestine excavations or theft, the smuggling of the items and the private sale or the mix of the objects in the legitimate market representing important stumbling blocks (Mackenzie 2011a, pp. 141–142). Today, there is no systematic approach to collecting criminal statistics that would allow an accurate analysis of looting, increasing, as a result, the dark figure of crime (Brodie et al. 2000, p. 36; Calvani 2009, pp. 30–31). To begin with, the illegal trade in cultural objects is obviously clandestine. It is, in consequence, difficult to quantify the damage caused worldwide by illegal excavations and to estimate the size of the illegal market or to assign value or structure to it. Looting involves two types of sites: on the one hand, those well known to archaeologists as they have been excavated before and, on the other hand, sites that have not yet been discovered (Conklin 1994, pp. 158–164). In both instances, it is difficult to assess the extent of the damage caused by looters, but mostly, as can be guessed, in the second scenario. Arriving at reliable estimates is difficult, given that conventional crime statistics are generally not revealing in relation to this type of offense. Recording practices for crimes against antiquities vary across jurisdictions, and, as stated above, these crimes are often recorded only in the category of theft, along with other property violations (Brodie et  al. 2000, p.  36; Mackenzie 2011a, pp.  141–142). INTERPOL collects annual estimates, which include thefts from archaeological sites; yet, once again, these numbers remain vague as these crimes often remain undetected or unreported, national statistics frequently disregard the type of object stolen and, lastly, half of the organization’s members respond to the questionnaire (Passas and Proulx 2011, p. 60). Returning to the previously used example of looting in Italy, Italian police were able to provide statistics on how many cases of looting of archaeological sites were detected between 2006 and 2014 (as seen in the graph shown in epigraph number 3). More specifically, and according to some authors, the level of tomb raiding in the necropolis of Cerveteri has decreased in 2007 from 18 tombs per night to one and, far from being an international trade, tombaroli only devote themselves to local clients, operating in particular zones of Italy (Isman 2009, p. 39). According to Italian official statistics, the trend

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of illegal diggings has decreased for the last seven years. About 80% less cases, from 216 cases detected in 2006 to 37  in 2012, with a spike after 2010 (Carabinieri 2011, p. 19). There has been no analysis of the reasons for the decrease in tomb raiding from 2006 to today, other than the above-mentioned reports by the Carabinieri. These reports consider police force’s new deployments in key archaeological zones as a decisive cause for this specific crime drop. However, there are other probable reasons for the decrease: first, it has been stated how this form of crime presents particular measurement problems; second, even if different police forces have several means at their disposal, the tombaroli still know the terrain well, and that is a huge advantage to commit this form of crime; and third, all agents engaged in stopping this crime acknowledge that there are archaeological zones still to be discovered, and it has an impact when quantifying it. Finally, the law still is too soft (deterrence-wise), prosecutions are scarce and convictions are even scarcer. Private initiatives seem to have fared better when estimating the extent of looting. Archaeologists have managed to trace the extent of looting through archaeological field surveys and photographic records (see, e.g., Coggins 1969). Another source has been case studies on specific types of objects, which suggest that high proportions of them have doubtful origins. Christopher Chippindale and David Gill wrote an article reporting on some classical collections and exhibitions and their catalogues. Investigating three auction houses’ seasons in both New York and London (December 1994, May 1997 and July 1997), they tried to assess the proportion of antiquities being sold without a declared and solid history, recording where and when they were excavated and who was the archaeologist. The percentage of illegally excavated antiquities ranged from 98% to 73%. Also, investigating five well-known collections, they attempted to trace each of the 569 objects and found that only 101 of them (18%) had solid provenance (Gill and Chippindale 1993, pp.  608–624). Elia, referring to Apulian red-figured vases, stated how it is clear that several thousands, even tens of thousands, of ancient tombs have been plundered to obtain the more than 13,600 Apulian red-figured vases that exist throughout the world and were recovered in a non-archaeological manner (Elia 2001, pp. 150–151). A third and more recent attempt of assessing the extent of looting employs more innovative methods (increasing the accuracy of the results) by using auction catalogues and import and export records (Mackenzie 2011a, p. 142; for a precise example of this method, see Brodie 2016). Before moving into the next section, it is important to indicate additional sources to the ones mentioned above. In his study of art theft in London, John Kerr summarizes additional sources used, such as the existing literature, art

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magazines and media outlets and the Internet: all of them have their own strong and weak points and, in some cases, force the user to discriminate their usefulness, validity and reliability (Kerr 2015, pp. 4–6). Another important source are databases, whether they are created and compiled by any given nation’s government or police force, privately operated by a company, an NGO or without any private or public partnership. The goal of databases in this field is mostly the investigation of cases concerning art theft, but they still can help (when allowing access, such as INTERPOL’s stolen works of art database), albeit limitedly, in particular research projects.

 ualitative Research: The Next Methodological Q Step to Assess Cultural Heritage Crime? It was stated in the previous section that crime is one of the most difficult social phenomena to be investigated. As such, direct observation, with exceptions, becomes practically impossible. However, qualitative methods of research within criminology advocate one specific methodology: ethnographic field research, defined as a form of research describing a culture while understanding another way of life from the point of view of the natives (Aebi 2006, pp.  25–26). In sociology, the Chicago School mostly used this method, employing case studies, life histories, direct observation and interviews, along the use of official records. Robert E. Park, one of the most preeminent representatives of the Chicago School, mentioned how social researchers should abandon libraries and ‘get their hands dirty’ by being in the epicenter of the same actions they researched, whether these refer to street crime, prostitution or other forms of deviance or crime. At a later stage, ranging from the decades of the 1940s to the 1960s, the Chicago School developed participant observation, a method that makes the researcher study people in their natural settings and directly interact with them while understanding the social world and making theoretical statements derived from the perspective of the studied subjects (Kraska and Neuman 2008, p. 383). Broadly, qualitative research starts […] with assumptions and the use of interpretative/theoretical frameworks that inform the study of research problems addressing the meanings individuals or groups ascribe a social or human problem. To study this problem, qualitative researchers use an emerging qualitative approach to inquiry, the collection of data in a natural setting sensitive to the people and places under study, and data analysis that is both inductive and deductive and establishes patterns and

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themes. The final written report or presentation includes the voices of participants, the reflexivity of the researcher, a complex description and interpretation of the problem, and its contribution to the literature or a call for change. (Creswell 2013, p. 44)

There are many reasons to engage in qualitative research, mostly after having seen the difficulties of quantitative research. An overview of the most important ones includes the need to study a group or population, the identification of variables that cannot easily be measured, the need for a complex understanding of a particular issue and the need to understand the contexts or settings in which participants in a study address a problem or an issue. Following this direction, qualitative methods follow up quantitative research in order to better explain mechanisms and linkages in causal models (Creswell 2013, p. 48; Maxwell 2013, pp. 30–32). Quantitative methods, by contrast, provide a general picture of associations, relationships and trends, without providing insight on processes experienced by people, their responses, the contexts where they interact and their thoughts and behaviors governing their responses (Creswell 2013, p. 48). Certainly, assessing the extent of cultural heritage crime through quantitative data is a complex task. In recent years, there is an emergence of particular case studies with the goal of assessing regional differences in order to gather a more detailed picture of elements, such as routes taken, criminals involved and evolution over time. The fundamental assumptions and key features (such as the understanding of how events and actions take place or facilitating interactivity between researcher and participants, among others), that distinguish qualitative research from quantitative, fit well with the study of dynamics of cultural heritage crime (trafficking routes, players involved, to name a few) committed in diverse geographical areas. Two examples of qualitative research in the field of cultural heritage crime focused on particular regional areas. They are Huffer and Chappell’s study evaluating the illegal traffic of antiquities in Vietnam and Davis and Mackenzie’s study assessing temple looting in Cambodia. The former used unstructured interviews and short formal questionnaires among a pool of both Western and Vietnamese archaeologists, museologists and government officials in Hanoi. An advantage of this method is that it triangulates data sources, or, in other words, it uses several methods to measure the same phenomenon. In this particular case, the researchers not only used qualitative but also quantitative data through the collection of surveys in order to figure out the spatial distribution of dealers, the end-market collectors or the prices’ variations, among others (Huffer and Chappell 2014, pp.  268–270). The latter used interview data

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ranging from short conversations to oral history discussions in order to assess the looting by the Khmer Rouge in Cambodia between 1970 and 1998, and all of them took place in temples in Cambodia. A second phase involved interviews in Bangkok, where the authors interviewed looters, traffickers and dealers in order to track trafficking networks (Mackenzie and Davis 2014, pp. 4–6; Davis and Mackenzie 2014, pp. 294–295).

Conclusions Throughout the chapter it has been pointed out that the field of cultural heritage crime (opposed to the narrower concept of art crime) encompasses several forms of criminal conduct that targets works of art or other cultural heritage, ranging from art theft to fakes and forgeries, looting to vandalism and iconoclasm, among others. Without doubt, there has been a clear cultural evolution toward attitudes concerning these acts against cultural heritage that, in a broad sense, ranged from the tolerance to the regulation, and finally, led to the criminalization of these conducts in recent decades, both nationally and internationally. Two examples located in two different periods (the nineteenth century and 2015) illustrate the changing attitudes toward antiquities looting in Italy. These examples helped indicate the awakening of the criminological analysis of cultural heritage crimes from 1994 to today, which shares common traits with other (at the time) understudied forms of crime, such as white-collar crime or international crime. However, even though criminological research in the field of cultural heritage crime is quite recent and fraught with difficulties, criminologists, alongside other invested actors, have managed in the past decades to map the terrain (with a varying degree of success, depending on what crime is being researched), thus creating a stable and increasing body of literature. Recent research trends include the analysis of criminal policies devoted to stop cultural heritage crime, the comparison of the illegal market of art with other black or gray markets (drugs, weapons, etc.), comparative studies or in-depth research with participants in the market, on both the legal and illegal side. Finally, the last part of the chapter has shown qualitative research as an insightful and relevant form of examination of the problem of archaeological looting and antiquities trafficking. The main focus has been problems with quantitative data, whether it comes from official statistics or surveys. Criminology has always struggled to grasp the numbers of crimes committed, and cultural heritage crime is no exception. Due to its particular nature and the recent interest of international organizations, governments and law enforcement agencies, among others, this particular form of crime is not as well furnished, statisti-

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cally, when compared to other criminal phenomena. Finding alternatives to official statistics and surveys is no less than an exercise in research methods imagination, albeit a doable one with interesting results. In sum, if 1989 marked the 50th anniversary since Sutherland’s first work on white-collar crime, with an abundant criminological research turnout (in books, journal articles, courses, presentations at conferences) and the betterment of data, then it will be no less than fascinating to see how the field of cultural heritage crime will have evolved when Conklin’s Art Crime will hit its 50th birthday by 2044. Time will tell.

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property crime. An overview and analysis of contemporary perspectives and trends. Leiden and Boston: Brill. Kila, J., & Balcells, M. (2014). Conclusion: Cultural property crime. In J. Kila & M. Balcells (Eds.), Cultural property crime. An overview and analysis of contemporary perspectives and trends. Leiden and Boston: Brill. Kind, K. H. (2011). The role of INTERPOL in the fight against illicit trafficking of cultural property. In S. Manacorda & D. Chappell (Eds.), Crime in the art and antiquities world. New York: Springer. Kraska, P.  B., & Neuman, W.  L. (2008). Criminal justice and criminology research methods. Boston: Pearson. Mackenzie, S. R. M. (2005). Going, going, gone: Regulating the market in illicit antiquities. Leicester: Institute of Art and Law. Mackenzie, S.  R. M. (2011a). Trafficking antiquities. In M.  Natarajan (Ed.), International crime and justice. Cambridge: Cambridge University Press. Mackenzie, S. R. M. (2011b). Illicit deals in cultural objects as crimes of the powerful. Crime, Law and Social Change, 56(2), 133–153. Mackenzie, S., & Davis, T. (2014). Temple looting in Cambodia Anatomy of a statue trafficking network. British Journal of Criminology, 54, 722–740. Manacorda, S., & Chappell, D. (2011). Introduction. In S. Manacorda & D. Chappell (Eds.), Crime in the art and antiquities world. New York: Springer. Maxwell, J. A. (2013). Qualitative research design (3rd ed.). Thousand Oaks, CA: Sage. Mead, R. (2007, April 9). Den of antiquity. The New Yorker, pp. 52–61. Merryman, J.  H. (1990). “Protection” of the cultural “heritage”? The American Journal of Comparative Law, 38, 513–522. Miles, M. M. (2008). Art as plunder. The ancient origins of debate about cultural property. Cambridge: Cambridge University Press. Mueller, G. (2001). Transnational crime: Definitions and concepts. Transnational Organized Crime, 4, 13–21. Naylor, R. (2002). Wages of crime: Black markets, illegal finance, and the underworld economy. Ithaca, NY: Cornell University Press. Passas, N. (2002). Cross-border crime and the interface between legal and illegal actors. In P. van Duyne et al. (Eds.), Upperworld and underworld in cross-border crime. Nijmegen: Wolf Legal Publishers. Passas, N., & Bowman, B. (2011). Overview of crimes and antiquities. In S. Manacorda & D. Chappell (Eds.), Crime in the art and antiquities world. New York: Springer. Robinson, J. (2000). The merger: The conglomeration of international organized crime. Woodstock, NY: Overlook Press. Sutherland, E. H., Cressey, D. R., & Luckenbill, D. F. (1992). Principles of criminology (11th ed.). Boston: General Hall. Tagliaferri, G., & Rupi Paci, L. (1992). Tombaroli si nasce. La vita e le avventure e le scoperte di Gismondo Tagliaferri da Vulci raccontate di Luisa Rupi Paci. Firenze: Casa Editrice Bonechi.

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Tijhuis, A.  J. G. (2009). Trafficking in cultural artifacts. In M.  Tonry (Ed.), The Oxford handbook of crime and public policy. Oxford: Oxford University Press. United Nations Office on Drugs and Crime. (2014). Report on the meeting of the expert group on protection against trafficking in cultural property held in Vienna from 15 to 17 January 2014. Retrieved February 2, 2018, from https://www.unodc.org/ unodc/en/organized-crime/trafficking-in-cultural-property-expert-group-2014. html. Watts, R., Bessant, J., & Hill, R. (2008). International criminology: A critical introduction. London: Routledge. Williams, P. (1999). Emerging issues: Transnational crime and control. In G. Newman (Ed.), Global report on crime and justice. New York: Oxford University Press.

3 Art Crime Literature: A General Overview Vicki Oliveri

This chapter will introduce the reader to the world of art crime literature: a multi-faceted world where fact can sometimes read like fiction. The complexity of the topic has generated a growing library of case studies, analyses, documented hunts for stolen art and also memoirs. Added to this is the evolving presence of art crime literature presented through social media platforms, which serves to underscore how art crime is recognised as a global issue, a crime against all humanity. The chapter will draw on a selection of texts produced when the art market started heating up in the 1960s, where the price paid for art and cultural property reached levels never seen before and then continue to the present day where scholarly attention on art crime has been steadily increasing. Texts produced by various stakeholders within the field of art crime such as personnel from law enforcement agencies and cultural institutions are also included, reflecting the multidisciplinary nature of this specialised area of criminality. Together, these texts offer a general overview of art crime literature and provide a starting point for those wanting to discover more about the phenomenon which is art crime. Art crime, in one form or another, has existed for centuries, as borne out by the ancient practice of looting cultural property—from the Roman orator Marcus Tullius Cicero castigating Gaius Verres in first century BCE for ­having ‘plundered Sicilian communities, stripped bare Sicilian homes, and pillaged Sicilian temples’ (cited in Miles 2008, p. I), to the duke of Wellington in the

V. Oliveri (*) James Cook University, Cairns, QLD, Australia © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_3

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1800s vowing to return looted artefacts and ‘restore them to the countries from which, contrary to the practice of civilized warfare, they had been torn during the disastrous period of the French Revolution and the tyranny of Napoleon Bonaparte’ (Wellesley and Gurwood 1838, p.  644) and to the ongoing debate and controversy involving another member of the British nobility, Lord Elgin, and the Parthenon Marbles he transported to England in the 1800s. These Ancient Greek antiquities eventually ended up on display at the British Museum (British Museum n.d.), where they continue to reside despite the protestations of Greece, who wants the Parthenon Marbles returned to their place of origin. Fast forward to the twentieth century and it was the systematic and extensive looting committed by the Nazi regime during World War II (WWII) which arguably put the destruction and looting of cultural property front and centre on the international stage, leading to the creation of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. These acts of looting throughout WWII featured in two of the first texts on art crime: The Rape of Art: The Story of Hitler’s Plunder of the Great Masterpieces of Europe (Roxan et al. 1965) and The Art Stealers (Esterow 1966). That these books were published in 1965 and 1966, respectively, points also to what can be considered an epoch in the art world: the explosion of the art market during the late 1950s and early 1960s. A period which saw the price paid for cultural property reach levels never encountered before, as evidenced by the prestigious art sales staged by the auction houses during that time (Houpt 2006, p. 15) and the record-breaking one million US dollars paid in 1972 by New York’s Metropolitan Museum of Art for the purchase of a Greek antiquity, the Euphronios Krater (Watson and Todeschini 2007, p. viiiii)—the first time any cultural institution had spent such a large amount of money for a cultural object. Art was commanding greater prices and criminals started to notice this emerging lucrative market. Scholarly attention, however, did not parallel this major shift in the art world—a point not lost on academics Kila and Balcells who, in their text Cultural Property Crime: An Overview and Analysis of Contemporary Perspectives and Trends (2014), observed the slow response from criminologists, in particular, to study art crime and that they ‘ignored research, analysis, and conceptualization of cultural property crime’ (2014, p.  366). Cultural property was being stolen and trafficked, but the machinations of this criminal trade were not being given academic attention until the mid-1980s to early 1990s. There were a few notable exceptions to this lack of research and literature during the 1970s. For example, the International Foundation for Art Research (IFAR),

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created in 1969 to provide public awareness about the issues impacting the art world, expanded their focus in the 1970s to incorporate the looting of antiquities and the theft of artworks in an effort to help combat these criminal activities (IFAR n.d.). According to Merryman’s ‘Museum Ethics’ (2006), the 1969 article by Coggins, ‘Illicit Traffic of Pre-Columbian Antiquities’, is considered a pivotal moment in the art world as it led to what Merryman described a ‘revolution in acquisition ethics’ (2006, p. 5) in an art world where acquisitions ‘once were unencumbered by ethical considerations’. Further recognition of the illicit trafficking of antiquities and art occurred in 1970 with UNESCO’s adoption of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO 1970)—‘cultural property’ being a term which could encompass all significant art objects, whether antiquities in situ or artworks on display in cultural institutions. Burnham’s The Art Crisis (1975) can also be considered among the first to examine the issues surrounding looted antiquities. Burnham’s text still resonates decades later, specifically two of the significant issues she believed needed to be taken into account when trying to prevent the trafficking of illicit antiquities, and her comments are aimed at art dealers: 1. The responsibility of dealers in directly or indirectly encouraging looting over the ethical position required of a reputable dealer 2. Whether a dealer would continue to be able to dispose of such works (1975, p. 87) Over a decade later, Merryman (1986), in ‘Two Ways of Thinking About Cultural Property’, expanded on this by offering an overview of the antiquities market and the drivers of supply and demand. He saw the world being divided into ‘source nations and market nations’ (1986, p. 832): In source nations, the supply of desirable cultural property exceeds the internal demand. Nations like Mexico, Egypt, Greece and India are obvious examples. They are rich in cultural artefacts beyond any conceivable local use. In market nations, the demand exceeds the supply. France, Germany, Japan, the Scandinavian nations, Switzerland and the United States are examples. Demand in the market nation encourages export from source nations. When, as is often (but not always) the case, the source nation is relatively poor and the market nation wealthy, an unrestricted market will encourage the net export of cultural property. (1986, p. 832)

As archaeologists and art historians report, when ‘the source nation is relatively poor and the market nation wealthy’ (Merryman 1986, p.  832), an

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environment is created, which also encourages the illegal looting of cultural property, so strong is the desire to acquire these objects. Conklin’s text, Art Crime (1994), provided a concentrated treatment of the criminal elements in the art world and is considered a seminal text in the field. Conklin defined art crime as ‘criminally punishable acts that involve works of art’ (1994, p. 3) and categorised the different types of art crimes as follows: fakes and forgeries, fraud, art and antiquities theft, the looting of antiquities from ‘grave sites, shrines and ruins’ (1994, p.  122) and vandalism (1994, p. 3). While Conklin’s text opened the way for art crime to be researched from a criminological perspective, the work of art historians and archaeologists still dominated this field. This is reflected in texts such as Loot, Legitimacy and Ownership: The Ethical Crisis in Archaeology, where author Renfrew (2000) claims that: The world’s archaeological resource, which through the practice of archaeology is our principal source of knowledge about the early human past, is being destroyed at a formidable and increasing rate. It is destroyed by looters in order to serve the lucrative market in illicit artefacts through which private collectors and, alas, some of the major museums of the world, fulfil their desire to accumulate antiquities. Such unprovenanced antiquities ripped from their archaeological context without record (and without any hope of publication) can tell us little that is new. The opportunity is thereby lost for them to add to our understanding of the past history and prehistory of the regions from which they come, or to our perception of the early development of human society. (2000, p. 9)

The text Trade in Illicit Antiquities: The Destruction of the World’s Archaeological Heritage (Renfrew et al. 2001), followed on from Renfrew’s assertions, contended that ‘The international trade in illicit antiquities—antiquities which have been illegally excavated and/or exported—is destroying the world’s archaeological heritage’ (2001, p.  1). Greenfield’s The Return of Cultural Treasures (1996) saw her case studies reflect three distinct issues: 1 . Conservation, which is an ongoing issue. 2. Illicit trading, which is a contemporary issue. 3. The physical return of cultural property which may be associated with illicit trading but is also a historic issue (1996, p. 255) Greenfield also touched on a viewpoint which regularly features in the debates on the ownership of cultural property, the concept of ‘country of origin’ (1996, p. 256). Her questions about this concept, such as ‘Does this mean the country of manufacture, the nationality of the maker, the last country to hold

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the object before its removal or, for example in the case of an archaeological item, the site of its discovery?’ (1996, p. 256), are also echoed by academics such as Cuno and Warren. In Who Owns Antiquity: Museums and the Battle over Our Ancient Heritage (2010, pp. 124–125), Cuno asserts that at the time of their making, antiquities would not have been created for the future ‘modern nations now occupying the land of the ancient governing entities that ruled their makers’ (2010, pp. 124–125), modern states which would have been ‘unknown and unknowable’ (2010, pp. 124–125) at that time. While Warren, writing in The Ethics of Collecting Cultural Property: Whose Culture? Whose Property? (Messenger 1999), makes the point that claims over the ownership of cultural properties are in essence a: […] debate over ownership of the past, where ‘the past’ is understood not only as the physical remains of the past (e.g., artifacts, places, monuments, archaeological sites) but also the “perceptions of the past itself ” (e.g., information, myths, and stories used in reconstructing and transmitting the past.). (1999, p. 2)

Views questioning who owns the past, such as those posited by Greenfield, Cuno and Warren, also underpin the debate over where antiquities should remain—in situ or in institutions far from their original locations. Cuno makes an argument for cultural institutions displaying cultural property from around the world: Encyclopaedic art museums introduce us to the larger world of which we are a part. They bear witness to the hybridity and interrelatedness of the world’s cultures. Nationalist retentionist cultural property laws force national identities onto works of art, even works of art that were made long before nations—certainly specific nations—existed. Encyclopaedic art museums are based on the eighteenth century idea of cosmopolitanism: ‘citizens of the cosmos,’ of the world, the universe […]. (2010, pp. 123–124)

Cuno’s argument is countered by academics like Brodie et al. (2000) who, in their text Stealing History: The Illicit Trade in Cultural Material, point to the glaring discrepancy found within this viewpoint: Some collectors have claimed that the trade in cultural material helps promote a universal appreciation of human creativity, and in so doing engenders mutual respect in our diverse and often divided world. The trade, it is argued, is thus a force for good. But it is a one-way trade. Cultural objects are illicitly moved from south to north, from east to west, from the third and fourth worlds to the first, and from poor to rich. There is no countervailing flow. (2000, p. 12)

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This is an ongoing debate and as Renfrew (2000) explains: […] it is important to recognise that we live in an age of evolving moralities […] the collections of the world’s greatest museums were formed in a period prior to the formulation of national antiquities laws. Such collections were formed in a manner which would be entirely unacceptable today. (2000, p. 77)

Fincham (2009), in a paper titled ‘Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities’, acknowledges and incorporates these differing attitudes by stating that the ‘current antiquities market is the product of tensions between two competing views on what should be done with the antiquities and their accompanying context’ (2009, p.  6). One side believes in regulating archaeological sites as a means of protecting this finite source of antiquities, while the other side believes that such regulations will encourage a black market in antiquities as a way of bypassing those regulations and this will lead to more illegal looting of cultural objects (2009, pp. 6–7). This complex antiquities debate, with its competing arguments, reflects the increasing globalisation of the world where, as Cuno (2010) observes, ‘It is in the nature of our species to connect and exchange. And the result is a common culture in which we all have a stake’ (2010, pp.  161–162). It is also globalisation which has enabled the looting of cultural property to be included in the category of transnational crimes, with Natarajan, in the 2011 text International Crime and Justice, detailing that these types of crimes: […] result from the huge expansion of world trade, the vast increase in migration, the internationalization of currency markets, and the explosions of international travel and electronic communications. While these consequences of globalization have been lauded by economists and others, criminologist, lawyers and crime policy officials must now grapple with one of globalization’s downsides—the opportunities globalization has created, together with the explosion of new technologies, for transnational crimes to emerge or be transformed into more serious forms. (2011, p. xxiv)

In Transnational Crime and the Interface Between Legal and Illegal Actors: The Case of the Illicit Art and Antiquities Trade, Tijhuis (2006) has also researched the illicit art and antiquities trade as a transnational crime, building on the understanding of what constitutes such a crime: Transnational crime is often understood simply as organized crime involving more than one country. In that case, it involves an activity that is criminal in all countries involved. However, transnational crime can also involve an activity

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that starts as legal but becomes illegal at some stage, or the other way around. (2006, p. 4)

Proulx (2011) in ‘Organized Criminal Involvement in the Illicit Antiquities Trade’ is cautious about applying this concept of the transnational crime to the illicit art and antiquities trade, with the reminder that: […] crime—whether or not it fits within modern conceptions of ‘organized’- is not experienced in a global sense, several times removed from the local; it is instead experienced as a “local phenomenon” […]. (2011, p. 3)

Following on from this viewpoint, Davis (2011), who has researched and written about illicit Cambodian antiquities in papers such as ‘Supply and Demand: Exposing the Illicit Trade in Cambodian Antiquities Through a Study of Sotheby’s Auction House’, explains that, ‘The trafficking of antiquities […] cannot be understood in the abstract’ (2011, p. 157). The local elements of such crimes should not become overshadowed by their global characteristics. The text, Chasing Aphrodite (2011), detailing the J. Paul Getty Museum’s experiences with illicit antiquities, is an example of a text which provides both a local and a global perspective on this illicit trade. Authors Felch and Frammolino give a behind-the-scenes look at the acquisition process of a world-renowned museum and then place these events within the wider context of illicit machinations in the antiquities market—each perspective helping to inform the other. Whether the issue of looted antiquities is examined on a local or global scale, it is disconcerting to take note of Tijhuis’ contention that ‘some degree of integration between the legitimate and illicit markets exists’ (2011, 89), that is, both looted and legally acquired cultural property can and do move through the same channels. Certainly, what can assist the ease of movement for looted cultural property is to have it accompanied by documents demonstrating its provenance. Mackenzie’s Going, Going, Gone: Regulating the Market in Illicit Antiquities (2005) outlines the weaknesses within this process with his classification of the types of buyers found within the art market: […] buyers in the antiquities market can be split into three classes, depending on their attitude to the purchase of looted antiquities. These three classes emerged from initial discussion of attitudes towards the provenance of cultural objects: Class 1 buyers who do not care if an object is looted; they will buy it anyway—this attitude is more prevalent among private collectors. Class 3 buyers who do everything they can to avoid purchasing looted antiquities, including extensive research into the provenance of the object they are

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offered, and the employment of a strict personal ethic which instructs them to walk away from a purchase if there is any doubt over the origin of the object. The middle ground on our scale of buyers’ attitudes to the purchase of looted antiquities is occupied by Class 2 buyers who would care about the illicit provenance of the objects they are buying if such information were available, but since it is not they proceed with purchases in the hope, rather than the knowledge, that the objects are not the product of intentional looting. (2005, pp. 228–229)

The global reach of the illicit antiquities trade is also demonstrated in the case studies chronicled in texts including Stealing History: Tomb Raiders, Smugglers and the Looting of the Ancient World (Atwood 2004), which focuses on the looting of Peruvian antiquities and their eventual recovery; The Medici Conspiracy: The Illicit Journey of Looted Antiquities: From Italy’s Tomb Raiders to the World’s Greatest Museums (Watson and Todeschini 2007), which, as the title alludes to, details the illicit activities of antiquities dealer Giacomo Medici, the extensive networks through which he supplied other art dealers and cultural institutions with looted artefacts and how he was finally caught by authorities; The Lost Chalice: The Epic Hunt for a Priceless Masterpiece (Silver 2009) surveys the journey of the chalice considered to be a companion piece to Euphronios Krater—the kylix—and also delves into the illicit dealings of Medici; Loot: The Battle over the Stolen Treasures of the Ancient World (Waxman 2008) examines the fate of antiquities from Egypt, Turkey, Greece and Italy and the ongoing debates surrounding their export; and the previously mentioned Chasing Aphrodite (Felch and Frammolino 2011). The Nazis’ looting activities have been revisited in art crime literature, as more pieces are recovered and repatriated to the families and estates of original owners. Nicholas’ The Rape of Europa: The Fate of Europe’s Treasures in the Third Reich and the Second World War (1995) drew on resources at the National Archives and the National Gallery in the United States, as well as interviews, to investigate the plunder of art during WWII and the consequent issues of provenance and repatriation of the looted artworks. In The Monument’s Men: Allied Heroes, Nazi Thieves and the Greatest Treasure Hunt in History, Edsel and Witter (2010), in many ways, write back into history the team dedicated to recovering the thousands of artworks looted during WWII. Edsel (2014) followed up this text with Saving Italy: The Race to Rescue a Nation’s Treasures from the Nazis. The reason for the sole focus on Italy in this book is perhaps best understood by the following quote by renowned monuments’ officer, Captain Deane Keller: […] perhaps for the first time in history, there were men whose sole job it was to preserve the heritage and culture of nations being torn to shreds by the ravages of war. Italy was the first to know the men whose job it was to care for her cultured and artistic heritage in wartime. (2010, p. xxv)

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O’Connor’s The Lady in Gold: The Extraordinary Tale of Gustav Klimt’s Masterpiece, Portrait of Adele Bloch-Bauer (2012) focuses on one piece of art that was the victim of the Nazis’ looting and the attempts, decades later, by the heirs of Bloch-Bauer to get the painting back. More recent cases of looting during times of war and conflict have also been documented in texts including Rothfield’s The Rape of Mesopotamia: Behind the Looting of the Iraq Museum (2009). The importance of publishing such art crime literature is demonstrated in Rothfield’s opening statement which reads in part that: Understanding how such a thing as the looting of the National Museum of Iraq could have happened is crucial if we are to help the beleaguered Iraqis stem the destruction of their—and the world’s—patrimony, and if we hope to avoid repeating the same mistakes in future conflict. The account that follows is intended to help serve that purpose. (2009, p. 3)

Similarly, Polk and Schuster’s The Looting of the Iraq Museum, Baghdad: The Lost Legacy of Ancient Mesopotamia (2005) states that ‘[…] if any good can come out of this catastrophic loss, it is in the lessons learned. Other institutions and repositories of human history around the world should take heed’ (2005, p. xiii). The book highlights the challenges of protecting cultural heritage and property during times of conflict, observing that ‘for war-torn countries such as Iraq […] a lawless environment ferments the trade in antiquities, while weak border controls facilitate export of material’ (2005, p. 10). Sadly, history is being repeated as evidenced by the more recent looting and ­destruction of cultural property again in Iraq and other countries such as Syria and Afghanistan. What have emerged during this contemporary era of cultural heritage devastation and plunder are the various social media sites this topic has generated—a media platform which allows for the regular reporting and commentary on incidences of art crime as they happen. Sites include, among the many available, ‘The Antiquities Coalition’, ‘Chasing Aphrodite’, ‘Cultural Heritage Lawyer’ (a blog by Rick St Hilaire), ‘Association for Research into Crimes against Art’ (ARCA), ‘Trafficking Culture’, ‘Saving Antiquities for Everyone’ (SAFE), ‘Stolen Gods: Reporting the Theft and Destruction of Sacred Art from Around the World’ and ‘Illicit Cultural Property and Market of Mass Destruction’. The looting and destruction of significant cultural property are arguably dominating these internet media outlets and highlight how archaeological sites are at great risk during times of conflict and war. However Miles, in her text Art as Plunder: The Ancient Origins of Debate about Cultural Property, reminds us that such sites are also looted during ‘what we like to think of as “peacetime”’ (2008), an observation

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demonstrated by contemporaneous examples, such as the looting of Italian and Greek antiquities which were later sold to the Getty Museum, the raiding of many tombs in China for their antiquities and the developing case of the now discredited New York-based art dealer, Subhash Kapoor, and his alleged trafficking of looted Indian antiquities. Antiquities are looted because there is money to be made from their procurement. The prices commanded by significant artworks also provide more than enough motivation for other forms of art crime, such as theft, forgery and fraud. High-profile cases of art thefts, forgeries and fraud have been researched and written about and at times they read like fiction; such is the array of colourful characters which appear within this criminal venture called art crime. As Webb (2008) notes in his text, Stolen: The Gallery of Missing Masterpieces, ‘The art thefts that most often come to public attention are the big ones […]’ (p. 174). One of the biggest art thefts is arguably the unsolved 1990 robbery of 13 artworks from Boston’s Isabella Stewart Gardner Museum, one of the cases profiled in Webb’s book and in a similar book by Houpt (2006), Museum of the Missing: The High Stakes of Art Crime. That the Gardner was able to amass an extensive collection of masterpieces including Vermeer’s The Concert (1658–1660) and Rembrandt’s Storm on the Sea of Galilee (1633), which were both stolen during the 1990 robbery, is indicative of the nature of the art market at the time of their purchase, as revealed by this quote from art dealer Joseph Duveen: ‘Europe has a great deal of art, and America has a great deal of money’ (cited in Houpt 2006, p.  27). In the 2004 book, The Irish Game: A True Story of Crime and Art, Hart includes the Gardner heist ­alongside another high-profile theft, the robbery of Ireland’s Russborough House, in which another Vermeer masterpiece, Lady Writing a Letter to Her Maid (1670–1671), was among the 18 paintings stolen (2004, p. 55). Hart canvasses theories that the Gardner theft was linked to the robbery of Russborough House through connections with American-Irish criminal syndicates and their support for the Irish Republican Army (2004, p. 117). Hart also covers the role of stolen art in money laundering and drug trade, suggesting that the artworks are used as ‘[…] collateral, as a down payment on drugs and firearms’ (2004, p. 146). Boser, with a focus on late art detective Harold Smith, also examines the Gardner theft in the 2009 text The Gardner Heist: The True Story of the World’s Largest Unsolved Art Theft. Smith had made it his mission to recover the Gardner’s stolen artworks and, like Hart, also considered the Irish link to the Russborough House robbery as a possible lead (2009, p. 166). After an extensive period investigating this alleged link, Smith was left with no further details or insights into the Gardner theft (2009, p. 169). As with Hart’s text, Boser also speculates about who may have committed the robbery

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and throws up names involved with the criminal gangs operating in Boston during that time, such as, James ‘Whitey’ Bulger (2009, p.  159), Myles Connor (2009, p. 133) and David Tuner (2009, p. 195). The Gardner theft continues to generate texts, the most recent being investigative journalist Kurkjian’s Master Thieves: The Boston Gangsters Who Pulled Off the World’s Greatest Art Heist (2015). Kurkjian explains his take on the case, which brings to mind Proulx’s earlier viewpoint that ‘crime is experienced as a local phenomenon’ (2011, p. 3): After years of digging that included access to the museum’s own files on the case, I came to understand that the answer to the secret of the Gardner heist lay in Boston’s own backyard, and in its recent history in the war between the two major criminal gangs that emerged there in the mid-1990s. (2015, p. xx)

The 13 artworks stolen from the Gardner remain missing. An investigative journalist who reported extensively on the Gardner theft, Mashberg, teamed with the Gardner’s Director of Security, Amore, to write Stealing Rembrandts (2011). The more infamous of these Rembrandt robberies is undoubtedly that of his painting, Jacob de Gheyn III (1632). This piece was stolen four times, leading to it being dubbed the ‘Takeaway Rembrandt’ (2011, p. 55). The 1911 theft of Leonardo da Vinci’s Mona Lisa (1503–1517) by Vincenzo Perugia has generated countless articles and a number of texts, unsurprising given the painting’s iconic stature. These include The Thefts of the Mona Lisa: On Stealing the World’s Most Famous Painting (Charney 2011), which, along with Perugia’s theft, also examines speculation that the painting was looted by the Nazis and later repatriated; The Lost Mona Lisa: The Extraordinary True Story of the Biggest Art Theft in History (Scotti 2011); and a chapter in The Connoisseur Crimes: Art Thefts of the Century (1987), which noted that Perugia’s stated motivation for the theft was to ‘restore it to Florence, its rightful home’ (1987, p. 9). According to the book, two major points discredited Perugia’s alleged altruistic intentions. Firstly, da Vinci had sold the painting to France’s King Francis I in the sixteenth century. Secondly, Perugia’s diary ‘listed every major art dealer in Europe’ (p. 9). The 1994 theft of Edvard Munch’s popular Expressionist painting, The Scream (1893–1893), is detailed in Edward Dolnick’s Stealing The Scream: The Hunt for a Missing Masterpiece (2007), where the remarkable ease with which the thieves procured the painting astounded many. They simply grabbed a ladder and entered Norway’s National Gallery through a window, with The Scream hanging just metres away (2007, pp.  5–6). The robbers famously replaced the painting with a postcard which stated, ‘Thanks for the poor security’ (2007, p. 8). In

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considering the number of paintings which have been stolen over the decades, Dolnick asserts that: A museum of stolen masterpieces would rival any of the world’s great treasure houses of art. The Museum of the Missing would include 551 Picassos, 43 Van Goghs, 174 Rembrandts, and 209 Renoirs. Vermeer would be there, and Caravaggio and van Eyck and Cezanne and Titian and El Greco. (2007, p. 13)

On a different take, Michael Blanding’s The Map Thief: The Gripping Story of an Esteemed Rare-Map Dealer Who Made Millions Stealing Priceless Maps (2014) details the theft of another form of cultural property, rare maps. Blanding chronicles the illicit activities of antiquarian map dealer, E. Forbes Smiley III, who stole maps from institutions such as Yale University, New York Public Library, Boston Public Library and Harvard University (2014, p. 223). As Blanding points out: No profiles exists for those who steal maps. In most cases, the motive is simply the hope for a quick payday with little risk; in some cases, however, possession itself is the goal. (2014, p. 113)

Blanding’s book helps extend the existing knowledge on this type of art crime. In light of these high-profile thefts, which exposed weaknesses in cultural institutions’ security, it is worth noting that a recent contribution to the art crime literature looks at issues of security and policing. In The Securitization and Policing of Art Theft: The Case of London (2015), John Kerr explores issues centred around the security framework in which art is displayed and transported, including the role of law enforcement agencies in identifying potential risks, the responsibilities of cultural institutions in protecting their collections and the impact of insurance companies in reducing the risks to artworks and increasing their security. When it comes to other categories of art crime represented in the literature, the infamous court case of Han van Meegeren is one of a number of high-­ profile cases of art forgery and fraud which has been written about. The exploits of Han van Meegeren, famous for creating a fake Vermeer, Supper at Emmaus, which fooled respected art experts, is outlined in The Man Who Made Vermeers: Unvarnishing the Legend of Master Forger Han van Meegeren. In this text, Lopez (2008) contends that: In The Netherlands, where van Meegeren is still a household name, the story of the wily Dutchman who swindled Hermann Goering continues to raise a smile. But the forger had one more trick up his sleeve: his version of events turns out to have been extravagantly untrue. (2008, p. 2)

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Han van Meegeren, it seems, faked aspects of his life, as well as creating fakes. In some ways, a more recent case of art forgery and fraud, recalls van Meegeren, is that of John Drewe, the con man and mastermind behind dozens of fake paintings. Salisbury and Sujo (2010) detail Drewe’s partnership with artist John Myatt in their book, Provenance: How a Con Man and a Forger Rewrote the History of Modern Art. In particular, the book details Drewe’s genius at being a chameleon—‘Drewe … was no mere liar. He was a mirage’ (2010, p. 170), which helped him elude detection by authorities for many years. He was a genius at faking the provenances to accompany the fakes he commissioned Myatt to paint. These documents made it easier to verify and sell the artworks. Some of Drewe’s practices included inserting phoney details of fake paintings into existing archived art catalogues to provide the artworks with a provable history. As Drewe explained to Myatt, who was nervous about Drewe getting caught in the process of adding this new information, ‘Don’t worry, John […] Archives are on the lookout for people taking material out, not for people putting material in’ (2010, p. 79). The issue of verifying an artwork’s authenticity is covered in Brewer’s book, The American Leonardo: A twentieth century Tale of Obsession, Art and Money (2009). Brewer’s text follows the attempts by Harry and Andrée Hahn to sell a painting they claimed was created by Leonardo da Vinci, La belle ferronière, a fact disputed by art experts, including the legendary and somewhat ­infamous art dealer, Joseph Duveen. This case raises an issue that arguably continues to resonate in the art market today: verifying the authenticity of an artwork. As Brewer points out, most of us cannot know if a painting is authentic. Instead, we ‘rely on the expertise of curators, connoisseurs and dealers, putting your trust in their skills and good faith’ (2009, p. 2). Authenticity is not just about attributing an artwork to a specific artist, it also involves the veracity of the provenance which accompanies the artwork. In this instance, the provenance of La belle ferronière, given to the Hahns as a wedding gift by a family friend, appeared suspect. It involved a saga spanning a couple of generations, during which different family members inherited the artwork. People wondered at the time, however, ‘who in their right mind would knowingly give away a genuine Leonardo?’ (2009, p. 131). The giveaway was used to denounce the painting as ‘a copy of little value’ (Ibid.). The looted antiquities scandal, which engulfed America’s J Paul Getty Museum, shows another side to the provenance debate, where a false provenance is given to genuine artworks to mask the illicit nature of their origin. That the museum’s curator at the time who arranged these illicit acquisitions, the ironically named Marion True, was highly respected in the field also helped facilitate their movement and for a time avoid suspicion. The relationship between Marion True and the Italian

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art dealer Giacomo Medici, outlined in detail by Watson and Todeschini (2007) in The Medici Conspiracy: The Illicit Journey of Looted Antiquities: From Italy’s Tomb Raiders to the World’s Greatest Museums, demonstrates the risks in the over-reliance of an art professional’s reputation to vouch for the authenticity and legitimacy of an art object. Two contemporary texts which explore cases of art forgery and fraud and provide a good overview include Charney’s The Art of Forgery: The Minds, Motives and Methods of the Master Forgers (2015) and Amore’s The Art of the Con: The Most Notorious Fakes, Frauds, and Forgeries in the Art World (2015). Certainly, the successful prosecution of cases involving art fraud and forgeries, such as those within the Australian Indigenous art market, has resulted in further information becoming available through court documents. Such access to data tends to be the exception rather than the rule and allowed for papers to be written, such as Chappell and Polk’s ‘Fakers and Forgers, Deception and Dishonesty: An Exploration of the Murky World of Art Fraud’. Their 2009 paper detailed two cases of art fraud and forgery: that of Adelaide art dealer, John O’Loughlin, and his role in selling artwork falsely attributed to Aboriginal artist, the late Clifford Possum Tjapaltjarri, and that of Pamela and Ivan Liberto who produced and sold fake copies of the work by another Aboriginal artist, the late Rover Thomas. In a 2011 paper titled, ‘Frauds and Fakes in the Australian Aboriginal Art Market’, Adler, Chappell and Polk elaborated further on the problem of fraud in the Australian Indigenous art market and the challenges faced by the legal system in mounting prosecutions. In terms of the legal aspects of art crime, there are key texts within the literature which help situate this criminal and illicit activity within a legal and ethical framework. For example, in Going, Going, Gone: Regulating the Market in Illicit Antiquities (2005b), Mackenzie discusses some of the legal strategies in dealing with the illicit antiquities trade, surmising that ‘the current approaches to regulation in the antiquities market can be categorised under two headings: punishment and persuasion’ (2005b, p. 230). That is: […] the legal prohibitions on unauthorised excavation and export in source countries, and the increasing application of criminal law to possession and dealing in antiquities; the latter strategy is evident in conventions and codes of practices […] and in the often heard call for education of dealers and/or source populations in the destructive nature of looting. (2005b, p. 230)

This categorisation can be further enhanced by what Prott (2009), writing in Witnesses to History: A Compendium of Documents and Writings on the Return of Cultural Objects, refers to as UNESCO’s provision of ‘two strong responses’

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(2009, pp. xi–xii) to the issue of returning cultural property, which has been unlawfully taken: ‘The first response is of a legal nature’ (2009, pp. xi–xii) through the adoption of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which was followed up in 1995 with the UNIDROIT Convention. UNIDROIT refers to the Institut International pour l’Unification du droit privé (i.e., The International Institute for the Unification of Private Law); ‘The second response is of a political nature’ (2009, pp. xi–xii), which resulted in the creation of the ‘Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation to deal with cases outside the scope of international regulations’ (pp. xi–xii). From an ethical perspective, Merryman (2006) nominates two kinds of ethical issues faced by cultural institutions: One, which we can call ‘governance ethics’, includes conflict of interests, self-­ dealing and misuse of insider advantage. The other, which we can call ‘acquisition ethics’, responds to the possibility that objects under consideration for acquisition may have been stolen, improperly excavated or illegally exported. (2006, para 1)

These different categorisations (‘governance ethics’, ‘acquisition ethics’, ‘punishment and persuasion’ and ‘legal and political’) arguably can assist in getting a handle on the machinations of the legal and ethical landscape in which art crime is situated and provides an entry point for further exploration of this aspect of the art crime literature. The majority of the texts in this review can be considered representative of the common research methodology adopted in the art crime field and thereby in the art crime literature—that of case study methodology. This qualitative approach is born from the lack of data, in the form of art crime statistics. For example, Charney points out in Art and Crime: Exploring the Dark Side of the Art World (2009), ‘perhaps comprising as much as 75% of all art crime, antiquities looting is the most difficult crime to catch’ (2009, p. 110). Durney, in ‘Reevaluating Art Crime’s Famous Figures’ (2013), contends that the problematic nature of art crime statistics is a reflection of: […] the interaction between three elements: things that go on ‘out there’ in the environment (crime); the responses of those who are victims of it (reporting); and society’s effort to discover and record it (policing). (2009, p. 222)

In terms of the environment, the majority of art crimes remain unsolved (Charney, 2009, p. xxii), while not all victims report the crime. This nonreporting applies also to cultural institutions, which can at times be reluctant to reveal their vulnerabilities to the public, other cultural institutions and pro-

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spective donors or criminals alike, as Mackenzie examined in his 2005a paper, ‘Criminal and Victim Profiles in Art Theft: Motive, Opportunity and Repeat Victimisation’. Recording art crimes is made more difficult in countries where there are no art loss registers available in which to log the crimes in one central location, as Polk discussed in ‘Art Crime and Prevention: Best Practices’ (1999). More challenging, however, is discovering and recording the looting of antiquities at unregistered archaeological sites. For example, Gruber’s research into the illicit trade in Chinese artefacts, ‘The Fight Against the Illicit Trade in Asian Cultural Artefacts: Connecting Domestic Strategies, Regional Cooperation, and International Agreements’ (2013), notes that: […] antiquities are believed to be the largest single class of item smuggled out of China. Despite countless sites never having been registered, and their looting therefore never having been recorded, it is estimated that more than 200,000 ancient tombs have been looted in China in the last few decades. (2013, p. 344)

Considering the problematic nature of art crime statistics, Tijhuis (2009) in ‘Who is Stealing All Those Paintings?’ unsurprisingly explains that ‘sufficient and comparable empirical data about art thefts is not available to scholars, police, or governments’ (2009, p.  41). It should be noted, however, that among the few studies into art crime which have adopted a quantitative approach, two studies, according to Mackenzie (2005a), are regularly cited, ‘The Apulian Vases Research Project by Richard Elia […] and The Cycladic Figures and Classical Collecting by […] Christopher Chippindale and David Gill’ (2005, pp. 10–11). Such studies are the exceptions because, according to Chappell and Polk (2009), art crime is a ‘“dark figure” crime’ (2009, p. 16). That is, there exist crimes which cannot ‘be found in official statistics of crime’ (Ibid.). This has resulted in what Durney (2013) described as a heavy reliance on ‘monetary valuations of the size of the illicit trade in cultural property’ (2013, p. 221) as a means to heighten public awareness on cultural heritage protection issues. The lack of such statistics, however, is compensated somewhat by the multidisciplinary approach to researching art crime. Disciplines such as archaeology, art history, criminology, sociology, cultural studies, law and heritage studies combine to explore and illuminate this research area. This collaborative and multidisciplinary approach is reflected in texts such as Art and Crime: Exploring the Dark Side of the Art World (Charney 2009), Crime in the Art and Antiquities World: Illegal Trafficking in Cultural Property (Manacorda and Chappell 2011) and Contemporary Perspectives on the Detection, Investigation and Prosecution of Art Crime: Australasian, European and North American Perspectives (Hufnagel and Chappell 2014).

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Another feature of art crime literature is texts centred on both the perpetrators of art crimes and the detectives in pursuit of them. Such accounts provide the reader with insider knowledge on the machinations of these criminal activities. One of the first was Adam’s 1974 text, Art Cop: Robert Volpe, Art Crime Detective, which looked at the career of the late New York police detective, Robert Volpe. He was considered ‘one of the new breed of policemen who have become more and more involved in specialised areas of detection’ (1974, p.  13). The book provides a window into the emerging role of art crime detection by law enforcement agencies, but some things remain the same, with Adams explaining that if a stolen and ‘smuggled object is a major work and easily recognisable, it stands a good chance of being detected and returned’ (1974, p. 4). This still holds true today and more so with the advent of the internet, which provides a greater platform for public awareness. Volpe was also an artist, which set him apart from other police officers and allowed him to understand the ‘obsessive quality of collecting’ and the ability to ‘communicate and empathise with victims of art crime’ (1974, p. 15). As an art crime investigator, Volpe understood the vulnerabilities of the ‘dealer, collector, artist and museum’ to an art thief, referring to such criminals as the ‘despoiler or our national and international sacred trust’ (1974, p.  27). Interestingly, back in the early 1970s, Volpe already started to see the signs of an increasing involvement of ‘organised criminal elements […] turning their attention to the art world’ (1974, p.  223). Other law enforcement officers who have written about their experiences investigating art crime include former art crime specialists for the Federal Bureau of Investigation (FBI), Thomas McShane and Robert K. Wittman. McShane, along with Dary Matera, co-­ authored Loot: Inside the World of Stolen Art (2007), which details McShane’s role in recovering stolen cultural property, explaining that: […] the one thing that connects all art, that gives it some measure of cohesion, is its value to a crook. Whatever art is, whatever it looks like, whoever created it, man or beast, if it has a monetary value, a thief will try to steal it. And whenever that happened during the last quarter of the 19th century, it was my job to get it back. (2007, p. xvi)

Wittman released his memoir, Priceless: How I Went Undercover to Rescue the World’s Stolen Treasures, in 2010, co-authored with John Shiffman. Of particular interest is Wittman’s role in the formation of the FBI’s Art Crime Team. As Wittman noted, the designation of a specialist team demonstrated that the ‘FBI’s commitment to art crime was entering a new era’ (2010, p.  218). Wittman was appointed Senior Investigator for the team and his

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cases included going undercover to investigate what he considered the ‘most challenging’ one of his career: the robbery at the Isabella Stewart Gardner Museum (2010, p. 242). A character caught up in that investigation, Myles Connor Jr., penned his own 2010 memoir, The Art of the Heist: Confessions of a Master Thief, with the help of Jenny Siler. Connor is well known for his brazen bargaining chip of offering to help recover the missing Rembrandt painting, Portrait of a Girl Wearing a Gold-Trimmed Cloak (1632), in exchange for a lenient sentence (2009, p. 195). Connor, of course, neglected to mention to authorities that he had helped steal the painting from Boston’s Museum of Fine Arts in the first place (2009, p. 187). Another curious excerpt in Connor’s book involves a conversation he allegedly had with Bobby Donati in the early 1970s. Donati, another shady character operating in Boston’s criminal scene, asked Connor, ‘You ever think about knocking off the Gardner?’ Connor replied, ‘Sure’ and admitted that he had considered robbing this museum, along with others in the New England area (2009, p. 189). The two later visited the Gardner, with Donati signalling out the finial of a Napoleonic flagpole for particular attention. The finial is in the form of an eagle and, according to Connor, Donati told him, ‘I’ve got that eagle […] That’ll be my calling card: “The eagle has landed”’ (2009, p. 191). The finial would later become one of 13 items stolen during the Gardner’s 1990 robbery. Not surprisingly, Donati would become a suspect in that robbery. Connor himself was in jail at the time of the robbery (2009, pp. 283–284). Like Connor, Paul ‘Turbo’ Hendry had his own dealings with the illicit art trade and is featured in Knelman’s 2012 book, Hot Art: Chasing Thieves and Detectives Through the Secret World of Stolen Art. According to Knelman, Hendry eventually became a police informant, dealing even with (the then) head of Scotland Yard’s Art and Antiquities Squad, Richard Ellis— not that it guaranteed Hendry would never be arrested (2012, p.  162). As Hendry tells it, his situation was not unique: Show me a stand-up guy who’s never had to deal with the police and I’ll show you someone doing twenty-five to life. When you become successful, you show up on the radar […] In order to maintain that success you have to work with police or you yourself become the target. All top criminals do this. (2012, p. 163)

Hendry went on to initiate an online blog, Art Hostage, which he uses as a platform to inform his audience about art crimes (2012, p. 293). Again, similar to Connor, Hendry has an avid interest in the Gardner robbery, which is

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the subject of another blog he created, Stolen Vermeer (named after Vermeer’s The Concert, stolen in the 1990 robbery), where he regularly writes about that case. Unlike the Gardner robbery, where the stolen artworks remain missing, Nairne’s text Art Theft and the Case of the Stolen Turners (2011) details a case where two stolen paintings were eventually recovered. During Nairne’s tenure as Director of Programmes at London’s Tate Gallery, two paintings by Turner, Light and Colour and Shade and Darkness, were stolen in 1994 while on loan to the German gallery Kunsthalle Schirn in Frankfurt. Nairne’s text recounts the efforts it took to recover the artworks. It took eight and a half years and three and a half million pounds for the paintings to return, with Shade and Darkness being recovered in 2000 and Light and Colour in 2002 (2011, pp. 143–144). In The Art Detective: Fakes, Frauds, and Finds and the Search for Lost Treasures (2009), art dealer Philip Mould presents art crime cases from the perspective of a ‘practitioner’ in his own field (2010, p. 27). For Mould, this means primarily writing about cases which directly involved him (2010, p. 27). One of these cases included authenticating the painting Cornard Wood (1748) as an early work by Thomas Gainsborough, when an auction house had instead attributed it to a ‘follower of Salomon van Ruisdael’ (2009, p. 60). Giving some insight into what drives art detectives, Mould explains that there is ‘a lot of fulfilment to art dealing: the investigation that leads in an ­unforeseen direction, the revelation when a hunch is confirmed, the first moment of representation, the vindication of risk when a sale is completed’ (2009, p. 182). Through documenting his cases, Mould allows the reader to vicariously experience these outcomes. In many respects this literature review performs a similar role to the detail of a painting—it provides a snapshot of the bigger picture of art crime. Each text, each reference, acts as a gateway into other texts and other references, allowing the reader to dictate the literary path they will take as they explore this field. As this general overview has demonstrated, art crime literature incorporates many styles and perspectives, reflecting the multi-faceted and interdisciplinary nature of this topic. Art crime, as this review noted, has been occurring for centuries and the looting and destruction of cultural heritage still continue. The more these criminal and illicit activities committed against art are documented, however, the greater the opportunity to make a difference through generating public awareness for the preservation of cultural heritage and cultural property. Such artworks and antiquities are irreplaceable and contribute significantly to the collective story of our common humanity.

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Bibliography Adams, L ., (1974).  Art Cop: Robert Volpe, Art Crime Detective. New York: Dodd Mead. Adler, C., Chappell, D., & Polk, K. (2011). Frauds and fakes in the Australian aboriginal art market. Crime Law and Social Change, 52, 189–207. Amore, A. M. (2015). The art of the con: The most notorious fakes, frauds and forgeries in the art world. New York: Palgrave Macmillan. Amore, A. M., & Mashberg, T. (2011). Stealing rembrandts: The untold stories of notorious art heists. New York: Palgrave Macmillan. Anonymous. (1987). The connoisseur crimes—Great art thefts of the century. Sydney: Reader’s Digest. Atwood, R. (2004). Stealing history: Tomb raiders, smugglers and the looting of the ancient world. New York: St Martin’s Press. Blanding, M. (2014). The map thief: The griping story of an esteemed rare map dealer who made millions stealing priceless maps. New York: Gotham Books. Boser, U. (2009). The Gardner heist: The true story of the world’s largest unsolved art theft. New York: Collins. Brewer, J. (2009). The American Leonardo: A 20th century tale of obsession, art and money. London: Constable and Robinson Ltd. British Museum. (n.d.). The Parthenon sculptures. Retrieved March 10, 2016, from http://www.britishmuseum.org/about_us/news_and_press/statements/parthenon_sculptures.aspx. Brodie, N., Doole, J., & Watson, P. (2000). Stealing history: The illicit trade in cultural material. Cambridge: The McDonald Institute for Archaeological Research. Burnham, B. (1975). The art crisis. London: Collins. Chappell, D., & Hufnagel, S. (Eds.). (2014). Contemporary perspectives on the detection, investigation and prosecution of art crime: Australasian, European and north American perspectives. Farnham, Surrey: Ashgate. Chappell, D., & Polk, K. (2009). Fakers and forgers, deception and dishonesty: An exploration of the murky world of art fraud. Current Issues in Criminal Justice, 20, 393–412. Charney, N. (Ed.). (2009). Art and crime: Exploring the dark side of the art world. Santa Barbara: Praeger. Charney, N. (2011). The thefts of the Mona Lisa: On stealing the world’s most famous painting. New Haven, CT: ARCA. Charney, N. (2015). The art of forgery: The minds, motives and methods of the master forgers. New York: Phaidon Press. Conklin, J. E. (1994). Art crime. Westport, CN: Praeger. Connor, M. J., Jr., & Siler, J. (2010). The art of the heist: Confessions of a master thief. New York: Harper. Cuno, J. (2009). Whose culture? The promise of museums and the debate over antiquities. Princeton, NJ: Princeton University Press.

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Cuno, J. (2010). Who owns antiquity: Museums and the battle over our ancient heritage. Princeton, NJ: Princeton University Press. Davis, T. (2011). Supply and demand: Exposing the illicit trade in Cambodian antiquities through a study of Sotheby’s auction house. Crime, Law and Social Change, 56, 155–174. Dolnick, E. (2007). Stealing the scream: The hunt for a missing masterpiece. London: Icon Books. Durney, M. (2013). Reevaluating art crime’s famous figures. International Journal of Cultural Property, 20, 221–232. Edsel, R. M. (2014). Saving Italy: The race to rescue a nation’s treasures from the Nazis. New York: W.W. Norton & Company Inc. Edsel, R. M., & Witter, B. (2010). The monument’s men: Allied heroes, Nazi thieves and the greatest treasure hunt in history. London: Arrow Books. Esterow, M. (1966). The art stealers. New York: Macmillan. Felch, J., & Frammolino, R. (2011). Chasing Aphrodite: The hunt for looted antiquities at the world’s richest museum. New York: Houghton Mifflin Harcourt. Fincham, D. (2009). Towards a rigorous standard for the good faith acquisition of antiquities. Syracuse Journal of International Law and Commerce, 37, 145. Greenfield, J. (1996). The return of cultural treasures (2nd ed.). Cambridge: Cambridge University Press. Gruber, S. (2013). The fight against the illicit trade in Asian cultural artefacts: Connecting domestic strategies, regional cooperation, and international agreements. Asian Journal of International Law, 3, 341–363. Hart, M. (2004). The Irish game. London: Chatto and Windus. Houpt, S. (2006). Museum of the missing: The high stakes of art crime. Ontario: Madison Press. International Foundation for Art Research (IFAR). (n.d.). About IFAR. Retrieved July 18, 2015, from https://www.ifar.org/about.php. Kerr, J. (2015). The securitization and policing of art theft: The case of London. London: Routledge. Kila, J., & Balcells, M. (2014). Cultural property crimes: An overview and analysis on contemporary perspectives and trends. Leiden: Brill. Knelman, J. (2012). Hot art: Chasing thieves and detectives through the secret world of stolen art. Portland: Tin House Books. Kurkjian, S. A. (2015). Master thieves: The Boston gangsters who pulled off the world’s greatest art heist. New York: Public Affairs. Lopez, J. (2008). The man who made Vermeers: Unvarnishing the legend of master forger Han van Meegeren. New York: Mariner Books. Mackenzie, S. (2005a). Criminal and victim profile in art theft: Motive, opportunity and repeat victimisation. Art, Antiquity & Law, 10(4), 353–369. Mackenzie, S. (2005b). Going, going, gone: Regulating the market in illicit antiquities. Leicester: Institute of Art and Law.

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Manacorda, S., & Chappell, D. (Eds.). (2011). Crime in the art and antiquities world: Illegal trafficking in cultural property. New York: Springer. McShane, T., & Matera, D. (2007). Loot: Inside the world of stolen art. Dunshaughlin: Maverick House. Merryman, J. H. (1986). Two ways of thinking about cultural property. American Journal of International Law, 80, 831–853. Merryman, J.  H. (2006). Museum ethics. Legal issues in museum administration. Philadelphia: The American Law Institute. Retrieved May 20, 2015, from http:// www.law.harvard.edu/faculty/martin/art_law/museum_ethics.html. Messenger, P. E. (Ed.). (1999). The ethics of collecting cultural property: Whose culture? Whose property? Albuquerque: University of New Mexico Press. Miles, M. (2008). Art as plunder: The ancient origins of debate about cultural property. New York: Cambridge University Press. Mould, P. (2009). The art detective: Fakes, frauds and finds and the search for lost treasures. London: Viking. Nairne, S. (2011). Art theft and the case of the stolen turners. London: Reaktion Books. Natarajan, M. (Ed.). (2011). International crime and justice. Cambridge: Cambridge University Press. Nicholas, L. H. (1995). The rape of Europa: The fate of Europe’s treasures in the third Reich and the second world war. London: Vintage Books. O’Connor, A. (2012). The lady in gold: The extraordinary tale of Gustav Klimt’s masterpiece, portrait of Adele Bloch-Bauer. New York: Penguin Putnam. Polk, K. (1999, December 2–3). Art crime and prevention: Best practices. Paper presented at the Art Crime Protecting Art, Protecting Artists and Protecting Consumers Conference convened by the Australian Institute of Criminology, Sydney. Retrieved June 16, 2015, from http://www.aic.gov.au/en/events/aic%20 upcoming%20events/1999/~/media/conferences/artcrime/polkart.pdf. Polk, M., & Schuster, A. M. H. (2005). The looting of the Iraq museum, Baghdad: The lost legacy of ancient Mesopotamia. New York: Harry N Abrams Inc. Prott, L. V. (2009). Witnesses to history: A compendium of documents and writings on the return of cultural objects. Paris: UNESCO. Proulx, B. B. (2011). Organized criminal involvement in the illicit antiquities trade. Trends in Organized Crime, 14, 1–29. Renfrew, C. (2000). Loot, legitimacy and ownership: The ethical crisis in archaeology. London: Duckworth. Renfrew, C., Brodie, N., & Doole, J.  C. (2001). Trade in illicit antiquities: The destruction of the world’s archaeological heritage. Cambridge: McDonald Institute for Archaeological Research. Rothfield, L. (2009). The rape of Mesopotamia: Behind the looting of the Iraq museum. Chicago: University of Chicago Press. Roxan, D., Wanstall, K., & Mazal Holocaust Collection. (1965). The rape of art: The story of Hitler’s plunder of the great masterpieces of Europe. New  York: Coward-McCann.

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Salisbury, L., & Sujo, A. (2010). Provenance: How a con man and a forger rewrote the history of modern art. New York: Penguin Books. Scotti, R. A. (2011). The lost Mona Lisa: The extraordinary true story of the biggest art theft in history. New York: Bantam. Silver, V. (2009). The lost chalice. London: Harper Collins. Tijhuis, E. (2006). Transnational crime and the interface between legal and illegal actors: The case of the illicit art and antiquities trade. Nijmegen: Wolf Legal Publisher. Tijhuis, E. (2009). Who is stealing all those paintings? In N. Charney (Ed.), Art and crime: Exploring the dark side of the art world. Santa Barbara: Praeger. Tijhuis, E. (2011). The trafficking problem: A criminological perspective. In S. Manacorda & D. Chappell (Eds.), Crime in the art and antiquities world: Illegal trafficking in cultural property. New York: Springer. UNESCO. (1970). Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property. No. 11806, 823 U.N.T.S. 231. Paris: UNESCO. Warren, K.  J. (1999). A philosophical perspective on the ethics and resolution of cultural property issues. In P. M. Messenger (Ed.), The ethics of collecting cultural property: Whose culture? Whose property? Albuquerque: University of New Mexico Press. Watson, P., & Todeschini, C. (2007). The Medici conspiracy: The illicit journey of looted antiquities: From Italy’s tomb raiders to the world’s greatest museums. Jackson, TN: PublicAffairs/Perseus Books. Waxman, S. (2008). Loot: The battle over the stolen treasures of the ancient world. New York: Times Books and Henry Holt & Company. Webb, J. (2008). Stolen: The gallery of missing masterpieces. Toronto, ON: Madison Press Books. Wellesley, A. (Duke of Wellington), & Gurwood, J. (Lieutenant Colonel). (1838). The dispatches of field marshal the Duke of Wellington: During his various campaigns in India, Denmark, Portugal, Spain, the Low Countries, and France, from 1799 to 1818, Vol. 12. London: John Murray. Wittman, R. K., & Shiffman, J. (2010). Priceless: How I went undercover to rescue the world’s stolen treasures. New York: Broadway.

4 The Antiquities Licit-Illicit Interface Blythe Alison Bowman Balestrieri

Introduction Crime became part of the human experience when human beings began trying to live together in groups. As human beings transitioned from hunter-­ gatherers to settlers, from wandering food collectors to static food producers, their relationship not only to their environment but also to each other began to change (Drapkin 1989). Crime is but one consequence of social change (Clifford 1973). That is, along with the challenges of nascent societal living came the development of such socially constructed ideas as crime, justice and law. Conducts recognizable among modern audiences as theft, robbery and murder were identified as criminal by societies that existed millennia ago (Gardner and Anderson 2012). The ancient Sumerian tablet, known as the Code of Lipit-Ishtar, compiled sometime around 1900 BCE (pre-dating the famous Code of Hammurabi by at least two centuries), offers one such early example of a codified crime and punishment: “Law 8: If a man entered the orchard of another and was seized there for stealing, he shall pay ten shekels of silver” (Steele 1948, p.  15). Paleoanthropologists, however, would argue that we ought to seek the origins of criminal conduct much earlier than the advent of recorded history—that is, even when Homo sapiens were not the only human-like species roaming the earth, there were certainly individuals willing to engage in archaic behaviors, arguably homologous to modern B. A. Bowman Balestrieri (*) Virginia Commonwealth University, Richmond, VA, USA e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_4

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c­ riminal behaviors (e.g. lying, cheating, stealing and so forth) in order to gain some sort of advantage over others (Buckwalter 1990). Given that all human behavior is a product of both genotypic and environmental influences and ultimately shaped by common evolutionary forces, it is not at all surprising that crime is a problem of universal proportions (Rowe 2002), and the complexities of crime around the world have plagued the human experience long before anyone was able to write about it. Definitions of criminal conduct have varied across both time and space, but the existence of “crime”—however defined then or now—is itself nothing new to the human condition. Criminality has been a constant in the human behavioral repertoire. Crime around the world is, simply put, old news and Clifford (1975) argued that new and emerging “dimensions” of criminality are really just updated iterations of established forms of criminality, influenced by sociocultural change and technology.

Modern Transnational Crime Also, nothing new is the transnational movement of crime and criminals. Smuggling, piracy and brigandage are but a few historical examples of crime that crosses borders (Williams 1998; Phillipson 1973). At the same time, however, there is something unprecedented about the contemporary threat of transnational crime that is much more menacing and alarming (Berdal and Serrano 2002). Modern transnational crime, in other words, differs in two salient ways. First, an increasingly globalized economy has facilitated the integration of markets and the transnational movement of people, goods, services and money (Bowman 2008). As legitimate businesses have been able to adjust to and take advantage of the increasing interconnectedness of life, so have criminal enterprises learned to expand their business beyond national borders. Cultural, economic and technological changes of the twenty-first century have accommodated both legitimate and illegitimate enterprises alike, expanding their influence geographically. Not only have transnational criminal activities broadened their geographic reach around the world, but the activities themselves have steadily diversified (Robinson 2000). New manifestations of transnational crime are regularly evolving (Passas 1998); as Shahidullah (1998, p. 180) notes, globalization is fundamentally a “trajectory of new human possibilities”. One such example of contemporary transnational crime that has broadened in both scope and geography involves the international trade in illicitly obtained antiquities. Trafficking of antiquities is a crime of transnational

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concern because it involves the illegal removal of culturally significant material from one country in order to satisfy demand for it generated in another country (Alder and Polk 2005).

The “Gray” Market in Antiquities The global trade in illicitly obtained antiquities represents an international “gray” or “licit-illicit” market—that is, a market with both licit and illicit dynamics that is definitively neither “black” nor “white” (Proulx 2011; Tijhuis 2006; Edwards and Gill 2006). Ruggiero (1997, p. 28) uses the term “dirty” economy to identify this licit-illicit “gray” overlap in which transnational criminal activity and legitimate business share a common interest. On the licit end of the spectrum, trading in antiquities is legal, but the means by which antiquities are usually procured—primarily through archaeological-site looting—are illegal and must be disguised (Tijhuis 2006; Alder and Polk 2005). Thus, many antiquities on the market today have undergone a transformation in status from illicit to licit, turning the matter from a clear-cut, black-and-­ white one to a murky shade of gray (Bowman 2008). Since owning an antiquity is in itself legal, the legal status of an antiquity thus depends on how it has been acquired or found its way to the legal market (Mackenzie 2005). This means that most objects which find their way to the legal antiquities market do so by three primary means. First, antiquities, which were initially unearthed through authorized archaeological excavations, are subsequently turned over to their rightful owner (depending on jurisdiction, the state or the landowner) and then arrive on the legal market. As Mackenzie (2005) notes, though, these are somewhat rare in that most countries, in an effort to preserve their cultural heritage, do not permit much material to circulate as such (Bowman 2008). A second means by which antiquities may arrive on the legal market involves objects for which provenience or findspot information has long been lost, thus making it next to impossible to determine whether the objects were removed legally or illegally from their source (Brodie 2002). Typically, these objects were unearthed and moved transnationally long before the source country had cultural patrimony laws in place to protect such heritage, and the objects have been in circulation for so long that they are generally considered “licit”, simply because of both ambiguity regarding their origins and the passage of time (Mackenzie 2005). For example, many antiquities and other objects of cultural and archaeological significance were removed from source countries during the eighteenth-century “grand tours”, that is, the custom of

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traveling abroad that became not only fashionable but a rite of passage of sorts for privileged young British dilettantes fresh out of university. Antiquities and other relics, brought back as souvenirs, thus became part of so-called grand-­ tour collections. Sir William Hamilton, for example, a Scottish diplomat who later served as British Ambassador to the Kingdom of Naples from 1764 to 1800, amassed an extensive collection of Greek and Italian vases, bronzes and other antiquities, which he sold to London’s British Museum in 1772 (Hoock 2010). Hamilton’s collection remains an integral component of British Museum’s collection of classical antiquities. A final means by which antiquities arrive on the legal market is through archaeological-site looting, that is, the unauthorized removal of culturally significant objects from archaeological sites for commercial gain, the act of which destroys context or evidence needed to learn from the site (Proulx 2012). These illicit antiquities are often found on the legal market masquerading as antiquities with ambiguous origins or even “accidental” finds of questionable provenience (Mackenzie 2005). From there, these antiquities become hopelessly mixed on the market, with licit objects sold side by side with illicitly obtained ones. As Brodie (2002, p. 3) notes, without findspot information, “how can licit material be distinguished from illicit? ‘From an old European Collection’ is a common enough auction appellation, but one that might hide an old family heirloom or a recently looted (or fake) piece. Who is to know? The only cautious response is to regard all unprovenanced material as looted.” For example, the global market for Cambodian antiquities is broad and many recent sales through prominent auction houses have been put on the block with no ownership history whatsoever (Davis 2011). Indeed, most antiquities on the market are sold without provenience documentation, which is a very strong indicator that the items have in fact been looted (Brodie 2006; Chippindale and Gill 2000). Often indistinguishable from licitly obtained items, the international antiquities market thus becomes a locus of licit-illicit interfacing.

Shades of Gray That the objects themselves represent a licit-illicit nexus is but one “gray” element of the global antiquities trade. A second “gray” dynamic of the trade involves its socially broad cast of characters, both licit and illicit, ranging from local, small-scale looters and thieves to middlemen to upscale buyers, collectors and institutions. The antiquities trade is, in fact, as Meyer (1973, p. 156) observes, a “democratic demimonde”, comprising both “rich and poor,

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highborn and lowborn […] all [are] citizens within it”. The fact that it is not always a distinct licit-illicit dichotomy among actors in the antiquities trade, no “us (the ‘goodies’) versus them (the ‘baddies’)” further turns the market a more ambiguous shade of gray (van Duyne et al. 2002, p. 2). Another factor that characterizes the antiquities market as a licit-illicit interface involves the ways in which the illicit dynamics or actors in the trade can “collide or collaborate” with the licit dynamics or actors in the trade (Tijhuis 2006, p. 15). Passas (1998) calls these licit-illicit interfacings criminogenic asymmetries or “structural disjunctions, mismatches and inequalities in the spheres of politics, culture, the economy, and the law; asymmetries are criminogenic in that they generate or strengthen the demand for illegal goods or services, they generate incentives for particular actors to participate in illegal transactions, and they reduce the ability of authorities to control illegal activities” (Ibid., p. 23). One such example of a criminogenic asymmetry is illustrated by the common law nemo dat, by which a thief can neither convey good title nor can good title be claimed through a thief, even if the property is transferred to a good faith purchaser (Gerstenblith 2004). In countries following a continental European civil legal tradition, however, good title can be conveyed if the object is purchased in good faith. Practically speaking, this means that even if an antiquity is looted and illegally exported, if it is subsequently purchased in good faith, then the good faith purchase is favored and the object is no longer legally construed as stolen (Brodie 2002). With “good” title now secured, an illegally obtained antiquity may be legally exported and circulated on the antiquities market (Alder and Polk 2005). Giacomo Medici, an Italian antiquities dealer who was convicted in 2005 of illegal exportation of goods, conspiracy to traffic and receiving stolen goods, sold the famous, illegally excavated Euphronios Krater1 to an American dealer by way of Switzerland, a country which, because of various loopholes in its property laws which facilitate clear title to a stolen antiquity if purchased in good faith, has become the primary country for the laundering and transnational movement of classical antiquities (Silver 2009; Kunitz 2001). Such legal incongruencies further highlight the variability of “licit” and “illicit” as socially constructed legal characterizations that vary through both time and space (Carducci 2006). A final and perhaps most disturbing factor, which illustrates the “grayness”  of the international antiquities trade, is its increasing overlap with 1  The Krater was subsequently sold to the Metropolitan Museum of Art in New York, where it remained in the museum’s collection of Classical Antiquities from 1972–2008; the Krater was returned to Italy in 2008 when sufficient evidence was gathered in Italian investigations to show that it had in fact been illegally excavated and smuggled out of Italy by way of Switzerland (Brodie 2012).

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other transnational criminal activities. There now exists an abundance of evidence ­documenting the involvement of drug traffickers, arms smugglers, organized crime syndicates and even terrorist groups in the looting, trafficking and even destruction of antiquities and other objects of cultural significance for ideological reasons (c.f. Luck 2013; Baker 2012; Dietzler 2013; Bogdanos 2011; Proulx 2011; Becatoros 2008; Bowman 2008; de la Torre 2006; Watson 2006; Kaplan 2005; McCalister 2005; Fidler 2003; Brodie et al. 2000; McManamon and Morton 2007; Bernick 1998). In 2011, for example, the Taliban declared two monumental sculptures of Buddha in Afghanistan to be insulting to Islam; in what has since been labeled an act of “cultural terrorism”, these priceless sculptures were blown up (Francioni and Lenzerini 2006, p. 31). Antiquities from Syria and Iraq are also known to have been plundered and subsequently sold by ISIS to fund its terrorist activities (Shabi 2015; Taub 2015). In addition to the ideological motivations for these destructive activities, there are thus economic and commercial incentives for looting and antiquities trafficking. The nexus of antiquities with these other modern transnational threats raises the problem of antiquities to crisis proportions, requiring immediate action from both local and international communities. The antiquities trade’s status as a licit-illicit, “gray” or “dirty” economy has further imperiled the future of human cultural heritage and what exactly to do about it is hardly a black-and-white matter. Moreover, with the increasing overlap with further transnational illicit activities, as noted above, the situation has escalated to the point where the past is no longer simply endangered—it is under siege. What is clear, however, is that as the world’s invaluable archaeological resources continue to be plundered for profit, there is pressing need for more criminological research on the antiquities licit-illicit interface as a “gray” market, especially examining archaeological-site looting, playing in the supply (illicit) and demand (licit) tug of war of trade.

Bibliography Alder, C., & Polk, K. (2005). The illicit traffic in plundered antiquities. In P. Reichel (Ed.), Handbook of transnational crime and justice. Thousand Oaks, CA: Sage Publications. Baker, A. (2012, September 12). Syria’s looted past: How ancient artifacts are being traded for Guns. Time. Retrieved June 8, 2015, from http://world.time. com/2012/09/12/syrias-looted-past-how-ancient-artifacts-are-being-tradedfor-guns/.

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Becatoros, E. (2008, March 19). Smuggled antiquities funding Iraq extremists, U.S. says. National Geographic News. Retrieved June 8, 2015, from http://news.nationalgeographic.com/news/2008/03/080319-AP-iraq-insurg.html. Berdal, M., & Serrano, M. (2002). Introduction. In M. Berdal & M. Serrano (Eds.), Transnational organized crime and international security: Business as usual? Boulder, CO: Lynne Rienner Publishers, Inc. Bernick, L. (1998). Art and antiquities theft. Transnational Organized Crime, 4(2), 91–116. Bogdanos, M. (2011, July 7). Illegal antiquities trade funds terrorism. CNN. Retrieved June 8, 2015, from http://edition.cnn.com/2011/WORLD/ meast/07/07/iraq.looting.bogdanos/. Bowman, B. (2008). Transnational crimes against culture: Looting at archaeological sites and the grey market in antiquities. Journal of Contemporary Criminal Justice, 24(3), 225–242. Brodie, N. (2002). Introduction. In N. Brodie & K. Tubb (Eds.), Illicit antiquities: The theft of culture and the extinction of archaeology. London: Routledge. Brodie, N. (2006). An archaeologist’s view of the trade in unprovenanced antiquities. In B.  Hoffman (Ed.), Art & cultural heritage. Cambridge: Cambridge University Press. Brodie, N. (2012). Euphronios (Sarpedon) Krater. Trafficking Culture. Retrieved June 5, 2017, from http://traffickingculture.org/encyclopedia/case-studies/euphroniossarpedon-krater/. Brodie, N., Doole, J., & Watson, P. (2000). Stealing history: The illicit trade in cultural material. Cambridge: The McDonald Institute for Archaeological Research. Buckwalter, J. (Ed.). (1990). International perspectives on organized crime. Chicago, IL: University of Illinois Press. Carducci, G. (2006). The growing complexity of international art law: Conflict of laws, uniform law, mandatory rules UNSC resolutions and EU regulations. In B. Hoffman (Ed.), Art & cultural heritage (pp. 68–85). Cambridge: Cambridge University Press. Chippindale, C., & Gill, D. (2000). Material consequences of contemporary classical collecting. American Journal of Archaeology, 104(3), 463–511. Clifford, W. (1973). Development and crime. Chichester: Rose. Clifford, W. (1975). New dimensions in criminality: National and transnational. Australian and New Zealand Journal of Criminology, 8(2), 67–85. Davis, T. (2011). Supply and demand: Exposing the illicit trade in Cambodian antiquities through a study of Sotheby’s auction house. Crime, Law and Social Change, 56(2), 155–174. de la Torre, L. (2006, February 20). Terrorists raise cash by selling antiquities. Government Security News, 4(3). Retrieved November 15, 2006, from http://www. gsnmagazine.com/pdfs/38_Feb_06.pdf. Dietzler, J.  (2013). On organized crime in the illicit antiquities trade. Trends in Organized Crime, 16(3), 329–342.

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Drapkin, I. (1989). Crime and punishment in the ancient world. Lexington: DC Heath & Co. Edwards, A., & Gill, P. (2006). Introduction. In A.  Edwards & P.  Gill (Eds.), Transnational organised crime: Perspectives on global security. London: Routledge. Fidler, S. (2003, May 24). A black art: How the trade in stolen artifacts aids money laundering, organized crime, and terrorism. Financial Times. Retrieved February 1, 2008, from http://search.ft.com/ftArticle?queryText=fidler+a+black+art&aje=t rue&id=030523006091&ct=0&nclick_check=1. Francioni, F., & Lenzerini, F. (2003). The destruction of the Buddhas of Bamiyan and international law. European Journal of International Law, 14(4), 619–651. Francioni, F., & Lenzerini, F. (2006). The obligation to prevent and avoid destruction of cultural heritage: from Bamiyan to Iraq. In B. Hoffman (Ed.), Art & cultural heritage: Law, policy & practice. Cambridge: Cambridge University Press. Gardner, T., & Anderson, Y. (2012). Criminal law (11th ed.). Belmont, CA: Wadsworth. Gerstenblith, P. (2004). Art, cultural heritage, and the law: Cases & materials. Durham, NC: Carolina Academic Press. Hoock, H. (2010). Empires of the imagination: Politics, war, and the arts in the british world, 1750–1850. London: Profile Books. Kaplan, D. (2005, November 27). How jihadist groups are using organized-crime tactics—And profits—To finance attacks on targets around the globe. US News & World Report. Retrieved February 5, 2008, from http://www.usnews.com/usnews/ news/articles/051205/5terror_4.htm. Kunitz, M. (2001). Switzerland and the international trade in art and antiquities. Northwestern Journal of International Law and Business, 21(2), 519–542. Luck, T. (2013, February 12). Syrian rebels loot artifacts to raise money for fight against Assad. Washington Post. Retrieved June 8, 2015, from http://www. washingtonpost.com/world/middleeast/syrian-rebels-loot-artifacts-to-raisemoney-for-fight-against-assad/2013/02/12/ae0cf01e-6ede-11e2-8b8de0b59a1b8e2a_story.html. Mackenzie, S. (2005). Going, going, gone: Regulating the market in illicit antiquities. Leicester: Institute of Art and Law. McCalister, A. (2005). Organized crime and the theft of Iraqi antiquities. Trends in Organized Crime, 9(1), 24–37. McManamon, F., & Morton, S. (2007). Reducing illegal trafficking in antiquities. In F. McManamon & A. Hatton (Eds.), Cultural resource management in contemporary society: Perspectives on managing and presenting the past. London: Routledge. Meyer, K. (1973). The plundered past. New York: Athenaeum. Passas, N. (1998). Globalization and transnational organized crime: The effects of criminogenic asymmetries. Transnational Organized Crime, 4(3&4), 22–56. Phillipson, D. (1973). Smuggling: A history 1700–1970. Devon: Biddles Limited Guildford.

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Proulx, B. B. (2011). Organized criminal involvement in the illicit antiquities trade. Trends in Organized Crime, 14(4), 1–29. Proulx, B. B. (2012). Looting at archaeological sites in “glocal” perspective: Nature, scope, frequency of the problem. American Journal of Archaeology, 117(1), 111–125. Robinson, J. (2000). The merger: The conglomeration of international organized crime. Woodstock, NY: Overlook Press. Rowe, D. (2002). Biology and crime. Los Angeles, CA: Roxbury Publishing. Ruggiero, V. (1997). Transnational criminal activities: The provision of services in the dirty economies. International Journal of Risk, Security, and Crime Prevention, 3(2), 121–129. Shabi, R. (2015, July 3). Looted in Syria and sold in London: The British antiques shops dealing in artefacts smuggled by Isis. The Guardian. Retrieved June 1, 2017, from https://www.theguardian.com/world/2015/jul/03/antiquities-looted-byisis-end-up-in-londonshops. Shahidullah, S. (1998). The nationality and globality of social science. In P. Nandi & P. Shahidullah (Eds.), Globalization and the evolving world society. Leiden: Brill. Silver, V. (2009). The lost chalice. New York: Harper Collins. Steele, F (1948). The code of Lipit-Ishtar. Philadelphia, PA: University of Pennsylvania Museum Monographs. Reprinted from the American Journal of Archaeology, 52(3). Retrieved June 8, 2015, from http://oilib.uchicago.edu/books/steele_code_of_ lipit-ishtar.pdf. Taub, B. (2015, December 4). The real value of the Isis antiquities trade. The New  Yorker. Retrieved June 1, 2017, from http://www.newyorker.com/news/ news-desk/the-real-value-of-the-isis-antiquities-trade. Tijhuis, E. (2006). Transnational crime and the interface between legal and illegal factors: The case of the illicit art and antiquities trade. Nijmegen: Wolf Legal Publishers. Van Duyne, P., et al. (Eds.). (2002). Upperworld and underworld in cross-border crime. Nijmegen: Wolf Legal Publishers. Watson, P. (2006). The Medici conspiracy: The illicit journey of looted antiques from Italy’s tomb raiders to the world’s greatest museums. New York: Public Affairs. Williams, P. (1998). Organizing transnational crime: Networks, markets, hierarchies. Transnational Organized Crime, 4(3&4), 57–87.

5 INTERPOL and International Trends and Developments in the Fight Against Cultural Property Crime Saskia Hufnagel

Introduction One of the most exciting news in 2018 was the successful international law enforcement cooperation initiative ‘Operation Demetra’ led by Europol, as well as the Italian, Spanish and German police and the Metropolitan Police, London. According to Europol the  operation targeted an organised crime group and police recovered 25,000 archaeological items worth €40 million (Europol 2018a; BBC 2018b). Twenty-three suspects were arrested on 4 July 2018. Key facilitators of the group were situated in Barcelona and London, justifying the participation of the Spanish and UK police in the investigation. Both Europol and Eurojust had supported the investigation. Europol hosted and financed operational meetings, provided support on the action day and facilitated information exchange, while Eurojust coordinated the execution of the arrests and searches in the four member states (Europol 2018a). The investigation into the organised crime group had been ongoing for four years, and the cultural objects were looted from sites in Italy and exported illegally before being sold at auction houses in Germany. Despite the constant claims that art crime is not organised, in this case, Europol asserted that the group was ‘very well organised’ (BBC 2018b). At the end of 2017, a similar operation had resulted in more than 41,000 valuable objects being seized. According to Europol, items seized included S. Hufnagel (*) Queen Mary University of London, London, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_5

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paintings, sculptures, musical instruments, furniture and ancient weapons (BBC 2018a). Compared to the more recent investigation outlined above, this operation was even more impressive with a view to international policing efforts as customs and police officers from 81 countries took part in the successful raids. Police checks targeted, in particular, airports, auctions and internet sales (Ibid.). This was the first global customs-police operation, code named ATHENA, and organised by the World Customs Organization (WCO) in cooperation with the International Criminal Police Organization (INTERPOL). The regional Europe-focused operation PANDORA II was coordinated by the Spanish Guardia Civil and Europol (Europol 2018b). Police seized more than 2000 culturally significant items in Spain alone. Most of these were coins from the Roman Empire and archaeological objects. Other seizures included pieces of ivory; a carving of Christ valued at €6000; historical weapons, such as rifles and shotguns, swords, katanas and a crossbow, revolvers and pistols (Europol 2018b; BBC 2018a). In Greece, the Hellenic police seized 41 archaeological objects from a collector and discovered that from a legal collection of 1133 coins of silver, bronze and gold of the second century BC until 200 AD, 15 coins were missing, and from a legal collection of 105 ancient objects, 26 objects were missing. A total of 1252 cultural goods were subsequently confiscated (Ibid.). What becomes clear from these recent and very successful cases is that international law enforcement cooperation has become a crucial element in the fight against cultural property crime. While this chapter is based on a previous publication on INTERPOL’s involvement in the field (Hufnagel 2014), the extent to which cooperation has been pursued and the size of the investigations, in terms of both national and international law enforcement agencies involved as well as amount and value of objects seized, appears to have grown significantly in the last four years. It also becomes very clear that INTERPOL cannot be looked at in isolation. Many other agencies  and organisations play a role, such as Europol, Eurojust and the WCO, to name just a few. If, like in the investigations outlined above, a law enforcement operation includes up to 81 countries from both within and outside of Europe, all the resources available must be pooled. Of course, the European Union (EU) has more specialised possibilities to target organised crime in the region and operational as well as financial support mechanisms that are not available at the international level. However, there is a growing support internationally, for both INTERPOL and the WCO that should not be overlooked. This chapter will first look at INTERPOL as an international organisation and its development of specialised mechanisms to fight crimes against cultural

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property. First, a historical overview of the organisation is given, including an outline and analysis of the Stolen Works of Art database and its use. The chapter then addresses international cooperation and partnerships that, as stated above, have become far more prominent in recent years. This part of the chapter is followed by a forward-looking section describing the plans to develop more effective mechanisms in the future with a particular focus on the PSYCHE Project that is just becoming operational. The chapter concludes that international law enforcement cooperation is an important aspect in the fight against cross-border crime and, in particular, that multiple international bodies have to work together in targeted operations to make such efforts successful.

 he History of International Police Cooperation T in the Fight Against Cultural Property Crime INTERPOL is probably the first manifestation of a coordinated international policing effort in the fight against cross-border crime and its roots can be traced to the late nineteenth century (Fijnaut 1995, pp. 115–116). It was created as the first permanent international body of security cooperation in 1923, and established in Vienna as the International Criminal Police Commission (ICPC) (Occhipinti 2003, p. 29). The aim of the organisation was the creation of stability in Western Europe in the aftermath of the effects of World War I and the Russian Revolution (Fijnaut 1995, p. 116). In 1946, following the Nazification of the ICPC, the organisation was re-established in Paris and emerged, in its current form, after 1989  in Lyon (Deflem 2002, p. 179). INTERPOL, unlike Europol (Block 2014, p. 199), is considered a truly international cooperation mechanism since it is open to all nations of the world to join. It comprised 194 member countries at the time of writing (INTERPOL n.d.). Its legal basis is the INTERPOL constitution, which is not  a binding international treaty  as its members are not states but police forces. However, INTERPOL is recognised by the United Nations (UN) as an international organisation which seems at odds with its structure. Since 1925 INTERPOL has been involved in the fight against cultural property crime. The INTERPOL art crime unit, currently headed by Corrado Catesi from Italy, who succeeded Karl-Heinz Kind, seconded from the German police, was established in 1963. In its beginnings it focused mainly on stolen works of art and cultural property. Pictures and/or descriptions of works of art stolen from, for example, museums or collections were circulated in the form of INTERPOL print notices alerting to the loss of valuable pieces of art. The print notices evolved to become a computerised index of interna-

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tional art thefts in 1995. Since 1999 all member states have access to it, and the access is granted to institutions other than police to maximise the spread of information (Kind 2009). In addition to police, more than 1600 users from 80 countries representing customs, state authorities, cultural institutions, art professionals and private collectors have public access rights to this database (INTERPOL 2015, p. 15). In 2005 the index became the Stolen Works of Art database and has since then been available for direct searches online for all law enforcement agencies through INTERPOL’s I24/7 system (Noce 2006). In 2009 the database went ‘public’ and access is today granted to every person with a legitimate interest (INTERPOL 2010, p. 40). The INTERPOL Stolen Works of Art database contains descriptions and pictures of cultural objects reported as stolen by the National Contact Bureaus (NCBs) from INTERPOL member countries. Authorised users can also provide information in real time. These include  international partners, such as the International Council of Museums (ICOM), the International Centre for the Study of the Preservation and Restauration of Cultural Property (ICCROM) and UNESCO. In July 2017, the number of items registered on the database was 50,000. About 80% of registrations were provided by European countries (Bortolotti 2017), which shows the strong concentration on Europe in this area within INTERPOL. However, in 1998, according to the INTERPOL Annual Report (1999, p. 14), 90% of works of art reported to the database had been from Europe, so a slow (10% in 18 years) shift can be noticed away from European exclusivity. In the INTERPOL Annual Report of 2001 (2002, p. 7), mention was already made of a more targeted strategy to increase input by the Americas to the database, which wielded small successes. The 10% increase in 2017 is consequently mainly owed to the Americas’ more frequent input of records (Bortolotti 2017). In 2006 the database was made more user-friendly and an electronic automated search facility via I-24/7  in English, French and Spanish was introduced. In 2006, the number of searches of the database consequently jumped from 287 in 2005 to 3800. An enhanced DVD was furthermore introduced to replace the previous CD-ROM version of the database, with better image quality and increased storage capacity (INTERPOL 2007, p. 11). The INTERPOL database of Stolen Works of Art has over the years of its existence experienced significant growth, acceptance and use (see Table 5.1). Looking at the most recent numbers from INTERPOL Annual Reports, in 2016 the database contained 49,558 records and was searched 33,886 times as opposed to 46,610 records and 48,825 searches in 2015 and 44,986 records and 34,570 searches in 2014. The INTERPOL Annual Report of 2014 shows the increase of searches in the statistics from 27,052 records and 261 searches in 2004 and 34,719 records and 5097 searches in 2009 to todays’ numbers of about 50,000 records and 40,000 searches per year. This is a significant

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Table 5.1  Records and searches of the INTERPOL Stolen Works of Art database according to INTERPOL Annual Reports 2002–2016 Year 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002

Records 50,000 49,558 46,610 44,986 42,910 40,814 38,347 36,112 34,719 32,841 31,546 30,180 28,569 27,052 24,707 20,492

Searches 33,886 48,825 34,570 38,893 43,579 13,942 5,097 7,187 4,927 3,877 287 261 21 422

Source: INTERPOL Annual Reports 2002–2016; Information compiled and table created by the author

increase in use of this database. According to information compiled by the author from the annual reports of 2012–2016 as well as various earlier outputs (starting from 1998), the use of INTERPOL in a 13-year period has doubled with regard to the number of records provided from 24,707 records in 2003 to 50,000 in 2017 and the amount of searches multiplied even more significantly from 21  in 2003 to 33,886  in 2016. However, it needs to be noted here that searches in 2002 (422) were far higher than in 2003 (21) but then slowly began to rise again in 2004 (261). While the searches experienced several ups and downs, most notably in 2003 (down), 2006 (up), 2012 (up) and 2016 (down), the number of records uploaded onto the database increased throughout all years at a steady pace (INTERPOL 2013, p. 21). Many other efforts apart from the database have been made to support the work of INTERPOL in the area of cultural property crime. In 1998, a comparative study of the language used to describe works of art in the INTERPOL database and in national databases was conducted to improve the use of and compatibility with national databases. The aim was to interconnect the existing Stolen Works of Art databases with each other, including both public and private (INTERPOL 2000). To spread the information on stolen works of art, CD-ROMs were given out to dealers and auction houses, museums and private collectors, which proved to be a challenging mechanism as the information could in this way not be updated (INTERPOL 1999). However, the distribution of CD-ROMs did lead to a number of successful returns of stolen works of art through cooperation with museums in particular.

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Another important contribution by INTERPOL to the fight against art crime was (and is) the regular organisation of conferences, seminars and workshops. Most of these events are instigated in cooperation with member states, international organisations, such as UNIDROIT and UNESCO, and stakeholders, such as the Getty Information Institute and the Art Loss Register (Ibid.; INTERPOL 2002). In 1996 INTERPOL had also developed the CRIGEN/Art Form for information about stolen cultural objects. The standard form constitutes a request for the issue of an international notice for stolen or recovered works of art. It used to be the basic document for entering information onto INTERPOL’s Automated Search Facility (ASF) system (INTERPOL 2000). Another interesting development when looking at the discourse on cultural property crime between 1998 and 2016 in the INTERPOL Annual Reports is that the term ‘art’ is used exclusively from 1998 to 2002. In 2003, with the outbreak of the Iraq war and subsequent looting, the term ‘cultural property’ was used for the first time (INTERPOL 2004, p. 7). Other developments in 2003 were that two posters of most wanted works of art were produced and widely distributed and the INTERPOL General Secretariat organised an international conference on cultural property in Iraq. Two new forums for cooperation to retrieve the works of art were subsequently created—the INTERPOL Tracking Task Force and an Expert Group. Successful recoveries of Iraqi looted art were reported for the first time in 2006 (INTERPOL 2007, p. 11). A cooperation agreement with UNESCO was furthermore signed to establish a joint project for the recovery of stolen works of art in Iraq (Ibid.). Despite the establishment of the Expert Group on Cultural Property, from 2005, there is again no mention of ‘cultural property’ in the annual reports. The term re-appears in 2007, due to the increase in sales of cultural property over the internet (INTERPOL 2008, p. 24). According to the INTERPOL Annual Report 2016 (2017a), illicit looting, trafficking and sale of cultural artefacts have taken on greater significance since UN Security Council Resolution 2199 was adopted in 2015. The resolution establishes a direct link between the trafficking of cultural goods in the region—particularly conflict zones in the Middle East—and the funding of terrorism, and explicitly prevents such trade with ISIL (Daesh) and other extremist entities. United Nations Security Council Resolution 2199 of 12 February 2015, para 17 reiterates the decisions of paragraph 7 of Resolution 1483 (of 22 May 2003) and ‘decides that all Member States shall take appropriate steps to prevent the trade in Iraqi and Syrian cultural property and other items of archae-

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ological, historical, cultural, rare scientific and religious importance illegally removed from Iraq since 6 August 1990 and from Syria since 15 March 2011, including by prohibiting cross-border trade in such items, thereby allowing for their eventual safe return to the Iraqi and Syrian people and calls upon the United Nations Educational, Scientific and Cultural Organization, INTERPOL, and other international organizations, as appropriate, to assist in the implementation of this paragraph’. In line with the resolution, INTERPOL and UNESCO consequently met in Lebanon to develop a clear picture of the extent of illicit trafficking of cultural artefacts, assess the implementation of the UN resolution and share expertise among the different organisations working together to support Iraq and Syria. A further constant challenge for INTERPOL is its lack of funding, which is also noticeable in the area of art crime. It is therefore crucial to secure external funding for specific projects. Since 2016 funding has been secured by INTERPOL for numerous initiatives, among them the protection of cultural heritage. According to its latest Annual Report (INTERPOL 2017a), the INTERPOL Foundation for a Safer World is an independent entity serving as a central point to receive external contributions intended to fund INTERPOL’s crime-fighting programmes and activities. For the years 2016–2020, the Foundation managed to secure a contribution of €50 million (mainly due to a contribution from the United Arab Emirates (UAE)). A total of €10 million was received for the year 2016, and one of the seven projects supported through this contribution is the protection of cultural heritage. In 2015 the ‘Protecting Cultural Heritage—An Imperative for Humanity’ initiative was launched at the United Nations by UNESCO, INTERPOL, the UN Office on Drugs and Crime and the governments of Italy and Jordan. The project focuses on the protection of cultural heritage threatened by terrorists and illicit traffickers. It aims at fostering the creation of relevant resolutions and decisions by the UN Security Council, UN General Assembly and other international bodies. The INTERPOL Annual Report of 2012 (INTERPOL 2013) specifies the role of NCBs of INTERPOL.  As INTERPOL’s presence in each member country, NCBs are actively involved in all INTERPOL activities and operations. They act as the link between national police forces and INTERPOL, in particular its network of databases. NCBs upload new data, for example, stolen cultural property and search for matches in the databases. NCBs are currently in the process of expanding access to INTERPOL databases to remote locations, such as airports and land borders, where it is most needed to intercept trafficked cultural objects, as evidenced by the successful operation con-

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ducted by INTERPOL in 2017 outlined above. In 2012 NCBs helped in the recovery of stolen artwork worth €100 million by exchanging crucial information on more than 160 individuals (INTERPOL 2013, p. 14).

International Law Enforcement Cooperation and Investigating Art Crime Cases International law enforcement action, such as an entry in the INTERPOL database, can be requested by a state if a theft from, for example, a museum or archaeological site, is reported to the national police, and it is suspected that the item has been brought out of the country. A state can also, through diplomatic channels, request authorities in another state, where it suspects a trafficked object present, to seize and return that object. This might, however, not be the easiest option as most states, with the most prominent exception of southern Europe, do not have the law enforcement capacity and expertise to help with such requests (Block 2014). Adding the object onto the INTERPOL database is hence a safe option, as it can prevent the legal sale of such objects and will certainly lower their price on the illicit market. Reactions to international art thefts differ from state to state. While some are highly publicised and attract both media and law enforcement attention internationally, others might not trigger any publicity. Beyond the actual detection and investigation of such crimes, the criminal prosecution is even more difficult, and none of it does necessarily lead to the recovery of the stolen art work (Oliveri 2014). As was pointed out by Patrick O’Keefe (2014), the element of embarrassment of private and state victims of art crime and considerations for political relations can also lead to international art crime not being reported, both at the national and at the international level. Legal insecurities, like those discussed by Duncan Chappell and Ken Polk (2014), can further contribute to a reluctance to report theft and other art crimes. Generally, the market does not seem to trust police at the national level. However, the possibility to put stolen works of art on the INTERPOL database is taken up frequently and is, according to the INTERPOL website, a very successful tool of art recovery (INTERPOL n.d.). If an owner wants to recover a stolen work of art and suspects it to have been brought out of the country, they can contact the Art Loss Register and/ or INTERPOL. Both databases can assist in recovering the objects and mak-

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ing their legal sale difficult. ICOM also issues a ‘Red List’ if the works of art concerned are archaeological objects from the most vulnerable areas of the world. The way INTERPOL member states’ NCBs can rely on INTERPOL’s services is rather straightforward. If, for example, a museum reports a work of art stolen, the first step of the investigation into the theft would be carried out by police in the state where the museum is located. However, as the stolen object might have been moved out of the country, it could be more useful to broaden the search for the stolen object to other countries, for example, by putting it on the INTERPOL Stolen Works of Art database and the Art Loss Register. If there is a suspicion that the object has been moved to another (specific) state, the investigation could occur through a liaison officer, provided the requesting state has a liaison officer stationed there. Otherwise, the states can cooperate through their INTERPOL NCBs (of course provided both states are member countries of INTERPOL). As outlined above, the NCBs link national police with the INTERPOL global network and are typically a division of a national police agency or investigation service, serving as the contact point for all INTERPOL activities in the field. The NCBs contribute to the INTERPOL criminal databases and cooperate together on cross-border investigations, operations and arrests. Information input into the INTERPOL Stolen Works of Art database has to be specific and is monitored through special forms asking for particulars on the work of art (Bortolotti 2017). The reason for this procedure is to make it possible to match a possible find. If, for example, a dealer is asked to sell the work of art, he/she can go onto the database to make sure the piece is not stolen and, if it is, can alert authorities to the find. If publication through the Stolen Works of Art database does not lead to recovery and the lost piece is of particular value or importance, the work of art could be included in the next issue of the INTERPOL poster series of the ‘most wanted works of art’ which is published every six months (Kind 2009). Provided the artwork is subsequently detected in another country, police would be alerted and could seize the piece as an act of mutual assistance and, in the absence of any specific mutual legal assistance treaty or agreement, by using assistance of the INTERPOL NCBs. With regard to the suspects, if their name and nationality, but not their location, is known, INTERPOL can issue an international wanted persons alert. This alert is, like the lost works of art database, distributed to national police and accessible generally over the internet (INTERPOL 2013). If the

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suspects are arrested in their home country, where they are nationals, this might prevent extradition as many countries do not extradite nationals. If they are arrested in another country, extradition can be requested. This procedure is outside the realm of INTERPOL’s competences as it concerns judicial cooperation. Situations that require the involvement of INTERPOL are often governed by international rules established, for example, at the level of the UN. These include, for example: • the 1929 International Convention for the Suppression of Counterfeiting Currency; • the United Nations Convention against Corruption (UNCAC); • the  United Nations Convention against Transnational Organized Crime (UNTOC); and • the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Relevant in relation to international cooperation in art crime cases can be the United Nations Convention against Transnational Organized Crime of 15 November 2000. If the theft were an instance of organised crime, Article 18 of the Convention prescribes that ‘the Parties are required to afford another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to offences covered by the Convention’. Mutual legal assistance can then be requested for the taking of evidence or statements, service of official documents, searches, seizures, freezing of assets, examining objects and sites and providing information and evidence (Article 18 (3)(a)–(e)). However, limitations exist with regard to domestic law of the requested state party (Article 18 (3)(i)). This means that any law enforcement action that is not provided for in the police procedure of the requested party, or prohibited under privacy laws of the requested party, cannot be requested. If the case cannot be construed in terms of organised crime, another possibility is to apply the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property or the 1995  UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. Both legal frameworks deal with theft but focus on the return of cultural property to its owner rather than with the criminal issues (O’Keefe and Prott 2011). Article 10(a) of the 1970 Convention requires States Parties to oblige dealers in antiquities subject to penal or administrative sanctions to maintain a registered recording of details on the item and supplier, as well as to inform the purchaser of the cultural property of an (if existing under national law) export prohibition. The effect of this section is to break the cycle of theft and laundering of stolen cultural goods.

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Because a number of State Parties have not legislated on, or have not implemented this provision, it has not had the desired effect on the widespread practice of laundering stolen property. There is therefore a move to draft a protocol to the United Nations Convention against Transnational Organized Crime 2000 (UNTOC) to establish an international crime of conspiracy in relation to illicit traffic in cultural objects (Prott 2014). While the use of the INTERPOL network and databases is transparent, international art crime investigations are extremely complex. While INTERPOL can help locate the stolen objects and suspected offenders, return of the object and prosecution as well as international criminal justice cooperation beyond the NCBs are not within its remit of competences.

INTERPOL International Partners in the Fight Against Art Crime INTERPOL works together with a number of agencies and institutions to enhance its impact in the fight against art crime. One such agency is, for example, the Art Loss Register, which is a privately run database on mainly stolen, but also forged works of art (see Ratcliffe in this volume). The Art Loss Register and INTERPOL are very similar in what they can provide, but according to INTERPOL, they complement each other in some respects. Cooperation between the two has been perceived as positive by both actors (Hufnagel 2014). INTERPOL also collaborates with UNESCO. As UNESCO cannot deal with crimes for its lack of law enforcement powers, it includes INTERPOL in cases where it suspects criminal activity. It also uses the INTERPOL database and its ‘Most Wanted Works of Art’ list to alert to lost works of art (Prott 2014). INTERPOL is further involved, together with UNESCO and the ICOM, in providing training initiatives in different regions of the world to improve awareness and knowledge of police practitioners with regard to art crime. Of growing importance in the international law enforcement cooperation against cultural property crimes is the World Customs Organization (see Polner in this volume). While the WCO Annual Reports 2013–2018 do not mention cultural property crime in detail, the WCO’s fight against it is contained in Strategic Goal 5 of the organisation, which prescribes as an aim the combat of ‘illicit trade to protect public health and safety, society and economic prosperity’. One of the areas of specific compliance and enforcement activities is the smuggling of items of cultural and heritage significance (WCO 2013). The WCO furthermore provides training for national customs agencies to prevent the illicit export of their national heritage. 

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To ensure the success of international investigations on cultural property crimes, it is crucial that INTERPOL works together with international public and private organisations to recover art, create knowledge and exchange information and intelligence. Some of the most crucial information for INTERPOL comes from the national level, in particular for the Stolen Works of Art database. If international art crimes are not reported by the national level there will be no involvement of INTERPOL. It is hence important that national police and customs report thefts and  detect stolen or unlawfully exported works of art from other countries. It would be even more desirable (and ­ etermine important for international/INTERPOL involvement) if they could d the origin of a piece. However, any law enforcement effort, whether national or international, relies on the country of origin wanting to take action.

INTERPOL Initiatives with Future Impact Historically, one of the most significant advancements of INTERPOL in facilitating cultural property crime investigations was reported to be the establishment of the Stolen Works of Art database and, in particular, its availability to every person with a legitimate interest (Hufnagel 2014). The INTERPOL database was made accessible to museums, galleries and private collectors and the monopoly of the police in this area vanished. Fears of police practitioners that this could lead to misuse of the database were uttered, but so far, no negative experiences have been reported (Ibid.). The current hope for a breakthrough in fighting cultural property crime lies on a new initiative, developed in 2008 and partly implemented in 2018. Highlighting yet again the European focus of the fight against cultural property crime, the French EU presidency had petitioned for the creation and implementation of a European database of stolen cultural goods (Council of the European Union 2008a). Europol refused the setting up of the system under its remit which opened up opportunities for INTERPOL. This gave birth to the idea for PSYCHE, the Protection SYstem for Cultural Heritage, which was partly implemented by INTERPOL in cooperation with other actors and institutions, such as the Italian Carabinieri, in 2018. The history of the project started in November 2008 when the Council adopted non-binding Conclusions on preventing and combating illicit trafficking in cultural goods which expressed approval for possible improvements to the INTERPOL database if they were in accordance with the needs of EU member states (Council of the European Union 2008b). After some time of inactivity, the Polish EU presidency put the debate about an art crime database back on the European agenda. It stressed, in particular, the importance of

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improving the existing system. The Council subsequently adopted new Conclusions on preventing and combating crime against cultural goods. The Conclusions (again) aimed at improving cooperation with INTERPOL and the development and implementation of a system that enabled urgent reporting of key events connected to crimes against cultural goods. Consequently, INTERPOL and Italy launched Project PSYCHE in 2012, to further increase the contents of the Stolen Works of Art database and facilitate queries. To improve the dissemination of stolen works of art information among NCBs in a unified way, INTERPOL helped Italy (Italian Carabinieri) to prepare a funding request for the development of structured works of art messages (INTERPOL 2012a, p. 23). Project PSYCHE was subsequently funded by the European Commission. It implements a formatted message system for inserting data, develops a service to transfer data directly from existing national databases and integrates an image-comparison system (INTERPOL 2013, p. 21). One improvement to the INTERPOL system is that PSYCHE enables direct data insertion by member countries and adds image recognition software to simplify the checking process. The main aim of the project is to help and encourage countries to participate in the INTERPOL system that so far have only supplied small amounts of data (few entries into the system), and that have no national database to support them in art crime investigations. To achieve easier access to and participation in the database, PSYCHE developed a formatted message system for submission of information on stolen works of art directly from a country’s NCB to the General Secretariat. While in the past the various INTERPOL NCBs had to send information relating to stolen works of art in free text messages, and the General Secretariat had to enter the information into the database manually, the new system significantly professionalises this procedure. Manual entries were, however, the first step towards the fully automatic insertion of data into the Stolen Works of Art database (INTERPOL 2012b). Another main aim of PSYCHE is to overcome problems relating to the harmonisation of different databases. Despite earlier efforts aimed at compatibility, INTERPOL and national databases on stolen works of art are still structured according to different criteria, making it impossible to exchange information automatically. Therefore, PSYCHE has developed an interface between them. This interface will be tested on the Italian ‘Leonardo’ database, owned and managed by the Italian Carabinieri Command for the Protection of Cultural Heritage. The interface allows for the creation of a platform for automatic data transfer from national databases to INTERPOL. All INTERPOL member countries can then access the information transferred directly from the ‘Leonardo’ database to INTERPOL’s new Stolen Works of Art database. As mentioned above, an image-comparison component has been added to the existing text search engine for queries about stolen works of art. The aim

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of adding this component is to increase the possibility of positive hits and matches between works of art stored in the INTERPOL database and those on the market, thereby also enhancing the chances of recovering stolen works of art (INTERPOL 2012b). Since the PSYCHE project started its operations in Rome under project leadership of Italy in March 2013, member countries benefiting from it have been listed as Austria, Belgium, Bulgaria, Cyprus, Estonia, France, Germany, Greece, Hungary, Malta, Slovenia, Slovakia, Spain and Sweden. Since then, one more country has been added to the list (the Netherlands), making up 15 member countries in total (INTERPOL 2017b). Many of these countries, such as Austria, Belgium, Bulgaria, Cyprus, France, Hungary, Slovakia, Slovenia and Sweden, had also from the very beginning given their political support to the project and were integrated as partners. After submission of the proposal to the EU Commission in October 2012, more EU member states became partners to the project, such as the Czech Republic, Estonia, Germany, Greece, Malta and Spain, later joined by the Netherlands. It is apparent from the list of countries partners to the project as well as from the funding body—the European Union—that PSYCHE is a Europe-­focused initiative. Financial support for the project is provided by the European Commission which notified Italy on 3 May 2012 that it would fund the Project PSYCHE. The project proposal hence only allowed EU member countries to be integrated as official partners. In the Report on the 81st INTERPOL General Assembly on Improving International Cooperation and Enhancing Information Exchange on the Illicit Traffic in Cultural Property, held in Rome in December 2012, the results of the project (formatted message, access to the database, search tools and training modules) were said to ‘benefit all INTERPOL member countries’ (INTERPOL 2012b). The report pointed out in particular ‘that several non-EU countries, including Australia, Canada and the United States, have expressed strong support for this project and have even started promoting it nationally to their specialized law enforcement agencies’ (Ibid.). However, the foreseen impact on non-EU member state was rated very low (Hufnagel 2014). Non-EU member states will likely benefit less from the facilitation of entry and search requirements which might encourage more engagement with the database and while there is strong enthusiasm by some non-European police practitioners regarding the fight against art crime, one cannot claim that the project was, until recently, promoted beyond Europe. However, things are likely to change in the future as INTERPOL becomes more oriented towards regions beyond Europe in the fight against cultural property crime. This development received particular impetus by the current leadership on the topic area at INTERPOL and the 10th International Symposium on the Theft of and Illicit Trafficking in Works of Art, Cultural Property and Antiquities was even co-hosted by Vietnam’s Ministry of Public Security held in Hanoi, Vietnam, in October 2018. 

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A further component of the Project PSYCHE is the training service (e-learning modules) which were developed as part of the project and provide information on how to use the database (INTERPOL 2012b).  Today, with the introduction of PSYCHE II, training also includes the use of the mobile app. The training is provided through a number of different initiatives, such as an interactive e-learning platform providing users with multimedia training tools, accessible to all member countries inside and outside the EU, information seminars in EU member countries participating in the initiative and a handbook covering the database and the protection of international cultural heritage in general, such as national and international law, information exchange, international cooperation, case studies and many other related topics (Ibid.). The training initiatives are provided in addition to the regular meetings INTERPOL organises, related to the fight against art crime, such as the bi-annual meetings of the expert working group on art crime and the above-mentioned annual international symposium. By creating personal contacts with a number of different agencies, these networking events are hoped to enhance police cooperation in the field. By 2016 Project PSYCHE was streamlined to a select number of aims, diverging slightly from the initial plans. The database allows member countries to autonomously insert, modify and delete information regarding works of art stolen in their respective countries, and to perform searches through image search technology. This is a major advancement and increases the use of the database. At the 10th International Symposium in 2018, PSYCHE II was presented as a tool that includes a mobile app for law enforcement and the general public, which will provide ‘on-the-go’ access to the Stolen Works of Art database. It works with advanced image matching technology, includes the possibilities of creating inventories and storing 3-D object images. Further to PSYCHE II other projects currently conducted by INTERPOL in the area were said to include increasing the volume of data and use of the Stolen Works of Art databases, improving the use of Purple Notices and special posters, encouraging the creation of special national units and increasing the cooperation with other international organisations such as ICCROM, WCO, ICOM, INODC, UNESCO, OSCE, SARPCCO and Europol. Comparing the current changes to the broadening of the search capacity of the database in 2006 and the resulting increase in searches, this will be an even more significant achievement.

Conclusion PSYCHE could be said to improve the fight against art crime though its initial plan was subjected to some limitations. PSYCHE has an effect on the recovery of stolen works of art certainly within the European Union (and, in particular, Italy), but hopefully also globally in the future. Including national

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records, such as one of the largest European databases—Leonardo—into the INTERPOL system, would further enhance the chances of discovering cultural property thefts, though not every European database is as rich as Leonardo, and some European member states still do not have a specialised database. PSYCHE is therefore, already in its current form, an improvement of international cooperation and exchange. Apart from PSYCHE, INTERPOL has already fostered the fight against cultural property crime since the 1960s, not only by establishing the Stolen Works of Art database, but by creating networking opportunities and support capacity with national agencies, international institutions and even private initiatives in the field. According to the INTERPOL Annual Reports 1998–2016, there have been numerous successful recoveries in recent years, in particular the major raids of 2017 and 2018 described at the beginning of this chapter. The most successful change to the INTERPOL Stolen Works of Art database so far has been the opening up of the system to everyone with a legitimate interest. According to both the statistics provided earlier in this chapter and the practitioner perceptions, these have significantly broadened the information input and led to acceptance by more and more players in the field (Hufnagel 2014; INTERPOL 1999–2017). The changes to database access made by PSYCHE and PSYCHE II will likely have a similarly positive effect. Looking back at the first version of this chapter, published in 2014, it could today be said that the fight against art crime is slowly moving from being a fight of dedicated individuals, to becoming a fight propelled forward by institutions, police forces or governments. Nevertheless, practitioners are still facing an art market that is a ‘closed shop’, clandestine and exclusive. Art crime, while surely rising in importance, is still not high on the list of priorities of most police forces and governments (Italy being one of the outstanding exceptions), and many art crime units (if they even exist) are run by one to five members of staff per country and/or institution. However, considering this low number of staff, national and INTERPOL successes in the area of art crime, especially in the last couple of years, can only be described as truly impressive.

Bibliography BBC. (2018a, February 21). 41,000 historical artefacts seized in crackdown  – Europol. BBC News. Retrieved July 6, 2018, from https://www.bbc.co.uk/news/ world-europe-43146036. BBC. (2018b, July 4). Artefacts worth €40m recovered in raids across Europe. BBC News. Retrieved July 6, 2018, from https://www.bbc.co.uk/news/worldeurope-44717855.

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Block, L. (2014). Policing art crime in the European Union. In D.  Chappell & S.  Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp. 187–205). Farnham: Ashgate. Bortolotti, F. (2017). Activities and tools of INTERPOL in the fight against illicit traffic in cultural property. Presentation at the 3rd AHRC Network ‘Art Crime and Criminals: Painting Fresh Pictures of Art Theft, Fraud and Plunder’. Workshop on Looting and Iconoclasm, Federal German Ministry of Finance, September 7–8, Berlin. Chappell, C., & Polk, K. (2014). The peculiar problem of art theft. In D. Chappell & S. Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp. 37–36). Farnham: Ashgate. Council of the European Union. (2008a). Draft conclusions on the creation and implementation of a European database of stolen cultural goods. Council document 11246/08. Council of the European Union. (2008b). Conclusions of the Council of the European Union on preventing and combating illicit trafficking in cultural goods. Council document 14224/2/08. Deflem, M. (2002). Policing world society. Oxford: Oxford University Press. Europol. (2018a, July 4). Hard Blow against illegal trafficking of cultural goods. Europol Press Release. Retrieved July 6, 2018, from https://www.europol.europa. eu/newsroom/news/hard-blow-against-illegal-trafficking-of-cultural-goods. Europol. (2018b, February 21). Over 41 000 artefacts seized in global operation targeting the illicit trafficking of cultural goods. Europol Press Release. Retrieved July 6, 2018, from https://www.europol.europa.eu/newsroom/news/over-41-000-artefacts-seized-in-global-operation-targeting-illicit-trafficking-of-cultural-goods. Fijnaut, C. (1995). International policing in Europe: Its present situation and future. In J.-P.  Brodeur (Ed.), Comparisons in policing: An international perspective (pp. 115–134). Aldershot: Avebury. Hufnagel, S. (2014). The INTERPOL “PSYCHE” program  – Advancements in International Police Cooperation on Art Crime. In D. Chappell & S. Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp. 255–266). Farnham: Ashgate. INTERPOL. (1999). INTERPOL annual report 1998. Lyon: INTERPOL. INTERPOL. (2000). INTERPOL annual report 1999. Lyon: INTERPOL. INTERPOL. (2001). INTERPOL annual report 2000. Lyon: INTERPOL. INTERPOL. (2002). INTERPOL annual report 2001. Lyon: INTERPOL. INTERPOL. (2003). INTERPOL annual report 2002. Lyon: INTERPOL. INTERPOL. (2004). INTERPOL annual report 2003. Lyon: INTERPOL. INTERPOL. (2005). INTERPOL annual report 2004. Lyon: INTERPOL. INTERPOL. (2006). INTERPOL annual report 2005. Lyon: INTERPOL. INTERPOL. (2007). INTERPOL annual report 2006. Lyon: INTERPOL. INTERPOL. (2008). INTERPOL annual report 2007. Lyon: INTERPOL. INTERPOL. (2009). INTERPOL annual report 2008. Lyon: INTERPOL.

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INTERPOL. (2010). INTERPOL annual report 2009. Lyon: INTERPOL. INTERPOL. (2011). INTERPOL annual report 2010. Lyon: INTERPOL. INTERPOL. (2012a). INTERPOL annual report 2011. Lyon: INTERPOL. INTERPOL. (2012b, December 5–8). General assembly – 81st session. Report No 4: Improving international cooperation and enhancing information exchange on the illicit traffic in cultural property. Rome, Italy. INTERPOL. (2013). INTERPOL annual report 2012. Lyon: INTERPOL. INTERPOL. (2014). INTERPOL annual report 2013. Lyon: INTERPOL. INTERPOL. (2015). INTERPOL annual report 2014. Lyon: INTERPOL. INTERPOL. (2016). INTERPOL annual report 2015. Lyon: INTERPOL. INTERPOL. (2017a). INTERPOL annual report 2016. Lyon: INTERPOL. INTERPOL. (2017b). Creating a national cultural heritage unit  – The value of a national unit dedicated to fighting crimes against cultural heritage and the illicit traffic of cultural property. Lyon: INTERPOL. INTERPOL. (n.d.). Member countries. INTERPOL World. Retrieved July 6, 2018, from https://www.INTERPOL.int/en/Internet/Member-countries/World. Kind, K.-H. (2009). The role of INTERPOL in the fight against the illicit trafficking in cultural property. In S. Manacorda (Ed.), Organised crime in art and antiquities. International Scientific and Professional Advisory Council of the United Nations Crime Prevention and Criminal Justice Programme. Noce, V. (2006, August 22). INTERPOL élargit sa base. Liberation. Retrieved July 6, 2018, from http://www.liberation.fr/culture/2009/08/22/INTERPOL-elargit-sabase_577169. O’Keefe, P. (2014). Difficulties in investigating art crime and recovering its proceeds: An international perspective. In D. Chappell & S. Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp. 151–168). Farnham: Ashgate. O’Keefe, P., & Prott, L.  V. (Eds.). (2011). Cultural heritage conventions and other instruments: A compendium with commentaries. Builth Wells: Institute of Art and Law. Occhipinti, J. (2003). The politics of EU police cooperation: Toward a European FBI? Boulder, CO: Lynne Rienner Publishers. Oliveri, V. (2014). A tale of two cities, a tale of two art thefts. In D. Chappell & S.  Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp. 79–100). Farnham: Ashgate. Prott, L. V. (2014). UNESCO’s influence on the development of international criminal law. In D. Chappell & S. Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp. 135–149). Farnham: Ashgate. World Customs Organization. (2013). World Customs Organisation annual report 2012. Brussels: World Customs Organisation.

Part II Art Theft

6 Art Theft: An Examination of Its Various Forms Duncan Chappell and Kenneth Polk

The Problem The purpose of this chapter is to examine the problem of art theft. For the criminologist, studying this form of theft is a major problem for the simple reason that the necessary data are not available. There is no body of official data that can be used to examine any form of art crime, including theft. Essentially, as far as official statistics go, all art thefts are within the “dark figure of crime”. What one has to do at the present time is to adopt a less than adequate strategy to approach this topic. Previously (Chappell and Polk 2014), we have made use of available media reports to examine art theft, a process we shall repeat here. An alternative approach has been suggested by Tijhuis (2009), and his findings are worth noting as we begin our analysis. Tijhuis limited his investigation to works that had been stolen in Europe between 1960 and 2003, from “major museums and private collections” and where the theft had been cleared by the arrest of a perpetrator (2009, p. 42). An issue with this particular form of analysis is that most art thefts occur in other locations (as we shall see), but this is one of the only empirical investigations available to us, and it has the

D. Chappell (*) University of Sydney, Sydney, NSW, Australia K. Polk University of Melbourne, Melbourne, VIC, Australia © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_6

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advantage of providing a starting point in terms of the approach taken by Tijhuis in the identification of the forms of art theft (he was well aware of the rather exceptional limitations of his data, by the way). In the data provided, Tijhuis has classified 39 thefts into the following seven categories: (1) The ‘Dr No’ type, collector-commissioned thefts; (2) the compulsive thief; (3) the thefts originating from the drug trade or more general Organised Crime; (4) ideological thieves with ‘higher purpose’; (5) thieves as ‘art nappers’; (6) internal thieves; and (7) common thieves. (2009, p. 42)

We shall discuss more about these categories later in the chapter, but we shall start by examining a large pool of thefts that are available mainly through media and scholarly accounts over the recent years. The task we have set for ourselves is to describe as best as we can the various forms that art theft appears to take so that we dip into this pool to find cases that seem to conform to the major social contexts that we have identified. Such an analysis is clearly quite exploratory, and it should be clear that only later investigations with more rigorous sampling strategies can verify whether the patterns we have identified bear up under careful and proper examination. It should also be clear, as we proceed with our analysis, that the social contexts we have chosen to describe bear only a vague resemblance to the categories of theft proffered by Tijhuis.

F irst Social Context: Residential and Allied Burglary Case One: In May 1985, a couple living in Melbourne, Australia, decided to sell their home. A first step in this process was to “show” the house, which means opening the house to prospective buyers who might be interested in purchasing the home, except, of course, a house so opened is available to those with other intentions, including potential burglars. A few days later, sure enough, the house was burgled. What made the burglary distinctive was that apparently the main objective of the theft was to steal the modest art objects: A couple of distinctive paintings from the native peoples of Eastern Canada, a large decorative Chinese robe framed in a case and hanging on another wall, a modest but rather good oil painting of a harbor scene as well as some minor household goods including a camera and a small television set. The nature of the burglary suggested that a major objective was to steal the art, the evidence for this being that the one ceramic jug that was stolen was among four or five others on the mantelpiece and was clearly the most valuable of the lot; the less attractive oils and any photographic reproductions were left

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behind, and little was taken other than the art. None of the works were recovered, and reimbursement for all important goods was obtained through household insurance cover. Curious, the owner took the time to have conversations with several of the police with responsibilities for dealing with such thefts, but was unable to find out more about the burglary. In particular, no information could be obtained regarding where the works might have gone. The art works were never seen again by the owners. Case Two: A group of local artists arranged a Pop Up Gallery exhibition of their recent works in a heritage office building owned by one of the group. Located in a trendy inner suburban area of Sydney, Australia, the temporary exhibition attracted considerable interest and patronage at its weekend launch in April 2013. Eighty-two works were listed for sale ranging in value from AUD 175 to AUD 6500. At the end of the weekend, the premises were secured with the works inside. No cameras or other security measures were put in place to guard the building. Subsequently, a local resident noticed that one of the exterior doors to the building was ajar. This security breach was reported to the local area police who on inspection discovered that a breaking and entering had occurred. Five paintings by just two of the artists had been stolen including two of the most expensive works on offer. A police investigation ensued, and to assist this action the group of artists produced a leaflet, distributed in the local community, displaying in full color the stolen works, all of which had been stolen in their frames. The two most valuable paintings were quite large, measuring 190 × 129 and 94 × 66 centimeters, respectively. Despite these measures none of the stolen art works have been located or any offender(s) apprehended. None of the works were insured against loss. It should be noted that both of these case descriptions are based on the personal knowledge and experience of the two authors; while each crime was reported to local police, they are not documented or referenced in any form accessible to public scrutiny. The reason why these accounts are available to us is because in Case One above, which occurred in Melbourne, one of the co-­ owners of the house that the art was stolen from is also one of the present authors of this chapter. In regard to Case Two, the Sydney-based co-author of the chapter attended the art exhibition from which the paintings were stolen, and was a personal friend of several of the artists who had their works on display. They are narratives that describe the features characteristic of probably the most common form of art theft. Residential and allied burglary is arguably the most frequent context within which art is stolen. Unfortunately, we have no idea how large the volume of art stolen through burglary is, since we lack any official crime data on the theft of art. The reasons for this data deficiency and its impact can be better illustrated by looking in more detail at the way in which the Pop Up Gallery burglary just described is dealt with in the

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official crime statistics regime in place in the Australian state of New South Wales (NSW), the jurisdictional location of the offense. In NSW, which, like its other state and territorial counterparts in the Australian Federation, has a single police force exercising statewide enforcement powers, the police have their own Computerized Operational Policing System, labeled “COPS”, into which all reported criminal events are entered. The database’s standardized reporting protocols allow, among other things, for the entry of the category of items stolen, their quantity and value. Thus, in the case of the Pop Up Gallery event, an NSW Police record does exist internally of the loss of the paintings. However, the fact that the event did involve the theft of art is not subsequently recorded or acknowledged in any official way in the statewide crime statistics maintained and published on a regular basis by the NSW Bureau of Crime Statistics and Research (BOCSAR). In BOCSAR’s eyes, the event comprised a “break and enter non dwelling” and would be reported under this crime category (see in general BOCSAR 2017). If the offense had occurred in a dwelling, it would have been officially categorized by BOCSAR as a “break and enter dwelling”. Similar crime reporting and recording practices apply in all of the other Australian states and territories. With the requisite perseverance and resources, criminologists should still be able to tap into what on the face of it is a valuable police data mine regarding art theft and its surrounding social context. Undoubtedly, such research activity will ultimately arise, but at present we can only surmise how prevalent art theft is among the myriad residential and nonresidential burglaries that occupy much of the time of law enforcement in most communities. Some glimpses of what may be on offer can be found in the continuing published crime research reports produced by BOCSAR. The breaking and entering of residential premises is one of the most voluminous offenses reported to NSW Police with more than 40,000 such crimes recorded in 2010 (Goh and Moffat 2011). In 2008–2009, 1 in 33 NSW households experienced a burglary, and in nearly two-thirds of these offenses, some object was stolen (Australian Bureau of Statistics (ABS) 2010). We also know from crime victimization surveys that a high proportion of such incidents are reported to the police. In a study that comes tantalizingly close to unlocking some specific information about the incidence of art theft, BOCSAR’s researchers have published a report (Fitzgerald and Poynton 2011) examining the changing nature of the objects stolen in household burglaries in NSW. Utilizing information gleaned from COPS, they listed the top 20 items recorded as stolen in incidents of household burglary over the period from 2001 to 2010. Fitzgerald and Poynton found that cash was ranked as the top item stolen in 2001 and 2010, with jewelry being number two in 2001 and number three

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in 2010. No mention is made in either of these years of paintings or similar art objects being among the top 20 items stolen; if such objects feature at all, it is presumed that they are most likely contained within a miscellaneous category, which ranked number 16 in 2010 but did not feature at all in 2001 (Fitzgerald and Poynton 2011, p. 2). Works of art are, of course, not limited to paintings, although we tend to think primarily of this art form when considering the topic of art theft. We will return to consider in more detail, in the concluding section of this chapter, the dilemmas of defining just what should be included in the term, but it is quite possible that within the broad category of jewelry are contained objects that many would consider works of art. Similarly, watches, another category listed by Fitzgerald and Poynton as among the top 20 stolen items, may well include vintage models that deserve to be labeled as works of art. All but two of the accounts of art theft available to us (as in what is discussed in the chapter) have been drawn from the public media. Ordinary, everyday burglary will usually not be considered significant enough to be publicized by newspapers or television. Most accounts that come to us as a result are thefts from major museums, as is true for most of the examples of art theft found in such standard texts as Bazley’s Crimes of the Art World (2010). Fortunately, there are also a few narratives of more common forms of art theft, occasionally available beyond the public media. Thus, close attention should be given to the two cases already described above by those interested in art theft, since in all likelihood comparable thefts contribute the largest percentage of actual thefts of art.

Second Social Context: Theft for Pleasure Our next context is what Tijhuis referred to as “compulsive thieves”, which we think is better described as “theft for pleasure” or thefts committed by, or perhaps ordered by, what Mayle (1997) in his fictional novel referred to as “gloaters”. This group of offenders steals for their own enjoyment, and they do not attempt to sell the art. Thus, they are vulnerable, primarily when they engage in the act of stealing the art. Case One: Among the cases of those known to have stolen art where they sought the art for their own enjoyment is that of Stephane Breitwieser, a waiter from France. Breitwieser was a prolific thief who stole over 200 works of art between 1995 and 2001 with a combined estimated value of over US$1 billion. He stole from over 172 museums and tended to specialize in sixteenth and seventeenth centuries’ artists. The most valuable work among the thefts was by Lucas Cranach

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the Elder (Sybelle, Princess of Cleves), where the estimated value at auction was five million English pounds. Typical of this type of theft, Breitwieser’s worry of apprehension was not at the danger point when the work is placed on the market—as it is for most art thieves—his problem was rather that of avoiding arrest during the theft itself. And, in fact, he was arrested nearby a museum in Switzerland, where he had stolen an object two days before, when a passerby became suspicious of his behavior outside of the museum and reported him to the authorities. Breitwieser was sentenced in 2005 to three years in prison, of which he served 26 months (Hooper 2003). Case Two: Similar dynamics are found in the narrative involving the arrest and sentencing of Mark Lugo (like Breitwieser, a restaurant waiter) for the theft of over US$700,000  in art works stolen in New  York and California. Lugo was first jailed in California for the theft of a work by Picasso from a gallery in San Francisco, but later was sentenced to between one and three years in New York for thefts that included a work by Fernand Leger from a gallery in Manhattan’s Carlyle Hotel. There is no mention in the accounts of any attempts by Lugo to sell the works, and, in fact, he displayed them on the walls of his New Jersey apartment (according to a brief account in the New York Post 2012). Case Three: In his historical survey of art theft, Esterow (1973, pp. 239–242) recounts the story of a Paris art thief with impeccable taste in the 1920s. At that time, there were a series of extraordinary thefts where the victim was extremely wealthy and of what was termed “exceptional taste”, and the items taken were always either a valuable painting or distinctive art object. Money or other valuables were not touched. The investigating police discovered that where an art work was stolen, it was the finest item in the collection. In a scene worthy of fiction, a trap was laid for the thief that involved creating a lavish evening party at the home of a supposed South American millionaire who just happened to have purchased a golden chalice recently. The ruse worked, and the police were able to follow the thief to a villa on the French Riviera. In the drawing room of the villa, they found a “breathtaking” array of stolen art treasures displayed on the walls. There are also accounts available to us of individuals who have died with stolen art in their possession. We cannot know for sure in these cases whether they are “gloaters” who realize for certain that the art in their possession is stolen, or if these individuals are simply persons who have not checked the provenance of the works that have been found in their possession after their deaths: Case One: An unusual and complicated case is that presented by William M. V. Kingsland (although it appears that his birth name was Melvyn Kohn). Whatever his name was, he seemed to be concerned with attempts to elevate his image, as when he claimed he lived on Park Avenue (his small apartment was actually on

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the East Side of 72nd in New  York), also that he had attended Groton and Harvard (he had been to neither) and that he previously had been married to a member of the French aristocracy (he had not). After his death in 2006 at age 58 (public records suggest that he might have been 62), when public administrators began to assess the many art objects that were crammed into his small apartment, over 300 works were found, including works by Copley, Henri, Corot, Lely, Toulouse-Lautrec and Picasso, among others. Many were found to have been stolen, most apparently in the 1960s and 1970s. One work, for example, a 1790 portrait by Copley of the Second Earl of Bessborough, had been stolen in 1971 from the Fogg Art Museum at Harvard University. Unfortunately, that is about all that is known. In fact, at this point it is not possible to say how many of the over 300 works actually were stolen (although it is known that several, such as the Copley, were). Important for present purposes, it, further, is not known who was responsible for the actual thefts. There is no mention in the available records of any acquaintance, friend or relative ever seeing any of the works in the apartment. So, however they came into his hands, Kingsland was not one who boasted to anyone about the rare collection of art he had accumulated. He seems to have been possibly a true “gloater”, one who apparently possessed art for his own pleasure, or certainly at least for his own reasons. In common with others who gather such works for their own enjoyment (or reasons, since in his case we know neither how, nor why, he came by the hundreds of works), there is no record of him ever placing a work onto the art market, thereby exposing himself to the risks of discovery. The work by Copley, for example, was quickly exposed as previously stolen when the art dealer who acquired it after Kingsland’s death checked on its provenance, a simple process that anyone might have undertaken had the work been placed on the open market (Konigsberg 2008). Some Other Cases: There are other cases where at the death of an individual works displayed by them are found on their walls that previously had been stolen. At least two such cases are discussed in the description by Webb (2008) of the work of the Art Loss Register. In one, at least three paintings had to be returned when the administrator of an estate in Florida discovered that the works had been stolen in the UK (Webb 2008, p. 53). In another, a Warhol painting stolen in 1980 turned up hidden away in a cupboard of a person who had been murdered in his flat in Paris in 2006 (Webb 2008, p. 12). In neither of these cases is there any information available now about how the paintings came into the possession of their now dead owners. None of these works could be placed on the open market, since a simple check with the Art Loss Register would reveal that these had been stolen. The distinctive feature of all of these cases of persons we have called gloaters, or possible gloaters, is that, as far as we know, at no point did the person in

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possession of the art works attempt to place them on the art market. Had this been attempted, the individual would have faced the peril of discovery that the work was stolen and then the legal consequences. As it was, the cases of the three known gloaters in our narratives, who were caught, were apprehended as a result of the rare moments of danger for those involved in this pattern, that is, during, or as a result of, the theft itself. In the other cases, the deaths of the individuals who were in possession of the art dictate that we are unable to state how the works came to be where they were. We can be certain that the works were stolen. A possible reason for hiding the paintings away and not placing them on the market was that such a step would result in at least the seizure of the art works, if not of those in possession thereof, but there are unfortunately other possibilities that might have occurred in these narratives. While in the investigation of Tijhuis only one example of this form of theft was identified (the Breitwieser case), we find more and would suggest that a more extensive research strategy would reveal this as a major pattern. We would also note in passing that the recent and much publicized Gurlitt Case in Germany (discussed elsewhere in this volume by Chappell and Hufnagel; see also Chappell and Hufnagel 2015) does bear some resemblance to this gloating category of art theft. Cornelius Gurlitt inherited from his father, Hildebrand Gurlitt, a prominent German art dealer, an extensive collection of valuable art works believed to have been acquired largely under duress, threat or compulsion from Jewish owners during the Nazi era. For decades after his father’s death in 1956, the reclusive Cornelius kept these art works in residences in Germany and Austria, selling only one or two of the collection quietly and without any query through auction houses in Germany and Switzerland. The collection only came into public purview in 2010 when German custom’s officials commenced an investigation into what was believed at first to be a tax evasion case. For Cornelius, the paintings were said to be: “More than just possessions. He talked to them. They were a substitute for family, friends, lovers. Gurlitt had only his artworks, and they were the only company he needed in his waning years” (Hickley 2015, p. 6).

Third Social Context: Taking Advantage of Trust Tijhuis (2009) identifies another form of theft that he terms “internal thieves” that we think might be better referred to as those who “take advantage of trust”. We found several different forms of this crime: Case One: When the well-known Australian artist Albert Tucker was in his 80s, he was befriended by an established art dealer, Max Joffe. As their relationship

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became reasonably close, Tucker asked Joffe to order and catalogue his private collection. This gave Joffe complete access to what amounted to a treasure trove of art containing works by Tucker and by such noted Australian artists as Arthur Boyd, Danila Vassilieff and Joy Hester. For Joffe, the temptation afforded by this rare opportunity was too great, and he stole large numbers of works and then sold them on to the market in his role as dealer. For the thefts, Joffe ultimately was charged with stealing 57 works, many of which have not been recovered. He was ultimately convicted of 24 counts of theft and received a custodial sentence (the thefts occurred in 1994 and the conviction was recorded in 1998). The artist’s biographer, Janine Burke (2002), indicated that Tucker was “crushed” by the revelations of the thefts and that it had a “devastating” impact on his life (details of this case can be found in Burke 2002 and Trioli 1998). Case Two: Unfortunately, this example of an elderly person taken advantage of by a younger helper is not unique. When he was in his late 80s, for a period of time, one of the persons looking after Mervyn Smith was Lilya Flaks. Smith was a reasonably successful Australian painter (living in Adelaide) who had sold works for as much as US$30,000 in the 1980s. Flaks was convicted of stealing a total of 28 watercolors worth more than US$500,000 from Smith’s Adelaide home. The details of the theft came to light when Flaks’s former partner, who had been given the art as a gift, attempted to have the works valued so that they could be sold (Fewster and Dowdell 2008). Case Three: This problem of taking advantage of elderly artists is hardly limited to Australia, as demonstrated by a case involving Picasso in France and focusing on his alleged relationship with an electrician. The electrician has argued that Picasso offered him as a personal gift 271 previously unseen works in return for work carried out at the artist’s houses between 1971 and 1973. All of this came to light when the electrician and his wife approached the Picasso Administration, which manages the Picasso estate, to have the works authenticated (the works had been stored in a garage near Cannes for close to 40 years). The son of the artist, Claude Picasso, was convinced that the works were stolen, and referred the matter to authorities, who ultimately indicted the electrician and his wife (Guerrin 2012). Both were subsequently convicted of the theft of 271 works and each received a two-year suspended prison sentence (Noce 2016). Case Four: In March 2012, the FBI announced that Stephen Biear, 51, Ossining, New York, had been sentenced to ten years in prison for stealing art work and money from his elderly and wealthy employer. The art included works by Warhol, Duchamp and Picabia, among others. The length of the sentence is in part explained by the fact that, in addition to the art, Biear stole over US$3 million from his employer by transferring money from the employer’s accounts to his own (FBI 2012).

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Case Five: There are many examples of museum or library insiders who work as tour guides, curators or security guards using their inside access to steal from their employing organization. In this St. Louis case, James H. Strassner (who had been a tour guide at the museum) was sentenced to three years on probation after pleading guilty to stealing six Civil War-era coins worth over US$18,000. The coins, dating from 1849 to 1862 had disappeared the day before a traveling exhibit was to open for the public (in mid-2011). This resulted in a wide public information campaign regarding the thefts, after which the coins were returned anonymously about a month later (Mann 2012). Case Six: A second example of museum insiders moves higher up the chain of responsibility in the museum world. This narrative occurred in a major museum in Russia. After several concerns were raised about security and possible theft at the Hermitage Museum in St. Petersburg, a nationwide museum audit was ordered by President Vladimir Putin. The audit at the Hermitage found that more than 200 items were missing from the Russian medieval art section. It was then established that the individual responsible for the thefts was actually the custodian entrusted with safeguarding the unit’s holdings, assisted as an accomplice by her husband and son. The works went missing in 2001, and some were recovered in 2007. The museum employee died of a heart attack shortly after the investigation was undertaken (RAI Novosti 2007). These cases involving various forms of “insiders” are instances where the role of the individual provides direct, legitimate access to works of art (see also Garrett, elsewhere in this volume). Few such insiders take advantage of their position. When they do, they may find themselves in the same position as criminals who are knowledgeable about how to steal things, but who are ignorant in terms of how to derive any financial return from the thefts. Since they are often not aware of the basic dynamics of the secondary art market, their attempts to enter that market may result in the ready identification of the art as stolen and their arrest as a consequence. Lest we think this a unique contemporary phenomenon, Esterow (1973, p.  136) tells the tale of a late nineteenth-­century butler in the Netherlands who actually made a prisoner of his elderly master and proceeded to sell many of his most valuable works of art.

Fourth Social Context: Organized Crime? A further category suggested by Tijhuis (2009) is that concerned with organized crime. There are problems with this category, beginning with the very notion of “organized crime”. Here we rely on relatively simplistic notions where the criminal behavior appears to be collective in nature and where the

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collective is fundamentally concerned with, and constructed around, the criminal behavior, in this case the theft of the art. First Case: In another research context, Tijhuis (2010, pp. 92–94) provides a description of the complex form of art theft engaged in by a person he identifies as “Cornelius M”. The thefts targeted large, wealthy French estates (apparently personally scouted and selected by Cornelius M), and involved at least 15 individuals who stole paintings, valuable antiquities, tapestries and furniture. The thieves themselves were never caught in the acts of theft. Once stolen, the goods were transferred to locations in The Netherlands and Belgium by special chauffeurs (one of whom provided crucial information to the police). After being moved, the mastermind of the operation (“Cornelius M”) sold the items to what Tijhuis describes as “complicit dealers” who then sold the items to customers primarily in Belgium and the south of The Netherlands. These dealers had shops mostly in areas remote from city centers (Tijhuis 2010, p. 93). Interestingly, “Cornelius M” twice previously had been charged with offenses involving receiving stolen antiquities and had even served a prison sentence. In fact, the start of the thefts involving this gang began almost immediately after he was released from this prior sentence. Cornelius M was sentenced to 14 years in prison in France, and 15 of his accomplices were given prison sentences ranging from one to six years. In this case, the central dealer was able to check out the territory to identify targets for the thieves who essentially stole to order. This dealer then worked through other dealers (providing the portal), and from there they were able to move their works onto the legitimate market and into the hands of customers. Second Case: Located in County Wicklow, Ireland, Russborough House has been the scene of four major art thefts, none of which proved successful for the thieves. One of the most notable of the Russborough thefts was the second, which took place 12 years after the first, in May 1986. Led by Martin Cahill, an Irish criminal gang stole 18 of the Russborough works (a Vermeer was stolen for the second time). Some of the works were smuggled out of Ireland and ended up in a variety of locations, including Istanbul (where three individuals were arrested in a sting operation in possession of one of the works). In fact, all but two of the works were recovered, including the Vermeer, which was part of a successful undercover sting in Antwerp, Belgium. According to police in the UK dealing with the case, the stolen art was used as a form of “negotiable instruments” to provide “venture capital” for drug trafficking (some of the art works had apparently turned up in an unrelated drug investigation). Throughout the narrative the criminal group exerted notable “financial ineptitude”, especially in their handling of the stolen art (Webb 2008, p. 34). Third Set of Cases: If thieves have a problem in terms of access to the legitimate secondary art market, a possible option, of course, is to seek out some illegitimate

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outlet for the sale of the stolen art works. One logical possibility that arises is that the works are “stolen to order” by a “Mr. Big” with deep pockets, who is willing to take the risks of purchasing such art (Cornford 2007). Tijhuis (2009, p.  42) names this category of art theft after “Dr. No”, the villainous character featuring in a James Bond movie of the same name who had a well-known stolen art work on display in his secret headquarters. He, like almost all those knowledgeable about the theft of art, tends to be skeptical that such individuals exist. However, considerable evidence is now emerging about the presence of a wide spread illicit market for stolen works and that some thieves do “work to order”. In March 2012, Italian police arrested three persons (a fourth was able to escape), who had worked on a scheme for over ten years whereby they broke into villas in Venice and replaced valuable paintings with works that were actually touched up photographs. The originals were then, according to accounts, sold “on the black market”. A notable feature of this narrative is that the thieves involved were able to access the black market with some regularity. Over 40 works were stolen over the decade, including paintings by Canaletto and Guardi (Artinfo 2012). In Spain, also in 2012, two ancient bronze statues were stolen, only to be recovered just as they “[…] were about to be sold on the black market to an Italian buyer […]”, the account adding that, consistent with a black market sale, the thieves were planning to sell the art for half of its value. Another earlier case from the 1980s involved a band of Italian art thieves who used high-tech cutting tools and alarm avoidance devices and were able to carry out a perfect burglary at the Hungarian national museum in Budapest and cart off several works of art. The criminals were later arrested in Italy before they were able to deliver the paintings into the hands of a “Greek olive oil baron” who seems to have paid a considerable sum up-front for the purpose of having the works to hang in his home (Bazley 2010, p. 52; Tijhuis 2009, p. 42 also mentions this case, and it is the only example of what he termed the thefts ordered by a Dr. No). Fourth Case: In a more recent example (the thefts were reported in 2012, but only reached final conclusion in the courts in 2016), several individuals in northern England were arrested after thefts of two Chinese antique objects from an Oriental museum in Durham, followed by thefts in other parts of England. The group was alleged by police to consist of “specialist criminals who knew exactly what they were after”. While it was initially thought that the two items were headed for “overseas buyers with very deep pockets”, who have created what was termed a “thriving market for such items” (Wainwright 2012), in fact the objects stolen in the Durham case were recovered a few days later (McKay 2012). Unfortunately, objects similarly stolen later from the Fitzwilliam Museum in Cambridge were not found and are presumed to have been spirited out of the UK and ended up going to China, probably via Hong Kong (BBC 2016). Several

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persons responsible for these thefts were arrested, prosecuted and found guilty by an English court in early 2016. The accounts suggest the involvement of persons within the legitimate antiquities market in China, all but one able to escape arrest by the British authorities. A specific feature of interest in this account was that the large criminal ring that was rounded up in Britain had obviously been hired to carry out thefts that had been carefully planned by those who arranged for the thefts, and then departed the scene with most of the loot carried away in such a fashion, and to such a place, that it is highly unlikely that the stolen objects will ever be recovered. Fifth Case: A Regional Organization?: The Balkan region has become a focal point for recent attention in terms of organized criminal activity around art theft. While there has been some amount of theft from regional sources (such as the recent loss of a Caravaggio copy taken from a museum in Odessa), there has been wider concern for the emergence of illicit trade in all manner of goods, and one observer has alleged that what is termed the “Balkan mafia” has been “[…] using stolen art in bigger drugs and arms deals since as far back as the mid-1980s” (Flynn 2008). The Caravaggio copy was recovered two years later when three Ukrainians and a Russian were arrested as they were negotiating the sale with a buyer in Berlin (RAI Novosti 2012). A further report asserts that the Balkan region has become an important transit portal for art works stolen throughout Europe (including France, Switzerland, Austria, Germany, Belgium and The Netherlands, among others) and makes reference to “well known gangs” who are based in Serbia, Macedonia, Kosovo and Montenegro (Pryor 2012). Supporting the observations by Pryor, the BBC (2012) reported that three people had been arrested in Serbia in connection with the theft of a painting stolen from a Swiss museum in 2008. In the original theft, four paintings were taken, but two of these were found abandoned in a parked car in Zurich shortly after the robbery (BBC News 2008). An additional report (The Age 2012) indicated that the police involved were part of Serbia’s Anti-Organised Crime Unit supported by elements of the Swiss police and that over a million dollars was seized as well (for additional details, see New York Daily News 2012). So, what sense do we make of the possibility of “Mr. Bigs” operating in and around the art world, arranging for and funding acts of art theft from homes, shops and even major museums? It is notable, of course, that major forms of organized crime appear only rarely in these accounts, if by organized crime we are referring to criminal enterprises, such as the Mafia or the major drug cartels. For example, a simple economic analysis of the nature of the activities of drug cartels will lead to a conclusion that the theft of art is “irrational” for such organizations, since they depend upon a quick and large return from openly illegal activity. In sharp contrast, items of stolen art that would attract

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large sums at an auction sale will take many months, if not years, for a sale to be negotiated, and those negotiations will often be exposed to public scrutiny as at a public auction. In short, common art theft is not a rational activity to be undertaken by the larger crime groups. While large-scale criminal organizations, such as the drug cartels, appear to have little involvement in art theft, the cases we cite demonstrate that some amount of art theft is the result of the involvement of well-organized groups. Thus, it remains our view that we should continue to question assertions that there are no “Mr. Bigs” involved in art theft. We have in hand knowledge of the thefts in the UK of Chinese antiquities organized by elusive Chinese figures, who apparently both planned and funded the actual thefts (but did so at a distance, so that they were not identifiable with the deed, and, in the case of the Cambridge University material, the objects were not found and probably have “disappeared” into the Chinese market for antiquities). In hand as well are narratives of wealthy figures willing to pay large sums for stolen material, including instances of persons who actually fund the thefts. In addition, there are frequent instances where thefts either definitely are committed “to order” or where that suggestion is made by those investigating the thefts. There are also references, which lead to the unavoidable conclusion that a “black market” exists (of unknown size and reach) for art that is stolen. Furthermore, there is even a case available where the apparent “ringleader” was able to organize a complex set of thefts from museums while in prison (Latin American Herald Tribune 2012). While there may be “No Dr. No’s”, this may be because we are conceptualizing the problem incorrectly.

Fifth Social Context: Theft for Political Reasons? Quite different and distinctive motivations are involved in the following social context, where the theft of an art work is apparently carried out for political reasons: The Case of the theft of Picasso’s Weeping Woman (see also Oliveri, elsewhere in this volume): The theft from the National Gallery of Victoria in Melbourne, in August 1986, could fall in the category of political thefts. The painting had been purchased less than a year before, amid considerable controversy, for US$1.6 million. The burglary itself could serve as a textbook example of a successful art theft. The theft probably occurred during a Saturday night, and wasn’t even noticed on Sunday, the director of the Gallery finally being told on Monday that the Picasso

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was gone (security staff had been fooled by a card put in the painting’s place saying that it had been temporarily removed). It appeared that the thieves knew what they were up to. They used what was described as a “security tool” to unscrew the painting from a wall, carefully took the painting from its frame without damaging the canvas and then rolled the painting up so that it could be easily taken from the Museum without attracting attention. Immediately afterward, letters of demand for ransom began arriving, asking for more money for the arts from persons calling themselves “Australian cultural terrorists”. After a short period of negotiating and some serious pressure being applied to some young artists in Melbourne, the painting was found in a locker at a local railway station. While rare examples of art theft for political motivations do occur occasionally, Esterow (1973, pp. 14–21) identified three or four other thefts that appear to be motivated, or at least rationalized, by political reasons. A common feature of these events is that after some period of attention of the local media, the stolen art work is returned to the original owners. Thus, the perpetrators involved in this form of art theft do not attempt to gain entrance to the art market in order to sell the items, nor do they appear to have a desire to retain the art.

Sixth Social Context: The Theft of History A major issue confronting the art world in present times is the flow into the developed world of cultural heritage material, which tends to originate mostly from heritage rich, but economically less advantaged nations of the world. This illicit traffic begins most often with what is now in most countries defined as a theft of cultural heritage material (and, of course, it constitutes a theft of history). We have expressed a view elsewhere (Chappell and Polk 2014) that these crimes share many features with some of the other forms of art theft that we have examined in this chapter. Thus, for an example, a major problem faced by those engaged in this illicit traffic is to gain access to the large, international and legal market for such objects. In many respects, the process involves a movement of materials through an access portal located in a transit point, such as Hong Kong, and thereby gaining a documentary provenance, which appears to make the items sufficiently legitimate to flow onto the licit antiquities market. Descriptions of a number of systematic thefts of cultural heritage material of this type from different regions of the world are to be found in various chapters in Part IV of this volume, and we refer readers to them for further analysis.

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Seventh Social Context: The Art Disappears While the many accounts reviewed above permit us to establish some of the outlines of the forms that art theft can take, it has to be admitted that this information is available from cases where the art, or the criminals, have been recovered or identified. In an unknowable percentage of cases, the theft has not been solved, and we therefore are ignorant of the details of the events surrounding the loss of the art. According to the FBI, only about 5% of stolen art works are ever recovered (Layton 2012). This is, of course, hardly more than a guess, although the FBI is one of the few organizations that maintain a database of stolen art from which such estimates might emerge. If we look at the thefts of better-known works, especially those found in major collections, the rate of recovery is significantly higher. Bazley (2010), in his review, identified 40 different thefts from major collections, of which in 22 there was a complete recovery of the works stolen and a partial recovery of the works in five cases, producing a “clear up” rate of 55% or 67.5% depending upon what is included in the statistics. If these were used as a standard, then, the clear-up rate (depending on how it was calculated) would be considerably higher than the FBI estimate. We are not attempting to argue that even a majority of art thefts are, in fact, cleared up by either a recovery or an arrest, rather we point out again how uncertain quantitative statements are regarding art crime. Certainly, examples abound of the theft of art where the works have not been recovered. The Case of the Gardner Museum Theft: One of the most well-known examples of art theft consists of the break-in by two thieves into the Isabella Stewart Gardner Museum in Boston in the early morning hours of 18 March 1990. The two criminals had dressed themselves as Boston police officers and managed to trick the security guards at the museum into giving them entry. Once inside, the thieves bound and gagged the guard, and then managed to walk off with 13 of the most valuable works of art to be found in the Western world, including a Vermeer and works by Rembrandt, Degas and Manet. In the more than two decades since this theft, there have been many theories about who might have committed this crime, but to date there has been no sign of either the thieves or the missing art works (News In History 2012; see also Oliveri, elsewhere in this volume). The Case of the Lost Cavalier: The Art Gallery of New South Wales in Sydney was the setting for one of the other stories of unrecovered stolen art. In June 2007, while the museum was open for visitors in the morning hours, a thief managed to unscrew two wall fastenings, probably in about 60 seconds, and walk out of the museum with a seventeenth-century Dutch masterpiece insured for US$1.4 ­million. There

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was no CCTV camera. The work, A Cavalier by Frans van Mieris, has not been seen since, nor has there been any word about who was responsible for the crime (Cornford 2007; Oliveri, elsewhere in this volume). The Case of the Lost Exhibition: Sydney also was the setting, 30 years before, of one of the more notable examples of an unsolved art theft. In the early hours of 4 April 1977, thieves, not to subtlety, literally smashed their way into the Macquarie Galleries in King Street, Sydney and made off with 28 paintings by Grace Cossington Smith, making their getaway in a maroon Holden sedan. The works made up the entire exhibition. In the more than three decades since, there has been no arrest of any of those involved in the theft, and there has been no sighting of any of the 28 works. Our experience suggests that for most common household burglaries, the likelihood of recovery is much close to the negligible rate of 5% reported by the FBI. But sometimes, it must be added, after many years a stolen painting is discovered. These late recoveries may still pose significant problems for the original victims, given the workings of the various statutes of limitations that operate in many jurisdictions. In Australia, a case fitting this description is the recovery of a painting by Rupert Bunny in 2010 after it was stolen in 1991. Acting on a tip-off from a member of the public the police found the painting, titled Girl in Sunlight, hanging on the wall of a Melbourne resident’s home (Hawthorne 2014). In another case, art from the junta in Argentina, stolen from the National Museum of Fine Arts in Buenos Aires in December 1980, was found 21  years later when the art surfaced at Sotheby’s in April 2001 (held in Taiwan, still) (Webb 2008, p. 47).

 ighth Social Context: Offenders with Little or No E Knowledge of the Workings of the Art Market and Maybe Not Much Knowledge of How to Steal At this point, we have to move farther away from the lead suggested by Tijhuis and perhaps add some complexity to the forms he suggests. What we observe is that often the art thefts are committed by individuals with little or no knowledge of art and perhaps not much knowledge about thievery. Case One—An Impulsive Thief: A starting point is an episode that demonstrates that often those who become involved in art theft are naïve both about art and even the techniques of theft. A woman well into her 50s went to her local government office in upstate New York to purchase a pair of dog licenses. As she

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was leaving the area, her eyes came across a painting on the wall. For reasons not known, she decided to steal the object, simply removing it from the wall and departing. Unfortunately for her, the whole episode was captured on security cameras, and these were played on local television. The woman then decided to return the work she had stolen, and that event, as well, was duly recorded on security cameras. In short, the woman was subjected to exposure to the criminal justice system for committing the crime and she obviously realized no gain from her theft of the painting (Cascone 2015). A similar case of what would appear to be at least an inexperienced (if not incompetent) thief involving a lawyer in Katoomba, New South Wales, who similarly was apprehended for an art theft that was recorded in detail on CCTV can be found in Mercer (2012). Case Two—Incompetent art thieves: In this second narrative, we find some of the same elements, including, as in the previous narrative, mixed in a central ingredient of lack of criminal competence. Late on a Saturday night in the Presidio Heights neighborhood of San Francisco, the police investigated a complaint regarding a possible squatter in a guesthouse adjacent to a vacant mansion. When confronted, the squatter stated that he had purchased the property and would soon take legal possession. Being night time of a weekend, the attending officers had to accept this story. The next morning, however, a check with the real estate agent established that the ownership story had been fabricated and the police returned to the scene. The officer found that the thief was still on the property and in fact was in the act of trying to get a crate (that contained a painting he was trying to steal) in a U-Haul van. Further investigation established that the thief had previously stolen a large number of other paintings, which he had attempted to dispose of either at local pawnshops or on social media sites. It transpired that there were 11 stolen works of art, and the thief was arrested on several counts of burglary (Wang 2015). Case Three: Again, a single offender, but this time involving the theft of one of the most famous paintings in the world of art. Just over 100 years ago, the Mona Lisa was stolen from the Louvre. The thief apparently worked alone (at least as indicated by the accounts that have come to us) and had previously worked inside the museum and thus had knowledge of how security was managed. The theft itself was carried out on a day the museum was closed, and the security was even more lax than normal. While the thief was successful in stealing the painting, he found, as have many other art thieves, that while the theft may be easy to pull off, making an economic return on the stolen art is difficult, even more so, if the work is one of the most famous paintings in the world. In this case, the thief came to grief when he approached an art dealer in Italy and after two long years, the police were able to make an arrest and ultimately return the painting to Paris (Evans 2012; Lacayo 2009, see also the extensive account of these events in Esterow 1973).

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In these narratives, we find inexperienced thieves who may have some success, at least initially, with the theft. Of course, as the second tale tells us, the unfamiliarity with the demands of thievery may catch them out if they prove unable to hide their movements (also true to some degree in the first of these stories). In the situation that such persons find themselves, it is highly unlikely that they will be able to negotiate anything close to the value of the work of art when they attempt to sell the objects (a sad counter to this is the success that some inexperienced art thieves are having in terms of the sale of bronze or brass objects as scrap metal; e.g. see Malagon 2016). The very process of trying to convert the objects into cash is a danger point for art thieves, and, certainly, the lack of knowledge of how the art market works places the offenders in a potentially dangerous situation as they attempt to sell the objects. This is, of course, especially true if the art object is well known, as the thief found once he had obtained the Mona Lisa. Put simply, selling a well-known work that has been stolen on the open art market is likely to lead to the arrest of the person or persons involved, as has been demonstrated in numerous cases, including the narrative of the Mona Lisa. In other cases, the reader cannot help being struck by the sheer incompetence of those involved. The large number of comparable stories is striking and needs to be underscored, given the tendency of writers to focus on the narratives involving more expensive art and situations where there are more convoluted circumstances of the theft.

Conclusions Substantively, we urge observers to recognize that there are many forms of art theft. Put simply, the social dynamics of the theft are quite different if a criminal organization is involved, or if a person or persons are violating the trust that comes from a position in an organization or a link with another, or if the person is stealing for political motivations, among others. Understanding the nature of the theft, we believe, requires that these social dynamics be specified and explored. We have found consistently that many art thefts are carried out by persons who are ignorant of the basic dynamics of the art market. As such, a major risk for them is the attempt to enter this market in order to derive financial benefit from the theft. A feature, which is present throughout this chapter, is the problem of adequate data. Currently, it is simply not possible to provide information regarding the simplest of questions, beginning with the issue of how large is the art theft problem? Here, we have drawn upon media accounts and occasionally

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our own experience to suggest the forms that art theft appears to take. Ultimately, a much more satisfactory approach would be to refer to a standardized body of information collected by policing agencies or government organizations responsible for statistical data collection that might provide rather different conclusions than we have made here.

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times.com/news/crime-and-courts/e-c-man-sentenced-to-jail-in-theft-of-polish/ article_b4d9c395-4a06-5294-ac31-a88f045c1fbd.html. Mann, J.  (2012, March 15). Museum tour guide admits to theft of civil war-era coins. St. Louis Post-Dispatch. Retrieved April 4, 2012, from http://www.stltoday. com/news/local/crime-and-courts/museum-tour-guide-admits-to-theft-of-civilwar-era/article_b09ebb4e-6ee1-11e1-87f4-001a4bcf6878.html. Mayle, P. (1997). Chasing Cezanne. London: Penguin. McKay, N. (2012, April 17). Good work of police led to £2m stolen treasure find. Evening Chronicle. Retrieved April 18, 2012, from http://www.chroniclelive. co.uk/north-east-news/evening-chronicle-news/2012/04/17/good-workof-police-led-to-2m-stolen-treasure-find-72703-30776169/. Mercer, N. (2012, May 30). “Bizarre” case of stolen paintings. Blue Mountain Gazette. Retrieved March 7, 2016, from http://www.bluemountainsgazette.com.au/news/ local/news/general/bizarre-case-of-stolen-paintings/2573968.aspx. New York Daily News. (2012, April 13). Serbian and Swiss police raid nets stolen Cezanne painting; four men arrested. New York Daily News. Retrieved April 14, 2012, from http://www.nydailynews.com/news/world/serbian-swiss-police-raidnets-stolen-cezanne-painting-men-arrested-article-1.1061145. New York Post. (2012, February 8). Hotel art thief is prison bound. New York Post. Retrieved March 8, 2016, from http://www.nypost/com/p/local/ hotelartthiefisprison-boundQPRzxA8zEVgBEjNnL. News in History. (2012, March 18). Unsolved mystery: Stunning theft from Boston Art Museum. News in History.com, p. 3. Retrieved 8 January 2012, from http:// www.newsinhistory.com/blog/unsolved-mystery-stunning-theft-bostonart-museum. Noce, V. (2016, December 16). Appeal court upholds two year suspended sentence for Picasso’s electrician. Art Newspaper. Retrieved April 18, 2017, from http:// theartnewspaper.com/news/two-year-suspended-sentence-confirmed-forpicasso-s-electrician/. NSW Bureau of Crime Statistics and Research. (2017). Recorded crime reports. Retrieved August 4, 2017, from http://www.bocsar.nsw.gov.au/Pages/bocsar_ crime_stats/bocsar_latest_quarterly_and_annual_reports.aspx. Pryor, R. (2012, January 19). Balkans targeted in hunt for stolen art. Art Newspaper. Retrieved April 4, 2012 from http://www.theartnewspaper.com/articles/Balkans+ targeted+in+hunt+for+stolen+art/25391. RAI Novosti. (2007, January 29). French painting returns to Russia’s hermitage 6 years after theft. RAI Novosti. Retrieved April 4, 2012, from http://en.rian.ru/russia/20070129/59831884.html. RAI Novosti. (2012, June 28). Stolen Caravaggio painting found in Berlin. Retrieved July 11, 2012, from http://en.rian.ru/art_living/20100628/159610936.html. The Age. (2012, April 14). Serbian police retrieve stolen masterpiece. The Age, p. 14. Tijhuis, E. A. J. G. (2009). Who is stealing all those paintings? In N. Charney (Ed.), Art and crime: Exploring the dark side of the art world (pp. 41–51). Santa Barbara, CA: Praeger.

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Tijhuis, E. A. J. G. (2010). The trafficking problem: A criminological perspective. In S.  Manacorda & D.  Chappell (Eds.), Crime in the art and antiquities world (pp. 87–98). New York: Springer. Trioli, V. (1998, April 11). Stealing from Aladdin’s cave of art. The Age, p. 5. Wainwright, M. (2012, April 11). Specialist criminals stole £2m Chinese artefacts from university, say police. The Guardian. Retrieved April 12, 2012, from http:// www.guardian.co.uk/uk/2012/apr/11/2m-chinese-artefacts-durhamuniversity?newsfeed=true. Wang, A. (2015). ‘Squatter busted by SFPD in art theft at vacant Presidio Heights Home’ a television report aired on KTVU in San Francisco on 19 October at 11:59 pm. Retrieved 7 March 2016, from http://www.ktvu.com/36284932-story. Webb, J. (2008). Stolen: The gallery of missing masterpieces. Toronto: Madison Books.

7 Unsolved Art Thefts Vicki Oliveri

Introduction It is a sad fact that most art thefts remain unsolved. For example, the Federal Bureau of Investigation (FBI) states the recovery rate for stolen art can be ‘as low as 2 to 6 percent’ (Charney et al. 2012). The Art Loss Register, the world’s largest private database of stolen art, has also found that recovery rates are low, but that ‘around 15% of high-value works will have been recovered after 25 years’ (Gerlis and Pes 2013). Italy’s Carabinieri claim to recover ‘around 30% of lost art’ (Gerlis and Pes 2013). Given that Italy’s police service devotes more officers and resources to fighting art crime than any other law enforcement agency, their higher recovery rate is not unexpected. For countries, such as Australia, without a specialised art crime team or a national art loss register, the extent of art theft, let alone the recovery rates, is difficult to ascertain. This is compounded by a reality faced by many law enforcement agencies: stolen art may often be grouped with other property crime rather than as a separate classification (Chappell and Polk 2009). In that context, retrieving details on cases of art theft becomes a complex proposition. Consequently, when considering these limiting factors, Tijhuis (2009) explains that, ‘sufficient and comparable empirical data about art thefts is not available to scholars, police, or governments’. The five cases of art theft outlined in this chapter affirm Tijhuis’ observation, for each of these thefts remains steeped in mystery even when, in

V. Oliveri (*) James Cook University, Cairns, QLD, Australia © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_7

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the case of the 1986 robbery of Picasso’s Weeping Woman at the National Gallery of Victoria (NGV), the stolen artwork was found. The Weeping Woman’s recovered status remains, however, elusive for the other art thefts this chapter will chronicle: an entire commercial exhibition of artworks by Australian artist Grace Cossington-Smith, stolen in 1977 from Sydney’s Macquarie Galleries; the 1990 robbery at Boston’s Isabella Stewart Gardner Museum; the 2007 disappearance of Frans van Mieris’ A Cavalier (self portrait) from the Art Gallery of New South Wales (NSW) and the 2012 robbery at Rotterdam’s Kunsthal Museum. When it comes to art theft, the complete picture is never clear, and unless the art is recovered and the thieves apprehended, the motivations for the crime cannot be completely known or understood.

The Grace Cossington-Smith Theft 1977 The media spotlight shines brighter on some art thefts than on others, and this appears to be very much dependent on the artist and artwork involved. The light has certainly dimmed on an art theft committed four decades ago. The year was 1977. An exhibition had recently opened showcasing a selection of works by famed Australian artist Grace Cossington-Smith (1892–1984). Her significance in the Australian art scene arguably began with her 1915 painting, The Sock Knitter, which is viewed as ‘the first post-impressionist work carried out in Australia and a key picture in the modernist movement’ (‘Grace Cossington-Smith’ 2007). The exhibition was staged at the Macquarie Galleries in Sydney, a familiar venue for Cossington-Smith as she had already held around 12 exhibitions there, spanning the period 1932–1972 (‘Grace Cossington-Smith’ 2007). By the time of this latest exhibition, however, Cossington-Smith had stopped painting and so the artworks were drawn from some of her older material. Indeed, some pieces had already been reserved by the Australian National Gallery (now known as the National Gallery of Australia), while both the Nepean College of Advanced Education (which later became part of Western Sydney University) and the University of Queensland’s John Darnell Fine Arts Collection (now known as the University of Queensland Art Collection) had lent pieces from their collection (James 1996). None of these institutions would see these paintings again, nor the public, for that matter, because on 4 April 1977, only days after the show had opened on 29 March, the whole exhibition was stolen. It is one thing for an artwork, or a number of artworks, to be stolen in one robbery, but to have a whole collection stolen is a rare occurrence. The police report of the theft detailed the crime as follows:

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Between 3 am and 3.20 am this date the Macquarie Galleries, 40 King Street, City, was broken and entered. Entry gained by offender/s breaking glass door leading to gallery proper. It is believed that four male person/s are responsible and that they decamped in an early-model Holden sedan maroon in colour. No further description of vehicles or offender/s. A total of 28 paintings were stolen valued at $25,000. —Detective Senior Constable B.R.  Breedon, 4.4.77, 5.35 am. Record of occurrences. Central Police Station [Sydney]. (James 1996)

According to media reports at the time, ‘the thieves broke into the gallery just after 3 am by smashing through the plate-glass windows’ (‘Paintings stolen in raid’ 1977). Around the same time, an anonymous telephone call was made to the police, who then arrived 20 minutes later to find the building empty of the robbers and of the whole Cossington-Smith collection (‘Paintings stolen in raid’ 1977). Twenty minutes is apparently all it took the thieves to grab and take away 28 artworks. No new evidence has come to light and the artworks, 24 of which had already been pre-purchased in the lead up to the planned exhibition (‘Paintings stolen in raid’ 1977), have never been recovered nor the robbers identified and apprehended. Bruce James gave a poignant reflection on the impact of the theft, stating that it has come to represent an historical milestone—and a sorry one at that. Its significance lies not simply in the loss of paintings by an individual artist—momentous enough—but in the loss of innocence of the Australian art trade. (1996)

The latter part of the statement is perhaps in reference to the rarity of an art theft in Australia, the rough manner in which the crime was committed and the ensuing court battle between the artist and the gallery, who were not insured for burglary (James 1996). The court case was finally settled in 1980 and Cossington-Smith, who had now severed her long-standing relationship with Macquarie Galleries, was awarded US$8000 and also ‘retained ownership of the works, with the exception of two she had gifted before the show opened’ (James 1996). She was now the owner of 26 paintings which were in the hands of persons unknown. As with most art thefts, speculation arose as to who may have committed the crime. James (1996) chronicled the various rumours, which had attached themselves to the case: a rival removed the pictures out of spite; a disaffected employee of the painter pinched them for revenge; it was the covetous act of a collector from Sydney’s Lane Cove or Ryde areas; it was the work of inept ransomers; it was an inside job […]

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The most outlandish conspiracy, however, was that ‘a Tokyo industrialist [had] hired local hoods’ to steal the artworks and that the paintings ‘now embellish the private rooms of a prestigious golf club on the Japanese mainland’ (James 1996). Rumours aside, what is known about the crime are some details of 27 of the 28 stolen artworks: 1. Figure in the Window, 1940, oil on board, 54.5 × 47 cm. Kindly lent by the Nepean College of Advanced Education. 2. Path under the Trees, 1927, oil on board, 38 × 29 cm. Reserved for the Australian National Gallery. 3. Madge, 1915, oil on board, 31 × 23 cm. Reserved for ANG. 4. Tree Trunk and Foliage, c.1935, oil on board, 41 × 34 cm. 5. Coral Tree, c.1935, oil on board, 41 × 34 cm. Kindly lent by The John Darnell Fine Arts Collection, University of Queensland. 6. Ballet No. 2, 1937, oil on board, 34 × 39 cm. Kindly lent. 7. Road with Young Trees, undated, oil on board, 42.5 × 28 cm. 8. Church Interior, undated, oil on board, 43 × 26.5 cm. 9. Marigolds, 1929, undated, oil on board, 41.5 × 35 cm. 10. House and Trees, undated, oil on board, 28 × 23 cm. 11. Devon Valley, 1950, oil on board, 33 × 38.5 cm. Kindly lent. 12. Zinnias in a Blue and White Jug, undated, pastel/coloured pencil, 40.5 × 30 cm. Reserved for ANG. 13. Street with Tree guards, undated, coloured pencil, 33.5  ×  26  cm. Reserved for ANG. 14. Washing under the Verandah, undated, crayon, 30 × 24 cm. 15. Daffodils Growing, undated, coloured pencil, 24.5 × 30 cm. 16. Flannel Flowers and Gumleaves, undated, coloured pencil, 18 × 114.5 cm. 17. Bend in the Road, undated, pastel, 23 × 21 cm. 18. House in Turramurra, undated, pencil/watercolour, 20 × 23 cm. 19. Pot Ball Hill, Trusham, Devon, 1950, coloured pencil, 24  ×  34.5  cm. Kindly lent. 20. Sussexland, 1949, coloured pencil, 26.5 × 19 cm. Kindly lent. 21. Fiesole, 1949, crayon/coloured pencil, 29 × 22 cm. 22. St Andrew’s Towers, Sydney, undated, ink and wash, 17 × 12 cm. 23. Kitchen Corner, undated, pen and ink, 20 × 17 cm. Reserved for ANG. 24. Mending, c.1915, pen and ink, 20 × 17.5 cm. Reserved for ANG. 25. The Building of the Bridge, 1927, pencil and chalk, 11.5 × 24 cm. 26. Three Figure Studies, undated, pencil and pastel, 41 × 61 cm. 27. Pink Trees, undated and undetailed (James 1996).

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No record was found of any reward being offered for the collection’s return. The perpetrators remain unknown and the artwork unrecovered. Grace Cossington-Smith died, seven years after the theft, without seeing her missing creations again. Who could readily identify these artworks today? Indeed, how much does the public know, let alone remember, about the case? But here is the catch. The paintings would only be worth something if Cossington-­ Smith’s name is associated with them and once any of those pieces came on the open market, it can only be hoped that suspicions would be aroused. This is the dilemma and the curse of art thieves: offering stolen art for sale in the open market is hard to do without drawing unwanted attention. More so when the theft itself is seldom out of the spotlight, such as the 1990 theft at the Isabella Stewart Gardner Museum.

The 1990 Isabella Stewart Gardner Museum Theft The 1990 art heist at Boston’s Isabella Stewart Gardner Museum (the Gardner) left not only gaps in the walls but, quite literally, the empty frames from which a selection of the paintings were forcibly removed (Butterfield 1990). As the Gardner website details, early on 18 March 1990, the security guards on duty were fooled into letting in who they believed to be two Boston police officers. It did not take long for the guards to realise that they had instead let in two art thieves. After taking the guards to the basement and securing them there, the thieves went about their robbery, stealing a total of 13 works (‘Theft’ n.d.). Of the 13 stolen, 2 pieces in particular dominated the headlines: Rembrandt’s Storm on the Sea of Galilee (1633) and Vermeer’s The Concert (1658–1660). While Rembrandt may have left the world around 2000 artworks (Amore and Mashberg 2011, p. 2), Storm on the Sea of Galilee is his ‘only known seascape’ (‘Thirteen works: Explore the Gardner’s stolen art’ n.d.). Unlike Rembrandt, however, Vermeer’s output as a painter was very low. There are approximately 36 of his artworks in existence (‘The Concert’ n.d.) and so consequently they are considered rare and precious items. The other 11 artworks stolen on 18 March 1990 (along with the Rembrandt and Vermeer already mentioned) were: Rembrandt, A Lady and Gentleman in Black, 1633; Rembrandt, Self-Portrait, ca. 1634; Manet, Chez Tortoni, 1878–1880; Govaert Flinck, Landscape with an Obelisk, 1638.

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Five Gouache drawings by Edgar Degas: Degas, La Sortie de Pesage; Degas, Three Mounted Jockeys; Degas, Cortège aux Environs de Florence; Degas, Program for an artistic soirée, 1884; Degas, Program for an artistic soirée, 1884 (2nd version). Finial in the form of an eagle, 1813–1814; and Chinese bronze beaker or Ku (‘The stolen artworks’ 2015). The thieves’ eclectic bounty had investigators and the public alike all wondering who was behind ‘the biggest, most confounding art heist in American history’ (Lopez 1997). This was especially so, given that the theft occurred at a time when criminal gangs and mobsters were active in the city (Van Siclen 2010). In fact, since the 1990 theft, it continues to make the headlines not only when the anniversary of the crime falls each year but also when a local mobster gets arrested or raided. One prominent suspect was James ‘Whitey’ Bulger, a rogue police informant who also happened to be the leader of Boston’s ‘powerful Irish American mob at the time’ of the theft. Many believed that Bulger ‘may have played a role, or must have known who did’ (Felch 2011). However, since his arrest in 2011, after 15 years on the run, Bulger has still not been formally linked to the theft. Other suspects on what appears to be quite an extensive roll call of mobsters include Robert Gentile. He has had his home raided multiple times by the FBI, with the last raid taking place in May 2016 (Murphy and Krantz 2016). Another crook, Vincent Ferrara, claimed that: one of his associates, Robert Donati, confessed to him in 1990 that he robbed the Gardner museum, buried the artwork, and planned to use it to try to broker Ferrara’s release from prison. But when Donati was found murdered in the trunk of his car in Revere in 1991, the location of his secret hiding spot died with him. (Murphy 2015)

Adding to the ongoing mystery, the FBI has stated that it is confident it knows who committed the theft and have offered up their theory that the evidence: points to a local band of petty thieves—many now dead—with ties to dysfunctional Mafia families in New England and Philadelphia. It also suggests they had help from an employee or someone connected to the museum. (Murphy 2015)

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What is still missing, however, are the artworks, leaving a curious situation, which Anthony Amore, the Gardner’s Director of Security, explains as follows, ‘“We’ve said in the past we know who the thieves are”, but “knowing that hasn’t led us directly to the paintings”’ (Trickey 2016). In the meantime, the investigation (and speculation) continues, and the empty frames remain in the Gardner to mark time awaiting the artworks return.

 he 2007 Theft of Frans van Mieris’ A Cavalier T (Self Portrait) It was a contemporary of Rembrandt, Frans van Mieris, who was at the centre of another unsolved Australian art theft in Sydney at the Art Gallery of New South Wales (AGNSW). The name van Mieris is not one that automatically comes to mind when the phrase ‘Old Dutch Master’ is uttered. That all changed on 10 June 2007 when his painting, A Cavalier (self portrait), was discovered missing from the AGNSW (Jinman and Morgan 2007). Frans van Mieris was back in the spotlight but for all the wrong reasons. A Cavalier (self portrait), painted during the period 1657–1659, had been on display at the AGNSW since 1993. Four years later, the NSW Police Force was investigating its disappearance. According to the police report on the theft, two security guards stated they had entered the room, at separate times, between 8:00 p.m. and 10:00 p.m. on Saturday 9 June 2007, which was the night before it was discovered missing (New South Wales Police Force 2007). The first security guard to enter the room explained that owing to a storm that night he ‘did not particularly pay attention to the missing artwork as he was concentrating on checking for water damage’ (New South Wales Police Force 2007). Consequently, he could not be ‘100% certain the piece was present at the time’ (New South Wales Police Force 2007), while the second security guard who checked the room did not notice anything of concern (New South Wales Police Force 2007). In light of the security guards’ statements, the police determined that, ‘it can therefore not be confirmed exactly when the piece was last sighted, however, it is believed to have gone missing between 10:00 pm 9/6/2007 and 12.30 pm 10/6/2007 and taken by person/s not known’ (New South Wales Police Force 2007). A Cavalier’s residency at the gallery had come to an end. It can be argued that the painting’s small dimensions made its undetected removal from the gallery a much easier proposition for the thief or thieves. Its

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size, 20 × 16 × 1 cm, was perfect for being concealed by a person, in a bag, or under a jacket/coat draped over their arm. Frans van Mieris could not have foreseen that his predilection for creating small paintings, which had made them portable for his legitimate customers, would also serve non-paying illegitimate customers only too well. With its unsolved status depriving investigators of the benefit of being able to question the thief/thieves, any discussion on the motivations for stealing A Cavalier is speculative in nature. An independent investigator appointed by the NSW state government believes the painting remains within Australia (Oliveri 2014, p.  85). Others believe that the delay (of two to three days) between reporting the missing painting and notifying federal law enforcement agencies, such as Customs, would have enabled the thief/thieves and painting to leave the country undetected (Oliveri 2014, p. 84). The painting’s small dimensions, however, has led some to believe that its theft was a crime of opportunity—that someone saw their chance and literally took it. There is one flaw in this theory. The painting was held in place by four specialised screws. According to an investigator who worked the case, the perpetrator would have needed prior knowledge of how the painting was fastened in order to determine how to best remove it (Oliveri 2014, p. 85). If anything in this case could be considered opportunistic, it would be A Cavalier’s location at the time of the theft. It was displayed in The James Fairfax Gallery, which is located within the Old Courts section of the gallery. The room which housed the painting could be classified as a ‘nook’, a quiet spot well away from the main traffic thoroughfare of gallery visitors. This location and, at the time, the lack of security guards and CCTV cameras in that section made it an ideal environment for a would-be thief to go about their criminal business undetected (Oliveri 2014, pp.  84–85). Yet, even so, without the right tools, as alluded to earlier, the painting would not have been so easily removed from the wall. Sadly, the thief did have the right tools, while the space from where A Cavalier gazed outwards conspired in its unlawful removal. Despite all the initial media attention the theft received, the investigation would be suspended a year later due to the lack of new leads. While the case remains technically open, the theft appears to have slipped away from the spotlight and the headlines—apart from still remaining as an entry in the FBI’s Top Ten List of Art Crimes. In 2012, The Sydney Morning Herald ran one of the few stories on A Cavalier since its disappearance. The article had a sombre headline, ‘Search for stolen masterpiece ends’ (Taylor 2012). The painting has not been recovered, nor the thief/thieves identified. A Cavalier has simply vanished.

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 he 1986 Theft and Recovery of Picasso’s T Weeping Woman The 2007 theft at the AGNSW was not the first time a major Australian public gallery had been robbed. The year 1986 saw the curious theft of Picasso’s Weeping Woman (1937) from the National Gallery of Victoria (NGV). The gallery had purchased the painting in December 1985 for a then record-­breaking US$1.6 million—the most any Australian gallery had ever spent on a painting (Shmith 1986). Eight months later, in August 1986, it was the National Gallery of Victoria that was doing the weeping. The Picasso had been stolen, removed from its frame and a card left in its place with the message, “Borrowed by the ACT”. Now for most people ‘ACT’ usually stands for Australian Capital Territory where Canberra, Australia’s capital city, is located. Had the painting gone to the National Gallery of Australia in Canberra? Finding the discarded frame 30  metres from where the painting was hung quickly discounted that theory (McCaughey 2003). The mystery behind the acronym ‘ACT’ was soon revealed when the Melbourne newspaper, The Age, contacted the National Gallery of Victoria to advise them that a group named the Australian Cultural Terrorists had sent them a letter accepting responsibility for the theft. Their audacious ransom letter, which was addressed to the Victoria Minister for the Arts, Race Matthews (Botten and Clarke 1986), made the front page of The Age and read as follows: We have stolen the Picasso from the National Gallery as a protest against the niggardly funding of the fine arts in this hick State and against the clumsy, unimaginative stupidity of the administration and distribution of that funding. Two conditions must be publicly agreed upon if the painting is to be returned. 1. The Minister must announce a commitment to increasing the funding of the arts by 10% in real terms over the next three years, and must agree to appoint an independent committee to enquire into the mechanics of the funding of the arts with a view of releasing money from its administration and making it available to artists. 2. The Minister must announce a new annual prize for painting open to artists under thirty years of age. Five prizes of $5000 are to be awarded. A fund is to be established to ensure that the real value of the prizes is maintained each year. The prize is to be called The Picasso Ransom.

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Because the Minister of the Arts is also Minister of Plod, we are allowing him a sporting seven days in which to try to have us arrested while he deliberates. There will be no negotiation. At the end of the seven days if our demands have not been met the painting will be destroyed and our campaign continue. Your very humble servants, Australian Cultural Terrorists. (‘The ransom letter’ 1986)

As the ransom letter alluded to, in a curious twist of fate the then Victorian Arts Minister, Race Mathews, was also the Police Minister and, just like his name, the race was on to find the painting before it was destroyed. The pressure was on, especially with the gallery’s director at the time, Patrick McCaughey, stating that ‘If the picture is damaged or ruined in any way this gallery will never be able to afford another Picasso painting’ (Botten and Clarke 1986). A few days later, a second letter was received. It repeated the threat contained in the first letter that the painting would soon be destroyed if the demands were not met. A burnt match stick was enclosed, emphasising the threat (McCaughey 2003). Time was running out. The deadline was only days away, and the police had no leads. For McCaughey, the priority was more about getting the painting back than getting a prosecution for the theft. In his 2003 memoir, The Bright Shapes and the True Names, McCaughey recounts the story of the Weeping Woman’s theft and of a peculiar turn of events that transpired. Not long after the theft, he had been contacted by a Melbourne art dealer who felt that an artist she was acquainted with may know something about the case. McCaughey went and met with this artist who, unfortunately, was not able to shed any new light on the whereabouts of the painting. During their conversation, however, McCaughey did mention a couple times that ‘the people who had taken the work could deposit it in a luggage locker at Spencer Street railway station or at Tullamarine airport’ (2003). A couple of days after this meeting, The Age received a call from a spokesperson for the Australian Cultural Terrorists informing them that ‘the Weeping Woman was in locker 227 at Spencer Street railway station’ (Moore 1986). The painting, an example of the art form Cubism, was indeed recovered inside the cube-like space of that locker (Moore 1986). It was thankfully undamaged and accompanied by a third letter from the ‘ACT’ which stated that, ‘Of course we never looked to have our demands met… Our intention was always to bring to public attention the plight of a group which lacks any of the legitimate means of blackmailing governments’ (‘Police say painting was in the hands of experts’ 1986). After it was found, McCaughey declared that the painting ‘will go behind bulletproof glass this time and be bolted to the wall’ (Moore 1986). To this

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day, no one knows who the Australian Cultural Terrorists were, but at least we know where the Weeping Woman is. Interestingly, as a side note, this was not the first Picasso stolen from an Australian gallery. In 1967, Picasso’s painting, La belle Hollandaise, was stolen from the Queensland Art Gallery (‘Fears for Stolen Art Treasure’ 1967) by an ‘unidentified male’ (Thomas 2005). The Gallery had been considering selling the painting to raise funds and the thief allegedly stole it in protest (Thomas 2005). Thankfully, it was quickly recovered, but the thief was never caught.

The Kunsthal Museum Art Theft 2012 While the Weeping Woman was safely returned to its gallery, no one was ever arrested for its theft. The 2012 art theft at Rotterdam’s Kunsthal Museum had the opposite outcome: the thieves were arrested but mystery surrounds the whereabouts of the seven stolen paintings: Meye de Haan’s Self-Portrait (1890). Paul Gauguin’s Girl in Front of Open Window (1898). Claude Monet’s Waterloo Bridge, London (1901) and Charing Cross Bridge, London (1901). Henri Matisse’s Reading Girl in White and Yellow (1919). Pablo Picasso’s Harlequin Head (1971). Lucien Freud’s Woman with Eyes Closed (2002) (Carvajal 2012). The paintings, on loan from the Triton Foundation (Carvajal 2012) were stolen from the museum early on an October 2012 morning, when thieves entered through a back door (Ng 2013). Their actions had set off an alarm, but despite police arriving five minutes later, the thieves, along with the paintings, had already gone (Carvajal 2012). It has been argued that the design of the museum’s building, with its large windows, made it too easy for any would-be thieves to observe the paintings unhindered from the street, aiding their plans to steal them (Ng 2012). A few months later, in January 2013, Rotterdam police reported that three suspects had been arrested in Romania. The Romanian police stated that they had ‘led operations in connection with the theft of paintings in the Netherlands, but refused to elaborate’ (‘Three arrested over brazen masterpiece heist’ 2013). It later emerged that a Romanian art expert, called on by the thieves to appraise two of the stolen paintings in Bucharest, helped police identify the suspects (Rodina 2013).

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The paintings, however, were not recovered. A year after the robbery took place, the three suspects, Radu Dogaru, Alexandru Bitu and Eugen Darie, all pleaded guilty to the theft (Ng 2013). Police believe that six people were involved in the robbery, but only these three have been arrested and brought to court. Dogaru, Bitu and Darie explained that they had stolen the paintings and brought them to Romania in the hope of selling them. The paintings were placed in the interim care of Dogaru’s mother, Olga (Ng 2013), and it is here that things become shrouded in a haze. In an admission that startled the public and art world alike, Olga Dogaru claimed that she had burnt the paintings in order to ‘destroy evidence against her son’ (Rodina 2013). She later changed her story and claimed she did not destroy the paintings. Her son, Radu, backed his mother’s revised version of events, stating in court that the ‘paintings were certainly not destroyed. I don’t know where they are but I believe they have been sold’ (Rodina 2013). Expert testing carried out on the ashes in Olga’s stove, however, did find traces of ‘three oil paintings and nails from frames used before the end of the nineteenth century’ (Rodina 2013), but it is not known if these remains were in fact from any of the seven stolen paintings (‘Art thieves ordered to pay millions over missing Picasso, Monet, Gauguin and Freud masterpieces’ 2014). In an unusual turn of events, Radu Dogaru threatened to sue the Kunsthal Museum ‘for making his robbery too easy’ and that he could not have imagined ‘that a museum would exhibit such valuable works with so little security’ (Rodina 2013). The motive for Dogaru taking this action is self-serving: if the museum was found liable through negligence, then it ‘would have to share the burden of compensation’ along with Dogaru who was confronting the prospect of paying back ‘millions in claims from insurers’ (Rodina 2013). Instead, in July 2014, a court ordered Radu Dogaru, his mother Olga, Alexandru Bitu and Eugen Darie to pay €18 million in compensation for the loss of the paintings (‘Art thieves ordered to pay millions over missing Picasso, Monet, Gauguin and Freud masterpieces’ 2014). To date, the seven paintings stolen in 2012 have never been recovered and no amount of money can replace their loss.

Conclusion The cases of major art theft outlined in this chapter are but five drawn from the thousands that have taken place over the years. Each case highlights the challenges in securing and recovering artworks. Unfortunately, security flaws

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are typically exposed and improved after a theft has occurred. In terms of securing artworks, both the Gardner and the AGNSW thefts, for example, saw an increase in security guards at their respective institutions. Having this visible presence undoubtedly minimises opportunistic robberies. Sometimes the artworks are found and returned to their home, but too often they remain missing. In the case of The Weeping Woman, the painting was stolen as a form of protest. One can argue that the thieves were never serious about keeping the painting, and it was this factor, with a bit of good luck thrown in, which saw the painting recovered. In terms of improving overall recovery rates, the lack of a specialised art crime team can be viewed as a significant disadvantage. This is demonstrated by the case of A Cavalier (self portrait). It was stolen in a country (Australia) which lacks such a specialised unit, and the investigation was suspended a year after its theft. Compare this with the Gardner robbery which has the FBI’s Art Crime Team actively investigating the case, 27 years after the crime was committed. In considering the Cossington-Smith collection, missing for 40 years, the lack of a national art loss register means there is no official public record of the paintings. This makes their recovery less viable. The phrase ‘museum of the missing’ was coined for unrecovered artworks, such as those outlined in this chapter. They may have disappeared from the public domain, but they are not forgotten.

Bibliography Amore, A.  M., & Mashberg, T. (2011). Stealing Rembrandts: The untold stories of notorious art heists. New York: Palgrave Macmillan. Art thieves ordered to pay millions over missing Picasso, Monet, Gauguin and Freud masterpieces. (2014, May 14). ABC News. Retrieved July 7, 2016, from http:// www.abc.net.au/news/2014-07-15/art-thieves-ordered-to-pay-millions-overmissing-masterpieces/5597252. Botten, C., & Clarke, S. (1986, August 5). Picasso ransom demand refused. The Age. Retrieved October 22, 2015, from https://news.google.com/newspapers?id=9iYz AAAAIBAJ&sjid=vpIDAAAAIBAJ&pg=1898,2977010&dq=picasso+national+g allery+of+victoria+theft&hl=en. Butterfield, F. (1990, March 19). Boston museum says it was uninsured for theft. The New  York Times. Retrieved June 21, 2016, from http://www.nytimes. com/1990/03/20/arts/boston-museum-says-it-was-uninsured-for-theft.html. Carvajal, D. (2012, October 16). A Picasso and a Gauguin are among 7 works stolen from a Dutch museum. The New York Times. Retrieved July 3, 2016, from http:// www.nytimes.com/2012/10/17/world/Europe/Picasso-and-Monets-Are-StolenFrom-Dutch-Museum.html.

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Chappell, D., & Polk, K. (2009). Fakers and forgers, deception and dishonesty: An exploration of the murky world of art fraud. Current Issues in Criminal Justice, 20, 16. Charney, N., Denton, P., & Klebery, J. (2012). Protecting cultural heritage from art theft: International challenge, local opportunity. Retrieved March 20, 2017, from https://leb.fbi.gov/2012/march/protecting-cultural-heritage-from-art-theft-international-challenge-local-opportunity. Fears for stolen art treasure. (1967, June 7). The Sydney Morning Herald. Retrieved March 20, 2017, from https://www.newspapers.com/newspage/120532084/. Felch, J. (2011, June 23). What does Whitey Bulger know about the 1990 Gardner Museum art heist? LA Times. Retrieved July 7, 2016, from http://latimesblogs. latimes.com/culturemonster/2011/06/what-does-whitey-bulger-know-about-the1990-gardner-museum-art-heist.html. Gerlis, M., & Pes, J. (2013, December). Recovery rate for stolen art as low as 1.5% – Art crime is a low priority for police forces, and concerns surround the Art Loss Register. Art Market. Issue 252. Retrieved March 20, 2017, from http://old. theartnewspaper.com/articles/Recovery-rate-for-stolen-art-as-low-as-/31145. Grace Cossington-Smith. (2007). Australian stories: Visual arts and crafts. Retrieved June 20, 2016, from http://www.australia.gov.au/about-australia/australian-story/ grace-cossington-smith. James, B. (1996, July 19). Who stole the show? Sydney Morning Herald. Jinman, R., & Morgan, C. (2007, June 14). Dutch master stolen. The Sydney Morning Herald. Retrieved November 8, 2011, from http://www.smh.com.au/news/arts/ dutch-master-stolen/2007/06/13/1181414383922.html. Lopez, S. (1997). The great caper: Is the heist of the century about to be solved, two cons may hold the answer. Time, 150(21), 74. McCaughey, P. (2003). The bright shapes and the true names. Melbourne: Text Publishing. Moore, M. (1986, August 20). Stolen Picasso found in railway locker. The Sydney Morning Herald. Retrieved October 22, 2015, from https://news.google.com/new spapers?nid=1301&dat=19860820&id=yKpWAAAAIBAJ&sjid=LOgDAAAAIB AJ&pg=4887,3217417&hl=en. Murphy, S. (2015, March 17). Search for artworks from Gardner heist continues 25 years later. The Boston Globe. Retrieved July 7, 2016, from http://www.bostonglobe.com/metro/2015/03/17/gardner-museum-art-heist-one-boston-mostenduring-mysteries-years-later/9U3tp1kJMa4Zn4uClI1cdM/stor y. html?p1=Article_Related_Box_Article_More. Murphy, S., & Krantz, L. (2016, May 2). FBI searches property of man at center of Gardner heist case. The Boston Globe. Retrieved July 8, 2016, from http://www. bostonglobe.com/metro/2016/05/02/fbi-searching-conn-home-mobster-suspected-gardner-case/Uzq3fQhp1COvUEutx8dizJ/story.html. New South Wales Police Force. (2007, June 11). Police report. The Rocks Local Area Command, p. 2.

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Ng, D. (2012, October 17). Picasso, Matisse, Monet works stolen from Dutch museum. LA Times. Retrieved July 3, 2016, from http://articles.latimes.com/2012/ oct/17/entertainment/la-et-cm-picasso-matisse-monet-paintings-stolen-fromdutch-museum-20121016. Ng, D. (2013, October 22). Three Romanians plead guilty in 2012 Rotterdam art theft. LA Times. Retrieved July 3, 2016, from http://www.latimes.com/entertainment/arts/culture/la-et-cm-romanians-rotterdam-art-theft-20131022-story.html. Oliveri, V. (2014). A tale of two cities, a tale of two art thefts. In S. Hufnagel & D.  Chappell (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime: Australasian, European and North American perspectives (pp. 79–99). Farnham: Ashgate. Paintings stolen in raid. (1977, April 5). The Canberra Times, p. 11. Police say painting was in the hands of experts. (1986, August 21). The Age. Retrieved October 22, 2015, from https://news.google.com/newspapers?nid=1300&dat=19 860821&id=T8wzAAAAIBAJ&sjid=45IDAAAAIBAJ&pg=4050,25696&hl=en. Rodina, M. (2013, October 22). Art thief Radu Dogaru says robbery was too easy, threatens to sue Kunsthal museum in Rotterdam. Art Daily. Retrieved July 6, 2016, from http://artdaily.com/news/65763/Art-thief-Radu-Dogaru-saysrobbery-was-too-easy%2D%2Dthreatens-to-sue-Kunsthal-museum-in-Rotterdam#.V4F_LOh97IU. Shmith, M. (1986, August 5). Anguish in green replaced by faces of red. The Age. Retrieved October 22, 2015, from https://news.google.com/newspapers?id=9iYz AAAAIBAJ&sjid=vpIDAAAAIBAJ&pg=1898,2977010&dq=picasso+national+g allery+of+victoria+theft&hl=en. Taylor, A. (2012, May 20). Search for stolen masterpiece ends. The Sydney Morning Herald. Retrieved June 7, 2012, from http://www.smh.com.au/entertainment/ art-and-design/search-for-stolen-masterpiece-ends-20120519-1yxis.html. The Concert. (n.d.). Isabella Stewart Gardner Museum. Retrieved June 21, 2016, from http://www.gardnermuseum.org/resources/theft/the_concert. The ransom letter. (1986, August 5). The Age. Retrieved October 22, 2015, from https://news.google.com/newspapers?id=9iYzAAAAIBAJ&sjid=vpIDAAAAIBAJ &pg=1898,2977010&dq=picasso+national+gallery+of+victoria+theft&hl=en. The stolen artworks. (2015, March 17). Isabella Stewart Gardner Museum. Retrieved June 21, 2016, from http://www.gardnermuseum.org/FILE/5665.pdf. Theft. (n.d.). Isabella Stewart Gardner Museum. Retrieved June 21, 2016, from http://www.gardnermuseum.org/resources/theft. Thirteen works: Explore the Gardner’s stolen art. (n.d.). Isabella Stewart Gardner Museum. Retrieved June 21, 2016, from https://gardnermuseum.culturalspot. org/exhibit/gAIyZKoNat4oLA?position=13%3A0. Thomas, D. (2005, October 22). An elegant man with an unerring eye. The Sydney Morning Herald. Retrieved March 20, 2017, from http://www.smh.com.au/ news/obituaries/an-elegant-man-with-an-unerring-eye/2005/ 10/21/1129775957561.html.

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Three arrested over brazen masterpiece heist. (2013, January 23). ABC News. Retrieved July 5, 2016, from http://www.abc.net.au/news/2013-01-23/threeromanians-arrested-over-dutch-art-heist/4479600. Tijhuis, E. (2009). Who is stealing all those paintings? In N. Charney (Ed.), Art and crime: Exploring the dark side of the art world (pp. 41–51). Santa Barbara: Praeger. Trickey, E. (2016, March 13). The Gardner Museum heist: Who’s got the art? Boston Daily. Retrieved July 9, 2016, from http://www.bostonmagazine.com/news/ blog/2016/03/13/gardner-museum-heist/. Van Siclen, B. (2010, March 14). 2 decades later, mysteries remain of the Gardner Museum art theft. The Providence Journal. Retrieved October 10, 2011, from www.projo.com/art/content/artssun_Gardner_Theft14_03-14_10_ LIHNH4H_v2.

8 “Purely Bent on Mischief”: Theft from Australian Museums 1870s–1950s Maryanne McCubbin

Introduction Throughout their histories, Australian museums have suffered intermit­ tent thefts of collection items, of a frequency and scale that some might find surprising. Theft from museums is a little researched phenomenon and in Australia, not at all. This study examines some 66 individual thefts from Australia’s museums, occurring between the 1870s, when a number of Australia’s major colonial (later state) museums emerged, and the 1950s. In analysing a critical mass of museum thefts, it identifies a set of patterns and typical characteristics that allow us to understand the historical picture of theft from Australian museums. Two particularly common profiles emerge, linked directly to the particular nature of Australian museum collections: the theft of museum items as an unexceptional aspect of the more general stolen property market and as an element of everyday criminal activities; and the theft of museum items to develop significant personal collections and the typicality of “insider” theft, including the common coincidence of the theft by insiders for the development of personal collections.

M. McCubbin (*) Museums Victoria, Melbourne, VIC, Australia e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_8

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Fig. 8.1  Key for the Technological Industrial and Sanitary Museum, Garden Palace, Sydney, New South Wales, 1879. Source: Museum of Applied Arts and Sciences. Photographer: Sue Stafford

Australian Museums and Their Collections Founding Australian Museums Less than 40 years after the founding of Australia’s first British colony of New South Wales in 1788, Australian government administrations began to form major museums. Acts of colonial parliaments founded the Australian Museum (Sydney) in 1827 (Walker 2016) and the Tasmanian Museum and Art Gallery (Hobart) in 1848 (Tasmanian Museum 2016). The latter half of the nineteenth century saw the establishment of most of the major museums across the colonies, all of which presently exist in some form. These included the National Museum of Victoria (Melbourne) in 1854 (Rasmussen 2001), the South Australian Museum (Adelaide) in 1856 (South Australian Museum 2016), the Queensland Museum (Brisbane) in 1862 (Queensland Museum 2016), the Industrial and Technological Museum (Melbourne) in 1870 (Rasmussen XV), the Museum of Applied Arts and Sciences (Sydney) in 1879 (Museum of Applied Arts 2016) and the Western Australian Museum, known as the Geological Museum (Perth) (Western Australian Museum 2016), and the Queen Victoria Museum and Art Gallery (Launceston) (Queen Victoria Museum 2016) both in 1891. In the latter half of the nineteenth century, a range of other museums were also established across broader metropolitan, regional and local landscapes. Most of the larger metropolitan museums typically arose from major learned, educational and material surveying endeavours, such as philosophical and

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scientific societies, geological surveys and societies, and mining schools and institutes. Specialist museums such as maritime and naval museums also were founded. In regional cities and towns, museums arose particularly out of mechanics’ institutes, mining schools and agricultural societies. Into the twentieth century, more, mostly smaller and local, museums were founded, especially arising from historical societies and progress associations. Other museums were established in their own right, ranging anywhere from war to general municipal or local museums, while other organisations established a museum arm of their business, such as police or banking museums. By the 1950s, there were at least hundreds of museums across Australia, covering an enormously broad thematic spectrum, large and small, metropolitan, regional and local, permanent and (ultimately) temporary, formally auspiced or not, specialising as a museum alone or as an arm of a broader business and most with some form of public access arrangements. Hard to count at the best of times, today it is estimated that there are over 700 publicly accessible museums in Victoria alone (Culture Victoria 2016).

Australian Museum Collections The defining centrepiece of museums has been and continues to be their collections: a museum, “in the service of society and its development…acquires, conserves, researches, communicates and exhibits the tangible and intangible heritage of humanity and its environment for the purposes of education, study and enjoyment” (International Council of Museums 2016). Australian museums have, between them, developed collections of millions of portable items of material culture (Pearce 1992) or cultural property (Prott 2014), the tangible cultural material within the broader term of cultural heritage (Gerstenblith 2012). As, “selected lumps of the physical world to which cultural value has been ascribed” (Pearce 1992, p.4), museum collections might consist of a dizzying array of items, within each institution and across museums. At the broadest conceptual level, they might be described as, “movable…property of great importance to the cultural heritage of every people, such as…works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives” (UNESCO 1954). “Natural history” collections were the first sorts of collections to be developed by Australian museums. From the outset, these items were collected in an explicit research context and seen as scientific evidence, underlining the role of many museums as key foundational research institutions as well as

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broader public exhibiting and educational bodies. From an early point in their foundation, those same “natural historians” also began to collect the material culture of Australian  Indigenous peoples, often seeing Indigenous people as part of the “fauna and flora”. Other “object” collections followed, including three-dimensional items such as domestic items, technological items, clothing, signs and furniture, and tools and instruments, but also collections of philately, coins and medals, and arms and other weaponry, to name just some categories of items. Often “everyday objects” (Peek 2011, p. 3) with a direct practical use at the point of their production (Gerstenblith 2012), these items have subsequently been “musealized” (Grove and Thomas 2016, p. 2) or ascribed lasting historical, technological, cultural, scientific, aesthetic and/or exhibition values, attributes and associations, often at a point well past their original production, and introduced to public museum collections. For the purposes of this research, the material culture of interest has been distinguished from art and particularly fine art, held in art galleries and— especially in the northern hemisphere tradition—art museums, and from library and manuscript collections, despite the fact that such distinctions do not necessarily play out cleanly in practice. At times, some types of items typically found in Australian (non-art) museums, such as statuary, numismatics and weaponry, are, in both practice and research (Balcells 2016), defined as art or antiquities on the one hand (Barelli 1986) and, in general, “museum” or heritage items on the other hand; art, book and manuscript items are sometimes contained in the collections of museums of material culture. At different times, collections such as numismatics can also be transferred from art galleries (or art museums) to cultural museums (Rasmussen 2001) (or vice versa), representing an epistemological shift in the ascription of values to the items at a given point in time. Museums, art galleries and libraries can ­sometimes, at different points in their history, be managed in the same administrative unit and sometimes art galleries, libraries and museums might even be managed as one and the same thing.

Theft from Museums Historically, Australian museums have collected millions of cultural heritage items, which they need to protect from theft. The Routine Activity (or Approach) Theory (RAT) of crime is a “middle-range” theory that specifically understands all crime in its local and particular situation (Felson and Eckert 2016, p. xii). First espoused by Cohen and Felson (1979), RAT posits that in order for theft (and other crimes) to be committed, they must have three

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ingredients: a “motivated” offender, who identifies both a “suitable target”— “any…thing that draws the offender toward a crime”—and an “absence of capable guardians”. As “direct-contact predatory violations” (Cohen and Felson 1979), occurring in specific locations in time and space, RAT has been the most commonly deployed criminological framework in which to understand art thefts (Conklin 1994; Mackenzie 2005; Grove and Pease 2014; Balcells 2015). Often assuming RAT implicitly rather than explicitly, cultural museums have adopted a range of security approaches in an attempt to capably guard cultural items, knowing that without these safeguards there would be a high probability of theft of collection items. However, the particular measures museums have taken tend to be based on intuitive knowledge about the way attempted thefts might work, including knowledge of patterns in broader and parallel industries including art thefts, coupled with the personal experience, memories and observations of particular practitioners. This is because very little research has been undertaken on thefts of cultural property from museums.

Research Context Recently, empirical research on the theft of art from art museums and galleries—particularly fine or “high-end” art and most particularly paintings (Balcells 2016)—has grown exponentially. Studies obtaining a critical mass of data from a specified geopolitical area include Burnham’s (1978) pioneering study on art theft in the United States; Ho’s (1992) study on art theft in New York; Barelli’s (1986) study on art and antiquities theft in the United Kingdom and Kerr’s (2015) recent study on the policing and securitization of art theft in London. Collectively the four studies cover the two biggest art market countries to date. Other geographical studies include Tijhuis’ (2006) study of solved art thefts across Europe, Aarons’s (2001) study of art theft in Australia and Jackson’s (2016a) recent study of New Zealand art theft. Each of these authors looks at art theft beyond public institutions to include commercial galleries and sometimes private art owners and historical houses and the like. Between them they use a diverse range of disciplines and methodologies, most at least semi-quantitative, often coupled with qualitative methodologies, to analyse art thefts more or less contemporary to the time of the particular study, although some authors such as Tijhuis also bring a longitudinal dimension to their study. The small but growing body of literature on the theft of books, manuscripts, maps and prints from libraries and archives includes McDade’s (2009)

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overview of major thefts, which especially identifies two separate motivations for these thefts, the first and more predominant motive being to make money through sale of the items and the second to develop significant personal collections. Griffiths and Krol (2009) overview available information and study on insider thefts in libraries and archives and Knultson (2014) reviews library and archive thefts but only where the motive has been the thieves’ zest to develop their own collections. There is less empirical research on theft of cultural property from museums, both at case study and aggregate levels. While many of the research findings of art and library theft may well apply to the area of theft of other types of cultural property from cultural heritage museums, some of it will not, but we struggle to know what might be different because the latter is so little researched. A handful of divergent contemporary studies on thefts of cultural property from museums have been published over the past decade: these include Benson and Prinsloo’s (2013) study on thefts of both art and “heritage” objects from museums and galleries in Gauteng, South Africa; several Netherlands’ studies that build one upon the other, with Peek (2011) as the most recent instalment; and Grove and Thomas’ (2016) study on museum theft in Finland and England. Chure (2000) scans internationally for the theft of fossil vertebrates from museum collections, primarily citing a number of contemporary examples that had prompted his research.

This Study This study attempts to add to the small body of empirical research on the theft of cultural property from public museums. Unlike the other studies, it takes an historical approach, investigating theft of cultural property from Australian museums over an approximate 80-year period, from the 1870s when the first report of a museum theft appeared in the newspapers and when many of the major colonial (later state) museums were emerging, through to the 1950s. Keywords were entered into TROVE, Australia’s major aggregated digital resource of Australian newspapers, most of the series of which have been digitised up to the 1950s, with results returned in order of relevance. Study of more contemporary thefts in Australian museums is also a rich prospective research area. It would doubtless bring new and added findings to this picture of theft from Australian museums, reflecting more recent shifts in museum collections and practices, amongst other contexts. Drawing on the top (relevant) returns from the search, the study documented 66 separate thefts between 1875 and 1954 with a series of data, where

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that data was available from the newspaper reports. For some incidents, there were multiple newspaper reports, including for different stages of the incident, such as the theft itself, the arrest of a suspect(s) and/or the conviction (or discharge) of the suspect. For others, there was only a single report for a single stage of the incident and many reports contained little data. It is acknowledged that the “facts” represented in the newspaper reports might be entirely problematic, as well as shifting and sensationalised (Tijhuis 2006); however, the media provides otherwise scarce information (Kerr 2015) and in the absence of other or better data, this study has taken the facts as presented mostly on face value and attempted to read through the hyperbole to glean essential facts (or even near truths). In some instances I have made and documented assumptions based on the available data. The pursuit of further evidence available from other primary sources, such as museum archives and police and court records, was outside the research capacity of this study, but is also an historical resource ripe for further research. The study is a quantitative study, with a sufficiently critical mass of incidents and data from which to identify patterns and trends, while it is also semi-qualitative, as some of the newspaper reports offer rich data and commentary for analysis.

The Data Problem Like art and library thefts, the great disabler to further research on the theft of cultural property from museums is the difficulty in understanding the “dark figure” (Benson and Prinsloo 2013, p. 19) of the crime, due to the lack and opacity of the data (Bazley 2010). Like all studies, this study cannot know the real scale and nature of the phenomenon—in this case historically in Australia—as many incidents may never come to light. Where theft has occurred especially from museums and archives and libraries and where it has occurred in collection storage and been committed by an insider, it may not be discovered for decades or even ever (Bazley 2010; Griffiths and Krol 2009; Grove and Thomas 2016) or it may not be suspected as a case of theft but rather as an institutional misplacement of items (McDade 2009). Museums probably do not officially report most thefts, for a wide range of reasons. Generally speaking, it tends to be an area shrouded in secrecy, or the museums may see the incidents as too “petty”, or they may fear potential insurance penalties, or they may be concerned about damage to their reputation as responsible custodians (Benson and Prinsloo 2013). There may be an even greater reluctance of cultural institutions to report theft if they suspect it is by an insider (Lowenthal 1994; Bazley 2010).

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Repeated, similar comments from the annual reports of major state museums, from time-to-time quoted verbatim in newspaper reports, strongly suggest that many museums did not officially report all thefts or did so in a quite oblique manner. In a fairly typical example in 1905, the Western Australian Museum and Art Gallery noted regretfully: […] two small thefts during this year, which have occurred owing to the lack of proper supervision of the galleries…there are only a sufficient number [of security personnel] to thoroughly guard the building when all are present. (Quoted in The Western Australian, 16 October 1909, p. 3)

Suggestions of multiple other thefts from museums, probably not on any official or public record, can also be found, often in passing, in some of the newspaper commentaries: […] some time ago the Port Adelaide Museum’s collection of coins was found to have diminished through people helping themselves […] (Chronicle, 27 April 1933, p. 29)

Where thefts from museums are reported, criminal statistics mostly do not delineate thefts of cultural property (nor art) from the broader category of property crime, nor do they delineate in what types of places these crimes have occurred, making them notoriously difficult to unpick (Balcells 2016). Forensic study of the relationship between police reports and other “industry” and media sources of data about incidents has also identified other nomenclature and categorisation issues, such as the classification of stolen cultural items as “sundry goods” in police reports that make discrete museum theft incidents difficult to identify and which make reconciliation of incidents between different sets of data difficult, further muddying the counting (Benson and Prinsloo 2013). Furthermore, like art and library thefts, many museum thefts may not make it on to any other public record; they may be missed by the media or simply may not be regarded as newsworthy enough (Balcells 2016). It is assumed the newspapers used in this study mainly came across their reported incidents of museum theft through their access to police activities and court proceedings. The multiple reporting of some of the same incidents in different newspapers also reflects a growing syndicated news-sharing service, resulting in an emphasis on reporting the bigger, more notable incidents in the major museums in the capital cities. The sample of incidents in this study, therefore, is skewed in this way, as well as towards incidents that have been reported to the police, some of which also have some form of judicial follow-up. While

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the findings cannot be seen, therefore, as representative of all thefts from Australian museums, they can be seen predominantly as valid findings about the major, notable thefts from Australian museums that have appeared on the public record between the 1870s, when the first theft was reported, and the 1950s.

Theft in Australian Museums 1870s–1950s Motivated Offenders When [the police] located him on Saturday night [he] disappeared, but a search revealed him in one of the cupboards, from which he was dragged to be handcuffed. While he was guarded a further search of the place was made, and a razor, some pipes, and other sundries were found, which were subsequently identified by Mr. Malone as some of the property stolen from his shop on October 1. A small bottle, containing 5 oz. or 6 oz. of gold, a matchbox full of gold, and a mustard tin half full of fine gold specimens, were also pulled out of concealment by the detectives, and re-collecting immediately that [he] had been in Adelaide recently, and that he was there when the new Museum on North-­ terrace was broken into and robbed of a glass case full of valuable specimens, the detectives pressed him closely as to the manner in which he had become possessed of so large a quantity of gold. He was not communicative….[He] finally admitted that “as the game was up he might as well yield peacefully”. He followed up this remark by admitting that he had committed the robbery at Mr. Malone’s, and also the robbery at the Adelaide Museum. Evening Journal report regarding a theft from the South Australian Museum, 27 November 1895

Motivations for Stealing Collection Items Contemporary commentators on various museum thefts were sometimes confounded by the types of thieves and their possible motives. Others were more certain, probably holding a level of knowledge about the circumstances of the thefts that were not revealed in the newspapers. In a theft of “[…] crystal replicas of fifteen famous diamonds, foreign paper money, beetles, shells, and many other valuable exhibits […]”, from the Port Adelaide Nautical Museum in 1931, the director suggested overseas visitors were responsible (Advertiser and Register, 11 July 1931, p. 18). Others again generalised about the types of people likely to commit theft. Following the separate thefts in 1926 of a revolver from the National Museum of Victoria and a sculptural

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arrow and jewel from the National Gallery of Victoria a week later, John Shirlow, a trustee, commented: Droves of youths and boys visited the museum on holidays and Sunday afternoons. They did not come to the place with the slightest intention of inspecting the various collections in an intelligent and well-behaved manner, but were purely bent on mischief. (The Argus, 22 December 1926, p. 25)

Likewise, following a theft of beetles from the Western Australian Museum in 1953, the curator Mr Douglas commented that, “[C]hildren and kleptomaniacs sometimes take exhibits” (Barrier Miner, 26 August 1953, p. 7). Indeed, the motives for many of the thefts will always remain mysterious or unknowable for researchers, as there will always be insufficient data from which to confirm most thieves’ motives. I established an a priori typology in which to categorise the motivation for each separate incident of theft, using Conklin’s (1994) influential typology of nine motives for art theft. I only categorised a motive for theft where I assumed I had enough data of any sort to work with, and distinguished between those categorisations where I made an assumption based on the available data and factual assessments, where the facts of the theft and post-theft activities, as outlined in the newspaper reports, provided data to confirm, for all intents and purposes, the motivations of the thieves. Of 66 separate theft incidents, I categorised 42 incidents for motivations, and of those, 12 incidents were based on known facts and 30 incidents were based on assumptions. I found that for the vast majority of incidents where I could determine or infer motivation, only two motivations—“personal possession” and “speculation”—from Conklin’s typology of nine applied, with four exceptions (see Fig.  8.2). This perhaps points to some distinctions between art and museum theft. Six of Conklin’s categories of motivation were not relevant. The section “Thefts for Money” elaborates on why I categorised the majority of incidents as “speculation”, while the section “Thefts of Privilege” elaborates on why I categorised 12 incidents as “personal possession”, with a particular museological bent on the types of incidents in this category.

Suitable Targets The thief has worked on the principle of taking only what was both valuable and easily carried. Extract from The Telegraph, regarding the robbery of gold specimens from Queensland Geological Museum, 20 September 1898.

159

  “Purely Bent on Mischief”: Theft from Australian Museums… 

SPECULATION - FACT

8

SPECULATION - ASSUMPT.

18

PERSONAL POSSESSION - FACT

4

PERSONAL POSSESSION - ASSUMPT.

8

PERSONAL GAIN - ASSUMPT.

3

OTHER - ASSUMPT. 1 UNKNOWN

24 0

5

10

15 20 No. Incidents

25

30

Fig. 8.2  Motivation for Museum Thefts

Types of Material Targeted There is a close relationship between motive for theft and the types of materials pursued; depending on the motive, certain types of materials become suitable targets (Peek 2011) or in property theft terms, “hot products” (Felson and Eckert 2016, p. 36; Grove and Pease 2014). I have categorised the types of items stolen across the 66 incidents 91 times: the reason that there are more categories of items stolen than incidents is because the majority of thefts involved multiple items, which frequently crossed categories. Seventy-two of 91, or nearly 80 per cent of types of items stolen fell into just 7 narrowly prescribed, and mostly closely associated, types of museum items, as reflected in Fig. 8.3. In many respects, this overlaps with the findings of many studies on art theft, whereby a number of these categories like weaponry, coins (W 1911) and silverware have also been consistent, significant targets (Balcells 2016; Benson and Prinsloo 2013; Barelli 1986). The major exceptions to this are types of materials more usually found in cultural heritage museums rather than art institutions, especially arms and weaponry, mineralogical items and animal and insect specimens. These types of items might also “invite theft” (Felson and Eckert 2016, p. 37) because most of them are especially small and thus relatively concealable. Aarons (2001) and Benson and Prinsloo (2013) have made similar findings for the types of artworks that are most stolen, as has McDade (2009) for

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ARMS & WEAPONS

21

COINS AND MEDALS

13

GOLD SPECIMENS

10

INSECTS & BIRDS

9

MINERALS & METALS

7

GEMSTONES

6

GOLD & SILVERWARE

6

OTHER CATEGORIES

16

UNSPECIFIED

3 0

5

10 15 No. Incidents

20

25

Fig. 8.3  Categories of Items Stolen from Museums

thefts of manuscripts, books, maps and print materials from libraries. As saleable (stolen) property, the items might also offer relatively high value for their size and weight (Felson and Eckert 2016). One notable exception was the twice-stolen bell off the German cruising ship Emden from the War Museum in Sydney in 1933, which was, “about 100 [pounds] weight and bolted to a pedestal” (The Advertiser, 1 May 1933, p. 10), where for the second theft, the thief cut the fastening wire, bagged the bell and carried it to the fire escape, placing it in a truck he purchased for the theft (Australian War Memorial 2016) (Fig. 8.5). A handful of other exceptions to this might be where hundreds of items were stolen, such as the overnight theft of over 200 items of antique silverware from Sydney’s Technological Museum in 1930 (National Advocate, 1 September 1930, p. 3). However, perhaps even this number of items of silverware could be easily portable if we imagine an elaborate dinner service of many small parts, placed in a couple of bags at night. Associated with their small size, Fig. 8.4 demonstrates that a remarkable percentage of thefts were of multiple items—sometimes even hundreds of items. This is considerably more than the average numbers Peek (2011) identifies for thefts from the Netherlands’ museums and perhaps reflects the laxer security approaches of museums in the past and the types of items typically available and pursued in Australian museums up to the 1950s. It is certainly more than the average numbers in art thefts and reflects the more varied, voluminous and greater number of smaller items in museum collections, compared to art collections.

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No. Incidents

33

16 11

1

2 - 10

11 - 100 No. Items Stolen

5

1

101 - 1000

1001 PLUS

Fig. 8.4  Numbers of Items Stolen per Theft from Museums. NB: Some assumptions have been made based on descriptions of items stolen

Fig. 8.5  The twice-stolen ship’s bell from SMS Emden: HMAS Sydney (I). Source: Australian War Memorial

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Thefts for Money Re-sale Thefts Many of the types of items stolen, especially the mineralogical and precious metal items, suggest the thefts have been motivated by the prospect of “speculation”, where the thief has no particular buyer in mind at the time of the theft but hopes, “[…] they will be able to find a [buyer] […] to buy the stolen [goods]” (Conklin 1994, p. 142). Indeed, the theft of, “[…] a set of new coinage […]” (Coolgardie Miner, 26 September 1902, p. 3) from the Coolgardie Museum in Western Australia in 1902 might have been of directly usable currency, with no need for re-sale. The common types of much of the stolen material—minerals, coins, medals and silverware—had some sort of value— perhaps up to 10 per cent—even with illicit origins, in re-sale or “second-class goods” markets, with their illicit and licit mix (Felson and Eckert 2016). Where the fate of the stolen museum items could be traced, many of them were sold (or attempts were made to sell them) either directly to a new owner, to fences or to a second-hand dealer or pawnbroker, mostly locally and sometimes interstate. In 1886, a thief attempted to pawn medals with an “intrinsic value” of £7 that he had stolen from the Technological Museum in Victoria (The Age, 20 August 1886, p. 7). In one of the highest-value thefts uncovered in the study, of a variety of items valued at “at least £1000”, from the Australian Museum in 1952, “Roman and Egyptian antiquities” were recovered from a second-hand dealer (The Newcastle Sun, 19 November 1952, p. 16). In the same year, a pistol, bayonet and other items stolen from the Port Adelaide Nautical Museum were also recovered from a second-hand dealer (The Advertiser, 2 April 1953, p. 13). While an historical picture, it places much Australian museum theft within the more general, local stolen property market, with its characteristic prevalence of second-hand dealers and brokers (Felson and Eckert 2016). In many respects this is similar to findings about art thefts, but art thefts tend to have greater involvement of more licit actors in the distribution network, most especially auctioneers (Aarons 2001; Tijhuis 2009). This may be directly related to the type of material stolen and its relatively low financial value (Peek 2011). Although most stolen artworks have relatively low value (Kerr 2012), they tend to have more value than most museum items. Unlike much artwork, much of the material was not inherently unique as such, but rather it was its ascribed associations that made it ultimately worthy of inclusion in museum collections. Figure 8.6 shows that of 35 incidents where the value was somehow estimated in the newspaper reports, 16

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No. Incidents

31

14

12

4

2 UNDER £1

£2 - 10

£11 - 100

£101-1000

3 £1000 PLUS UNKNOWN

Fig. 8.6  £ Value of Items Stolen per Theft from Museums

incidents were of items estimated to have a value below £10, while 12 more were estimated to have a value under £100. These were relatively low-value items (even allowing for a substantial decrease in currency value over the 80-year period), most appropriate for direct illicit sale or disposal in the local second-­hand market, including pawn shops and other broker outlets.

Commodity Thefts Many of the items—especially coins and medals, gold specimens, minerals and metals and gold and silverware—were stolen for the market value of their material base, their value as a raw material commodity (Mandel 2008) or, in more prosaic parlance, their “scrap value”, common also in other museum and art thefts (Benson and Prinsloo 2013; Grove and Pease 2014; Jackson 2016b; Peek 2011). Often, the metal items were either suspected of being, or confirmed as, melted down and sold or attempted to be sold to metal merchants or brokers. In an 1881 theft of various precious metals and minerals, gemstones and coins from the Technological Museum in Victoria, the thief attempted to sell the smelted metal to a gold broker (The Age, 28 January 1882, p. 6). In a 1932 theft of precious metal items from the Queensland Museum, “[…] it was ascertained […] that the defendant had had the gold watch melted down, and the gold was now at the Sydney Mint” (Daily Standard, 20 December 1932, p. 1). In a significant theft of over 200 items of

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antique silverware from the Technological Museum in Sydney in 1930, police suspected that the thieves would melt the silver down for re-sale (National Advocate, 1 September 1930, p. 3) (Fig. 8.7).

Thefts as Part of Everyday Criminal Activities Arms and Weapons Theft In 1938 Brisbane’s Truth (9 October 1938, p. 16) noted that, “[…] museums have always been the prey of criminals in search of weapons […]”, but what prompted the particularly common theft of arms and weapons (Peek 2011)? (Fig. 8.8). Contemporaries struggled to understand the motivations, nearly always noting that the arms could not be activated or easily adapted for actual current-day use. Mr Longman, Director of the Queensland Museum, also commenting on the same series of thefts of weapons from his institution as the Truth, stated, “[A]nyone hoping to use them as weapons would be disappointed […] [T]hey could not be regarded as usable even by the Abyssinians against the Italians” (The Courier-Mail, 26 February 1938, p. 15). Even the thief was sometimes suspected of quickly discovering that the weapon had no contemporary utilitarian value: “the miscreant” who stole an “antiquated revolver” from Castlemaine Art Gallery and Museum in 1932 “[A]pparently […] found it unfit for use and of no value, as it was subsequently found in the gardens” (The Age, 5 August 1932, p. 13). Some evidence points definitively to thieves stealing arms in the belief that they could be functional or made functional for present-day use. Upon the recovery of the pistol owned by the famous explorer of Australia’s interior, Robert O’Hara Burke, after its theft from Melbourne’s Technological Museum in 1944, it was found that, “[…] two inches had been sawn off the barrel and two of the chambers drilled out in an attempt to convert the pistol to fire modern type ammunition” (The Telegraph, 23 November 1944, p. 3). Indeed, in Canada immediate correlation was drawn: in 1947, “[W]eapon-­ hungry gangsters…rifled the [Ottawa War] Museum of 3 sub-Machine guns, 6 pistols […] [A]ll over Ontario small-town banks are being held up” (Sunday Times, 11 November 1945, p.  11). The examples cited point to the main motive for stealing arms—being the assumption of their potential for current functional use as weapons, even if through re-sale. None of the museum thefts identified in the study involved the use of arms themselves—in other words, none of them were armed robberies. Rather, the evidence reinforces the idea that generally, many museum thefts may have been occurrences within

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Fig. 8.7  Fears of items being melted down. Evening News, Sydney, Saturday 30 August 1930, page 1. Source: National Library of Australia

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Fig. 8.8  Truth, Brisbane, 9 October 1938, page 16. Source: National Library of Australia

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broader stolen property and associated criminal networks, where thefts from museums specifically were due to the special “suitability” of the material they contained, coupled with an assessment that there was enough of an absence of capable guardianship to take the criminal risk.

Theft Sprees and Museums as Targets In a number of instances, the same types of items were stolen from the same institution over a proximate period, which might suggest the same thieves repeating their crime or other thieves getting the same idea from the publicity generated by other thefts. In 1897 the theft of a “parcel of rough diamonds”, from the Mining and Geological Institute in Sydney, was the “[…] third theft of stones from the institution, the last one being about a month ago” (The Express and Telegraph, 26 February 1897, p.  2). In 1938 six weapons were stolen from Queensland Museum across three separate occasions (Truth, 9 October 1938, p. 16), and in 1953 four weapons and ammunition were stolen from the Castlemaine Museum and Art Gallery in Victoria over a fortnight (The Age, 11 May 1953, p. 4). In other variations, thefts with similar characteristics occurred across different institutions over a proximate period, while thefts of different types of materials occurred in the same institution over a proximate period, both of which suggest separate theft sprees by the same thieves. The sprees within the same museums evoke the persuasive RAT likelihood of “repeat victimisation” (Mackenzie 2005; Grove and Pease 2014; Grove and Thomas 2016)—a museum identified as being a suitable target and an incapable guardian will continue to be pursued until it is perceived as being a capable guardian. Some of the museum thefts were also part of a more general spate of burglaries, from museums and other properties with other “suitable targets”. The 1895 theft of precious metals and minerals from the South Australian Museum was also revealed to be part of a string of crimes (Evening Journal, 27 November 1895, p.  2). Of the 1932 theft of weapons from the Queensland Museum over multiple incidents, the prosecutor described one of the thefts as “a particularly daring theft […] [T]here have been many other thefts from the Museum”. The defendants were apparently on a spree of burglaries, as they had a complete set of tools in their possession (Daily Standard, 19 December 1932, p. 1). The various spree-like patterns reinforce the suggestion that many museum thefts were committed as an element of a broader landscape of common property theft by “common” thieves, “amateur” in museum thefts and versatile across a number of types of “suitable targets” (Bazley 2010; Aarons

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2001; Conklin 1994). In the instances where museums are targeted, the thieves have, for a time, found a happy and sometimes sustained coincidence between “suitable targets” and an “absence of capable guardians” to fit their respective motives.

Thefts of Privilege Personal Possession Thefts In describing the theft of (probably) hundreds if not thousands of insects from the Entomology Museum at the Victorian Department of Agriculture in 1910, the Adelaide Register (7 March 1910, p. 6) called it “a robbery that must be unique in the criminal records of Melbourne […]”. However, this type of theft was not unique, neither to Melbourne during the period under investigation, nor across similar institutional collections across Australia and overseas. To the contrary, it is an identifiable type of theft with specific characteristics. In that instance, “some person who has a special knowledge of entomology […]” accessed 36 cabinet drawers and stole all, “[…] either unique or extremely rare […]” specimens (Adelaide Register, 7 March 1910, p.  6). In the most quantitatively large theft identified in this study, Colin Wyatt, “[…] a learned [amateur] entomologist […]”, stole over 3000 butterfly specimens across a number of major Australian museums, at least from 1945 to 1947, and transported them back to his native England for his own collection, “[…] the best private collection [British Museum entomologists] had ever seen” (Sydney Morning Herald, 6 September 1947, p. 2). In 1953, a thief, who “[…] showed discrimination and judgement only an expert would appreciate […]”, stole 40 beetles from exhibition at the Western Australian Museum: “[H]e evidently wanted to fill gaps in his own collection” (Barrier Miner, 26 August 1953, p. 7) (Fig. 8.10). The theft of insects also featured in a sustained theft from South Australia’s Public Library, Museum and Art Gallery between 1928 and 1933 (The Advertiser, 9 October 1935, p.  13). Meanwhile, similar thefts were being committed in the northern hemisphere. Gripped with a “[…] strange sort of mania […]”, Anton Fasel, a curator at the Natural History Museum in Vienna, was discovered in 1906 to have “[…] stolen a goodly number of the rarest specimens […]” (Glen Innes Examiner and General Advertiser, 21 December 1906, p. 2). In 1949, an “[E]nthusiastic member of the Royal Society of Entomologists” was found to have 5141 beetles from London’s Natural History Museum in his personal collection at his home (The Courier-Mail, 11 June 1949, p. 1) (Fig. 8.9).

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Fig. 8.9  Coveted jewel beetles: Castiarina argillacea, jewel beetle. Source: Museums Victoria. Photographer: Monique de Lacy

Fig. 8.10  Barrier Miner, Broken Hill, 26 August 1953, page 7. Source: National Library of Australia

Several characteristics distinguish these types of thefts: the thieves are generally of an older age profile; they act alone; they usually steal one specific type of material; they are usually (or are suspected to be) relatively experts in the subject matter of their thefts, either in an avid but amateur

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way or as a paid professional; due to their expert knowledge, the thieves are usually (or are suspected to be) “insiders”, including paid staff or amateur but respected researchers who can talk their way into accessing the collections by dint of their specialist knowledge; and, in association with that characteristic, the thefts are usually from collection storage as opposed to exhibition areas. The thefts tend to occur over a sustained period of time and tend to be of especially large numbers of specimens. The specimens are almost always used for personal collections, and not to earn money, and the thief may alter the specimens and/or their information, including their classification and other institutional identifications, after they have taken possession of them (Glen Innes Examiner and General Advertiser, 21 December 1906, p. 2). Finally, they tend to rationalise the thefts with a righteousness to their possession (Conklin 1994; Lowenthal 1994) due to their contempt for the (perceived) incapable guardians from whom they have stolen their items. In Conklin’s motivation typology, I have characterised the motivation for these thefts as “personal possession”, which in the art context have been referred to as “connoisseur” (Conklin 1994) or “art-motivated” (Mackenzie 2005) thefts. We have seen above the relationship between subject expertise and building significant personal collections. The type of museum theft described closely resembles Knultson’s (2014) analysis of bibliokleptomania: the repeated, sustained theft of books, manuscripts, maps and prints from archives and libraries motivated by an “[…] uncontrollable passion for ­[possessing] books”; indeed, Conklin (1994) uses a major library theft as one of his examples of “connoisseur theft”. The difference, of course, is in the type of material stolen. All the instances cited here are of insects or particular insect sub-genres, many of which also have “great beauty” (The West Australian, 18 February 1947, p. 8). However, a similar case in the 1990s, but which falls outside our date range, saw a staff member steal more than 2000 stuffed and mounted animal specimens from the Australian Museum (Independent Commission Against Corruption 2003). The museum world has also witnessed significant numbers of fossil thefts (Chure 2000). Desirability or “suitability” of the particular type of material sought will always be in the eye of the beholder. This type of theft, motivated by such a desire for specific sorts of items for a personal collection that thieves are prepared to take repeated, considerable criminal risks, is usually associated with some level and type of psychiatric disorder with characteristics of obsession, compulsion and hoarding (Knultson 2014).

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Insider Thefts Characterised as occurring “almost constantly” (McDade 2009), internal theft has been estimated to constitute 83 per cent of art thefts (Tijhuis 2009), 75 per cent of library and archive thefts (Griffiths and Krol 2009) and possibly as happening ten times more than external theft in museums (Peek 2011). The high estimates usually include possibilities of insider collusion as well as direct theft. The term “insider” tends to be defined similarly by the various researchers, to mean internal staff, honorary staff and third-party contract staff, institutional associates such as volunteers, interns, honorary, emeritus and research associates but also board and committee members, former staff, patrons and donors and frequent researchers (Griffiths and Krol 2009; Lowenthal 1994). The shared characteristic of these people is that they have a more privileged, direct and easier access to collection material than outsiders, that they probably know their way around collections and that access to collections may be granted because they are trusted, even at a deeply implicit rather than explicit level. By its “deeply embarrassing” (Griffiths and Krol 2009), and thus exceptionally secretive, nature, it is probably impossible to know generally and from any sources to what extent insider culpability or collusion has been part of thefts from cultural institutions. What we do know is that there are many instances of it (Chappell and Polk 2014). The data available from the newspaper reports does not readily lend itself to being able to determine the extent of insider involvement. Indeed, even some of the thefts that looked like they were committed by outsiders, such as overnight burglaries involving broken windows and glass, may have been set up by insiders precisely to look as if they had been committed by outsiders. Figure 8.11 places each of the 66 incidents in one of the following four categories: solved cases confirming external involvement; solved cases confirming insider involvement; incidents where the circumstances strongly suggested insider involvement; and all other incidents in an “unknown” category, as making assumptions here seemed particularly fraught. Some thefts were proven to involve insiders, including by researchers given access to collections. We have seen above Colin Wyatt’s major spate of thefts of butterflies in the 1940s, along with several similar thefts, especially of beetles and butterflies. Wyatt was an insider—an esteemed and persuasive amateur entomologist. Mr Musgrave, an entomologist from the Australian Museum, commented, “I met Wyatt several times when he came to see the collection. I thought his interest was purely scientific. It never occurred to me that he planned to steal the butterflies” (Northern Star, 26 May 1947, p. 5). In

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EXTERNAL - FACT

12

INTERNAL - FACT

5

INTERNAL - ASSUMPT.

10

UNKNOWN

39 0

5

10

15

20 25 No. Incidents

30

35

40

45

Fig. 8.11  External Versus Internal Thefts from Museums

1921, the Technological Museum in Sydney suffered a major theft of silverware, where the items were replaced with substitutes: the showcase, […] had apparently been opened with a key. There is no evidence of the building having been broken into, and it is considered that no ordinary thieves have been at work, as other items of more value were left untouched […].

Ultimately, “[A]n elderly man […] a special constable, and attendant, who had been in the employ of the Technological Museum…was placed on trial […] on a charge of theft […]” and found guilty of receiving (The Sun, 5 September 1921, p. 7). However, most cases were not resolved, and there are a greater number of cases where suspicion of insider involvement was either explicitly stated or strongly implied. In a theft of gold specimens from the Western Australian Museum in 1905, there was, “[N]o clue to thieves […] The burglar was evidently one who knew the ropes and the theft could have been accomplished by collusion without and within the establishment” (Sunday Times, 5 March 1905, p.  1). Regarding the two thefts of the German Iron Cross from the Geelong Free Library in 1924–1925, the “[…] screws had been taken out [of the display case], and carefully replaced…the Iron Cross alone was taken, notwithstanding that other relics were in the case” (Geelong Advertiser, 12 June 1925, p. 4). The circumstances around the theft of 30 gold specimens from the Western Australian Museum in 1933 were “mysterious”—the thief pushed back the showcase lock, and there was no sign of a break-in (Western

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Fig. 8.12  Daily News, Perth, 22 April 1933, Page 1. Source: National Library of Australia

Mail, 27 April 1933, p. 18) (Fig. 8.12). Similarly, in the 1941 theft of military material from the Armidale Museum in NSW, [T]he most recent theft was of the tin hat, which disappeared only last week […] Mr Woodcock said he had no idea of when or how the articles were removed from the building. He said the museum was locked when he was not on duty. (The Armidale Express and New England General Advertiser, 15 September 1941, p. 4)

The extent of insider theft remains impossible to determine. While there is distinct evidence of it in this study, and strong suggestion that it is a common-­ enough occurrence, the actual figures and proportions of insider theft arrived at here may not be especially meaningful, because no conjecture can be made for such a high proportion of incidents. Furthermore, the actual position of the insider—the person with privileged access—can vary widely, not helping our ability to profile and predict in this area.

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Absence of Capable Guardians No need for him to disturb anybody by raising a window and ringing a bell, for there are places where he can yank out a square of glass and help himself to… pictures or anything else of value that might take his fancy. Extract from a withering editorial in Perth’s Sunday Times on the “gross mismanagement” of the Western Australian Museum following a theft in 1905. (9 April 1905, p. 7)

Museum Buildings Planning Thefts While the available data does not necessarily lend itself to clarifying whether each theft was planned or opportunistic, some of the circumstantial descriptions of the thefts suggest that the majority of the thefts were planned rather than opportunistic. Of 66 separate theft incidents, I categorised 42 incidents as to whether they were planned or opportunistic and of those, 14 incidents were based on the facts of the case and 28 were based on assumptions. I have assumed overnight thefts were planned (see Fig. 8.13). In 1886, a thief at the Australian Museum, “[S]eeing no one about, […] hid himself in a box containing some kangaroo skins, and remained in the building all night. At an

PLANNED - FACT

14

PLANNED - ASSUMPT.

27

OPPORTUNISTIC - FACT

0

OPPORTUNISTIC - ASSUMPT. 1 UNKNOWN

22 0

5

10

15 20 No. Incidents

Fig. 8.13  Planned Versus Opportunistic Thefts from Museums

25

30

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early hour the next morning he purloined the articles […]”, including precious metal items, medals and precious minerals (The Maitland Mercury and Hunter River General Advertiser, 12 October 1886, p. 2). Another fairly typical case was the theft of over 100 coins and minerals stolen overnight from the Australian Museum in Sydney in 1934 (Lithgow Mercury, 23 March 1934, p. 2). However, the planning around many of these thefts may have reflected the “casual decision-making” that characterises much crime (Felson and Eckert 2016), rather than having been laboriously considered, sophisticated or especially organised. Many of the thefts neither looked like they were comprehensively planned nor that they needed much planning. Rather they were characterised by some level of forethought, distinguishing them from crimes where the thought only occurred when the opportunity presented itself and then executed with apparent relative ease.

Day, Night or Day/Night Thefts Of 66 incidents, enough data was available for 28 incidents to delineate whether thefts were committed overnight, during opening hours or during a combination of both opening and closing hours. Figure 8.14 shows that of these, 13 were committed in daytime during opening hours, 9 incidents were committed overnight, when the building was broken into, and 6 were committed across both opening and closing hours, similar to findings for art theft

40 38

35

No. Incidents

30 25 20 15 10

13 9

5 0

6 DAY

NIGHT

DAY/NIGHT

Fig. 8.14  Day Versus Night Thefts from Museums

UNKNOWN

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(Bazley 2010). In the overnight thefts, museum buildings seem to have been easily penetrated, especially through windows, either through easily opening or smashing the glass. In an 1881 theft of diamonds, precious minerals and a coin from the Technological Museum in Melbourne, the thieves broke into the building through the window at night and then broke open the display cases (The Age, 28 January 1882, p. 6); likewise, in 1916, a thief broke into the South Australian Museum through the window to steal a specimen of oxidised gold (The Express and Telegraph, 30 June 1916, p. 4). There were several instances where the thieves hid in the museum during opening hours, then committed the theft after closing and escaped the building: in a 1935 theft at the Australian Museum, the thief, after having, “[…] had a few drinks […]”, and also in possession of tools to assist breaking and entering, stole multiple gold specimens after hiding in the Museum for four hours and then escaping through an open window (Northern Star, 17 August 1935, p. 9). In an 1886 theft of several gold, silver and bronze medals from the National Museum of Victoria, on the other hand, the thief had forced the display case open with an instrument one afternoon while the Museum was open to the public (The Age, 20 August 1886, p. 7).

Theft from Showcases Of 66 total incidents, enough data was available to delineate whether thefts were made in exhibition or storage areas for 32 incidents (see Fig. 8.15). Most of the items stolen from exhibition were in turn removed from exhibition EXHIBITION V. STORAGE THEFTS 35 30

Axis Title

25

32 29

20 15 10 5 0

3 EXHIBITION

STORAGE

Fig. 8.15  Exhibition Versus Storage Thefts from Museums

UNKNOWN

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showcases and in the majority of incidents this involved a deliberate, forceful breach of the physical infrastructure of the showcase. Most of the showcases seem to have been very easily breached, and the protective physical infrastructure provided by the showcases was minimal. In separate theft incidents, showcases were variously “prised open” (Advocate, 19 August 1941, p.  3), “broken open” (The Advertiser, 30 October 1946, p. 1), “forced open with an instrument” (The Age, 20 August 1886, p.  7), “wrenched” (The Bendigo Independent, 12 January 1901, p.  5), “[…] placing a knife or something between, the ends of the covering sash were lifted” (South Australian Register, 1881, p.  1), had “screws removed” (The Mercury, 8 October 1954, p.  24), “[…] quietly forced open […] with a chisel—a work of no great difficulty […]” (The Age, 10 August 1889, p. 9) or had the glass smashed (News, 10 January 1950, p. 8). In a more singular instance of a theft of gold specimens and gemstones from a showcase at the Geological Museum in Brisbane in 1898, the alarm to the showcase was cut (The Argus, 20 September 1898, p. 6). This sort of breach can suggest insider knowledge and collusion. While unusual amongst the identified theft incidents, it may, however, have been atypical because most showcases were not alarmed during the period under study.

Detection, Conviction and Recovery “…solving an art theft is like cracking any other property case”. Former Police Officer Don Hrycyk, quoted in Museum of the Missing. (Houpt 2006)

Detection and Conviction Figure 8.16 shows that the police laid charges against alleged perpetrators in some 21 of 66 incidents, while of those, at least 11 thieves were convicted. This suggests a much higher rate of charging and conviction than household burglaries (Felson and Eckert 2016) and of art thefts (Aarons 2001; Conklin 1994). This may have been due to their “higher status” as thefts of entrusted public heritage from museums and thus the greater preparedness of police to bring resources to the pursuit of the crimes. Criminal intelligence bureaus (or the like) were involved in quite a number of the incidents and sometimes police established major, sustained investigative cases. To solve the second theft of the bell from the SMS Emden, “[…] a definite instruction was issued [by the police] that the relic had to be found at all costs. More than a dozen

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LEGAL OUTCOME 50 45

45

No. Incidents

40 35 30 25 20 15

21

10

11

5 0

3 CHARGED

DISCHARGED

CONVICTED

UNKNOWN

Fig. 8.16  Legal Outcome per Theft from Museums

detectives worked on the case” (Maitland Daily Mercury, 2 January 1934, p. 1). On occasion the thieves were pursued and caught “red handed”, as it were. In a 1932 theft of gold specimens from the Queensland Museum, two suspects were arrested “about an hour later” after “an exciting chase” (Maryborough Chronicle, 20 December 1932, p. 7). On occasion, dealers and brokers reported their suspicions to the police. Regarding the 1886 theft of several gold, silver and bronze medals from Victoria’s National Museum, a pawnbroker who acted as a witness testified that the “[…] accused called […] on Friday, and asked whether witness bought old silver, producing a large silver medal, which witness handed to Detective O’Donnell, who happened to be present” (The Age, 20 August 1886, p. 7), (although the pawnbroker seemed to have very little choice but to report the crime in this instance)! On most occasions when charges were laid, police pursued the crimes using standard detective work, including investigations of suspected active thieves in local stolen property networks and of local stolen property networks themselves. In 1895 police arrested a man involved in a string of property crimes across several colonies, including the theft of gold specimens from the South Australian Museum (Evening Journal, 27 November 1895, p. 2).

Recovery of Items Figure 8.17 shows that, where the fate of the stolen items could be ascertained, they were recovered, in part or fully, in some 18 of the 66 incidents.

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60 50

No. Incidents

48 40 30 20 18 10 0

ITEMS RECOVERED

UNKNOWN

Fig. 8.17  Recovery of Items per Theft from Museums

This recovery rate of 27 per cent is higher than that which has been estimated for artworks, of somewhere between 10 (Conklin 1994) and 15 per cent (Julian Radcliffe quoted in Nairne). It might be because the sorts of items stolen from museums so often went through more conventional, prosaic and localised stolen property and second-hand goods markets, rather than involving more licit actors, especially auctioneers, like art markets (Aarons 2001), and may have therefore been an easier prospect for police to chase.

Preventing Museum Theft Of the three necessary factors for crimes to occur—motivated offenders, suitable targets and absence of capable guardians—“[…] the lack of any one of these elements is sufficient to prevent the successful completion of a direct contact predatory crime […]” (Cohen and Felson 1979), including property theft. However, for direct predatory crimes, absence of capable guardians “[…] is probably the most important element” (Felson and Eckert 2016). Logically, this offers anyone attempting to prevent theft from museums the opportunity to “[E]xtend guardianship to show that the asset is owned and cared for” (Grove and Pease 2014, p. 120), in order to reduce or at least try to account for target suitability, described as having the elements of value, physical visibility, access (including that the property is portable and moveable)

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and the (perceived) inertia of a target (Cohen and Felson 1979). Cremers (2012) has said that preventing theft from art museums and galleries is “difficult”, while McDade (2009) has said it is “nearly impossible” for libraries and archives. Notwithstanding, it is incumbent upon public institutions entrusted with safeguarding the public’s cultural heritage to do all they can to protect the items from theft (and attempted theft). In order to do this to the fullest extent possible, this requires understanding of the likely characteristics of the crimes they are trying to prevent. This research has attempted to provide a historical picture of theft from Australian museums, including its typical characteristics and profiles. Scope precludes an explicit outline of suggested preventive practices, for which a number of researchers and practitioners have outlined a whole gamut of approaches (Jackson 2016b; Grove and Pease 2014; Ahern and Amore 2009; Griffiths and Krol 2009; Lowenthal 1994; Peek 2011). However, with better knowledge of the history of thefts from Australian museums, those same museums can begin to infer the most impactful preventive measures, which may or may not include those they currently deploy.

Conclusion We have seen that the histories of Australian museums are scattered with intermittent episodes of theft of collection items. Whether the frequency or the scale of the incidents is large or small or its distribution surprising depends on one’s a priori and subjective expectations and assessments. It can be said, however, that almost without exception, all the major state museums have suffered multiple incidents of theft over their decades of existence through to the 1950s, to the point that it might be argued that history shows they should expect intermittent theft incidents or attempts therein. This historical study of theft from Australian museums—the first of its kind—has found that to the 1950s, at least, the thefts occurred, with the rare exception, in two contexts. The nature and characteristics of the significant majority of the thefts and the trajectory of the thieves and the stolen items after the thefts, where this could be traced, show that most of those thefts occurring as an unexceptional aspect of the more general stolen property market and as an element of everyday, mostly local and largely unorganised criminal activities. The second type of theft was of collection items for the development of usually very substantial personal collections. It occurred less often than the first type of theft, although its scale and duration were usually greater, while most of its other characteristics were also in marked distinction.

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This included “insiders”—those with privileged access to the collections— most often committing this type of theft. The predominance of these two types of thefts were intimately linked to the particular nature of Australian museum collections, their institutional settings and practices, their exhibition programming and also their settings as sites of scientific study of physical evidence or “archives”. To this extent, the history of theft from museums has shared some common characteristics with art theft on the one hand and with library and archival theft on the other, but it probably has its own particular profile, including the characteristics delineated in this study. Acknowledgements  Thanks to Marc Balcells, Alice Cannon, Duncan Chappell, Dermot Henry, Olga Hionis, Gemma Steele, Ken Walker, Hayley Webster and Eleanor Whitfield for their interest, help, tips, suggestions, leads and discussions.

Bibliography Australian Newspapers The Advertiser, 1933, 1935, 1946, 1953 Advertiser and Register, 1931 Advocate, 1941 The Age, 1882, 1886, 1889, 1929, 1932, 1953 The Argus, 1898, 1926 The Armidale Express and New England General Advertiser, 1941 Barrier Miner, 1934, 1953 The Bendigo Independent, 1901 The Brisbane Courier, 1911 Chronicle, 1933 Coolgardie Miner, 1902 The Courier-Mail, 1938, 1949 Daily Advertiser, 1935 Daily Examiner, 1952 Evening Journal, 1895 Daily Standard, 1932 The Express and Telegraph, 1897, 1916 Geelong Advertiser, 1925 Glen Innes Examiner and General Advertiser, 1906 Lithgow Mercury, 1934 Maitland Daily Mercury, 1934 The Maitland Mercury and Hunter River General Advertiser, 1886 Maryborough Chronicle, 1932

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The Mercury, 1930, 1954 Narrandera Argus and Riverina Advertiser, 1945 National Advocate, 1930 The Newcastle Sun, 1952 News, 1931, 1950 Northern Star, 1935, 1947 Queensland Times, 1952 The Register, 1910 South Australian Register, 1881 The Sun, 1921, 1934 Sunday Times, 1905, 1945 Sydney Morning Herald, 1947 The Telegraph, 1898, 1944 Townsville Daily Bulletin, 1933 Truth, 1938 The West Australian, 1909, 1928, 1947 Western Mail, 1933 World, 1922

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Burnham, B. (1978). Art theft: Its scope, its impact and its control. New  York: International Foundation for Art Research. Chappell, D., & Polk, K. (2014). The peculiar problem of art theft. In D. Chappell & S. Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime. Surrey: Ashgate Publishing. Chure, D. (2000). New threats to old bones: The theft of fossil vertebrates from museum collections. CRM Cultural Resource Management, 23(5), 18–21. Cohen, L., & Felson, M. (1979). Social change and crime rate trends: A routine activity approach. American Sociological Review, 44(4), 588–608. Conklin, J. (1994). Art crime. Santa Barbara, CA: Praeger. Cremers, T. (2012). Rise in thefts from museums: Due to economic crisis? Journal of Art Crime, 7(Spring). 57–8. Culture Victoria. (2016, October 10). Retrieved December 11, 2017, from http:// www.cv.vic.gov.au/organisations/. Felson, M., & Eckert, R. (2016). Crime and everyday life (5th ed.). Thousand Oaks, CA: Sage. Gerstenblith, P. (2012). Art, cultural heritage, and the law (3rd ed.). Carolina: Carolina Academic Press. Griffiths, R., & Krol, A. (2009). Insider theft: Reviews and recommendations from the archive and library professional literature. Journal of Library and Archival Security, 22(1), 5–18. Grove, L., & Pease, K. (2014). A situational approach to heritage crime prevention. In L. Grove & S. Thomas (Eds.), Heritage crime: Progress, prospects and prevention. London: Palgrave Macmillan. Grove, L., & Thomas, S. (2016). “The rhino horn on display has been replaced by a replica”: Museum security in Finland and England. Journal of Conservation and Museum Studies, 14(1), 1–11. Ho, T.-N. (1992). Art theft in New York City. Ph.D. Dissertation, Rutgers: The State University of New Jersey, Newark. Houpt, S. (2006). Museum of the missing: The High Stakes of Art Crime. Pan Macmillan/ Madison Press. Sydney. Independent Commission Against Corruption. (2003, September). Investigation into the theft of zoological specimens from the Australian museum. Sydney. International Council of Museums. (2016). Museum definition. Retrieved October 10, 2016, from http://icom.museum/the-vision/museum-definition/. Jackson, P. (2016a). Art thieves, fakers and fraudsters: The New Zealand story. Wellington: Awa Press. Jackson, P. (2016b). Legacy and longevity: Protection of objects from our past for our future. In A. Tompkins (Ed.), Art crime and its prevention: A handbook for collectors and art professionals. London: Lund-Humphries in Association with the Association for Research into Crime Against Art. Kerr, J. (2012). The role of the police on the co-production of art security in London. Journal of Art Crime, 8(Spring), 3–11.

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Kerr, J. (2015). The securitization and policing of art theft: The case of London. London: Routledge. Knultson, A. (2014). It’s beyond my control’: A historical and psychiatric investigation into the claim of bibliomania. Journal of Art Crime, 11(Spring), 35–52. Lowenthal, C. (1994). A trust betrayed – Insider theft in museums. Museum News, 73(3), 32–35. Mackenzie, S. (2005). Criminal and victim profiles in art theft: Motive, opportunity and repeat victimisation. Rogues Gallery: An Investigation into Art Theft AXA Art Conference, 1–12. Mandel, S. (2008). Insider theft, fires and vandals top list of museum concerns. Security Management, June 2008. McDade, T. (2009). The quiet crime: An introduction to the world of rare book, map, and document theft. In N. Charney (Ed.), Art and crime: Exploring the dark side of the art world (pp. 155–163). Santa Barbara, CA: Praeger. Museum of Applied Arts and Sciences. (2016). About. Retrieved October, 2016, from https://maas.museum/about/7. Pearce, S. (1992). Museums objects and collections. Leicester: Leicester University Press. Peek, M. (2011). Theft in museums in the Netherlands – Facts and figures to support collection risk management. International Council of Museums Conservation Committee, Conference Pre-Prints. Lisbon. Prott, L. (2014). UNESCO’S influence on the development of international criminal law. In D. Chappell & S. Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime. Surrey: Ashgate Publishing. Queen Victoria Museum and Art Gallery. (2016). About us. Retrieved October 7, 2016, from http://www.qvmag.tas.gov.au/qvmag/index.php?c=6. Queensland Museum. (2016). Queensland museum history. Queensland Museum. Rasmussen, C. (2001). A museum for the people: A history of museum victoria and its predecessors, 1854–2000. Melbourne: Scribe Publications. South Australian Museum. (2016). Our history. Retrieved October 7, 2016, from http://www.samuseum.sa.gov.au/about/our-history. Tasmanian Museum and Art Gallery. (2016). Tasmanian museum & art gallery: About us. Retrieved October 7, 2016, from http://www.tmag.tas.gov.au/about_us. Tijhuis, A. (2006). Transnational crime and the interface between legal and illegal actors: The case of the illicit art and antiquities trade. Leiden: Wolf Legal Publishing. Tijhuis, A. (2009). Who is stealing all those paintings? In N. Charney (Ed.), Art and crime: Exploring the dark side of the art world. Santa Barbara, CA: Preager. UNESCO. (1954). Convention for the protection of cultural property in the event of armed conflict 1954. Retrieved November 15, 2016, from http://portal.unesco. o r g / e n / e v. p h p - U R L _ I D = 1 3 6 3 7 & U R L _ D O = D O _ TO P I C & U R L _ SECTION=201.html.

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9 Protecting Works of Art from Theft Declan Garrett

Introduction Art crime has been said to rank behind terrorism and the illegal drugs trade as the most prevailing crime issue in the world (Conklin 1994, p.  5). Bazley (2010, p. 15) informs us that it ranks with money laundering and terrorism in terms of its prevalence and seriousness. When a crime against art occurs, it makes front-page headlines and causes public outcry. Works of art are priceless; they are one of a kind and are irreplaceable. They form part of our cultural identity and a theft of a work of art removes part of our cultural identity and takes away the opportunity for people to learn of the past. Protecting works of art from theft is challenging. The purpose of this chapter is to provide an insight into how to protect works of art from theft. The chapter begins by conceptualizing art crime and security, followed by observing notable art thefts and the common themes that are present in each of these. These common themes are important to understand how ‘opportunity’ plays a key role in theft. Next, the chapter very briefly looks at who commits art theft and why. From here, how to protect works of art is discussed with reference to situational crime prevention, security risk assessment and practitioner expertise. The chapter then focuses on those responsible for protecting works of art before concluding.

D. Garrett (*) Louvre Abu Dhabi, Abu Dhabi, United Arab Emirates © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_9

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Conceptualizing Art Crime and Security Bazley (2010, p. 14) informs us that art is a visual form of expression that viewers find beautiful, providing a positive contribution to our world and has done so throughout the ages. Art has many meanings depending on the context in which it is discussed: it can refer to the art of learning something new, mastering a skill, or something could be an art form (Bazley 2010, p. 18). In the context of this chapter, art is discussed as those items visitors view in museums. According to Conklin (1994, p. 2), art objects include fine arts, such as paintings, sculptures, photographs and print and drawings; decorative arts, antiquities, coins, medals, arms and armor; oriental, medieval and modern Egyptian and Islamic art; and rhino horn and jade artifacts. Art can be found in museums, auction houses, stately homes and private collections. In a presentation at the International Arts and Antiquities Security Forum in 2016, Julian Radcliffe of the Art Loss Register reported that 50% of art is stolen from private collections (IAASF, Newcastle 2016). While this chapter does focus on protecting works of art from theft in museums, the crime prevention theories and measures outlined are applicable and adaptable to private collections, archeological sites and houses of worship. Museums are typically paying or non-paying cultural institutions. They are public places of assembly, and in some countries, they are free to visit. The term ‘museum’ is a catchall one to describe museums and art galleries. Art can also be found in churches and cultural heritage sites. Bazley (2010, p. 14) observes a number of differing forms of misconduct that constitute a crime. In the context of ‘crime in the art world’, he highlights these as burglary, robbery, trafficking of art, vandalism and malicious damage of art and forgery, fakery and counterfeiting. Byrne et al. (2014) define crime as a wrongful act, which directly and seriously threatens the security and well-­ being of society, and it is a wrongful act against a community imposed by the courts. They define criminal law as a means for protecting society and allowing it to develop by providing a code of conduct, which may only be breached at the risk of sanction. Maslow (1943, p.  376) referred to security as a fundamental personal need. Depending on the context, security will have a different meaning (Byrne 2007, p. 6). In the context of protecting works of art, security is best described as asset protection; art is the asset that needs to be protected. Reynolds and Wilson (1996, p. 2) indicate that security refers to the policing activity of crime prevention, detection and apprehension. Byrne et al. (2014, p. 15) define security as the safeguarding of life, the taking of measures to prevent ­unauthorized entry or attempted unauthorized entry into premises,

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the provision of a secure environment where the physical premises or persons are protected from criminal action or the effects of criminal action, or the protection of property of all kinds from loss through accident, theft, fraud, fire, explosion, damage or waste. What they note is crime is one cause of loss and that not all loss is the result of crime. As this chapter focuses solely on the prevention of theft, it is apt to define ‘crime prevention’. Byrne et  al. (2014, p. 12) observe that the most concise and accurate definition of crime prevention is the anticipation, recognition and appraisal of a crime risk and the initiation of action to remove or reduce it.

Notable Thefts of Art and Common Themes Mona Lisa On a cold autumn morning in August 1911, Italian national Vincenzo Peruggia stole the Mona Lisa from its Parisian home of the Louvre Museum. Peruggia had been an employee of the Louvre Museum. He had a disagreement with his employer and was fired. The day after, he returned through the employee entrance at 7  a.m. dressed in uniform so he was not noticeable among others. Once in, Peruggia was able to roll up the Mona Lisa, hide it in his clothes, approach the exit door he earlier entered and be left out by a former colleague who had a key to the door. As a result of poor access control procedures for employees and no communication of termination of employment to the security team, Peruggia was provided with the opportunity he needed to freely walk out of the Louvre with the Mona Lisa undetected. If their access control procedure had required informing the security team that Peruggia was no longer employed, he may not have been left back into work the day after he ceased employment; thus, he would not have been in the building to take advantage of his past position of trust. Brisman informs us that the theft of the Mona Lisa has impacted the way in which visitors now view the painting. Today, it is roped off and placed behind glass that dictates the nature of the interaction with it and viewers must experience it from afar.

Vermeer’s Lady Writing a Letter with Her Maid In the peaceful country surroundings of County Wicklow in Ireland is the country estate of Russborough House. It was the home of the heir of a nineteenth-­century South African diamond fortune, Sir Alfred Beit and his

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wife Lady Beit, who had acquired an art collection worth millions. The Beit collection comprised paintings by Vermeer, Goya, Rembrandt and Rubens. The Beits had lived peacefully at Russborough up until 1974 when people started stealing their paintings (Hart 2010, p. 6). Of all the canvases stolen from Russborough, Hart (2010, p. 10) informs us that it was Vermeer’s Lady Writing a Letter with her Maid that caught the public’s imagination. An Irish Republican Army (IRA) sympathizer and an Oxford graduate (and daughter of a millionaire entrepreneur), Bridget ‘Rose’ Dugdale, were first to steal the painting. On an April night in 1974, Dugdale led her partner, an IRA solider, Eddie Gallagher, and two other men to the country estate, robbed the Vermeer and 18 other paintings at gunpoint and tied up the residents. Russborough was fitted with panic alarms, but there was no time to activate them, and the hanging paintings were not fitted with picture alarms. It took 10 minutes for the crime to be committed and a total of 40  minutes for the Beits to free themselves to raise the alarm (Hart 2010, p.  10). Dugdale was eventually caught and sentenced to two years imprisonment in November 1974. The paintings were returned to Russborough House. The Vermeer would stay undisrupted for a further 22  years until it was stolen a second time. This time, it was stolen by Dublin criminal Martin Cahill. From Easter to November each year, the Beits had begun to open their residence to the public and provided tours of their art collection. On 6 April 1986, Cahill paid a one-pound admission fee to take the tour. For him, the tour included an observation of the security systems, and for three weeks thereafter he took further tours accompanied by accomplices who carried out reconnaissance of the location (Hart 2010, p. 30). On 21 May, Cahill and his gang broke into Russborough while the house slept. The alarm activated and the Gardaí (Irish police officers) responded. However, Cahill tricked the intruder alarm system by placing a box around the sensor, and this fooled it into thinking the alarm beam was covering the entire area, when in fact it was not, thus allowing Cahill to be undetected by the alarm. Furthermore, the Gardaí had checked the zone that the alarm activated, and it is thought that Cahill was standing no more than 20 feet away hiding behind a curtain when the area was inspected (Hart 2010, p. 32). Once the Gardaí left, Cahill and his gang took six minutes to sweep through Russborough and steal paintings that included the Vermeer. It was 9  a.m. the following morning when the paintings were noticed missing. Cahill did not consider how difficult it would be to offload such masterpieces, as they were considered ‘too hot to handle’ and, as Hart (2010, p. 39) informs us, art is easy to steal but hard to sell. Cahill was a thug, he was no art thief. A true art thief will steal paintings of lesser value and sell them for a frac-

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tion of their price, and they will not attract the same attention of a masterpiece such as the Vermeer that has a breadth of documentary evidence attached to it. To sell it on, Cahill had to engage with a wider criminal network outside of what he previously had, and he played a dangerous game of trying to sell the paintings to the IRA and their adversary, the loyalist militia Ulster Volunteer Force. Indeed, it was the attempt to play these two paramilitary organizations against each other that eventually led to him being gunned down by the IRA.  The hunt for the Vermeer expanded to other police agencies outside Ireland. An undercover detective, Charley Hill, would eventually recover the Vermeer in Paris in 1993. Lady Writing a Letter with her Maid is now the property of the Irish state and is homed by the National Gallery of Ireland. Could the theft of the Vermeer and the other paintings have been prevented? Arguably, the security management systems in 1974 and 1986 were not what they could have been as per today’s standards. Considering the technology and alert methods available today, if there had been picture alarms fitted to the paintings in 1974, an alert would have been sent to a monitoring center or internal control room when they were removed from the wall. While this would not have prevented the theft, it may have provided a quicker reactive response to aid catching the offenders. On the second occasion, there seems to have been a complete lack of basic security procedures regarding the inspection of the alarm activation. If the area had been inspected inch by inch inside and out, Cahill may indeed have been detected or deterred, and if the alarm sensor was checked, it might have been observed that the sensor had been covered and fooled. And akin to 1974, the time that passed from the time of the robbery to the time it was noticed would allow the paintings to be moved a significant distance and even across borders. A quicker alert system could have been considered. Additionally, Cahill had carried out reconnaissance of the house during the days prior to the theft. The Russborough tour was a small one, and arguably he should have been noted as a regular visitor and at least considered suspicious as Cahill did not fit the typical tourist or art visitor profile. Deploying security staff and training tour guides and information staff in security awareness may have helped observe Cahill and his gang in the days before.

The Isabella Stewart Gardiner Museum Heist In the early hours of the morning after St. Patrick’s Day in 1990, another Vermeer masterpiece, The Concert, was stolen along with 12 other works of art valued at half a billion dollars from the Isabella Stewart Gardner Museum in

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the US city of Boston. They are yet to be recovered. The paintings taken include works by Rembrandt, Degas, Manet and Flinck. The world’s greatest art theft to date cannot be likened to a daring heist we would see in a Hollywood movie, nor was it particularly imaginative. It was no different to many other larceny crimes that take place day in, day out. The Isabella Stewart Gardner Museum’s Director of Security, Anthony Armore (You Tube 2013, 18 March), reported that in the early morning of 18 March 1990 a car drove up to the employee entrance of the museum and two males got out, they pressed the intercom and announced to the security officers situated inside that they were Boston police officers and that they got a report of a disturbance. The security officers let them in. Once inside, one security officer was asked to step away from the desk, and behind this desk was a fixed panic alarm. Moving away from the desk without pressing the panic alarm button meant the alarm could not be raised. Once the thieves were inside, it became apparent they were not Boston police officers as they tied up the security officers and stole 13 works of art. The security officers should have never permitted access and, according to Armore, the Isabella Stewart Gardner Museum had a strict security policy against this. Notwithstanding that they were granted access, arguably, if the security officers had been provided with a mobile panic alarm on their person, they could have activated the panic alarm and gotten a quicker police response. Furthermore, the security officer selection and supervision could be questioned. The security officers were students; students arguably do not make the best security officer option. Garrett (2016) observes that student security officers are not career driven or motivated by their role and instead use security as a stop gap and the night shift to study and, as South (1985) highlights, some sleep on duty. The security officers clearly did not follow their access control procedures. Placing an experienced team leader or supervisor among the group may have assisted with following procedures and internal controls. If the Isabella Stewart Gardiner Museum student security officers had followed procedures and not allowed the thieves access, the world’s greatest art heist to date may not have occurred.

The Scream The Scream was painted in Norway in 1893 by Expressionist Edvard Munch and regarded by many as the second most famous painting in art history after the Mona Lisa. On 12 February 1994, the same day as the opening ceremony of the Winter Olympic Games, The Scream was stolen from the National

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Gallery of Oslo. According to the BBC (British Broadcasting Corporation), at 6.30 a.m., two men took 50 seconds to climb a ladder, smash through a window and cut The Scream from the wall with wire cutters. As a result of a police sting and a failed ransom demand, it was recovered afterwards in the seaside town of Aasgaardstrand, where Munch painted most of his paintings. In the aftermath of the robbery, the National Gallery of Oslo was heavily criticized for their lax security. There is a general rule of thumb that the most sought-­ after and expensive paintings are not exhibited near to exits or on the ground floor. Typically, they are exhibited on higher level floors as it is harder for thieves to take art from higher levels as they have to pass several security layers to exit. The museum had moved The Scream from the more secure first floor to the ground floor. Additionally, staff left out a crime facilitator for the thieves, a ladder. They used the ladder to climb to the window they broke and entered. Furthermore, the intruder alarm was activated during the robbery, and it was ignored by the security officers according to the Guardian newspaper, and the thieves summed it all up by leaving a note during the robbery to say, “thanks for the poor security” (Thorpe 2003). If the museum had been more careful about how they moved paintings, considered the concept of defense in depth, plated the painting, re-reinforced the window, had a clearly defined security management system, trained personnel and ensured the ladder was not left lying around, arguably, the theft of The Scream could have been prevented. Lessons have been learned, and following closure of the museum for ten months to upgrade its security, Brisman (2011) informs us that now, if a visitor is viewing The Scream, they have to negotiate metal detectors, have their personal belongings searched and are monitored by CCTV and security officers. He reports that visitors have to participate in the ‘security performance’ by being screened and wanded and subjected to constant surveillance.

Common Themes The above thefts of works of art highlight three common themes: people, process and opportunity. Security in the context of people and process failed and, as a result, opportunity was presented to criminal offenders who took advantage of the lack of capable guardianship. Security is about people and process. Not having the security management and frontline personnel trained in security risk management and suitably motivated means that the security processes are not ample to protect against the theft of works of art.

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Who Commits Art Crime? Hollywood would have us believe that art thieves resemble such characters as Pierce Brosnan and Steve McQueen in the Thomas Crown Affair, Brad Pitt in Oceans 12 and Sean Connery and Catherine Zeta Jones in Entrapment. Film arguably glorifies art thieves and romanticizes what they do; however, the real art thieves are not suave, likeable people. Instead, they are terrorists, gangsters and thugs. There is also a feeling that organized crime is heavily involved in art crime. However, while there are reported links to organized crime, it is better understood as crime that is organized (Kerr 2013, p. 33). The mafia does play a role in art theft. For instance, the Guardian newspaper reported in 2016 that the Neapolitan crime syndicate, the Camorra, was responsible for the theft of van Gogh paintings from the Van Gogh Museum in Amsterdam. During a police raid, the paintings were discovered in a drug trafficker’s house in Castellammare di Stabia, Italy. He was holding them to use as currency for future drug deals (Kirchgaessner 2016). Terrorists have been plundering art for decades: the Nazis during World War II, the IRA in the 1970s and Islamic State of Iraq and Syria (ISIS) and al Qaeda today. To give an idea of the extremes terrorists go to, Charney (2015) informs us in an online article on ISIS and the corrupt art trade that Mohammed Atta, one of the 9/11 masterminds, was intent on using looted Afghan antiquities to buy a plane that would be used to fly to America and crash into the Twin Towers. Jade and rhino horn have become a major attraction for crime gangs. Members of an Irish traveling community crime gang, the Rathkeale Rovers, and their associates in Ireland and the UK were jailed over museum rhino plunders. They were at the heart of a €71 million conspiracy to plunder British museums of rhino horn and priceless jade to sell onto the Chinese auction market where a single horn can fetch up to €200,000 (Britton 2016). The Irish Independent reports that they have dominated the multimillion euro global trade in stolen rhino horn and their plot spanned England, Scotland, Northern Ireland, the Irish Republic, France, Hong Kong, Germany and the United States (Hayhurst 2016) Not all art is stolen by crime gangs or terrorists; the Irish Independent newspaper reported in 2013 that a National Library of Ireland employee was responsible for the theft of books valued at over €80,000. They further reported (Gallagher 2015) that a cleaner was convicted of stealing paintings from her employer, artist, Louise Mansfield. And there was the high-profile theft of Goya’s Duke of Wellington in 1961, not committed by a notorious criminal, but by a pensioner, Kempton Bunton.

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He believed that pensioners should not pay for a television license. He tried to use the Goya as a bargaining tool with the English government to not take license payments from pensioners. There is no stereotypical art thief. Once motivated and with the right opportunity presented, anyone can be an art thief. According to the infamous art forger John Myatt, all they need is the motive, the means and the opportunity (AHRC Workshop, London 2017).

Why Do People Commit Art Crime? There are several reasons why people commit art crime—for political reasons, to use as currency for other criminal dealings, for attention, for financial gain, to keep and admire, for fun, to make a point, mental health issues and to fuel terrorism activities. And some do so because they can, such as employees or others with ease of access. The question of why people steal art is similar to asking the question of why people commit crime. As Joyce (2012, p. 20) reminds us, there is no simple answer to the question ‘why do people commit crime?’ He informs us that there is a wide range of possible explanations for criminal behavior. These have their foundations in the three academic disciplines of biology, psychology and sociology (Hollin 2007, p. 43). Criminology provides several reasons and ideas on why people commit crime and is a chapter in itself but what is clear is that there is no one reason. The wide range of theories put forward to explain why people commit crime makes it impossible to agree on one single remedy to prevent it.

 ow Can Cultural Institutions Protect Works H of Art from Theft? For cultural institutions, understanding why people commit crime is helpful; however, many criminological theories focus on the potential offender. From a crime prevention perspective, these are referred to as ‘secondary’ and ‘tertiary’ (Crawford 2007, p. 870). They focus on the individual or the circumstances and environment they live in. Museums have little control or influence over wider societal issues that contribute to why someone might steal works of art. The museum focus should be on ‘primary crime prevention’. Primary crime prevention focuses on the physical environment within which crime occurs. It entails initiatives designed to make it harder for any

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member of the general public or employee to commit crime in that location (Joyce 2012, p. 35). Joyce (2012, p. 34) informs us that crime prevention initiatives are based upon a situational approach that is based upon the concept of ‘opportunity reduction’. Theories of why people commit crime relevant to situational crime prevention and protecting works of art from theft include routine activities and rational choice theories. A key feature of environmental criminology is ‘Routine Activities Theory’ (RAT). Cohen and Felson (1979) formulated RAT. RAT focuses on the characteristics of crime instead of the characteristics of the offender. They hypothesize that for crime to occur, there must be three elements present: the availability of a suitable target, a motivated offender and the absence of a capable guardian (Crawford 2007, p. 876). Felson and Clarke (1998, p. V) inform us that ‘Opportunity Makes the Thief ’. They argue if one of the three elements is missing, crime will not occur. Opportunity is the reason that crime takes places. These opportunities are specific and focus on a target. What Felson and Clarke (1998, p. 7) argue is what the father of criminology, Cesare Lombroso, suggested in early criminology theories: offenders will make rational choices about the crime they commit. Offenders will stake out a target and only strike if the opportunity presents itself. And they will only do so if the chances of getting caught are low. RAT is a subsection of crime opportunity theory that focuses on situations of crime. Felson and Clarke (1998, p. 1) argue that crime is generally unaffected by social causes. At the heart of RAT is the motivated offender. These are people who are capable and willing of committing a crime. Suitable targets can be an individual or an item that the offender sees as being vulnerable or attractive. Felson and Clarke (1998, p. 4) indicate that the factors that render a target attractive are situational and crime specific. They argue that crime can be committed by anyone who has the motive, means and opportunity. Additionally, they suggest that victims of crime are given choices on whether to be victims of crime by placing/or not placing themselves in situations or places where a crime can be committed against them. This is also pertinent to works of art. If works of art are placed in areas where they could be attractive to thieves and seen as an easy target without adequate security measures, they are likely then to be stolen. Situational crime prevention is a primary prevention method (Clarke 1995). It is directed at stopping crime problems, and it differs to most criminological theories in its orientation as it focuses on reducing crime opportunities (Clarke 1995, p. 93). Crawford (2007, p. 872) informs us that situational prevention involves the management, design or manipulation of the immediate physical environment to reduce opportunities for specific crimes. With

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situational crime prevention, trying to figure out why people commit crime is less relevant; what is of core relevance is changing how the environment responds to the criminal by making it more difficult for the offender to commit crime (Felson and Clarke 1998, p. 3). This is the essence of situational crime prevention. Cornish and Clarke (2003, p. 90) developed the 25 techniques of situational crime prevention as seen in Table 9.1 composed of five headings: increase the effort, increase the risks, reduce the rewards, reduce provocations and remove excuses. Before applying situational crime prevention techniques, there must first be an understanding of the security vulnerability and threat. The starting point for management is to understand the problem (Jirasek 2004, p. 180) and the focus of what needs to be protected (Cabric, p. 5). To do so, a security risk assessment is required to identify those threats which could affect personnel, assets or operations and the organization’s vulnerability to them and assessing risks in terms of likelihood and impact and prioritizing those risks and identifying mitigations, strategies and measures (Byrne et  al. 2014, p. 119). The security risk assessment provides a systematic way of understanding the focus and protection measures. Its methodology includes consideration of the crime triangle; motive, opportunity and means together create the crime triangle (Cabric 2015, p. 11). Carrying out the security risk assessment and considering the crime triangle provide the basis to define the security protection measures required. Security risk assessments are carried out as part of a regular organization review process or when any substantial change takes place. Change may be linked to extensive construction work, a new manufacturing process, expansion, change of ownership, change of management, after an incident or when requested, for example, by an insurer (Byrne et al. 2014, p. 119). Security risk assessment should be completed by a competent person who gathers information in a systematic way (Byrne et al. 2014, p. 120) that is used to understand the vulnerability, the threat and recommend crime prevention measures. Byrne et al. (2014, p. 120) highlight areas that need to be included in this information gathering as interviewing management and staff, surveying/visiting the site, discussions with security service providers, discussions with external parties, conducting research, risk assessors own subject matter expertise, referring to experts and reviewing documentation. When carrying out the security risk assessment, consideration to routine is critical, as patterns are the enemy of good security and breaking routine is the golden rule of security (Cabric 2015, p. 18). It is important to think criminal; the perpetrator also carries out their risk assessment to determine the ease of committing a crime and getting away undetected (Cabric 2015, p.  19).

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Table 9.1  25 Techniques of crime prevention, Cornish and Clarke (2003, p. 90) Increase the effort

Increase the risks

Reduce the rewards

Reduce provocations

1. Target harden

6. Extend guardianship

11. Conceal targets

2. Control access 3. Screen exits

7. Assist natural surveillance 8. Reduce anonymity

12. Remove targets 13. Identify property

4. Deflect offenders 5. Control tools/ weapons

9. Utilize place managers 10. Strengthen formal surveillance

14. Disrupt markets 15. Deny benefits

16. Reduced frustrations and stress 17. Avoid disputes 18. Reduce emotional arousal 19. Neutralize peer pressure 20. Discourage imitation

Remove excuses 21. Set rules

22. Post instructions 23. Alert conscience 24. Assist compliance 25. Control drugs and alcohol

Criminals consider perception of security, and they look for as much information they can get on routine. For them, not being able to collect information is a major turnoff (Cabric 2015, p. 16). The results of the security risk assessment outline the crime prevention measures. There are particular techniques that can be used to assist in protecting works of art from theft. These are anchored in Cornish and Clarke’s (2003, p. 90) 25 techniques from Table 9.1 earlier. Drawn from a practitioner’s perspective that is grounded in the 25 Techniques of Crime Prevention as shown in Table  9.1 and literature on the subject matter, an overview of some of the prevention techniques relevant to protecting works of art are discussed in turn here:

Target Harden ‘Target Harden’ is a technical crime prevention term that simply refers to measures that are taken to make it more difficult for an object (the target) to be the subject of crime and to the strengthening of the security of the building or installations in order to protect it or reduce the risk of theft of the object (Joyce 2012, p. 35). Clarke (1995, p. 110) informs us that the most obvious way of reducing criminal opportunities is to obstruct the thief by physical barriers through the use of lock, screens, safes or reinforced materials. Jirasek (2004, pp.  182–183) observes mechanical barriers as a means of target hardening. These include solid walls, doors, locks, bars, fences, toughened, bullet-proof and alarm glass, showcases, safes and safe rooms. He asserts that this makes up the basic level of protection against destruction and that all

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other systems are only complementary. Other measures can include bollards, fencing, steeply angled roofs, detectors, early warning (alarms, emergency button) of action force or action force present and quick response of action force (by, for instance, optimizing access from a police station to the area). These security measures can be effective to a range of issues that include theft. The aim of target hardening is not to make objects completely resistant to theft; instead, it is to increase the risk to a level where the risk outweighs the gain of the crime as perceived by the offender, such as increasing the time it takes to overcome security measures. In museums, target hardening must be applied with a common-sense approach that does not strangle the ability of the institution to display its works of art. Considerations need to be given to the purpose of the security measure and completion of a cost-benefit analysis from a cost, security and visitor experience perspective. Additionally, target hardening may lead to the look of the building/galleries not being esthetically pleasing. Therefore, a common ground needs to be found. Also, many cultural institutions are old protected buildings. They typically cannot be altered, thus creating further challenges. Museums should also consider if they are creating a ‘fortress like mentality’ institution. This type of institution within the immediate area may create a sense of crime fear among locals; therefore, the wider social aspects need consideration. Target hardening may also conflict with planning standards. Hardening an object might make it more secure, but less safe; it may contravene building codes or regulations or impose on cultural heritage rules. Furthermore, security measures must not impact on safety measures, and consideration must be given to ensuring that lock and bolt security solutions do not impact on people safety (Byrne et al. 2014, p. 35) and that access and mobility is considered for those with disabilities and impaired mobility.

Control Access ‘Access control’ refers to measures intended to exclude potential offenders from places (Clarke 1995, p. 110), and it is a fundamental component of situational crime prevention and a key feature of Oscar Newman’s concept of defensible space (Newman 1996, p. 49). Simply put, it forms the basic fundamentals of good security. Museums should begin by having a commitment to control access. This should be anchored in a ‘security policy’ that is signed off by the top management (Jirasek 2004, p.  179) and within organizational

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security procedures should be an access control policy and procedure that outlines who can go where, why, when and how.

Screen Exits According to Clarke and Eck (2005), the purpose of exit screening is to ensure that those leaving a building, a facility or some other place have not stolen anything or have paid all fees. Items can be tagged to trigger an alarm if an object passes through the point of exit. Library books are one example commonly tagged in museums (Scherdin 1986).

Deflect Offenders British police and the UK Football Association for several years suffered from fighting before, during and after matches by rival fans. One crime prevention measure they employed to curb the problem was to ‘deflect offenders’. They did this by segregating fans in and around football stadiums and scheduling different arrival and departure times for both sets of fans to reduce waiting periods. Clarke and Eck (2005) indicate that this is one example of deflecting offenders away from crime targets, and it is a situational technique suggested by routine activity theory. Museums that have security staff trained in behavior detection can consider whether a threat exists, and they can deflect offenders by engaging with them in conversation. Clarke (1995, p. 111) draws our attention to the use of crowd management plans and to Disneyland and Disney’s use of cheery staff to guide people. Visitor services staff members can assist with this function in museums.

Control Tools/Weapons Clarke and Eck (2005) indicate that crime facilitators help offenders commit crimes or acts of disorder. Everyday work tools have the potential of being a ‘crime facilitator’ such as ladders, hoists, hammers and wire cutters. Display cases can be smashed with a hammer, pictures can be quickly cut with wire cutters and ladders can be used to access windows and roofs. In all museums, tradesmen and facilities personnel use work tools daily. They need to be made aware of the potential security implications their work tools have as these have the potential to be used as a crime facilitator. This information can be captured in contractor induction training and general security awareness training

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for employees. Supervision and oversight for compliance and reporting are necessary, and anything that can be used as a weapon or tool needs to be controlled.

Extend Guardianship Felson and Clarke (1998, p. 4) indicate that extended guardianship acts as capable guardianship and reduces the likelihood of an offender choosing a target to commit a crime. Clarke and Eck (2005) observe that crime typically occurs when there is a lack of capable guardianship. For museums, visible guardianship guarding works of art is a critical crime prevention measure. Museum tour guides, volunteers and information/visitor services personnel play a preventative security role as part of their job function and, as Clarke (1995, p. 114) points out, employees have security as a secondary aspect to their role. These personnel should act as capable guardians and be adequately trained.

Assist Natural Surveillance At the heart of defensible space is assisting natural surveillance (Newman 1996). For instance, keeping bushes outside the home trimmed and improving lighting around the house is thought to provide a natural surveillance by people passing who can observe and report on suspicious behavior (Clarke 2005, p. 114). Additionally, criminals note the lack of hiding spaces or concealment, and if there is nowhere for them to hide, they tend to find an alternative place to offend. Museums can apply natural surveillance principles, such as removing trees and bushes in front of buildings that provide cover for criminals. Lighting, including sensor lighting, should also be provided.

Reduce Anonymity Urbanization and long commuting distances for work have created a world where nobody knows their neighbor anymore. Large schools and universities are another example where students and staff do not know each other or are easily recognizable as students and staff. Museums can reduce anonymity by ensuring all staff, contractors and visitors wear identity badges that clearly identify who they are. Lanyards should be color coded to group categories of people, such as contractors, visitors and staff. This makes it easy to identify

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people. Wearing of ID badges and reporting/challenging those who do not should form part of the access control procedure.

Utilize Place Managers In addition to their primary role, some employees can also provide a surveillance role. In a museum, these can include reception staff, facilities personnel, caterers and cleaners. They can be trained to observe and report. For instance, cleaners can be trained as part of their cleaning procedures to observe for missing items and report these. Common in museums are dots placed behind works of art—if there is a dot seen, then the work of art is missing.

Strengthen Formal Surveillance Formal surveillance is provided by museum security officers (MSOs), also referred to as invigilators, attendants and floor wardens, and their primary role is to furnish a deterrent threat to potential offenders (Clarke 1995, p. 113). Security officers are a key component of a museum’s integrated security system that provides extended guardianship. The security risk assessment will guide the MSO numbers and locations. Jirasek (2004, p. 182) indicates that the number of security officers required depends on the number, size and character of the buildings and exhibition rooms, the number of visitors and on the value of the collection. Museums share works of art; therefore, loan agreements will also dictate MSO requirements. The MSO is different to other crime prevention measures, such as CCTV and locks and gates. They are human resources and therefore need to be ­managed, developed, supported and motivated. And, as the human element, more often than not they are the weak link in the security chain, so it is important that the MSOs have guidelines to follow and are adequately supervised by competent security supervisors. Jirasek (2004, p. 182) identifies the need for management to set down rules of conduct for the MSOs and have a system in place for continually reviewing and updating these. It is necessary that the MSO is vigilant, active and looks interested, and this risk perception to criminals is important. If the MSOs do not look alert and vigilant, it sends a message to would-be offenders that the MSOs do not care about security. This offender perception in turn challenges the MSO’s ability to be a capable guardian.

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Conceal Targets Removing offender temptation can be done by concealing assets. In a museum, this is less possible as, by their very nature, they display priceless works of art in arms reach of offenders. This also provides criminals with the opportunity to carry out their own surveillance of security. It was reported by Adrian Green of Durham Constabulary at a presentation at the International Arts and Antiquities Security Forum in 2016 (IAASF, Newcastle 2016) that prior to committing the theft of jade and rhino horn, the Rathkeale Rovers and their associates carried out reconnaissance of the institutions they stole from, and they were able to observe their targets and the level of capable guardianship. For items not on display, these should be kept in art stores. Target hardening can complement and conceal targets on display to the public. Options include securing items in display cases that can be still exhibited.

Identify Property Identifying property and assets is a basic fundamental aspect of asset protection (Byrne et al. 2014, p. 181). For works of art, the same applies. Art should be recorded by museum registrars and photographed while in the collection, when going out on loan and on return from loan. This is also very helpful when a work of art is stolen, as it can assist the police, insurance companies and organizations like the Art Loss Register to recover the stolen items (IAASF, Newcastle 2016).

Disrupt Markets The underbelly of the art crime world trades stolen works of art through fences. Clarke and Eck (2005) argue that disrupting markets is difficult, but if achieved and understood, it is beneficial in crime prevention. Disrupting fences would have a significant impact on art crime. The disruption of art crime markets is best achieved through a collaborative approach of museums, insurances companies and the police. A positive result is best achieved from public-private partnership—museums on their own cannot disrupt markets.

Neutralize Peer Pressure Crime can be a result of peer pressure, and peer pressure can also occur in the workplace. This can occur during induction, or employees with gambling or

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alcohol addictions can, for example, be targeted by others to commit theft. The importance of creating a positive work environment cannot be underestimated along with support services and a robust whistle-blowing policy for staff subject to peer pressure. Management must encourage staff to report and be in a position to protect them.

Set Rules Rules exist in all walks of life. Setting rules regulates and standardizes behavior (Clarke 2005, p. 118), and they are an administrative security control mechanism museums can adopt. For instance, access control rules limit access to works of art in stores and help prevent unauthorized access. A work permit is a control mechanism for contractors; contractors who work in back of house areas should be given a permit to work from the security department. A control of contractor procedure will capture the rules around contractor control. A visitor control procedure will do the same. These should be anchored in the access control procedure. Other rules should be defined in security procedures. Further rules should be captured in recruitment policies, specifically, pre-employment screening. Museums should set rules for the background screening of prospective employees and should have other HR and management policies and procedures that control the insider threat. Clarke and Eck (2005) inform us that an important strand of situational prevention is rule setting, the introduction of new rules or procedures (and the clarification of those already in place) to remove any ambiguity concerning the acceptability of conduct.

Alert Conscience The purpose of this crime prevention technique is to alert the conscience at the point of committing the offence rather than trying to bring offenders to court after the crime is committed (Clarke and Eck 2005). This is typically done by displaying signage such as CCTV, which is an important crime prevention tool. Signage should be prominently placed outside and inside museums that indicate they are used for crime prevention. Rules that govern people in public places of assembly should be publicly displayed to prevent visitors claiming unawareness. Rules are usually displayed in the form of signage. Museums tend to resist signage as it is not esthetically pleasing in an environment where the visual and emotional feel is the emphasis. However, museums should consider blending signs and instructions into the environment.

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Those Employed to Protect Works of Art Security is about people and process (Cabric 2015, p.  17). Security is not about the hardware and technology options used to secure works of art. Instead, it is the people who come up with the security plan and identify the most suitable hardware, technology and human resource security options. They put the processes in place. The Board and Director of a Museum have the overall responsibility for museum security and protecting works of art from theft. However, the specific responsibility for security must be given to a senior member of management (Jirasek 2004, p.  179) who has proven expertise in this area. This senior member of management should report to a Directorate or the Board. Sennewald (2011, p.  8) informs us that security within organizations has grown to be its own business unit and has moved up the organizational pyramid to report directly to senior management; usually a Senior Executive Vice President. They should hold the title of Chief Security Officer (CSO); this job title reflects the universal one of these practitioners or alterative titles such as Vice President, Director, Manager of Security, Corporate Security, Loss Prevention or Asset Protection. Alternatively, they may use the title of Head of Security or Director of Security. Museums should aim to avoid mixing the CSO role with other specialisms (Garrett 2016, p. 148) such as Facilities and Visitor Services. The CSO is one who is responsible for the physical security of the Museum, its Collection and the safety of its employees and visitors. The aim of their work is to ensure the museum is able to prevent, respond and recover. As the largest global professional association for security professionals, ASIS (2013, in Garrett 2016, p. 36), point out, today’s CSO assumes overall responsibility for Physical Security, Information Security, Investigation, Risk Management, Emergency & Contingency Planning, Crisis & Disaster Management, Counter-terrorism, Executive Protection, Personnel Security, Information Systems Security, Loss Prevention, Workplace Violence, Event Management and Crime Prevention Through Environmental Design. In 2014, the Office of Policy and Analysis Smithsonian Institution (OPASI) conducted a Benchmark Study of Museum Security Staffing Approaches. They reported an increase in security incidents, of which most are small security losses and an expectation of further security problems in the next few years (OPASI 2014, p.  4). To be able to address security concerns and the threat evolution, security personnel need to be competent to respond (Garrett 2016, p. 11). Therefore, museums need qualified security personnel. The CSO needs to be a highly competent security professional. ‘Competent’ is described as having the necessary skills, knowledge, experience, qualifica-

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tions and attitude to do something successfully (Garrett 2016, p. 10). They must be able to set the strategic and operational security strategy, understand current and future security threats, be able to conduct security risk assessments and provide advice on security management across the museum. Additionally, they need to be able to communicate, manage, motivate, develop and lead people. Sennewald (2011, p. 23) informs us that the CSO is a leader, executive, innovator, in-house security consultant, trainer, contemporary professional, goal setter and strategic planner. He further notes that the CSO is not the company police officer; instead, they are an effective executive (first) in the security field (second). The CSO needs to be credible and should have broad experience in business and people management, in addition to security experience, qualifications and certifications (Sennewald 2011, p. 27). Membership of professional associations is important. Museums should ensure their CSOs are competent and hold postgraduate qualifications in their field. ASIS (2013, p. 8) suggests that an unqualified security manager may introduce organizational risk. The author (Garrett 2016, p.  149) shares this view and argues that all security practitioners must be evidently qualified for their role and engage in continuous professional development. The CSO will need support to achieve the museum’s strategic security risk management aims. They need a suitably qualified team of motivated middle and junior security managers. These teams implement the security strategy and lead and develop the museum security officer (Sennewald 2011, p. 13). It is important that museums manage the risk of not developing its employee’s skills; if they do not, they risk a high-turnover security officer workforce, which in turn creates its own security risks. At the top of the security career path is the CSO; this is the in-house security management position that sets the organization’s security risk management strategy, oversees it and reports to the Board (Garrett 2016, p. 150). The OPASI (2014, p. 58) reports that a security supervisor is responsible for on average 15.6 security posts in a museum. Sennewald (2011, p. 4) argues that there needs to be a limit on the span of control to ensure effective supervision, and supervisors should not be spread too thin. He reports that the limit ranges from a maximum of 5 at the highest level to a maximum of 12 at the lowest level. Additionally, he highlights the changing landscape of the security profession and the flattening of organizational management structures, resulting in increased administration tasks for supervisors that take them away from supervisory duties. The MSOs should be led by a supervisory team at an appropriate level of ratio and depending on the amount of staff employed; consideration can also be given to a team leader position between

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1

Private Security Industry

2

Legal Aspects and Regulations

3

Security Procedures

4

Emergencies

5

Communications

6

Communication in Other Languages

7

Art History

8

Art Crime

9

Terrorism Awareness

10

IT Skills

11

Responding to Physical Attack

12

Physical Intervention

13

Event Security

14

Fire Safety

15

Personal Professional Development

16

First Aid

17

Manual Handling

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Fig. 9.1  Museum Security Officer Competency Statements (Garrett 2016, p. 157)

MSO and supervisor. The author (Garrett 2016, p. 154) argues that this position provides the link between security officer and supervisors and gets them on the career path management progression rung of the ladder. This gives them the opportunity to develop, assists retention and treats the organizational risk associated with not developing employees. The MSO is a security sector specialist career option and builds on the basic security officer common competencies of: private security, law, procedure, emergencies and communications. The security role has evolved due to an ever-changing world and the security threat level increasing and changing, leading to the need to up-skill frontline museum security officers. The MSO competency statements identified by the author (Garrett 2016, p. 157) can be seen in Fig. 9.1: A motivated, qualified and professional security team is critical to protecting works of art from theft. Museums that do not strive for this and do not

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have the correct career structures that provide development opportunities introduce the risk of theft to their collection. Not all museum security officers are employed directly. Museums that do not employ their own security team should ensure the contract security provider aligns with their security strategy and are overseen by a competent in-­ house security manager. The museum security manager sets the security strategy, and the contractor provides the people to meet its vision and aims. Procuring security officers from the commercial contract sector of private security is a function that museums have to undertake. In determining which security provider is the best fit, museums should have a framework or benchmark they can refer to. In 1999, the Confederation of European Security Services (CoESS) and UNI-Europa devised a procurement framework for private security, referred to as Securing Best Value. This can be used in the tender process and provides a tool to assist in defining quality criteria for buying private security services and subsequently measure the security provider’s performance.

Conclusion Risk of theft of works of art is a real-world problem for museums and art crime ranks as one of the most prevailing international crime issues. Art that is stolen steals us of our cultural identity and our memories. The common theme that runs through cases of stolen art is ‘opportunity’. Museums have suitable targets that motivated offenders want, and through the lack of capable guardianship, criminals seize the opportunity to unlawfully acquire art. There is no typical art thief, and no one reason why people steal works of art. Therefore, understanding why people steal works of art is not that relevant to museum place managers. And while having an understanding of why people commit crime is helpful, what they do need to understand are the principles of crime opportunity theory, security risk assessment, the techniques of situational crime prevention and how to employ and adapt them at their museum. Additionally, security is about people and process. Therefore, museums need to ensure that security is seen as its own management discipline, separate to other disciplines. There should be a senior security manager responsible for setting the security strategy and developing the museum’s security risk management system. This person should be qualified and motivated to be able to deal with current and future security threats and understand contemporary security risk management. The frontline security personnel, the MSO, must be provided with development opportunities and be motivated for the role.

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Not having suitably qualified and motivated security management and officers introduces an organizational risk hazard that in turn adds to the risk of works of art being stolen. Museums that do not employ their own in-house security team and contract them from the commercial security sector should ensure they secure best value and have their own in-house security manager to directly oversee the service delivery.

Bibliography ASIS. (2013). Enterprise security risks and workforce competencies: Findings from an industry roundtable on security talent development. Retrieved September 25, 2014, from https://www.asisonline.org. Avi Brisman, (2011) Vandalizing Meaning, Stealing Memory: Artistic, Cultural, and Theoretical Implications of Crime in Galleries and Museums. Critical Criminology, 19, 15–28. Bazley, T. (2010). Crimes of the art world. Santa Barbara, CA: ABC-CLIO. Britton, A. (2016). “Rathkeale Rovers” gang members jailed over multi-million euro rhino horn spree. Retrieved January 16, 2017, from http://www.independent.ie/ irish-news/courts/rathkeale-rovers-gang-members-jailed-over-multimillion-eurorhino-horn-spree-34597780.html. Byrne, J. (2007). The security skills manual (6th ed.). Dublin: The Security Institute of Ireland. Byrne, J., Garrett, D., Quinn, L., & Maples, L. (2014). Asset risk management. Dublin: The Security Institute of Ireland. Cabric, M. (2015). Corporate security management, challenges, risks and strategies. Woburn: Elsevier – Health Sciences Division. Charney, N. (2015). ISIS and the corrupt art trade: We know cultural crimes fund terrorism – Now what? Retrieved September 21, 2016, from http://www.salon. com/2015/04/12/isis_and_the_corrupt_art_trade_we_know_cultural_crimes_ fund_terrorism_now_what/. Clarke, R. V. (2005). Situational crime prevention. Crime and Justice, 19, 91–150. Clarke, R. V., & Eck, J. E. E. (2005). Crime analysis for problem solvers. Washington, DC: Center for Problem Oriented Policing. Cohen, L. E., & Felson, M. (1979). Social change and crime rate trends: A routine activity approach. American Sociological Review, 44, 588–608. Conklin, J. E. (1994). Art crime. Westport, CT: Praeger. Cornish, D. B., & Clarke, R. V. (2003). Opportunities, precipitators and criminal decisions: A reply to Wortleys critique of situational crime prevention. Crime Prevention Studies, 16, 41–96. Crawford, A. (2007). Crime prevention and community safety. In M.  Maguire, R.  Morgan, & R.  Reiner (Eds.), The Oxford handbook of criminology (4th ed.). Oxford: Oxford University Press.

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Felson, M., & Clarke, R. V. (1998). Opportunity makes the thief. In Police research series. Paper 98. London: Home Office, Policing and Reducing Crime Unit. Gallagher, C. (2015). Cleaner acquitted of stealing paintings from home of well-­ known Irish artist. Retrieved November 7, 2016, from http://www.independent. ie/irish-news/courts/cleaner-acquitted-of-stealing-paintings-from-home-of-wellknown-irish-artist-31091634.html. Garrett, D. (2016). Private security career paths: Establishing the foundations of a structured progression model for the manned guarding sector. Doctorate Dissertation, University of Portsmouth, UK. Gardiner Museum Thefts: Gardiner Security Director Anthony Amore. (2013). Retrieved November 26, 2016, from Video at Youtube https://www.youtube. com/watch?v=6XArJWQBhpo. Hart, M. (2010). The Irish Game: A true story of crime and art. London: Bloomsbury Publishing. Hayhurst, C. (2016). Rathkeale Rovers’ jailed over museum rhino horn plunder. Retrieved January 16, 2017, from http://www.independent.ie/irish-news/courts/ rathkeale-rovers-jailed-over-museum-rhino-horn-plunder-34602680.html. Hollin, C.  R. (2007). Criminological psychology. In M.  Maguire, R.  Morgan, & R. Reiner (Eds.), The Oxford handbook of criminology (4th ed.). Oxford: Oxford University Press. Jirasek, P. (2004). Museum security and disaster preparedness. In P. J. Boylan (Ed.), Running a museum: A practical handbook (1st ed., pp. 177–195). Paris: ICOM. Joyce, P. (2012). Criminology: A complete introduction (1st ed.). McGraw-Hill: Manchester. Kerr, J. (2013). The securitization and policing of art theft in London. Unpublished Doctoral Thesis, City University London. Kirchgaessner, S. (2016). Italian Camorra inquiry recovers Van Gogh’s 14 years after infamous heist. Retrieved January 16, 2017, from https://www.theguardian.com/ artanddesign/2016/sep/30/italian-police-find-van-goghs-stolen-in-amsterdamgallery-heist. Maslow, A.  H. (1943). A theory of human motivation. Psychological Review, 50(4), 370–396. Newman, O. (1996). Creating defensible space. Institute for Community Design Analysis. Centre for Urban Policy Research, Rutgers University. Office of Policy and Analysis Smithsonian Institution. (2014). Proprietary, contract, and hybrid: Benchmark study of museum security staffing approaches. Retrieved April 12, 2017, from https://www.asisonline.org. Reynolds, C., & Wilson, P. (1996). Private policing: Creating new options. Australian Policing: Contemporary Issues. Sydney: Butterworths.

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Scherdin, M. J. (1986). The halo effect: Psychological deterrence of electronic security systems. Information technology and libraries, 5(3), 232–235. Sennewald, C. (2011). Effective security management (5th ed.). Oxford: Butterworth-Heinemann. South, N. (1985). Private security and social control: The private security sector in the United Kingdom, its commercial functions and public accountability. Doctoral dissertation, Middlesex Polytechnic. Thorpe, V. (2003). Revealed: Perilous sting to recover the Scream. Retrieved January 16, 2017, from https://www.theguardian.com/uk/2003/jan/19/arts.education.

10 Regional Overviews of the Policing of Art Crime in the European Union Naomi Oosterman

Introduction It is not uncommon for the words art and crime, when united, to spark some enthusiasm and raise public imagination. When asked about art crime, many minds will think of the mysterious genius Dr. No, the famous James Bond villain who hides stolen art in his underground ‘lair’; the legendary and sophisticated art thief Robert MacDougal in the 1999 film Entrapment or more recently the TV series White Collar (2009–2014) where a particularly handsome whitecollar criminal agrees to help the FBI catch other white-­collar criminals using his expertise as an art thief, forger and conman. However, these images are exactly what they are: figments of Hollywood imagination. Multi-milliondollar thefts and heists are an exception rather than the rule (Durney and Proulx 2011) and very few art criminals would behave like the art-motivated Dr. No (Mackenzie 2005). It is not only the criminals and the crime itself that can be seen as a figment of imagination, this often seems to be the case for art crime policing as well. In the examples given above and many others, we see an extensive policing effort to securitise and police art, as well as an extensive and thrilling investigation. The reality, just like the art theft cases, is far less exciting.

N. Oosterman (*) City, University of London, London, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_10

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Although the importance of cultural heritage is acknowledged1 by different authorities, it receives very little priority in most European police forces (Block 2014).

Art Crime Art theft is seemingly one of the more elusive criminal problems that law enforcement has been facing for decades (Hufnagel 2014; Charney 2012; Feldman and Burnham 1977); it seems to defy prevention through the traditional methods of law enforcement. It is difficult to determine the exact scale and impact of art theft. Recent research has found that the size and scope of cultural property crime—estimated at a US$6 billion illicit industry, grossing as the third- or fourth-highest criminal enterprise—is without statistical merit (Durney 2013). Even though we have seen an increase in specialised law enforcement, the knowledge and a clear definition of art theft, art crime and its figures remain fragmentary. The reporting of both theft and recoveries of stolen artworks remains haphazard, only the headlines concerning large-scale art thefts and crimes seem to make it to the public and scholarly attention. The unique nature of this form of crime therefore appeals to a special theorisation and methodology (Feldman and Burnham 1977). In academic literature, the concept of art crime has seen increasing popularity over the last decade. Increasing awareness in recent years has led many academics, art professionals and law enforcement agencies to propose schemes for dealing with art thefts (Block 2014; Durney and Proulx 2011; Manacorda 2009; Hoffman 2006; Mackenzie 2005). The vast and dispersed field of these recent criminological studies has further broadened and defined the body of art crime scholarship, drawing on crimes involving art and antiquities (Tijhuis 2006; 2011; Mackenzie 2005; Alder and Polk 2005); its similarities and differences with other crimes (Alder and Polk 2002); the implications of law and jurisprudence (Tompkins 2009; Bruncevic 2011; Hufnagel 2014; Falconer 2000) and statistical representation (Durney 2013; Passas and Proulx 2011). This, in combination with earlier significant criminological and sociological literature (Polk 1999; Bernick 1998; Conklin 1994; Feldman and Burnham 1977), shows that art crime is receiving more scholarly attention, which implicates that art crime might move away from the Hollywood  Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954); Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970); UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995) and Interpol Resolution 2199 (2015). 1

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imagination, into a serious scholarly body. Art crime covers many areas, including art theft, vandalism, forgeries, trafficking, iconoclasm and illegal street art (Kerr 2015a). Although many of these forms of art crime flow over, this chapter will examine the policing efforts in the European Union (EU) for art crime in general. Before we introduce the policing efforts of the different law enforcement agencies in the European Union, we will closely look at the largest intergovernmental organisation concerned with art crime policing: Interpol.

Interpol Interpol is the largest international police organisation in the world, with around 190 member countries. The idea of Interpol was born in 1914 at the first International Criminal Police Congress (ICPC). Officially created in 1923 as the International Criminal Police Commission, the organisation became known as Interpol in 1956. Therefore, Interpol is most likely the first manifestation of a coordinated international policing effort in the fight against cross-border crime (Hufnagel 2014). The aim was to create stability in Western Europe in the aftermath of the effects of World War I and the Russian Revolution. After the Nazification of the ICPC in 1946, the organisation was re-established in Paris and emerged in its current form, after 1989, in Lyon. Interpol is considered to truly be an international cooperation body, since it is open to all nations of the world to join. It can officially not be viewed as an international organisation, since the members are police forces, not nation states, although it is recognised as such by the United Nations (UN) (Hufnagel 2014). The Interpol Works of Art Database was set up in 1995 to support the policing of art crime through local police authorities in its member states (Interpol 2017). Interpol currently has 190 members and assists its police forces with information. The Works of Art Database is initially a tool for local police authorities to perform due diligence and provenance checks.2 The primary aim of the database is to recognise objects: Interpol and the Works of Art Database do not perform their own operational detective work, they work on a theft report basis. The actual policing of art crime is the concern of the local police authorities. In case of theft, the local police contacts the National Central Bureau (NCB), the representation of Interpol in its member states,  Interview with two Criminal Intelligence Officers of the Works of Art Database, 11 April 2016, Lyon, France. 2

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who contacts Interpol directly. Both the NCB and Interpol can check the Works of Art Database to either insert the stolen property into the database (theft), or check its provenance status within the database. If an artwork is not in the database, it does not necessarily establish a clean provenance, however; due diligence has been exercised. It depends on the police forces whether they hand over theft cases to Interpol. Interpol will, in case of a theft or suspicious object (or other forms of art crime such as iconoclasm), support the local authorities through the NCBs with tools, such as the database, posters and intelligence. There are currently three criminal investigation officers and two information professionals (documentalists) working at the Works of Art Database at the Interpol headquarters in Lyon, France.

 olicing Efforts in the European Union Member P States As previously mentioned, the general field of art crime and specifically art crime policing has recently been given extensive scholarly attention. The following section uses and builds forth on the previous research done by Block (2014). Due to the ever-changing nature of the European Union and changing legislation within local police authorities, this list of policing efforts aims to identify the current differences and similarities between different law enforcement agencies, to possibly conclude if art crime policing is done through the same denominators in an EU-wide framework. This section assesses 19 EU member states. It is based on extensive literature research and interview research conducted in mid and late 2017.

Austria Since 2002, all cultural investigations in Austria run through the Bundeskriminalamt (BKA). The BKA is the centralised federal criminal police office in Austria that is, among other things, tasked with cultural property offenses throughout Austria (Bundeskriminalamt). They gather information on different types of art-related crimes (theft, fraud, robbery) and different types of valuables (paintings, sculptures, jewellery). The BKA is also concerned with the Interpol Works of Art database (Der Standard, 2013). Austria uses a crime database in which all reported stolen works of art are stored, as well as seized or recovered objects. The main Austrian art crime cases can be

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accessed on the website of the Austrian Ministry of Internal Affairs (Bundesministerium für Inneres). There is no specific art crime database, but the Austrian police use an investigative database called the Elektronisches Kriminalpolizeiliches Informationssystem (EKIS). The database is formed of multiple separate specialised registers.

Belgium The Bureau of Art and Antiques (Bureau Kunst en Antiek) was set up in 1988 within the Brussels judicial police (Block 2014). After the reorganisation of the Belgian police in 2001, the Art and Antiquities Unit was placed within the Belgian Federal Police. In 2011, a bill was proposed to the Belgian senate by politicians Ludo Sannen and Bert Anciaux. In this bill, the two senators claimed that the Belgian police forces have been structurally cutting back on funding for the art crime unit. According to the bill, the employment of the two art crime specialists that were working for the art crime unit (a decrease of five members of staff since 2000) was under pressure. The Belgium Art Crime Unit has subsequently been officially closed. A former member is still working in the area informally. Belgium does maintain an art crime database called ARTIST (Databank van Gestolen Kunst). The bill in 2011 already indicated difficulties with different departments within the police to access the database; in 2013, another bill was put forward by senators Martine Taelman and Jean-Jacques De Gucht, proposing that all police units should have access to the ARTIST database. They also suggested that the ARTIST database should be made publicly accessible. These bills were accepted unanimously, but legislation and a lack of funding has resulted in Belgium never working with a publicly accessible database. (Belgische Senaat 2011)

Bulgaria The Chief Directorate Combating Organised Crime (CDCOC) was established in 1991 (Bulgarian Ministry of Interior). It is a specialised branch within the Ministry of Internal Affairs, concerned with combatting and dismantling of local and international criminal structures and activities. The Cultural Historical Valuable Department within the Unit for Combating Organised Crime (GDBOP) is tasked specifically with crimes against art and cultural property.

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Croatia In Croatia, the Ministry of Culture is assigned with the protection of cultural monuments (Ministarstvo Unutarjih Poslova). They facilitate the continuous exchange of experience and expertise between professionals, police and the criminal investigative agencies concerned with cultural property. Both the Ministry of Culture and the Ministry of Internal Affairs have created the National Database of Alienated and Lost Art. This database is based on the information and software solutions established at Interpol’s Works of Art Database. The Croatian database enables the formation of a unified database of different types of artworks that have been victim of different types of offences. The Croatian police also aims to have police officers check for artefacts that might be of dubious provenance.

Cyprus The Cyprus Office for Cultural Property was set up in August 1998 (Cyprus Police). The Office is tasked with the protection of cultural property in Cyprus. It fights cultural property crime, collecting, evaluating and using information in relation to the illicit trafficking of works of art and antiquities. It does not, however, maintain its own database. The Office is also concerned with the repatriation and recovery of stolen works of art and antiquities of Cypriot origin to their rightful or legal owners. The Office is a division within the Criminal Investigation Office, which is part of the Cyprus Police.

Denmark The Danish police force does not necessarily facilitate a specific art crime unit, but it does employ one Detective-Inspector concerned, amongst other duties, with cultural property crime.3 The policy in Denmark, set by the government, is to not apply too many resources to art crime, since art crime is not a prevalent national problem. The Danish National Police have an appointed police officer who annually checks museums and galleries in order to ensure that they have adequate security. The Danish police forces are therefore more concerned with the prevention of the crime itself. The police officer will check if the museum and/or gallery has a sufficient camera system, alarm system, secu Phone interview with Detective-Inspector of the Danish National Police. 13 April 2016, Rotterdam, the Netherlands.

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rity doors and whether museums are concerned with access-related issues, such as potential criminal stake-outs. The Danish police furthermore maintains a close connection with the auction houses in Denmark and has set strict rules under which art can be sold or bought. The Danish police do, however, maintain close contact with the other Nordic countries and collaborate on an intelligence basis. If a theft occurs in another Nordic country, the Danish police will immediately set up a description of the crime and criminals to the customs police and the Danish NCB and will actively assist with operational policing efforts if a criminal (or objects) is suspected to be present in Denmark. However, art crime is considered a secondary area within the police force that is not closely monitored. Mostly because of the very few incidents that take place. They actively work together with Danish cultural institutions, Interpol, UNESCO and other international law enforcement agencies.

Finland As in the case of Denmark, the Finnish police also have a very low report rate of art crime (Block 2014). They do, however, work closely together with the Danish police when art crime cases occur. The National Bureau of Investigation (NBI) employs some art crime specialists, but it does not employ a full-time art crime unit, nor a specific database. The Finnish police do use a database, though this is a database for stolen objects in general. There is no distinctive art crime database, which makes retrieving information and the possible repatriation and recovery of objects difficult (Block 2014).

France The Central Office for the Fight against Trafficking of Cultural Property (l’Office central de lutte contre le trafic des biens culturels; OCBC) has since 1975 been tasked with investigations of theft and/or trafficking of cultural goods (Police Nationale Interieur 2011). This includes art theft, looting, fraud and forgery. Since the summer of 2009, the OCBC has also been responsible for the repression of artistic counterfeits. Three investigative groups (judicial police, customs and the gendarmerie) are dedicated to the investigation of cultural property crimes. France has maintained the Thésaurus de recherche électronique et d’imagerie en matière artistique (TREIMA) database, an electronic search and fine-art images thesaurus, since 1995 (Block 2014). This database was modernised in 2005 to allow image recognition searching. The

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Interpol General Secretariat and its Works of Art Unit are situated in Lyon. The database currently consists of the photos and specifications of roughly 49,000 objects (per 1 September 2016).

Germany Already during World War II, when it became imminent that the Nazi regime was doomed for defeat, various Jewish agencies began to devote their attention to the restitution of stolen Jewish property during the Nazi regime (Kapralik 1962). The French, English and American governments recognised that looted art and antiquities could not remain and be owned by Germany, thus The American Military Law No. 59, published in November 1947, decreed for the establishment of a Successor Organisation for heirless and unclaimed property. This led to one of the first established art crime databases in Europe. Of course this database was set up from scratch, mainly focusing on missing items from German-Jewish residents. They did, however, incorporate one of the predecessors of the OBJECT-ID cataloguing systems. Owners were encouraged to include as many details about the painting as they had, since photography had not made it to the public sphere as of yet. This database was one of the largest databases that was ever created for looted art and antiquities in Europe. Now, nearly 70 years later, Germany maintains an art unit within the Bundeskriminalamt and still maintains a database for stolen cultural objects. They employ a number of art crime specialists, but the actual investigations are carried out by the individual state police agencies, called Landeskriminalämter (LKAs) (Block 2014). Similar to the Dutch case, the different provinces carry out the investigations when specific art crimes take place within their jurisdiction. There is one NCB in Germany, which the different LKAs report to when art crime cases need to be brought to the attention of Interpol.4

Greece In January 2008, the Greek Minister of Culture submitted a bill to the Greek Parliament for revised legislation concerning the fight against looting and the illicit trafficking of cultural objects (Kaliampetsos 2008). The Ministry of  Interview with two Criminal Intelligence Officers of the Works of Art Database, 11 April 2016, Lyon, France.

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Culture in Greece is the lead institution for the protection of cultural heritage. The ministry consists of four general directorates: (1) the General Directorate of Antiquities and Cultural Heritage, (2) the General Directorate of Restoration, Museums and Technical Works, (3) the General Directorate of Contemporary Culture and (4) the General Directorate for Administrative Support. Responsibilities are spread between different departments, and there is no centralised art crime unit. The main directorate responsible for the fight against looting and illegal trafficking is the antiquities and cultural heritage directorate. This directorate is divided between nine directorates in the central services, several regional services and special regional services (Kaliampetsos 2009). The Department Against Smuggling of Antiquities, a part of the Greek National Police Division of Public Safety, is an important actor in the fight against illicit trade. Other players in this field are the Prosecutor’s Offices and Customs Services. The Department Against Smuggling of Antiquities is tasked with the making of arrests and detentions, confiscations of stolen or smuggled works, investigating suspects and cooperating with Interpol and law enforcement agencies. The department officially employs 25 police officers (2008), but in reality, there is an average of five to eight police officers that mostly work on an average of ten large-scale smuggling cases. The majority of the officers (15–20 police officers) are transferred to other departments within the police that are under-staffed.

Hungary The Hungarian police force acknowledges and stresses the importance of cooperation between both investigative and non-investigative institutions. In that respect, the Hungarian National Police, the National Tax and Customs Administration and the Office of Cultural Heritage established the Forster Gyula National Heritage Resources and Services Center in September 2012 (Szolgálunk és Védünk). The Hungarian police runs the Office of Administrative Work of Art database, employing a modern photo recognition software that helps to recover and identify stolen works of art. The heritage unit acknowledges that the investigative capacities of the police force are limited and that photo registration is powerless in the absence of a state-of-the-art programme. They therefore call for the active description of cultural goods by their owners that could be transferred to the investigative bodies in Hungary in the event of a crime.

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Ireland The Irish Art and Antiques Unit is part of the National Bureau of Criminal Investigation (NBCI), which was established in 1997 with a number of national investigation units, Arts and Antiques being one of them (An Garda Síochána). The NBCI was established as a response to the proliferation of organised crime. In November 2005, the Organised Crime Unit (OCU) was temporarily established within the NBCI.  In January 2008, the Garda Commissioner established the unit on a permanent basis. The OCU focuses on crime that crosses Irish and international borders, this includes armed robberies, kidnappings and also the theft of valuable goods and commodities such as cultural objects. Within the OCU, the Arts and Antiques Unit is a specialised unit that investigates all cultural property crimes. The unit actively works together with international art and antiques markets, dealers, museums, art galleries and (inter) national law enforcement units.

Italy The Comando Carabinieri Tutela Patrimonio Culturale dates back to May 1969 and is considered to be one of the first and most active art crime police forces in the European Union (Carabinieri). With the 1970 acceptance of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the Cultural Heritage Unit of the Carabinieri was, in 1971, elevated to the rank of ‘Corps Command’. The Carabinieri unit consists of three departments: Archaeology, Antiques, Modern Art and Counterfeiting. On 5 March 1992, the unit was officially incorporated within the Ministry of Cultural and Environmental Heritage. The unit consists of a command office in Rome, with the sections Secretariat and Staff, Operations and Data Processing, and 18 regional jurisdictions across Italy. These jurisdictions combined, employ around 300 members of staff.5 The Carabinieri maintains the Banca Dati Leonardo, the Leonardo database storing all crimes against art (Rush and Millington 2015). This database is considered to be the largest dedicated database on art crime in the European Union, which can be searched online (Block 2014). In autumn 2011, General Pasquale Muggeo suggested an Italian proposal to the European Commission on the approval and financing of the Protection System for Cultural Heritage (PSYCHE) (Rush and Millington 2015;  Interview with Maggiore Massimo Maresca, head of the Archaeological Unit of the Carabinieri Tutela Patrimonio Culturale. 24 June 2016. Rome, Italy. 5

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Hufnagel 2014). This system proposes to incorporate the Leonardo database in the Interpol Works of Art database and other national databases within the European Union.6

Lithuania The Lithuanian Criminal Police maintains an online database for stolen works of art, called the Stolen Art Treasures (Policijos Departamentas). An extensive search can be conducted online. The database is open to the public, and one can search through the parameters of the OBJECT-ID references. The main website of the Lithuanian police, also refers to the Interpol Works of Art database, enabling searches on the recent thefts page. The unit dedicated to crimes against cultural objects within the Lithuanian police consists of one person (Block 2014).

Malta In Malta, the Cultural Property Crime Unit (CPCU) is a part of the Criminal Investigation Department of the Malta Police (Pulizija). Recently, the CPCU has intensified its collaboration with Europol and Interpol to upgrade its own investigative abilities. The unit is mostly tasked with the investigation of theft, illicit trafficking, looting, vandalism, illicit excavations, Internet trafficking and the collaboration with Interpol. The  unit is especially concerned with inspections and searches within coastal areas and marinas, to assist in the ­control and prevention of illicit movement by sea outside the Maltese Islands. In Malta, the unit works closely together with the Superintendence of Cultural Heritage and with the local Customs officers. Malta is also one of the EU member countries that have joined the PSYCHE project as co-beneficiaries (Panone 2010).

The Netherlands In the Netherlands, the division Kunst- en Antiekcriminaliteit (Art and Antiques Unit) is responsible for the policing of art crime (Willem-Hirsch 2012). The Art and Antiquities Unit is part of the National Police (Korps  Databases include those of Austria, Belgium, Bulgaria, Cyprus, Estonia, France, Germany, Greece, Hungary, Malta, the Netherlands, Slovakia, Slovenia, Spain and Sweden. 6

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Nationale Politie—KNP). According to the Verslag van een onderzoek voor bet Nationaal dreigingsbeeld 2012, the police did not focus specifically on art and antiquities crime between 2001 and 2008 (Willem-Hirsch 2012). This is mainly due to the termination of the Art and Antiquities unit in 2001, which the police themselves considered to be unsuccessful. This has possibly led to an almost decade-long carte blanche for criminals in the Dutch art and antiques scene (Ibid., pp. 39). The current Art and Antiques Unit has been active since 2009. There is a stolen works of art database, but registration of stolen works of art differ by police district and region, making it difficult to register these objects properly and to work on recovery. During the reorganisation of the national police in 2013, the country was divided in ten regional units. Each of these units has one police officer in charge of following up leads on all types of art crimes in their district.7 The Netherlands furthermore actively reports missing and stolen works of art to the Interpol Works of Art Database and also has a ‘personal’ public prosecutor who is specialised in artand antiques-related crimes. The current Art and Antiques Unit consists of four experts led by one dedicated art crime detective and operates under the Analysis and Research department of the Dutch police in Zoetermeer (Rijksdienst voor Cultureel Erfgoed 2015). They work for approximately three ‘full-time equivalents’ (FTE) per week on all cases related to art crimes (theft, vandalism, looting, forgery, etc.). They receive around 30,000 notices a year, of which a small part concerns theft. Around 700 cases per year are included in the database (Ibid.).

Spain The Spanish police is divided between three agencies: the Guardia Civil, the Cuerpo Nacional de Policía and the Mossos d’Esquadra. Each of these units specialises in some way in the field of cultural property crime. In the late 1970s, due to the considerable increase in theft of cultural objects, the Guardia Civil established a specialised crime unit for crimes against cultural objects. In 1987, this led to the establishment of a centrally organised art crime unit called the Grupo de Patrimonio Histórico (Guardia Civil). The main activities of this unit include all criminal acts that may have an impact on Spanish national heritage. Amongst other crimes, this refers to theft, looting, smuggling, vandalism, forgery and fraud. Stolen and recovered cultural objects are listed on the Catálago de Objetos Artísticos Substraidos. This catalogue consists  Interview with head of the Art and Antiques Unit of the Dutch National Police. 13 April 2016. Driebergen, the Netherlands.

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of two parts, one of them listing stolen cultural heritage that has not been recovered (open cases). This part of the catalogue is considered by the Guardia Civil as a ‘colaboración ciudadana’, or civilian cooperation. They aim for civilians to come forth with information after having reviewed the object specifications in the catalogue. The second part of the catalogue consists of returned and/or retrieved objects of which the owner is unknown. The catalogue consists of roughly 400 documented photos arranged in 16 categories ranging from weaponry and furniture, to paintings, sculptures and jewellery. The Cuerpo Nacional de Policía has established the Brigada de Investigación de Patrimonio Histórico in 1977 (Block 2014). The Brigade is part of the Comisaría General de Policía Judicial and is located within the special and violent delinquencies branches of the policia nacional. The Brigade also maintains the Dulcinea database, which lists stolen cultural goods. The Mossos d’Esquandra, the police force of Catalonia, the autonomous region in the northeast of Spain, encompasses an art crime unit, the Grup de Patrimoni Històric under the Criminal Investigation Commissariat (Rabadan n.d.).

Sweden The Swedish police was reorganised in 2015. The Wildlife and Cultural Heritage Crime Unit was set up in April 2016 and is specifically tasked with the investigation into cultural heritage- and wildlife-related crime (Ellior 2017). The police unit is located at the national level, at the Department of National Operations, within the Investigations Division. Within this unit, two investigation teams are set up, one for each crime area. Since the start of the unit, there were three dedicated detectives for cultural heritage crime and four detectives for wildlife crime. However, both detective groups can be combined in case of a large-scale issue concerning either heritage or wildlife crime. Within the Wildlife and Cultural Heritage Crime Unit, there is a national coordinator. This person is not an active detective, in terms of ‘going into the field’, but works more strategically. This person is tasked with the role to develop the heritage and wildlife crime field strategically, both within the police and in collaboration with external parties. In that aspect, he is both the representative and mediator between the Swedish Unit and external parties. For the Heritage Crime Unit, this coordinator works together with the Swedish Heritage Board, the National Library of Sweden, the Swedish Church and the Swedish National Archives. He furthermore works together with national museums, but also internationally participates in EU workgroups

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(e.g. the Europol CultNet). The national coordinator is also tasked with giving presentations to civilian audiences, for example, at universities, historical societies and to antiquarians. If there is a need, and in case of the suspicion of cross-border criminality, the national coordinator will collaborate extensively with Interpol. Before this unit was set up, heritage crime was investigated at the local level. Due to the fairly low penalties for cultural heritage crime in Sweden, the policing of heritage crime was not prioritised within the police force. Due to this, no specific art crime database is established. As was the case prior to the reorganisation of the Swedish police, there remains one police officer in the Stockholm division that specifically investigates art forgeries.

The United Kingdom The Art and Antiques Unit was first set up in 1969 to police London’s growing art community (Metropolitan Police). The unit is a specialist department within the London Metropolitan Police. They employ detective constables, researchers and part-time special constables known as ArtBeat officers (Ibid.). The Art and Antiques Unit maintains the London Stolen Arts Database (LSAD) which currently stores details and images of 57,000 items of stolen cultural property. The LSAD is open to requests for searches from the public. Furthermore, certificates to prove that a check has taken place, as part of a ‘due diligence’ process, can be issued. In 2007, the Metropolitan Police issued a statement that the unit was not a priority for the force and that it would take a 50% budget cut (Block 2014). Attempts to ensure sponsorship from the private sector proved to be unsuccessful. The Art and Antiques Unit has been very successful despite having a limited number of detectives in the past; ­during the 1990s, they were annually recovering, in terms of value, more stolen property (£14  million) than the rest of the entire Metropolitan Police (Kerr 2015a). At the time of writing (2017), all members of the unit are deployed on other duties and it is not certain when they will return to the policing of art crime. As this overview demonstrates, art crime policing significantly differs in the EU member states. In some member states, art crime policing gets very little attention (Denmark, Latvia), whilst others are equipped with a highly specialised and fully dedicated art crime unit (Italy, France). This chapter initially aimed to include all current member states of the European Union, but due to the changing nature of the Union and the 28 different jurisdictions and legal systems, it is difficult to give a concise overview that will remain up to date. However, one can still identify the three common ele-

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ments in the EU art crime policing efforts, as set out by Block (2014), as well as an extra common element for the member states that joined in, or after, 2004. The policing of art crime appears to require some form of centralised expertise. It is, unlike other crimes, not the type of crime an officer can work on with little training (Block 2014; Hufnagel 2014). Also, effectively policing art crime requires an adequate information management system, one that ideally facilitates the flow of information from a local law enforcement agency to a centralised database that includes detailed information on stolen works of art. Hufnagel’s research (2014) shows that approximately 18 of the then 27 EU member states maintain one or multiple databases on stolen works of art. In 16 member states, the police have assigned experts to art crime. The size of these units, as is visible, varies significantly. The third common element of policing art crime in the EU, as previously mentioned by Block (2014), is investigative capacity. A database and a centralised expertise alone cannot solve art crime cases. Policing needs to be operational (Kerr 2015b). In the member states investigated, we see that the operational forces vary from state to state. Some states have specialised operational art crime units, tasked with the active recovery of stolen cultural objects and the ability to perform investigative functions (Italy, France, Spain). Other states struggle to maintain art crime divisions due to lack of funding (the Netherlands), or low priority of art crime within law enforcement (the United Kingdom). Finally, there are member states that are still in the process of setting up an art crime/cultural property division within their national police forces (Croatia, Hungary). A fourth common element of art crime policing efforts in the EU can be found more specifically in the ‘new’ member states. States that have become a member of the EU in 2004 or after are increasingly aware of the challenge art crime policing poses and what it means to not have the appropriate policy tools or number of police officers to implement this specific type of crime within their law enforcement agencies.8 Many of these law enforcement agencies have recently had to go through extensive reorganisation for their EU membership; in that aspect, art and heritage crime policy and policing is not always given priority within the police forces. Interpol also provides new member states with models for setting up databases and intelligence, but it remains the countries decision to request them.9  Countries include Hungary, Bulgaria and Cyprus that have issued their concerns about not being able to have access to the latest technologies and intelligence. 9  Interview with two Criminal Intelligence Officers of the Works of Art Database, 11 April 2016, Lyon, France. 8

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Policing Art Crime The nature of art crime often varies, since the object determines the type of crime committed (Willem-Hirsch 2012). Stealing a painting from a museum requires a different approach than a bronze statue stolen from a public square. The market for these objects differs as well: while a buyer must be found for stolen paintings, a bronze statue could be melted down and sold as scrap metal. There is a discrepancy between these crimes and criminals; the first regards the cultural value and worth of the painting itself for the art market, whereas the latter example concerns only the materials the object is made of. Most art is stolen from private homes and public areas (Willem-Hirsch 2012; Interpol). Religious institutions are in comparison less likely to become victim of an art crime, but when they do occur, large amounts of objects will be stolen in the same heist (Interpol Works of Art Database 2016). These institutions are difficult to secure because of their public access and identity. Some of the operational efforts on art crime policing were made when a few agencies in the European Union were established to facilitate and undertake police and judicial cooperation. Two of these, Europol and CEPOL, have undertaken activities related to the investigation of art crime (Block 2014). Europol, established in its current form in 1999, is the EU law enforcement organisation that handles information exchange and intelligence analysis. Europol has no operational powers and has never been involved in any investigative measures concerning art crime in the European Union. Europol has so far mainly delivered training courses on cultural property crime, conducted a study on establishing an EU database on stolen cultural goods and collected information for the Europol Cultural Property Crime Handbook. Since collecting data for this handbook in 2014, not much activity on art crime has come from Europol. There is currently no dedicated art crime unit within Europol. However, there is now an officer responsible for art crime within the property crime division of Europol. CEPOL, also known as the European Police College, has undertaken activities in the field of art crime. CEPOL consists of a network of national police training colleges from member states established in 2000 and became an EU agency in 2005. The courses they give are spread over the EU, and the CEPOL website lists all the art crime courses that are given. In practice, these courses are more often than not a gathering of art crime experts from member states. They also usually attract the same participants every year. According to CEPOL, these annual meetings do constitute an important informal link for the international cooperation on art crime. In short, CEPOL, like Europol

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and Interpol, has no direct operational power within the EU, but fosters knowledge and expertise among specialists.

Due Diligence and Provenance Research Many of the art crime databases that we have discussed in this chapter have been set up for the purpose of recognising stolen works of art, or as a way to assist the players in the art market to purchase cultural objects (www.cepol. net). Due diligence research is initially performed in two situations related to the purchase of cultural objects: (1) the investigation of suspicious circumstances by the buyer and (2) victims searching for missing or stolen objects (Pinkerton 1990). Nevertheless, databases are not conclusive. Just because an object does not appear on a database, does not mean that it is not stolen or that there is an unquestionable provenance. The Interpol database, for example, relies on the input of its member states. The member states are under no circumstances obliged to hand in these yearly crime statistics. Some countries choose not to deliver any statistics at all, whereas other countries can rely on a strong art crime policing force and database. In other situations, cultural objects might not be expected to cross international borders, thus countries choose to not report them to Interpol. Recent research (Hardy 2016) has shown that Europe is one of the top contributors to the art crime databases. Even though statistics should be treated warily, and a database cannot account for undocumented cultural objects, it shows that Europe accounts for nearly 74% of the total input into the Works of Art database (Hardy 2016). Around 59% of these contributions come from EU member states and 15% from non-EU states within the European geographical continent. These statistics indicate under-documentation of other continents. With stolen cultural objects often being trafficked across international borders, this proves another difficulty in due diligence and provenance research through databases. Provenance research has proven to be a lucrative business within the art world. While Interpol and some law enforcement agencies in the EU use public databases, there are also for-profit commercial databases. The Art Loss Register (ALR) is an example of a for-profit organisation, with a database of over 300,000 objects (www.artloss.net). The ALR was first established as The International Foundation for Art Research (IFAR) in New York, a non-profit organisation. In 1976, they began publishing the Stolen Art Alert. The current ALR was established in London in 1990. It is the world’s largest private database of lost and stolen cultural objects. The ALR has one important aspect when it comes to due diligence: it offers a due diligence service to sellers of art.

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For £500, any interested party can conduct 25 searches within the ALR database. Law enforcement agencies get offered free support when working on art crime cases. When the ALR does come across a doubtful object, or an object with uncertain provenance, they sometimes contact the Interpol Works of Art database to verify whether a stolen work of art is present in their database. Interpol then, if necessary, will contact the NCB of the country that is concerned with the object.10 Interpol and the ALR do not, however, structurally work together.

EU Policy Concerning Art Crime The intergovernmental organisation TREVI was founded in 1975, due to the occurrence of several terrorist incidents in Europe (Block 2011). It was here that police cooperation in Europe was first discussed. TREVI was therefore initially set up to combat and coordinate anti-terrorism efforts between European governments. After the creation of the TREVI Working Group in 1985, serious crimes other than terrorism were thoroughly addressed. In 1990, the TREVI programme first mentioned police cooperation concerning works of art and other cultural objects. This, however, was merely a political statement, rather than an operational one. With the entry into force of the treaty of Treaty on European Union (1992), police cooperation between European Union member states became a priority in the EU. EU policy was set up to harmonise existing and new methods and legal frameworks for information exchange, the creation of centralised databases and prioritising specialised crime fields concerning drugs, people trafficking and counterfeits (Block 2014). Even though the topic of art crime was discussed, it was never officially introduced by a formal instrument. During the 2004 Dutch presidency of the EU, the agreement was made with the member states that every police unit should have an art crime database (Ministerie van Justitie, 2015). This could be any database, both digital and hard copy. This was initiated due to the conference on Illegal Trade. Fighting Illicit Traffic in Cultural Goods in the European Union. During this conference, the need for a repressive and preventive measure was reiterated, which resulted in the implementation of the non-binding agreement to recommend countries to set up and maintain art crime databases. In 2008, art crime appeared on the political agenda again. France was in charge of the EU presidency at the time when a European database of stolen cultural objects  Interview with two Criminal Intelligence Officers of the Works of Art Database, 11 April 2016, Lyon, France. 10

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was proposed. Interpol was quick to offer support in examining the needs of EU member states and to incorporate them within the Works of Art Database. As mentioned previously, Interpol supports member states with intelligence and models concerning art crime databases. In late 2008, the EU Council adopted a non-binding conclusion on the fight against illicit trafficking in cultural objects (Block 2011). These conclusions also called for greater police cooperation between member states and the designation of contact points. When, in 2011, the Polish EU presidency commenced, art crime was put on the agenda once again. Poland executed a questionnaire on cultural property crimes amongst the member states (Block 2014). The conclusions from this questionnaire resulted in the increasing cooperation between Interpol and its member states. The cooperation was mostly based on developing and implementing a system for reporting key events and responses in relation to art crime. In response to this, there was an urgent appeal for the development of a handbook to increase the effectiveness of combating art crime (Council of the European Union 2011). Earlier in this chapter, it was already mentioned that intergovernmental organisations tasked with the policing of art crime (Interpol, Europol, CEPOL) have no operational policing powers. Interpol serves as an information broker on art crime for its 190 member states, Europol mainly initiates training courses on art crime and CEPOL organises annual expert meetings and organises education and training courses related to art and heritage crime. At EU level, many policy instruments have been initiated regarding art and heritage crime; however, these have not (yet) resulted in operational transnational policing efforts.

Conclusions This chapter provided an outline of art crime policing in the European Union by combining policing efforts, EU policy and intergovernmental operational efforts. This chapter built upon the already existing research by Ludo Block (2014) and aimed to pass its gaze further to member states that joined the EU in 2004 or later. It examined the preventive, investigative and operational measures of law enforcement agencies and intergovernmental organisations in the EU concerned with art crime. It is prevalent that the EU member states still differ immensely when it comes to the policing of art crimes. Not nearly every member state maintains a database and 15 of the mentioned member states in this chapter have some sort of art crime unit positioned within the local police authorities. Capacity also varies extensively, from around 300 agents in Italy, to only one in Denmark.

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In the field of European policy, art and cultural property crimes have many times made it to the agenda, but just as often resulted in intangible operational efforts. As mentioned previously in this chapter, the efforts by Interpol, Europol and CEPOL have led to policy decisions and the implementation of courses and handbooks. This should not be overlooked. Within European police cooperation, sharing information and data is one of the parameters for success and multiple art crime law enforcement specialists have highlighted the importance of data sharing and art crime databases. It is clear that art crime occupies an interesting place within European police agencies. In contrast to the under prioritised nature of art crime within police forces, agents are passionate and dedicated to the cause. It is evident that the transnational sharing of data has an influence on the policing of the cause. By installing public databases and open information sharing, the field of art crime policing actively reaches out to the public for support and furthermore shares its intelligence. Something that is unique within policing. This chapter gave an overview of art crime policing efforts in the European Union. It is evident that only three years after the last publication on this subject, many things have changed within law enforcement agencies in the EU. The policing of art crime, both national and international, is yet to be developed. Reorganisations, budget cuts and policy all contribute to the ever-­ changing nature of art crime policing.

Bibliography Alder, C., & Polk, K. (2002). Stopping this awful business: The illicit traffic in antiquities examined as a criminal market. Art, Antiquity and Law, 7, 35–53. Alder, C., & Polk, K. (2005). The illicit traffic in plundered antiquities. In P. Reichel (Ed.), Handbook of transnational crime and justice (pp. 98–113). London: Sage. Bernick, L. (1998). Art and antiquities theft. Transnational Organized Crime, 4, 91–116. Block, L. (2011). From politics to policing: The rationality gap in EU policy-making. The Hague: Eleven International Publishing. Block, L. (2014). Policing art crime in the European Union. In S.  Hufnagel & D.  Chappell (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp. 187–205). Farnham: Ashgate. Bruncevic, M. (2011). The lost mural of Bruno Schulz: A critical legal perspective on control, access to and ownership of art. Law Critique, 22, 79–96. Charney, N. (Ed.). (2009). Art and crime. Exploring the dark side of the art world. Santa Barbara: ABC-CLIO.

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Charney, N. (2012). Lessons from the history of art crime. Journal of Art Crime, 8, 85. Conklin, J. (1994). Art crime. Westport: Praeger. Durney, M. (2013). Reevaluating art crime’s famous figures. International Journal of Cultural Property, 20, 221–232. Durney, M., & Proulx, B. (2011). Art crime: A brief history. Crime, Law, and Social Change, 56, 115–132. Falconer, K. A. (2000). When honor will not suffice: The need for a legally binding international agreement regarding ownership of Nazi-looted art. University of Pennsylvania Journal of International Economic Law, 21, 383–425. Feldman, F., & Burnham, B. (1977). Art theft archive: Principles and realization. Connecticut Law Review, 10, 702–715. Hardy, S. A. (2016). Illicit trafficking, provenance research and due diligence: The state of the art. Paris: UNESCO. Hoffman, B. T. (2006). Art and cultural heritage: Law, policy and practice. Cambridge: Cambridge University Press. Hufnagel, S. (2014). Interpol and advancements in international police cooperation on art crime. In S. Hufnagel & D. Chappell (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime. Farnham: Ashgate. Interpol. The International Criminal Police Organization. (n.d.). Retrieved June 2, 2017, from https://www.interpol.int/. Interpol Works of Art Database: website: (http://www.interpol.int). Kaliampetsos, I. (2008). Combating looting and illicit trafficking of cultural objects in greece – Administrative structure and new legislation. Retrieved May 6, 2017, from http://www.law-archaeology.gr/ClientFiles/Downloads/1205732028_florence.web.version.pdf. Kaliampetsos, I. (2009). Antiquities and law. Paper presented at the meeting of the Hellenic Society for Law and Archaeology, Athens, Greece. Retrieved June 5, 2017, from http://www.law-archaeology.gr/ClientFiles/Downloads/1205732028_ florence.web.vesrion.pdf. Kapralik, C. I. (1962). Reclaiming the Nazi loot: The history of the work of the Jewish Trust Corporation for Germany. London: Sydney Press. Kerr, J.  (2015a). The securitization and policing of art theft: The case of London. Farnham: Ashgate. Kerr, J. (2015b). The role of the police in the co-production of art security in London. In N. Charney (Ed.), Art crime: Terrorists, tomb raiders, forgers and thieves. London: Palgrave Macmillan. Mackenzie, S. (2005). Criminal and victim profiles in art theft: Motive, opportunity and repeat victimisation’ Art. Antiquity, and Law, 10, 353–370. Manacorda, S. (2009). Organised crime in art and antiquities. Milan: ISPAC. Manacorda, S., & Chappell, D. (2011). Crime in the art and antiquities world: Illegal trafficking in cultural property. New York: Springer. Panone, F. (2010). The database of Stolen Works of Art – How can this tool help in the fight against trafficking of cultural property? Retrieved June 5, 2017, from

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https://polcms.secure.europarl.europa.eu/cmsdata/upload/06544ccd-b2324d77-9d68-d88a68115e4f/PANONE_Fabrizio_EN_Summary_CULT_PH_ Destruction_13-07-2015.pdf. Passas, N., & Proulx, B. (2011). Overview of crimes and antiquities. In S. Manacorda & D. Chappell (Eds.), Crime in the art and antiquities world: Illegal trafficking in cultural property (pp. 51–67). New York: Springer. Pinkerton, L. F. (1990). Due diligence in fine art transactions. Case Western Reserve Journal of International Law, 22, 1–29. Police Nationale Interieur. (2011). Guide d’Information À Usage des Propriétaires Publics et Privés [Brochure]. Retrieved from: http://www2.culture.gouv.fr/culture/ securite-biensculturels/appli.htm. Polk, K. (1999). Art crime and prevention: Best practices. Art Crime, Protecting Art, Protecting Artists and Protecting Consumers Conference, Australian Institute of Criminology. Rabadan, T. (n.d.). Las brigadas de patrimonio en el entorno jurídico de las Communidades Autónomas. Mossas d’Esquadra. Retrieved June 5, 2017, from http://www.mecd.gob.es/cultura-mecd/dms/mecd/cultura-mecd/areascultura/ patrimonio/mc/lcti/capitulos/LCTI_9_Brigadas.pdf. Rush, L., & Millington, L. B. (2015). The Carabinieri Command for the protection of cultural property: Saving the world’s heritage (Vol. 17). Woodbridge: Boydell & Brewer. Tijhuis, A. J. G. (2006). Transnational crime and the interface between legal and illegal actors. The case of the illicit art and antiquities trade (Doctoral dissertation). Retrieved from Leiden University Database. Tijhuis, A. J. G. (2011). Comparison of the illegal arts and antiquities trade with other types of transnational crime. In S. Manacorda & D. Chappell (Eds.), Crime in the art and antiquities world: Illegal trafficking in cultural property. New York: Springer. Tompkins, A. (2009). Art theft: Heralds of change in the international legal landscape. In N. Charney (Ed.), Art and crime: Exploring the dark side of the art world. SantaBarbara: ABC-CLIO. Treaty on European Union, 7 February 1992, Maastricht, 1755–1759. Willem-Hirsch, E. (2012). Kunst- en antiekgerelateerde criminaliteit. Verslag van een onderzoek voor het Nationaal dreigingsbeeld 2012. Zoetermeer: IPOL.

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Der Standard ‘Kopf des Tages: Anita Gach, Kunstfahnderin’. (2013, May). Der Standard. Retrieved June 5, 2017, from http://derstandard.at/1299370/Kopf-desTages-Anita-Gach-Kunstfahnderin. Ellior, M. (2017). Swedish art and heritage crime. [email]. Ministerie van Justitie. (2015). Beleidsreactie rapport ‘Schone Kunsten’ [Policy brief ]. Retrieved June 5, 2017, from https://www.rijksoverheid.nl/documenten/kamerstukken/2008/08/14/beleidsreactie-rapport-schone-kunsten. Museumroof: Politie heeft nog geen toegang tot databank gestolen kunst. (2013, July). Brusselnieuws. Retrieved 5 June 2017, from http://www.bruzz.be/nl/nieuws/ museumroof-politie-heeft-nog-geen-toegang-tot-databank-gestolen-kunst. Rijksdienst voor het Cultureel Erfgoed. (2015). Openheid loont. Verslag van de studiemiddag diefstal in archieven. [Policy brief ]. Retrieved June 5, 2017, from https:// veilig-erfgoed.nl/system/files/subject_attachments/Verslag%20Studiemiddag%20 Diefstalinarchieven_0.pdf.

11 Recovering Stolen Artworks: A Practical Approach James Ratcliffe

Introduction The theft and looting of art remains ever present in the public consciousness, thanks to the constant stream of news stories and fictional accounts that are published and filmed. Such accounts almost always cover the loss or theft of items and sometimes their return, or, if that has not yet transpired, instead speculate as to how they might be recovered. Rarely do they go into any detail as to the process by which location and recovery might usually take place, instead focussing on those aspects more likely to attract attention. This chapter will consider one approach to the location and recovery of stolen and looted art in detail, through identifying it as it reaches the market, and bring clarity to the details of that approach. It will address some of the criticism aimed at that method and highlight areas for improvement.

Records of Stolen Art Without some kind of record of what has been taken, it is exceptionally difficult to recover an artwork at a later date. In such circumstances, it is only the absence of proof of legitimate ownership that can be used to demonstrate that the current holder is not the rightful owner and that alone cannot identify to J. Ratcliffe (*) Art Loss Register, London, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_11

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whom the piece should be returned. It almost goes without saying that all efforts to trace and recover stolen artworks must therefore start with a record of the art that has been stolen, whether that record is retained by the victim, a law enforcement agency, insurer or a third party without a direct interest in the loss. Each of those parties can hold records after a theft and often do, however, these records are retained for, and serve, different purposes and therefore are of varying use in identifying and recovering stolen art. An owner may well have their original proof of purchase, as well as things like insurance schedules or photographs of the art, but their records will only relate to the particular items they have lost. Law enforcement agencies will have records of property stolen within their jurisdiction, an example would be the London Stolen Art Database maintained by the Metropolitan Police, though these records may have been compiled by non-specialists, which reduces the quality of the data recorded; they will also retain records of the circumstances of the loss. Such records may be useful for the immediate investigation and resolution of crime, but for the long-term recovery of art might be less suitable. Insurers retain records of the claims on which they have paid out, though these are usually oriented around the claim and the claimant, with the details of the items involved often lost over time and thus are less useful in the identification of stolen art in the absence of other information to identify the piece subject to a claim. Third parties, such as the Art Loss Register (ALR), may also have records of stolen artworks that they have accumulated through recording public losses or referrals from those with direct involvement in the loss. Such parties might have built up these records for academic or commercial reasons, often as an attempt to directly tackle the issue of stolen art, rather than as a consequence of events. Records of losses are essential as they form the basis of any recovery of stolen art. How that recovery is approached can vary though. The most obvious recoveries arise out of criminal investigations, where law enforcement agencies, through their investigation of the underlying crime, identify and recover the property stolen. Indeed, many might argue that the recovery of stolen art is the responsibility of the police. Other recoveries arise from the issuing of rewards for information, which can draw out leads that result in recovery. Occasionally, blind luck appears to come into play, for example, through the abandonment of the stolen property, though it may be that such abandonment is instead driven by the difficulty of securing a benefit from the sale of stolen art and the pressure under which a current holder finds themselves. There are also times when those with an interest in the field will identify items as stolen when they are in the public domain, perhaps when on display in a

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museum or offered for sale by an auction house. The final alternative is the identification of the stolen art through a due diligence process, whereby a deliberate check is made by those involved in a transaction to identify if the underlying item is indeed stolen property.

The Role of Due Diligence The year 2018 marks 30 years since Sotheby’s founded its financial services division. In the years since then, the art trade has become an increasingly complex financial market. By way of example, in 2016, the value of the art-­ secured lending market in the US alone was estimated at US$15–19 billion (Deloitte 2016, p.  80). Not for nothing was Thaddaeus Ropac quoted in Georgina Adam’s Dark Side of the Boom saying that ‘It’s [a] phenomenon of the past 15 years where art has become a commodity’ (Adam 2017, p. 162). As part of that process, the values associated with individual artworks have risen significantly, and with this the need for certainty as to their ownership has become more and more important and at the same time also increasingly vulnerable to being queried. This is particularly true in certain sectors of the market—a prime example might be impressionist or old master paintings that would have been vulnerable to looting in Europe during the period 1933–1945. This issue has been tackled through an increase in the level of due diligence carried out on a transaction. For other asset types that have similar values to those that are seen in the art market, it is already possible to check questions like ownership or the ­existence of charges over the investment. Examples where this is possible include land or vehicles, and information about companies is readily available. A crucial distinction is that, unlike these asset classes, art is much more difficult to uniquely identify. It does not usually have an individual serial number like a car, share certificate or even a bank note, and yet is much more portable than real property, so far more vulnerable to theft or illicit movement across borders. Given the values, international reach and increasingly complex financial structures now associated with the art market, an opportunity to clarify the existence of claims against art is required. Indeed, most would argue that due diligence is now an obligation on any participant in the market. Amongst other steps, a due diligence check on an artwork will have to be made against the kind of records of stolen art described above, those collected by insurers, police forces and third parties, and it is this that the ALR has attempted to facilitate through the creation of its database.

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An Explanation of the ALR’s Approach The basic principle of the ALR’s approach to the issue of stolen art is to offer a due diligence service to the art trade, checking items offered for sale against its database and thus identifying those that might be subject to a claim, so that the issue can be resolved. It also offers its assistance in the resolution of the claims that are revealed in its searching of the market. Since the Art Loss Register’s incorporation as a private limited company in 1990, it has grown to hold a database of over 500,000 items, working with over 100 auction houses worldwide. It has positioned itself such that it sees the impact of art crime from a wide range of perspectives through its work with victims, insurers, police, loss adjusters, artists, their estates and foundations, lawyers, banks, trusts and, of course, the trade itself. The ALR’s business model has three strands: registration, searches and recovery. It is the latter of these that attracts press coverage and, arguably, most criticism. However, the vast majority of the ALR’s work—and revenue—is within its searches of items moving through the art market against its database. Searches and recovery are dealt with in more detail below, but a summary of all three strands follows to permit the later explanations. The ALR registers items on its database on behalf of the victims of crime, police forces, insurers, law firms, banks, artist’s estates and others. The circumstances that give rise to a registration can vary significantly, but include theft, looting, freezing orders, security or trust interests, title disputes, known fakes and forgeries and the positive registration of items in permanent extant ­collections as a protective step. Items can be registered on the database as long as they are uniquely identifiable. This is vital to allow them to be recognised at a later date. The ALR then searches items against this database. Such searching is carried out for members of the art trade, including art dealers, auction houses, art fairs and art lenders, museums, members of the public and for law enforcement agencies keen to find out if there is an issue with an item they have seized or found in the hands of a suspect. At present, approximately 400,000 searches against the ALR’s database are carried out each year, representing a significant proportion of the identifiable items moving through the art world. Through this searching, the ALR can identify items where there may be an issue that requires resolution. In such circumstances, it will first notify the registrant. The next steps can then vary significantly. In the case of a piece of art looted during the Second World War, it might simply require notifying the lawyers representing the claimants and allowing them to pursue the matter from there; if it is a collateral against which a lender has secured a loan, it

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might just need the status of the loan to be checked along with the question of whether the sale is authorised; and if the item was stolen, then the police would be contacted and any further steps would be subject to their direction. If the police confirm that the matter can be dealt with as a civil claim, then the ALR would offer its services in securing the return of the property or negotiating a settlement with the current holder.

Searching the ALR Database Third parties cannot search the ALR database themselves, items must be submitted to the ALR to be searched. This means that the results of the search are always known to the ALR before they are known to the searcher, who would usually be holding the item or at least know where it is. As a result, it is not possible for a criminal to simply check the database and establish whether an item is registered, then decide whether to destroy it, hide it or try to sell it through less scrupulous channels. Instead, if they wish to realise the value of the artwork, they must risk selling it and it being checked against the ALR database. At that point, it is possible for law enforcement agencies to be notified of any issues prior to the current holder discovering the problem, and thus police can take action without notice to the current holder if appropriate. This managed aspect of the database creates the opportunity for intervention that a passive database cannot ensure, and thus is far more effective for securing the recovery of stolen artwork. When an item has been submitted to the ALR to be checked, the database is searched by its team, who are experienced in the way it operates, some of them having worked for the ALR for ten years or more. Each goes through several months of training. The main way in which they search is to use textual descriptions of the item they are checking, which are searched electronically against the detailed descriptions of items contained within the database. The searcher can then review the results of that search and compare the descriptions and images of the items, as well as a large range of other information that can be recorded, such as artist, title, dimensions, medium, markings, year and so on. This process results in initial matches that can then be confirmed by reviewing the provenance of the item, or securing further details from either the victim or the current holder. Image recognition is not used in searching the ALR database at present, on the basis that for many artworks there either is no image of the stolen item, for example, much of Nazi-looted art would fall into this category, the item is three dimensional, or the image of the stolen item is simply too poor quality

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for it to be of use. Its usefulness is something that is monitored regularly and in due course will doubtlessly find a place in the process, but, even once introduced, it could never replace the human team due to these issues. There are two levels of searching that are carried out by the ALR. For checks of items in the catalogues of auction houses, which subscribe to the ALR’s services, these items are simply checked against the ALR database and any provenance provided is reviewed against the ALR’s internal Red Flag List, containing the names of victims and perpetrators of Nazi looting and also names linked to the looting of antiquities. For individual items that are submitted to the ALR for a search, the same database checks are carried out, but a more detailed review of the provenance takes place, with minimum levels of information and documentation required and checks against specialist databases carried out as relevant before a certificate can be issued. The cost of each of these types of searching varies, and due to the additional checks carried out on their provenance, it is significantly more expensive to search one-off items with the ALR than when the catalogues of auction houses are being checked. The fee paid by auction houses is based upon a range of factors, the most important of which is the number of lots in their catalogues that will be searched each year. All lots in the catalogues of subscribing auction houses are then searched against the ALR’s database in advance of the sale, provided that the estimated value of such lots is over a threshold level— usually equating to £1000. Some auction houses request that only certain categories of lots are searched. The ALR’s database does not just include the items that have been referred to it directly, it also incorporates data from a wide range of alternative sources, such as publicly accessible law enforcement databases and specialist databases for WWII-related losses, musical instruments and so on. This search provides a starting point in the due diligence that should be carried out on the item and sometimes reveals matches for items registered on the ALR’s database, or issues identified through the review of the provenance provided.

The Recovery Process The various issues that lead to items being registered on the ALR’s database require different approaches to their resolution. For example, in cases involving recently stolen property where the police become actively involved after notification to them that an item has been located, it is usually relatively straightforward for them to recover the stolen property, if it is within their

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jurisdiction. However, this becomes more complicated, if the item has moved between jurisdictions, with Interpol often becoming involved as a conduit for information along with forces in each country. If the item is stolen property, yet the police are satisfied that the current holder has no links to the crime, or any bad faith, then it is often the case that they will treat the matter as a civil recovery, though the approach of law enforcement agencies in this scenario varies between jurisdictions. Where any relevant criminal limitation periods have expired, then law enforcement agencies must treat any possible recovery as a civil matter. Where a stolen item is identified and the item is not clearly outside any possible limitation periods, the ALR will always contact relevant law enforcement agencies. This contact may be direct, via existing lines of communication to established partners, or via Interpol’s art team, who can pass information on to the relevant force around the world. Through this mechanism, the ALR frequently assists law enforcement agencies in securing the recovery of stolen or looted property, but it is in civil matters that the ALR has direct involvement in the recovery process. Where the recovery is a civil matter the crucial question is usually, whether or not the current holder will be able to claim good legal title. Given the international nature of the art market and the multiple jurisdictions and transactions that an item might have passed through prior to being identified, this can be a complex problem. In scenarios where good title cannot be proven, it can be a relatively straightforward process to secure the return of the property to the claimant, or to pay the proceeds of sale to an insurer. The current holder is not the owner and simply will not be able to legitimately sell the item, unless the matter is resolved. However, in cases where good title has passed, but it remains a matter of fact that the item was stolen and not recovered, it can be much more difficult to secure its return. Such cases can still usually be resolved through negotiated settlements in which the item may be sold and the proceeds of sale split, the ratio perhaps depending upon the extent to which the current holder can demonstrate having carried out some form of due diligence or the length of time that they have held the piece. In some scenarios, it is simply impossible to secure a recovery of such an item because the current holder is the rightful owner, and there is no legal impediment to its sale. At other times a holder may claim good title and yet be unable to prove it. In such circumstances, litigation risk or the value of the work can still drive a negotiated settlement rather than a simple return. Each claim is unique based on its facts and thus approached in a different way. However, the common threads that can be seen throughout the recovery process include establishing the legal position, collating and presenting the

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evidence in support of the claim, which is often difficult many years after a theft, the impact of legal costs in comparison to values at the lower end of the market and then the negotiation process that follows to secure a resolution.

 riticism of the ALR and Issues Raised by Its C Approach Some have criticised the ALR and its operations in the past. At times, this has been due to the way it has worked and, at others, simply for the way it is set up. Such criticisms have included the fact that the ALR is a private company rather than adopting an alternative structure, such as some form of NGO or charity, the charging of a fee for its services, its links to the art trade through its shareholders, its willingness to issue certificates certifying that antiquities are not registered on its database and the way in which it has conducted its recovery business. Some of this criticism has undoubtedly been valid, and it is worth reviewing these issues when looking at how the ALR has chosen to tackle the issue of art crime.

The ALR as a Fee-Charging Private Company The ALR is currently majority owned by Julian Radcliffe, who has been involved in the company since its inception, but minority shareholders include various dealer associations and also major auction houses, such as Christie’s and Sotheby’s. Although such market players do have shareholdings, they do not have sufficient shares to impact the running of the company, and they do not now have any involvement in the board or the management of the business. In contrast, in the early days of the company, the board of directors did include representatives from auction houses and others. The presence of members of the art trade as shareholders is a legacy of the way in which the ALR was established as a collaborative venture through the cooperation and support of both the art trade and insurance industry. Without the support of both, those who can register losses and wish to recover them (in the form of the insurers) and those involved in the buying and selling of art (the market), the concept would fail. There must be a significant volume of items in the database for the trade to see value in searching against it, and there must be a reasonable number of people searching against that database for it to be a useful tool to recover stolen art. In effect, it has to reach a critical

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mass. As a result, the clear support of the trade and their involvement in the business was a significant benefit in convincing others that the model had benefits and sufficient support to ensure its longevity. As a private company, the ultimate goal of which must be to produce a return on investment for its shareholders; the ALR has been criticised for seeking to profit from operating a business that some believe should be offered as a public service. Various responses to this can be made, such as that it permits straightforward contractual relationships with those in the trade who wish to search (contracts, which often allow the ALR to move faster internationally than is possible for law enforcement agencies—to the extent—that at times law enforcement agencies have asked the ALR to request that auction houses withdraw items from sale, relying on their contractual obligations rather than via official international law enforcement or diplomatic channels). Another response is that it removes the work of the ALR from the need to rely upon public funding—something which can disappear rapidly at times of financial pressure (see, e.g. the cuts in the funding of the Arts Council in England after the financial crisis of 2008, or the struggles UNESCO has faced over the years such as when the US withdrew its support). Arguably, the private nature of the ALR also protects it from the kind of nationalist sentiment that can be seen at work in international bodies and which can prove ­crippling to resolving complex disputes where international and national law may be of limited application, or even conflict. Such arguments—and the question of how to resolve them—would detract from the overall purpose of locating stolen items and resolving claims. The idea of an organisation providing some form of due diligence service within a market or tracking ownership, yet outside the public sector, is not unique to the art world. Lloyds Register of Shipping has long provided a similar service to the shipping industry, for example, tracking ships from first being launched until they are scrapped. Others, such as the Land Registry or Companies House, are public sector bodies, but transferring them into the private sector has been discussed and, as nationally funded public sector bodies, they are limited in scope to national registers. Others have asked why law enforcement agencies do not offer a similar service, but again there would be difficulties. In particular, the art market is international and any due diligence database needs international scope. Interpol offers a database that can be searched by registered users, but the size and scope of this database is more limited than that of the ALR, which, by way of example, can also include civil claims, security interests and more. It is also more difficult for a public sector body, such as the police, to enter into contractual relationships with members of the art market. Ultimately, it is

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simply not the role of the police to offer a due diligence service for the benefit of the trade, yet funded by the taxpayer, and it can only detract from their true aims and ability to prioritise their use of resources as per society’s needs. Other companies have started up in the past offering similar, if not identical, services to the ALR.  Examples include Trace and, more recently, the ArtClaim database. In both cases, they have failed to survive in the longer term; to a certain extent, this probably reflects the difficulty of working profitably in such a niche area but also highlights the difficulty of competition in due diligence databases. Whilst there is undoubtedly room for specialist databases for detailed registrations of particular categories of items, or to tackle complex issues such as WWII restitution claims, not to mention the investigative police databases, it is harder to justify the existence of multiple databases designed to offer straightforward due diligence to the trade. The existence of multiple databases raises questions as to which database a claimant should register with and which database a member of the trade should then search. To ask claimants to register with multiple databases cannot be right and, if the trade is paying to search, then they will inevitably make choices as to who to search with, thus raising the prospect that items will be missed in the multiplicity of databases. For this reason, the ALR has always considered that the operation of a due diligence database is one of the few scenarios where a monopoly position is beneficial, though it is vital to ensure it is not abused.

Fees The fees and costs associated with working with the ALR are set out online and have at times proved contentious, which is not unusual when looking at areas where publicly funded law enforcement agencies and private companies complement each other’s work. For clarity, the ALR never charges a fee to law enforcement agencies, and most registrations are added free of charge. There is a small fee for registering items online without prior contact with the ALR, which is considered a necessary hurdle to prevent false theft registrations from being submitted. The most criticised area when it comes to the ALR’s fees has been that of recovery fees. These are the fees that the ALR charges when it identifies an item as a match for something that has been registered on its database, or for representing the claimant in its recovery. These fees, which are provided for in the terms and conditions of registration—which are signed up to when an item is registered on the database—are charged as pure contingency fees, based on the idea that, unless there is a benefit to the claimant, no fee will be

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charged and that the fee should never exceed the benefit (or even come close to it). The standard location fee that is charged to a claimant who wishes to handle the recovery themselves, or instruct others to do it, is 5%. If asked to represent a claimant on a recovery, the ALR usually charges them a fee of 20%. These percentages are always charged on the ultimate net benefit to the claimant at the end of the process rather than the absolute value of the artwork. This provides a safeguard for the claimant, as it allows for the possibility that other costs, or a settlement agreement reached between the parties, might eat into the value of the work. Although this arrangement has been criticised, it is always a voluntary arrangement, which claimants enter into, and if, once an item has been located, they wish to instruct others to recover it, they are free to do so. Hence, lawyers or loss adjusters are sometimes instructed to handle recoveries. However, many claimants are entirely happy to pay the fee, though, recognising that, on lower value items in particular, it will work out much cheaper than any fee that a lawyer would charge, or that there is a benefit to the ALR’s long experience in the area, especially when looking at the more complex multi-jurisdictional cases, where legal arguments may no longer be of assistance. There can be no absolute answer to criticism of the ALR’s fees; however, they are only charged by agreement and never to law enforcement agencies. Those, who do not wish to take advantage of the ALR’s services, are free to look elsewhere for representation on a recovery. Location fees are charged to individuals and insurers, who have chosen to register items on the ALR’s database, but only in circumstances where they have benefited from the location of the item registered, and these are charged at a low level. These fees simply reflect the fact that registrants benefit from the service they receive and therefore ought to contribute to the costs of delivering that service.

Antiquities The ALR has rightly been criticised in the past for issuing certificates stating that antiquities were not registered on its database, but failing to ask any questions about the provenance or origin of the items in question, for example, in the case of Subhash Kapoor. This is an area in which the ALR has developed its procedures considerably in recent years. It will always remain impossible to record archaeological material that is looted out of the ground, and at present, it is also difficult to build a comprehensive database of all cultural property above ground, though additions are

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always being made to the database. Because of this, the level of due diligence that is required for archaeological and ethnographic material is greater than in other areas. In particular, it is vital to interrogate the provenance of the items concerned. As a result, the ALR will now always insist that for all one-off items searched against its database, a minimum level of provenance is provided and will also require documentary proof of this provenance at its discretion. This provenance is then checked for issues and recorded. This provides an opportunity to identify problems at the time of the search, but if an item is presented with false provenance, as has been the case in the past with some dealers, it also provides an audit trail of the information that they have provided at that point in time. That audit trail can then be made available to law enforcement agencies to assist in their investigations. Recent examples of the ALR providing data such as this to law enforcement agencies include both the Subhash Kapoor case and, more recently, the Nancy Wiener case. Others are not yet in the public domain. It is accepted by the ALR that a search with them can only be a starting point in the due diligence that is carried out on antiquities, but nonetheless it has a real value, not least because antiquities can be stolen as well as looted out of the ground. In recent years, the ALR has identified two such pieces stolen from storage in Lebanon during the civil war, along with other similar material from Egypt and other countries. A difficult area of overlap with looted antiquities is that of fakes. Fake antiquities are a significant problem, and at times the ALR has been able to assist in their identification. Indeed, in one instance in recent years, this led to a conviction for the consignment of a fake silver patera.

Recoveries and Police Cooperation Cooperation with law enforcement agencies is a necessity in any effort by the private sector to tackle crime, regardless of the field. Tackling crime without such cooperation is little more than vigilantism. It may be effective in the short term but cannot go to the long-term roots of the problems without creating new issues. As a result, the ALR works increasingly closely with law enforcement agencies across the world. This cooperation has developed and grown over time as a result of the increasing geographical scope of the Art Loss Register database, increasing awareness of the services that it can offer law enforcement and is explicitly now sought out by the ALR. The nature of the cooperation offered to law enforcement agencies by the ALR is varied; it might involve the registration

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of stolen items, fakes or forgeries on the ALR database, searching items identified in the hands of suspects to establish whether they are stolen property, exchanging details of information provided in the past by a suspect as to provenance of a work that is later revealed to be stolen or even providing information from case files where police records are incomplete, for example, to identify victims after many years have passed since a loss. Such cooperation with law enforcement agencies is a useful service to them in that it provides national police forces a way to tackle crime in one of the most international of markets. Through registration of a stolen item on the ALR database, a police force knows that, if it turns up on the art market in another country, there is still a strong likelihood of it being found, further action then being possible. It is unreasonable to expect national law enforcement agencies to police a global market, and whilst Interpol has a role to play, it is as a conduit for information rather than actively searching the market for the items registered on its database. Neither Interpol nor national police forces exist to offer a service to the art market. Although the ALR’s work on recoveries could be seen to conflict with the work of law enforcement agencies, in practice, there is little or no overlap, since the ALR will always provide information to police forces in the first instance and only handle a claim, if the police do not want to pursue it. Although this work is the most high-profile aspect of the ALR’s activities, it is rare that it takes a form other than that of negotiated settlements, usually without even recourse to the civil courts and thus differs significantly from what many might expect. As a result, the ALR acts as much as a facilitator for discussion between the parties, as it does as direct agent for recovery. Its role is very distinct from that of law enforcement agencies and only steps in at the point when they are no longer relevant. An area of growing significance in terms of police cooperation for the ALR is stolen watches. These are very easy to identify, thanks to their unique serial numbers, and they also circulate far faster than artworks. As a result, they are often recovered much faster than artworks and at a point where police can still take action against a criminal. This has resulted in a number of arrests and convictions already, sometimes linked to serious violent crime. As stated above, the significant majority of the ALR’s revenue comes from the due diligence search service that it offers to the art trade and thus, in the long term, it is ensuring the effectiveness of this process that is the commercial driver for the business. This means that, whilst there may be significant short-­ term financial gains that can be made on one-off recoveries at the cost of relationships with law enforcement agencies and others, they are not worth it in the long term and instead the increase in registrations on the database and

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the searching of the database is what is key to the continued growth of the company. A due diligence database is only as useful as the data it contains, and therefore, close working relationships with police and insurers are vital to ensure the continuing growth in registrations.

Conclusion Increasingly, the ALR’s experience is that the recovery of stolen art seems to be handled in a manner more akin to the approach followed in restitution cases for art looted during and prior to WWII. If in the hands of an individual, looted art is, in many jurisdictions, often impossible to recover through the courts due to the application of statutes of limitation and adverse possession, this would apply across the UK and most of Europe. If it is in a public collection, then some countries have set up commissions and panels to assess the strength of a claim and make recommendations as per the Washington Principles, but for the vast majority of looted art that is located on the market, as opposed to public collections, this is of little practical use since by its nature the material on the market tends to be in private hands. Instead of relying on legal force, claims have to be advanced based upon their moral strength and the fact that the work in question must be considered ‘tainted’ by its history. The only way to rid the work of that taint, which often makes it impossible to sell on the open market, is to reach some form of settlement between the current holders and the claimants. Once that settlement is in place, the matter is resolved. This concept of a work being tainted by its past is growing in relevance to stolen art, as well as looted art, because it is increasingly apparent that stolen art is simply not protected adequately by the law. Unlike many forms of stolen property, art tends to disappear for a very long time after a theft. If it was innocently purchased, then the buyer will probably keep it privately until their death, which could be decades later. In most jurisdictions, by that stage, the buyer will have become its legal owner and the theft victim would have no recourse against them in law, even if the work is then identified. The passage of time also means that, even where there are possible legal avenues to explore, they can be extremely difficult to pursue due to the arduous task of gathering and recovering evidence decades after a theft. All of these factors mean that, increasingly, it is the bare fact of the theft and the need to recognise that loss, which is the most powerful driver to a settlement, albeit perhaps that it is rare that it leads to the return of an artwork to the claimant. Whether its return would in any event be a fair solution is, of course, a difficult question when it may currently be in the hands of an entirely innocent third party.

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Seen from the practical perspective of the Art Loss Register, there is no magic bullet for the problem of art crime. It is an international art market, and much of the crime which affects it is international in scope, too. This means that changes in the legislation of individual nation states, such as recently seen in Germany with their introduction of very strict rules on the art market, are likely to merely shift problems elsewhere. International law could conceivably achieve much, but, practically speaking, it would prove impossible for agreements to be reached as to what needs to be done and then for it to be ratified by sufficient market and source countries for it to have an impact. Indeed, the exit of the UK from the EU suggests that progress towards unifying international legislation is less rather than more likely. The strongest drivers for change at present, in the form of legislation, are likely to be the anti-money laundering regulations and similar. These could be very effective in encouraging slightly more openness in the market as to beneficial ownership of artworks, clarity of pricing and clarity of principal and agent. This could make it easier to research the provenance of a piece and thus build up a picture of its ownership history. Ultimately though, it is public pressure that is likely to be most effective in changing perspectives on stolen art and looted antiquities. It is this that drives the resolution of claims for Nazi-looted art, and it is having a growing impact in the antiquities market, too. The development of claims to stolen art, based upon the taint of its past, can only make due diligence in the art market more important. This will then be catalysed further by public pressure. If there is less benefit in relying upon claims of good legal title, then that means that the need to avoid acquiring art that might have associated risks is vital. As a result, it seems likely that the demand for due diligence will expand and that the private sector will continue to have to fulfil that role.

Bibliography Adam, G. (2017). Dark side of the boom: The excesses of the art market in the 21st century. London: Lund Humphries. Deloitte. (2016). Art & finance report 2016. Retrieved February 1, 2018, from https:// www2.deloitte.com/lu/en/pages/art-finance/articles/art-finance-report.html.

12 Insurance Challenges and Art Crime Dorit Straus

Introduction At one point after several years working at various museums, I decided to explore other career opportunities. One of the areas that seemed possible was the insurance industry. I managed to secure an informational interview with a major insurance company. During the interview, the executive asked me if I knew anything about pre-Columbian art and started to tell me a sad tale of a situation whereby their insured had a collection of pre-Columbian art valued initially at US$250,000. Within a few years, with updated valuation conducted by a senior member of a well-known appraisal association, the values had crept up to US$5  million. A few years into the policy, the items were stolen from the insured’s home and the policy was paid out in full. A few months later, the police recovered the items from a locker at the Port Authority Bus Terminal. As per the policy terms, the items were offered back to the insured under the policy terms of the “buy-back Clause” which offers items back to the insured after a claim has been paid. Had the insured accepted the insurance company’s offer, he would have to return the US$5 million insurance payout to the company. The insured declined, saying that he had purchased the items for investment purposes only, kept the US$5 million and left the insurance company with the collection they now owned. Hoping to get their money back, the insurance company offered the items for sale with a

D. Straus (*) Bureau of Educational and Cultural Affairs, Washington, DC, USA © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_12

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major auction house. Alas, the auction house valued the items at a mere US$250,000. Finding that incredible, after a payout of US$5  million, the insurance company offered the collection for sale to another auction house which also concurred with the low valuation. This is where I was asked about my expertise in pre-Columbian art and “what is wrong with this picture?”. Although my expertise in pre-Columbian art was quite extensive at the collection management field, having worked at the Peabody Museum at Harvard University, which specialized in pre-Columbian art, my expertise at valuation was not that great. So, I asked if I could make a call to ascertain the reputation of the appraiser, since it appeared that the insured himself was well-to-do as well as a respected member of society. The expert that I was about to call was no other than the famous Maya specialist and the recent MacArthur Foundation award winner Ian Graham. Lucky for me, he was at his office at the Peabody Museum and not on field expedition in Guatemala. As soon as I told him the name of the appraiser, he told me “He is a crook, everyone is looking for him, including the IRS”! This was enough for me to tell the insurance executive that the appraiser had a dubious reputation. With a tremendous look of bewilderment, the insurance executive asked me “where were you when we needed you?” and my answer was “well I am here now!” and I was hired on the spot, thus beginning a 30-year career in insurance underwriting. Of course, that was the pre-Google era, when information was harder to get at and where my knowledge, networking and good research skills were rewarded. Since that time, like other industries, the insurance sector has gone through dramatic changes, some due to technological changes as mundane as the ubiquitous use of online communication for transmission of information, up to complicated scrutiny of regulation applicable to all financial institutions, the insurance industry being categorized as such. In spite of that, in the area of fine art underwriting, in order to avoid the pitfalls of falling into traps of fraudulent accounts, knowledge of the art industry and its affiliates is still a must, and companies that value that knowledge are going to fare better and avoid many costly mistakes in insuring the wrong individuals or accepting questionable accounts. I shall assume that the reader will have some knowledge of the insurance industry and thus will not address the specifics of the insurance policy terms and conditions, unless it directly affects the discussion. I will discuss, however, some of the challenges that the insurance industry is facing in today’s reality of the globalization of the art market and the fact that today art is regarded as a commodity. Whether these factors increase fraudulent claims is not necessarily proven, but it certainly lends itself to insurance schemes that may erode

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the profitability of this part of the insurance sector. In this chapter I will deal with insurance issues that are directly linked to current issues in the art market and their implications for the insurance transaction.

Challenges Faced by the Insurance Industry With the growth of the art market, insurance underwriters are also confronting the need to react quickly to submissions, with little time to analyze the risk. With the rise of the Internet, a lot of which at best can be regarded as suspect, such as altered images and fake documentation, can also challenge the underwriters. There is also not as much direct interaction with the owners of the artwork or their representatives. So, knowledge of the insured, a basic principle of good underwriting, is all the more important in the digital age. Another major challenge is the increase of fraud and money laundering that requires the insurance industry to comply with regulatory agencies that monitor such activities. This has added another layer to the underwriting process, which I will discuss at greater length further on. Insurances can be classified as financial institutions because of their lines of business, such as life insurance. But insurance operates quite differently, specifically in the inland marine area, which is where commercial fine art insurance is underwritten, or in the personal lines arena where private collections are underwritten. Even within the insurance marketplace, fine art insurance differs from the rest of the industry. For one, the fine art sector is very much smaller than other sectors, such as automobile, general property and casualty insurance, what is commonly referred to as first-party and third-party ­insurance. In the arena of property and casualty insurance, securing insurance coverage can be done easily and fairly efficiently through general brokers and agents or via direct writers of insurance. In the US, some of the largest providers of insurance are direct writers such as Allstate Insurance and State Farms. These companies provide insurance through their designated sales people and service a very large portion of the insurance market, all with statistically similar risk profiles. There are generally set criteria and getting a quote can be rather mundane. The reason for the more simple insurance transactions is the guiding principal of insurance, which is the law of large numbers. The law of large numbers is defined as follows: A statistical axiom that states that the larger the number of exposure units independently exposed to loss, the greater the probability that actual loss experience will equal expected loss experience. In other words, the credibility of data increases with the size of the data pool under consideration. (IRMI 2017)

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Obviously, statistically it is much easier to calculate the probability of loss experience of drivers of a specific age group for automobile insurance, or life expectancy for life insurance, or pre-existing conditions for health insurance. When it comes to fine art, trying to create models or statistical axioms is far more difficult. Consider also, that for automobile insurance, underwriters can refer to various guides advising them of depreciation of vehicles, or establishing appropriate square foot measures to calculate insurance value for real estate. For fine art, unless underwriters have expertise, they will not understand that an old master painting is not subject to immediate depreciation because of its age. Imagine an underwriter trying to calculate the depreciation on the Mona Lisa or a self-portrait by Rembrandt. The law of large numbers and of lack of expertise are just some of the reasons that fine art insurance is perceived to be more difficult to underwrite. The other is the perception that art is difficult to insure, because it is subject to theft. This perception is reinforced over and over in the media with stories not just about theft, but also about fakes and forgeries. The media’s interest in theft of fine art can be seen in three art heists that occurred in the past decade: the Isabella Gardner Stewart theft in 1990, the theft of Munch “The Scream” from the Munch Museum, Norway, in 2004, and the theft of the “Mona Lisa” from the Paris Louvre, France, in 1911. The first question to ask is: what do all of these thefts have in common? The answer is that all the works of art stolen were uninsured! In Noah Charney’s edited collection Art and Crime: exploring the Dark side of the Art World I discussed in depth details of the basics of art insurance, insider’s theft and art recoveries, but concluded that many of the well-publicized thefts were uninsured losses, rather than insured losses (Straus 2009, pp. 87–106). Although, theft is still a common cause of loss of insured works of art, the point is that insured collections, whether they are individually owned, or owned by institutions, benefit from risk management and risk controls methods initiated by the insurance industry. Although theft is still a concern to the industry, what has the industry done as a whole to help combat it?

 he Insurance Industry and Databases for Stolen T Art The International Foundation for Art Research is a not-for-profit “educational and research organization dedicated to integrity in the visual arts”, which offers “impartial and authoritative information on authenticity, ownership, theft and other artistic, legal and ethical issues concerning art objects” (IFAR

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2017). In 1990, the Foundation decided to turn over their stolen art archives, which they started in 1976, to a company that was established with shareholders from the insurance industry and the art market as a for profit company. The company became known as the Art Loss Register (ALR) and was charged with keeping track, identifying and registering stolen works of art, as well as preventing them from re-entering into the legitimate art market. Having the insurance industry as well as the art market, specifically the auction houses, as shareholders seemed like the most natural alliance of parties with similar interests joining forces. However, that natural alliance unraveled (at least for the insurance industry) and, as of today I am told that the insurance industry’s support of the ALR has waned considerably with very few companies willing to subscribe to the database, but rather only wishing to utilize it on a case by case basis, making a profitable business model for operating such a registry very difficult. At least one reason from the insurance industry point of view to only use the ALR on a case by case basis rather than a full blown subscription with the Art Loss Register was that they saw very little in return from the enterprise, recoveries taking many years to happen, and the dollar amount of the recovery years later being minimal, not adding sufficiently to their bottom line. In 2014, when Art Recovery International (ARI), which is part of Art Recovery Group (ARG), was launched as a competitor to the ALR, the mission was broadened significantly to reach out to more stakeholders. The website for ARI states: Art Recovery International is part of the Art Recovery Group (“ARG”). Operating internationally, the Group is a full service, private sector solution to due diligence, dispute resolution and recovery for the international art market and cultural heritage sectors. Art Recovery International (“ARI”) provides research, dispute resolution and recovery services, offering […] expert and ethical advice on the management, acquisition and return of cultural property. • • • • • • • •

Research into the provenance, legal title and authenticity of works of art; Expert advice on the review of potential claims; Mediation of complex title disputes; Identification and location of claimed cultural objects; Law enforcement support and liaison; Reputation and media management; and Recovery and negotiation of settlements for the return of cultural property. (ARI 2017)

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Although the insurance industry welcomed an additional company with a database for stolen art with excellent connections to global law enforcement agencies and dedicated and expert staff, the industry across the Atlantic coasts was looking for a not-for-profit organization that would be free of perceived conflict of interest and provide transparency in the opaque and murky art world. As it stands now, the insurance industry as a whole is not an active supporter of stolen art databases and is not convinced that their support will result in lower loss ratios and return of equity to their shareholders. Art Recovery International has spun off their database, which is now not for profit and is a separate entity called Artive. It will be important to follow and see if the insurance industry will become more supportive and subscribe to the new service—or—if they still feel that theft is not a major cause of loss and will only use the service on a “need basis”. It is most unfortunate that the industry has not been supportive in more recent time of these types of tools. Lack of due diligence at the earliest interaction of the insurance process to check out works of art that have been stolen, or works that have a tainted reputation, questionable provenance or defective title means that the problem is swept under the rug and will only be dealt with later on, when the situation will most likely become more complicated. This is a shortsighted response on the part of the insurance industry that will cost them more in the end than subscription to a transparent database of stolen art. I can cite at least one case where checking against a database of stolen art was very beneficial to the insurance company. This is the case of Jason Sheedy, who got three years probation in 2013 for falsely reporting that his art was stolen, even though the art never left his home—though it was discovered later that he pawned some of his art for short-term loan. He was also foolish enough to post six of the “stolen paintings” for sale on an art brokerage website. Eventually, an investigation and search of his home yielded all the items that were “stolen” including other works that he reported stolen to another insurance carrier. His sentence of three-year probation and community service shows the attitude of the judicial system toward art theft versus what they would probably perceive to be hard-core crimes.

 re Rewards an Aide to Recover Stolen Works A of Art or Do They Encourage More Thefts?—The Insurance Industry Response The practice of offering a reward in order to recover a stolen work of art is not unanimously supported by the insurance industry. There are those who question whether rewards actually encourage more thefts rather than lead to a

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recovery. There are also questions of the publicity that the owner of the artwork may not want to receive. A cultural institution board of directors may feel that the publicity will result in the public losing confidence in the organization, questioning its security, thus also jeopardizing future contributions to the institution. A private individual may not want anyone to know that they owned the work of art that was stolen. And there is the ongoing question of when a reward becomes a ransom. There is a very comprehensive discussion of rewards in the book by John Kerr, detailing the problems of post crime security and rewards (Kerr 2015), which I would encourage the readers to explore. In several interviews, which I conducted with insurance underwriters, I did not get a uniform sense of agreement that rewards should be offered. The ones that did support giving a reward as a way to improve the possibility of a recovery concluded that rewards do help in recovering works of art and had many examples where it has worked. The reward that is offered is typically contingent on the items being recovered and a conviction being secured. A typical reward amount is 10% of the insurance payout. Insurance companies are very heavily regulated and have to be extremely careful about money-laundering implications; in the UK, for example, a reward is only offered with the approval of the local police force and any payout is subject to the approval of the relevant law enforcement agency. The National Crime Agency (NCA) in the UK and the Federal Bureau of Investigation (FBI) in the US will ensure that there will not be any subsequent money laundering issues. Another issue is that the insured does not have any input in the reward. If all the items were fully insured, they would be consulted, but if the items stolen also included some uninsured items or if the works are significantly underinsured and they could wish to make a contribution to the reward (Reed n.d.). In an in-depth interview with the celebrated art detective and founder of the FBI Art Squad Unit, Robert Whitman, it was reported that the FBI has long had a fund for informant payments and that it is important to always ask for rewards from either the insurance companies or owners who are not insured in order to encourage recoveries. In his experience, offering a reward helps in getting leads. In one case, a US$25,000 reward was offered, and Mr. Whitman got a call from the thief himself with a false story. The work was recovered, but obviously the reward was not paid, as payment to criminals would indeed encourage more art theft. Mr. Whitman’s advice is to always ask for reward money from the insurance company or the appropriate stakeholder, because offering a reward brings in media attention and leads. It is good to have a dedicated phone line “not the police”. It is the police department that decides who gets the reward, not the insurance companies or the

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individual. In his experience, many insurance companies were willing to offer rewards up to 10% of the value up to US$25,000. He explained the delicate balancing act between rewards and ransom, the latter being  obstruction of justice. As stated before, there are differences in jurisdictions. In the UK, the reward is paid out, if it leads to a conviction; in the US, if it leads to information that recovers the work. In France, the law is quite different, and it can be negotiated for either information or recovery. The common knowledge and information about recoveries of stolen art is almost always stated as very low, less than 10% of all thefts. But, all in all, Robert Whitman was supporting offering rewards, and it is his belief that the recovery rate is much higher for works of art that are higher valued or very unique and identifiable. In its technical bulletin, dated July 2012, The Chartered Institute of Loss Adjusters, (CILA), which is based in the UK, provided a lot of detailed information about offering and payment of rewards in insurance claims. They state that offering a reward in return for information that may lead to a recovery is a useful tool for the insurance industry, but that it needs to be used judiciously. They also stress that one should never offer a reward to the thief or anyone who is involved in the theft. They discuss the ethical dilemma of the possibility of encouraging more thefts with this practice. The paper also ­discusses that it is essential to have clarity of intention for the wording of the reward: who is legally liable to make the payment, the amount of reward to be paid, how to communicate the offer and how to manage the media. All in all, this represents a very good step-by-step analysis of the process. A story reported in the Associated Press (AP) tells a tale of theft of art and other property in which a very large reward was offered and it may have just paid off. Although there is no public knowledge whether an insurance company was involved, based on the size of the reward it is more likely that the insurance company was not involved. According to the AP story (Art Daily 2012): “Two suspects were arrested and found with about $10 million worth of art stolen from the home of a Southern California financier … The theft of the paintings made waves in both the art world and on Wall Street, where the victim, star bond trader Jeffrey Gundlach, does business. They were the priciest part of the major burglary where the thieves also took expensive watches, wine and a Porsche Carrera 4S, which were not recovered. ‘The focus was on recovering the artwork, and it was all recovered,’ Gundlach told the Los Angeles Times. ‘The thieves had worked on moving the property, but we were able to get a good lead and apprehend them. It’s a great day for the art world.’

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Most of the paintings were found when authorities, working on a tip from local police, served a search warrant on a car stereo store in Pasadena… The store’s manager, Jay Jeffrey Nieto, 45, was arrested Wednesday. The investigation then led to a home in nearby San Gabriel, where police arrested Wilmer Cadiz, 40, and found him in possession of four more paintings. One final painting was found at a home in Glendale, and police said the person found with it is cooperating in their investigation. There is no known connection at this time between the victim and the suspected thieves… It was unknown whether the men had lawyers… Of the still-missing Porsche, Gundlach told the Times, ‘Maybe whoever has it will drive to a Ralphs Parking Lot and just drop it off and end this.’ Gundlach returned home from a business trip Sept. 14 to find that more than a dozen paintings by the likes of Piet Mondrian and Jasper Johns, worth some $10 million, were missing. He had offered a $1.7 million reward for the art’s return, and $1 million for just the return of the collection’s biggest prize, Mondrian’s ‘Composition (A) En Rouge Et Blanc.’ It was not clear if anyone would be eligible to claim the reward.”

Insider Theft A recent example of a theft was reported in the New York Times on April 12, 2016. In the story, the FBI was offering a US$25,000 reward for the recovery of seven screen prints by Andy Warhol that were stolen from the Springfield Art Museum, in Springfield Missouri. The facts surrounding the theft were not clear other than it was reported that the silkscreens were stolen after the museum was closed and the doors locked. It is quite possible to assume that this may have been insider theft. A discussion of employee theft as a major factor in stolen art is comprehensively discussed in a bulletin published by the Inland Marine Underwriters Association. The paper’s origin was from a meeting that was held at the American Association of Museums annual meeting. One of the speakers was Robert Whitman, who was still with the FBI at the time. The discussion revolved around employee theft, and Mr. Whitman asked how many of the audience members who were mostly museum registrars had suffered a theft at their museum. At least half the audience raised their hands. However, the subsequent question of how many people reported the theft to the authorities, very few hands were left up in the air. Probably the main obstacle to reporting

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a claim is the fear of close examination of the institution’s security and protocol measures following a theft (IMUA 2007). Although I cannot be certain of it, a story which appeared on April 18, 2016, on the online website of ArtNet reports that several artworks, including 11 lithographs by Pablo Picasso, were stolen from the corporate collection of Portigon AG, a financial services company from North Rhine-Westphalia. According to the Spiegel, the total insurance value of works stolen is estimated at €1.1  million (US$1.2  million), but their market value could be much higher. In addition to the 11 lithographs from Picasso’s famous bull series, a painting by the expressionist Gabriele Münter is also missing from the vault. Der Spiegel reports that as early as in the winter of 2014, employees noticed that the vault, which was set up especially to store the art collection, had been opened at odd hours. A subsequent internal review showed that a total of 12 art objects had gone missing (Dohmen and Schmid 2016). The bank then filed a complaint, and informed the state government, but the heist was largely kept under wraps and in early 2016 police terminated their investigations (Perlson 2016). If the theft had been enabled by insider knowledge of the bank’s security measures by its employees, the lack of reporting to the police would have resulted in cold leads and, if insurance was involved, the potential denial of the claim. There are many stories of thefts and rewards, some with good outcomes, but what stands out as one of the most notorious art thefts, is the Isabella Stewart Gardner Museum heist. In spite of publicity and the huge reward of US$5 million offered for the recovery of the paintings, which were stolen in 1990, the paintings were not recovered, and any leads that may have led to an arrest have come and gone over the past quarter century. Overall, if rewards are offered judiciously, for the right amount, I believe that there is a consensus that rewards can be helpful in a recovery.

 he Insurance Industry and the Questions T of Valuation and Appraisals As I stated earlier, outright theft is not the major driver of a poor loss ratio for fine art insurance. In Fact, results for fine art are usually very good and help offset higher loss rations for other lines of business, such as jewelry for example, making it a very desirable class of business. Claims that result in overpayments, due to dubious appraisals or overstating of a partial loss, are much more common contributors to an uptick in a loss ratio. Some of these overvaluations are simply a result of poor appraisals created by inexperienced ­individuals, or bills of sale for objects that the insured overpaid. In many other

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situations, these overinflated values can be directly attributed to individuals who are trying to commit fraud. Let us examine the process whereby insurance companies verify values during the underwriting process. If the company has expertise in fine art, they would establish guidelines for when the underwriters when to request appraisals and what the appraisal should consist of. First, there is the threshold of when to ask for an appraisal. If the company is a major provider of fine art insurance and has many customers with large insurance schedules, they may make the decision that for the ease of doing business they will only require appraisals in excess of a dollar amount that would be significantly higher than a company who insures very little fine art. It is not uncommon for a non-­ specialist insurance to require appraisals for any works of art that are greater in value than US$500. The same rules apply to works of art that were recently purchased, thus requiring a bill of sale to prove the value. Some companies do not require any appraisals or bills of sale at all, only requesting it in the event of a loss. For those transactions, the valuation clause is frequently “market value at the time of loss” rather than an agreed amount. After receipt of the appraisal or the bill of sale, someone on the underwriting side needs to analyze the documents and determine if the appraiser is well qualified to establish the value, the expertise in this type of art and their past records. Unless the company has underwriters who know the art market and its players, it is very likely that these documents are going to get only a cursory look. Expecting underwriters who are not art experts to understand the complex nature of the art market is unrealistic. So, frequently appraisals have a poor description of the items, no information regarding condition, measurements and other distinctive markers that help to establish value. What’s more, quite often the information is transferred to the schedule of insurance, including poor descriptions, inaccurate measurements and so on. No wonder that reporting a stolen work of art to a database of stolen art will not yield a match if an item is required and impossible to reconcile if it was indeed the work on the schedule or something like it that belongs to someone else. If only there was more emphasis on getting things right in the first place! But when an insurance company does not have experts on hand with experience in the art market, they are vulnerable to fraudulent submission. I give you an example from my own experience. Not too long ago, I was asked to insure a Thomas Hart Benton painting valued at US$50 million by a senior member of a well-known appraisal company. Additional information provided was that the painting was currently on loan to a major NY Museum. I requested a copy of the loan agreement, which is the contract between the insured and the museum. The loan agreement also established the value that the museum agrees to insure the painting for while on loan, most of the time

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under their own policy. Reviewing the loan agreement, I noted that the painting was on loan with an insurance value of US$10 million—not US$50 million! A couple of quick calls to an appraiser that I trusted and a review of auction results for this particular painter of similar works immediately confirmed that the high value placed on the item was absurd. I could not be sure that the motivation to put such a high value on the painting was an attempt to defraud the insurance company either by the owner or by the appraiser. But with such discrepancies, which the owner was not able to explain, I had no choice but to reject that submission and pass on that account. It was not a surprise to me that some months later the person submitting the insurance request was indicted for fraud on another matter—validating that knowing the insured is a key principal of sound underwriting. Another underwriter with no knowledge or no access to valuation databases and expertise in art might have been enticed to insure the painting for the absurd amount and fall right into the trap. For lesser-valued items, even for companies that have fine art experts on hand, the problem is more how to do business in an efficient way. A typical schedule of insurance may have hundreds of pieces itemized, and commissioning someone at the company level to go through every item to make sure that it is valued correctly would be impossible. That is why the threshold described earlier for valuation is decided at the company level. This means that only in the event of a claim could the values become questionable. But how do you prove the value if the cause of loss was a fire, a common cause of loss. In the event of a total loss, such as a fire consuming the entire premises, it would be difficult for the insurance adjuster to question the valuation of items, particularly when the condition prior to the loss would be a large part of the valuation process. The answer, of course, is that they cannot, and the policy would have to pay out a total loss based on the value of the itemized schedule. Assuming that the loss was legitimate, this would be acceptable, since the company took premiums based on the scheduled items. But if the loss was a cover-up to defraud the company and the items were overvalued or even not genuine, then that would not be legitimate. I would say that the issue of establishing values is probably the most difficult issue in settling insurance claims that are perceived by both the insured and the company to be fair and satisfy all parties. It is also an area, which is vulnerable to potential fraud. The current trend of selling works online, or collectors buying works of art only by seeing the image online, can result in purchasing works of art that are presented as in pristine condition, but really are far from it. In a situation that occurred several years ago, a collector that I knew purchased a diptych by a famous artist, one of the giants of the twentieth century,

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from a well-known auction house. The collector did not take possession of the work till at least a year after the purchase. A year later, when the collector and his wife moved the canvases to their newly decorated home, they noticed that one of the canvases was damaged, thus putting in a claim. When the loss adjuster started to investigate the loss, to determine if it occurred during the policy term or was a prior condition issue, he checked the condition report of the auction house, which did not mention any issues regarding the condition of either canvas. However, a cursory report done by the fine art moving and storage company that transported the works from the auction house to the insured’s storage location mentioned the damage on one of the canvases. The question for the loss adjuster was, did the damage occur during transit, or was it a pre-existing condition? If it was a pre-existing condition, the case would have been no claim, as the loss occurred before the policy took effect. In the end, it was proven that the auction house condition report was at fault for not revealing the true condition of the work. However, for an insurance company to take on a major auction house and sue them for fraud was not an attractive solution. First, they would have to prove it, then fight it in court in an expensive litigation and then contend with the publicity against a well-known art entity. Still, the insured had a damaged painting in their possession. To pacify the insured, the claims was accepted and after a conservator advised them that it was not possible to conserve the painting, not only did the insurer pay a total loss on one of the canvases but a total loss for both works. Since the two paintings were sold as a pair, the insurance policy has to respond based on the “pair and set clause”, which states that if something is a pair and one is damaged, it is as if the entire set was damaged. The only consolation to the insurance company was that after they paid the total loss, they took possession of the paintings as the insurance contract stipulated and then proceeded to sell them at auction with full disclosure of the condition of the works. Although the value achieved at auction was a fraction of what the insurance company paid, it was still a respectable amount for a salvage recovery.

 onversion, Title and Authenticity—Trifecta C of Nightmares Cases of dealer conversion—by which a dealer takes on a work of art on consignment, sells it to a third party and does not give the proceeds of the sale to the owners—have been going on for some time. However, with the explosion of prices and with costs that many galleries have to accept to stay in business and remain competitive, it is becoming more frequent. One of the most noto-

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rious cases of dealer conversion related to the activities of a gallery on the Upper East Side  which at one point was known as the “Salander O’Reily Gallery”, and during the exposure of its dealings was simply known as the “Salander Gallery”. The gallery had been in operation for many years and represented the estates of many known artists and had a reputation for putting on interesting exhibitions with scholarly publications to go along with them. Their clientele included many well-known collectors as well as movie and theatrical personalities. It was not unusual for the gallery to also borrow works of art from very distinguished museums to scale up their exhibitions as needed. For example, I recall several works from major institutions to compliment a show about the Hudson River School paintings, including Thomas Cole and Pinkus Ryder. This was not the gallery that one would expect to explode in a riot of suits of selling consigned works without the owners ­receiving their money from the sale. Some of the clients included a wellknown museum and collectors with extraordinary wealth. In the end, the gallery tumbled, sought bankruptcy protection and the owner was sent to jail where he is currently still serving his sentence. The insurance claims relating to this dealer conversion case are mixed at best. Some insurance carrier embroiled in suits by the insured victimized by the theft refused to pay out, citing that this was not theft, which would be covered, but a contractual dispute between the gallery owner and the consignees, which is not covered under the policy. Other insurance carriers decided to pay out, because in their minds this was a gray area—not certain that they could deny it. Therefore, when there is a doubt, they prefer to pay, rather than endure a lengthy and costly public relations adverse publicity. The insurance industry as a whole has not taken a position on this, hoping that they can settle cases one by one on their own merits and that these decisions will not result in a legal precedent. Insurance carriers have also not advocated putting an outright exclusion on dealer conversion, and so they have left themselves open for future cases and more litigation when newer cases come to light. Only when the loss ratio of the insurance companies deteriorates as a result of dealer conversion will the industry actually start dealing with this problem and add policy language into the contract terms and conditions.

Fakes and Forgeries To the layman, it would appear that there are many insurance claims due to works of art turning out to be fakes or forgeries. This impression is a result of the layman’s lack of understanding of the covered causes of loss in a fine art

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insurance policy, regardless of whether it is for an institution or private collector. The trigger for filling in a claim for a fine art policy is “physical loss or damage”. The policy can either provide “named perils”, listing such perils as fire, or “all risk” which does not list the perils, but rather only what is not covered. The mistake that most people make is thinking that since a painting turns out to be a fake or a forgery this is sufficient cause for a loss. This is not so, as the policy requires a direct “physical”. Therefore, a painting that turns out to be fake, rather than any physical loss, such as a tear in the canvas or smoke damage from a fire, does not change materially in its physical character. The only loss is in the value which will become greatly diminished. That on its own is a pure financial risk or loss which is not covered as a peril. There are several cases that were litigated in the US, where the courts sided with the insurance companies in their argument that there has to be a physical loss to the work of art and not a financial loss due to the market valuation changes once a work is deemed to be a fake, forgery or even a misattribution. The notorious events at the Knoedler Gallery, with all the law suits surrounding allegations (and now many cases settled out of court) of selling fakes to collectors, would not be a subject for coverage under a fine art policy, unless the work was damaged physically. Still, trying to get a settlement for a claim for a damaged painting that turns out to be a fake or a forgery will also result in a huge mess of establishing value. If the entire painting was deemed to be damaged and the painting was insured under a scheduled policy with a specific amount that the insurance company agreed to, then, under some jurisdictions, the insurance carrier may  have to pay, because they accepted the value and collected premiums. In the event that it was a partial loss, then one has to establish the value at the time of the loss and apply the diminished value following the loss. One can assume that the fake painting would have very little market value as will the depreciation of value after the loss.

 he US Insurance Industry, the US Treasury T Department, the Office of Foreign Assets Control (OFAC) and the Panama Papers The US Treasury Department has been dealing with sanctions going back to the War of 1812. The Office of Foreign Assets Control (OFAC) administers and enforces economic sanctions programs against countries, but also against groups of individuals, such as terrorists and narcotics traffickers. The insurance industry in the US must comply with the directives given by OFAC. So,

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for example, many inland and ocean marine policies that have worldwide territorial coverage exclude coverage in Cuba and Iran, as they are subject to US sanctions. It will be interesting to watch what happens when these countries are removed from the sanctions list. In order to be in full compliance with the US Government Department of Treasury and OFAC, insurance companies have to verify ownership and avoid insuring art that is used to cover up questionable sources, such as money laundering and tax evasion as well as terrorist activities. In order to do so, the insurance industry had to develop entire protocols within their underwriting and claims operations. For example, every new submission request for a policy needs to be checked against a list of Specially Designated Nationals (DSN) on the OFAC sanctions list. That also includes all additional insured and loss payees. The same applies to any claims check that is issued. Since the DSN list is updated on a regular basis, the insurance companies must check against the list more often than just when writing a new policy. They also need to do so when checking on policies that need to be reviewed or even in some cases during endorsement activities when new art is purchased. If an insurance company receives an application in the name of a Specially Designated National (SDN) for a policy, the insurance company is under an obligation not to issue the policy, because by doing so it is providing an illegal service. Any premiums sent to the insurance company must be blocked. As soon as an insurance company discovers that they have a policy for a Specially Designated National they need to contact OFAC compliance to work with the company on the specifics of the case. As one can imagine, this requires a dedicated staff and a whole bureaucracy in order to be in compliance. Some companies do the checking in house, while others have outside vendors who are hired specifically to do this clearance. Speaking to several insurance industry executives in the US who specialize in fine art insurance, it could be observed that so far they have not encountered anyone who was a DSN, but sometimes came across applications with names that were similar to those on the list. One can imagine that there are many names that can become a match because of similarity, but in all cases those individuals were cleared after the insurance companies worked with OFAC officials. Another major problem the insurance industry has encountered for at least the last decade is the problem of establishing the identity of their insured. Way before the revelation of the “Panama Papers”, underwriters noticed the practices of the mega wealthy through the advice of their estate planning attorneys to transfer the ownership of their assets to limited liability corporations (LLC) or shell companies. Having art insured in shell corporations or

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LLC makes it very difficult to know who the actual owners behind the LLC or the shell corporation are. With the “Panama Papers” leak of over 11.5  million files from the Panamanian Law firm Mossack Fonseca, one can see that this is only the tip of the iceberg. As reported by Scott Reyburn in the New York Times on April 11, 2016, there were “three cases [that] in particular illustrate just how critical a role secrecy has come to play in the art market of today” (Reyburn 2016). The article illustrates these cases by showing that the “seller isn’t always the Seller, or that the art is not necessarily sold under the name of the owner and that layers of Ownership can cloud disputes”. Although none of the cases involved an insurance claim, I can tell you from experience that when a claim does occur under these circumstances, it can create a tremendous problem to a company trying to settle a legitimate claim in a timely fashion, or it can deny a claim because of problems of ownership. The challenge for underwriters, trying to find out more about the ownership of the art that they are asked to insure, is not going to get any simpler just because of the Panama Papers revelations, at least not until some of the tax codes are fixed. But I can tell you with great certainty that no respectable underwriter wants to get involved with a collection that is a front for money laundering, tax evasion or other illegal activities. Unless one knows the insured, their habits and their attitude toward the protection of their art, one is sure to be presented in the long run with claims that could have been avoided. Probably one of the most useful tools for learning more about identity of the collectors is from online search engines, such as Google, but too often those who wish to remain anonymous will find the means to do so.

Conclusion There are many stories to tell about art theft, fraud and other crimes, but from the insurance perspective, fine art continues to be a profitable line of business and underwriters seem to be able to avoid most major scams. Although fraudulent claims do exist, and claims of damage are sometimes greatly exaggerated, the law of large numbers is still in the favor of the industry. The industry needs to continue to improve their tools in verifying proper documentation, review of appraisals, vetting of experts as well as weeding out bad risks. Subscribing to stolen art databases would also be a good tool to reduce the loss ratio and to help in transparency of the trade in art. In addition, the industry has to examine once again the issue of dealer conversion and determine if policy language needs to be amended. It is also an opportunity to work with

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collectors, art lawyers and dealers in improving loan consignment forms and other tools such as Uniform Commercial Codes (UCC) that can help in establishing ownership to works of art. Leaving important issues to be settled at the end of the claims process does not help the insurance industry or the owners of works of art in settling legitimate claims in a timely fashion.

Bibliography Art Daily. (2012). Two arrested in art heist at California financier Jeffrey Gundlac. Retrieved May 28, 2017, from http://artdaily.com/news/58000/Two-arrested-inart-heist-at-California-financier-Jeffrey-Gundlach-s-home#.WSrd5YVGFFU. Art Recovery International (ARI). (2017). About ARI.  Retrieved May 28, 2017, from http://artrecovery.com/about/. Dohmen, F., & Schmid, F. (2016). Verlorene Schätze. Der Spiegel, NRW 16/2016. Retrieved May 28, 2017, from http://magazin.spiegel.de/EpubDelivery/spiegel/ pdf/144314433. Inland Marine Underwriters Association (IMUA). (2007). Insider theft and employee dishonesty within cultural institutions. (Report). Retrieved May 28, 2017, from http://www.imua.org/Files/reports/Insider%20Theft.html. International Foundation for Art Research (IFAR). (2017). About IFAR. Retrieved May 28, 2017, from https://www.ifar.org/about.php. International Risk Management Institute, Inc. (IRMI). (2017). The law of large numbers. Retrieved May 27, 2017, from https://www.irmi.com/online/insuranceglossary/terms/l/law-of-large-numbers.aspx. Kerr, J. (2015). The securitization and policing of art theft – The case of London. London: Routledge. Perlson, H. (2016, April 18). 11 Picasso works stolen from German bank’s collection. Artnet. Retrieved May 28, 2017, from https://news.artnet.com/art-world/picassoworks-stolen-from-german-collection-475733. Reed, R. (n.d.). Hiscox insurance. Reyburn, S. (2016, April 11). New York Times. Straus, D. (2009). Implication of art theft in the fine art insurance industry. In N.  Charney (Ed.), Art and crime: Exploring the dark side of the art world (pp. 87–106). Santa Barbara, CA: Praeger.

13 Statutes of Limitation and Other Legal Challenges to the Recovery of Stolen Art Patty Gerstenblith

Introduction The art market today is an international phenomenon. Artworks travel around the globe in short periods of time. Purchasers acquire works through telephonic bidding and bidding online at auctions, as well as through Internet sites, such as eBay and aggregator sites, for brick-and-mortar as well as Internet-only dealers. Looted antiquities are offered for sale through digital images sent throughout the world to potential buyers. As works move through different parts of the world (source, destination, and transit countries) and buyers, sellers, and intermediaries are located in different countries, the laws of different national jurisdictions and the varying methods of resolving conflicts among laws are implicated in cases involving allegedly stolen and fraudulent works. As the value of artworks increases, the incentive to steal such works and to sell them in ways that protect the seller’s ability to convey the works with valid title also increases. The law has developed to respond to the temptation of theft by both criminalizing the conduct of the knowing wrongdoer and enabling recovery of the stolen work by the original owner through civil action. However, the desire to allow the original owner to recover the property is in tension with the desire to encourage commercial transactions, allowing movable property to circulate

P. Gerstenblith (*) DePaul University, Chicago, IL, USA e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_13

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freely from seller to buyer and settling title in the current possessor. These conflicting policy goals—decreasing the economic incentive to steal and increasing ease of commercial transactions—are nowhere more easily seen than in the question of whether an original owner can recover a stolen cultural object. In addition to the usual reasons that society has for discouraging theft, the theft of particular types of cultural objects, such as artworks stolen during the Holocaust, archeological objects looted from the ground, and ethnographic objects taken from indigenous communities, raises unique policy concerns as well. This chapter will focus on the differing approaches to recovery of stolen artworks and other cultural objects among the different jurisdictions within the United States. Works of art and cultural objects are classified as personal (or moveable) property and the legal rules pertaining to their transfer are the same as for any other type of personal property. However, works of art differ from most categories of personal property because they tend to have high value and they are often unique or at least highly distinctive. They are easily hidden for many years and they are easily transported to different jurisdictions. These characteristics make it difficult for the owner to locate the stolen work and the current possessor—both of which are necessary before the owner can bring suit to recover the stolen work. While registries and databases of stolen artworks have been created, no single one has gained universal recognition, and there are significant barriers to the universal registration of artworks, both before and after they are stolen. Probably the most problematic category of cultural objects from the perspective of registries is archeological objects, which are unknown and therefore undocumented. This inability to create an authoritative registry exacerbates the problem of the recovery of such objects within a limited time period. Often, the first time the object is located is when it appears for sale on the market or even later when it appears in a public exhibition, by which time it may have changed hands many times and passed through several national jurisdictions. In contrast, if those who trade in artworks follow reasonable standards of due diligence, then the distinctive nature of artworks should make it easier for them to avoid trading in stolen works. Because of the unique or near-unique character of works of art and their often great cultural, religious, or historic value, the owner of such works will generally want to recover the work itself rather than recovering its economic value. In most states in the United States, the action for recovery of the property itself, rather than its monetary equivalent or damages, is a suit in replevin or detinue. As the court in Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg explained, ‘replevin is the proper legal theory for the recovery of personal property. “A replevin action is a speedy statutory remedy designed to allow

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one to recover possession of property wrongfully held or detained as well as any damages incidental to the detention. The only issue necessarily decided in a replevin action is the right to present possession”’ (717 F. Supp. 1374, 1395–1396 (S.D.  Ind. 1989)). The purpose of a suit in replevin is to allow the rightful owner to recover the property itself. An action for conversion, which lies specifically in tort, is an action for recovery of the equivalent monetary value. The general rule of movable property, originating in Roman law, holds that a thief cannot convey good title, nor can one claim title through a thief, even if the property passes into the hands of a good faith purchaser. This principle is summed up in the expression: Nemo dat quod non habet (No one can give what one does not have). It has been codified in the Uniform Commercial Code §2-403 (1), which states: ‘A purchaser of goods acquires all title which his transferor had or had power to transfer […]’. Countries that follow the English common law of movable property, particularly the United States, therefore do not allow a thief to transfer or a subsequent purchaser to acquire valid title if there has been a theft in the chain of title, even if the purchaser acted in good faith. The approach of the common law nations contrasts significantly with the rule in many of the European continental civil law nations where, under certain circumstances, such as market overt, the claim of the original owner to recover stolen goods against a good faith purchaser is cut off within a relatively short period of time. However, when the question of ownership is litigated in the courts of a common law country, such as the United States or England, the civil law rules may be relevant under a choice-of-law analysis. Although in a common law jurisdiction a thief cannot convey title even to a good faith purchaser, the original owner’s claim to recover stolen property may be barred by the statute of limitations or one of the equitable defenses such as laches. Statutes of limitation prevent an individual from bringing a claim more than a certain amount of time after the injury has occurred or the claim has accrued. Statutes of limitation apply to most types of legal claims and have the goals of preventing the bringing of stale claims, after the e­ vidence and witnesses are no longer available, and of providing security in commercial transactions. It is unclear whether barring the original owner’s claim technically transfers title to the current possessor, but it has a similar effect, in that possession is the primary indicia of ownership for movable property. In the United States, statutes of limitation and other legal doctrines that may bar an original owner’s recovery action are a product of state rather than federal law. While suits to recover stolen artworks and cultural objects are often brought in federal court, based on diversity jurisdiction (which is available when the amount in controversy exceeds US$75,000 and where

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the parties to the lawsuit are citizens of different states or one party is a citizen of a different country), such suits are decided under state law and the federal court is obligated to follow the law of the forum state—that is, the state in which the federal district (or trial) court sits. Each state has its own statute of limitation for the recovery of stolen property, and the statute is subject to interpretation by the state courts. The statutory time periods for the recovery of stolen personal property, including artworks and cultural objects, are generally fairly short, ranging from two to six years. This short time period would make it relatively easy for a thief or current possessor to hide the artworks until the statutory period expires and then, in theory, the owner is barred from recovery. The statutory time period begins to run from the time the owner’s cause of action accrues, although the statutes generally do not define what is meant by ‘accrual’. Because artworks are easily hidden and transported to other jurisdictions, and it is difficult for the true owner to locate the work or learn the identity of the current possessor, most courts have interpreted the accrual of the cause of action for recovery of stolen artworks in such a way as to give the original owner a realistic opportunity to learn the facts necessary to bring suit. However, as the product of state law, the different state courts have interpreted the accrual of the cause of action in different ways. These approaches may be divided into three categories: the ‘demand and refusal’ rule, adopted in New York; the due diligence or constructive discovery rule, adopted in most states; and the California actual discovery approach. In addition to the defense based on the statute of limitation, courts may allow one of the equitable doctrines to bar an original owner’s claim; foremost among them is the doctrine of laches.

 tatutes of Limitation and Accrual of the Cause S of Action New York: Demand and Refusal Rule In New York, the heart of the art market in the United States, the courts have consistently held that the cause of action accrues when the original owner makes a demand for return of the property on the current possessor and the possessor refuses. This means that the statutory time period will not elapse before the original owner knows the identity of the possessor and it, in effect, prevents the barring of almost all claims through the mere passage of time. This rule was first applied to artworks in the decision Menzel v. List to allow the original owner, a Holocaust victim, to recover a Chagall painting stolen during the Second World

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War that later was bought by a New York collector (253 N.Y.S.2d 43 (1st Dept. 1964) and 267 N.Y.S.2d 804 (Sup. Ct. N.Y. 1966), modified on other grounds, 279 N.Y.S.2d 608 (1st Dept. 1967), modification rev’d, 298 N.Y.S.2d 979 (1969)). This rule has continued to be applied in cases such as Kunstsammlung zu Weimar v. Elicofon, 678 F.2d 1150 (2nd Cir. 1982), and was reiterated by the New York Court of Appeals in Solomon R. Guggenheim Found. v. Lubell, 569 N.E.2d 426 (N.Y. 1991). While this result has been criticized from a policy perspective concerning statutes of limitation in general, it has worked well in protecting the rights of the original owner. The question of what conduct constitutes a demand and refusal was litigated in a case brought by the heirs of George Grosz, an early twentieth-­ century German artist who was forced to flee Germany in 1933 and whose artworks were considered by the Nazis to be ‘degenerate’. The heirs sued the Museum of Modern Art (MoMA) for the recovery of three of Grosz’s caricatural paintings, Hermann-Neisse with Cognac, Self-Portrait with Model, and Republican Automatons (Grosz v. Museum of Modern Art, 2010 U.S. Dist. LEXIS 1667 (S.D.N.Y. 2010)). The plaintiffs alleged that Grosz consigned each of the paintings to Grosz’s art dealer, Alfred Flechtheim, and that each was then either stolen or subject to some other form of malfeasance. MoMA acquired the paintings at different times during the late 1940s and 1950s. In November 2003, the Grosz estate asked MoMA to return the paintings and filed its complaint in April 2009. In analyzing when MoMA refused the demand, thus triggering the three-­ year time period, the court defined refusal as words or actions that are inconsistent with the claimant’s possession or use of the property, regardless of whether the possessor explicitly refuses the demand. Because the purpose of the demand and refusal rule is to give the good faith possessor an opportunity to relinquish the property once informed of the claimant’s rights, a failure in any form to turn over the property constitutes a refusal. In this case, refusal consisted of MoMA’s failure to turn over the paintings or a letter MoMA sent to the claimants in 2005 communicating its refusal to turn over the paintings. The claim was barred because the filing of the complaint in 2009 occurred more than three years after these actions.

Due Diligence/Constructive Discovery In the majority of jurisdictions, the courts apply the ‘discovery rule’. According to this approach, the owner’s cause of action accrues when the owner discovers or with reasonable diligence should have discovered the

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location of the stolen artwork. The latter can be termed constructive discovery. The seminal case adopting the due diligence/constructive discovery rule involved three paintings allegedly stolen from Georgia O’Keeffe’s studio in the 1940s and not discovered until the 1970s (O’Keeffe v. Snyder, 83 N.J. 478 (1980)). However, because the case was settled on remand, there was no determination of what is required for an original owner to fulfill his or her obligation of due diligence. This rule places a burden on the original owner to search for the stolen property and shifts the court’s scrutiny to the conduct of the original owner and away from that of the current possessor in acquiring the work, although it still assures the original owner a reasonable opportunity to find the property before the statutory time period begins to run (ibid. at 500). All courts, outside of New  York and California, that have addressed the accrual of the cause of action have adopted the due diligence/constructive rule (see, e.g., Autocephalous Greek-Orthodox Church of Cyprus and the Republic of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F.  Supp. 1374 (S.D. Ind. 1989), aff’d, 917 F.2d 278 (7th Cir. 1990)). While this is therefore the majority rule among US states, a disproportionate number of cases are brought in New York and California.

The California Approach California is unusual, in that it has a specific statute of limitations that applies to ‘any article of historical, interpretive, scientific, or artistic significance’. The statutory time period does not begin until the owner has discovered the whereabouts of the stolen article. Section 338(c) of the California Code of Civil Procedure, as amended in 1983 and again in 1988, provides a three-year limitation period for the recovery of goods and chattels, with the cause of action accruing when the original owner discovers ‘the whereabouts of the article by the aggrieved party, his or her agent, or the law enforcement agency which originally investigated the theft’ (§ 338(c)(2)). This seems to be the only statute of limitation for the recovery of personal property that explicitly mentions artistic and cultural works. In Naftziger v. American Numismatic Society, 49 Cal. Rptr. 2d 784 (Cal. App. 1996), the court interpreted the statutory provision to mean that the cause of action under § 338(c)(2) accrues when the claimant actually discovers the location of the stolen cultural object rather than adopting the O’Keeffe constructive discovery standard.

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An Alternative Approach: Laches Finally, a current possessor may rely on an equitable defense, such as laches, even if the statutory time period has not elapsed. Laches is an affirmative defense in which the defendant establishes that the claimant’s unreasonable delay in bringing the claim caused the current possessor to suffer legal prejudice, which is usually characterized as either an evidence-based or expectations-based harm. In Solomon R. Guggenheim Found. v. Lubell, 569 N.E.2d 426 (N.Y. 1991), the New York Court of Appeals (the equivalent of a state supreme court) reiterated that the demand and refusal rule remained the proper approach to defining when the cause of action under a statute of limitations accrued for recovery of stolen artwork. However, the court opened the door to the possibility that a defendant could assert the equitable defense of laches in order to bar a claim. Because of the generosity of the demand and refusal rule to original owners, defendants in cases involving New York law have increasingly relied on laches as an alternative defense. Some courts have focused only on the first prong—whether the claimant delayed unreasonably in bringing a claim— without examining the causation link to the second prong. In that sense, the analysis of these cases is similar to that of the due diligence/constructive discovery rule. Furthermore, at least in New York, the claimant has the burden of proving due diligence under the first prong, despite the more typical approach that one claiming the benefit of an affirmative defense has the burden of establishing the required elements. This analysis focusing on the first prong and requiring the claimant to meet this burden of proving due diligence was followed in Bakalar v. Vavra, 819 F. Supp. 2d 293 (S.D.N.Y. 2011), aff’d, 500 Fed. Appx. 6 (2d Cir. 2012); Sanchez v. Trustees of the Univ. of Penn., 2005 U.S.  Dist. LEXIS 636 (S.D.N.Y. 2005); Greek Orthodox Patriarchate v. Christie’s, Inc., 1999 U.S.  Dist. LEXIS 13257 (S.D.N.Y. 1999); Wertheimer v. Cirker’s Hayes Storage Warehouse, Inc., 752 N.Y.S.2d 295 (App. Div. 2002). However, two courts have followed a different analysis, focusing more on the second, rather than the first, prong. In both cases, the court found it unnecessary to address the first prong once it determined that the defendant had failed to present evidence of prejudice. In the first of these, Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008), to which Rhode Island law applied, the court noted that ‘the kind of prejudice that will support a laches defense arises out of a loss of evidence, the unavailability of important witnesses, the conveyance of the property in dispute for fair market value to a bona fide

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purchaser, or the expenditure of resources in reliance upon the status quo ante’ (ibid. at 57). Because the defendant had failed to point to any particular witnesses, particular documents or other evidence that was unavailable because of the claimant’s alleged delay and she did not explain to what essential issues in dispute such missing evidence would have been relevant, the court held that the laches defense had not been established. As the court stated, ‘[p]roving prejudice requires more than the frenzied brandishing of a cardboard sword; it requires at least a hint of what witnesses or evidence a timeous investigation might have yielded’ (ibid. at 58). The New  York Court of Appeals adopted a similar approach in In re Flamembaum, 1 N.E.3d 782 (N.Y. 2013), which involved a Neo-Assyrian inscribed gold tablet that had been excavated in northern Iraq by a German expedition team before the First World War and was then stolen from the Vorderasiatisches Museum in Berlin at the end of the Second World War. The tablet was found among the possessions of a Holocaust survivor in New York after his death. The Museum sued to recover it, and the estate defended against the claim based on laches. The New York Court of Appeals framed the issue of laches as whether there was any viable theory under which the estate could have obtained ownership. The estate’s defense was based on the assertion that the decedent could have acquired title under a ‘spoils of war’ doctrine, which is not accepted in the courts of the United States and would violate international law. The Court of Appeals therefore held that any delay by the museum had not prejudiced the estate, although the decedent could no longer testify as to how he had come into possession of the object. The analysis used in Vineberg and Flamenbaum differs significantly from that used in the other cases that apply laches. By focusing only on the question of whether the claimant delayed unreasonably or could not meet the burden of establishing due diligence, these courts are essentially applying the due diligence/constructive discovery rule articulated in the O’Keeffe decision. In contrast, Vineberg and Flamenbaum seem to be applying the laches rule more appropriately by focusing on the causal relationship between any alleged lack of diligence and the harm that such delay may have caused to the current possessor.

 he Holocaust Expropriated Art Recovery (HEAR) T Act In late 2016, Congress enacted the Holocaust Expropriated Art Recovery Act of 2016, Pub. L. 114–308, 130 Stat. 1524, codified at 22 U.S.C. § 1621 (the HEAR Act). The federal statute preempts ‘any other provision of Federal or

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State law or any defense at law relating to the passage of time’ and allows a claim ‘to recover any artwork or other property that was lost during the covered period because of Nazi persecution’ to go forward if commenced within six years after actual discovery (defined to mean knowledge) of the identity and location of the property and of a possessory interest in the claimant (section 5(a)). The statute’s provisions sunset for any claim that has not been filed before the end of 2026 (section 5(g)). The statute applies to a wide category of types of cultural property, including pictures, paintings, drawings, prints, lithographs, engravings, books, archives, musical objects and manuscripts, sacred and ceremonial objects and Judaica (section 4(2)). The term ‘covered period’ refers to the period between January 1, 1933, and December 31, 1945 (section 4(3)). The term ‘Nazi persecution’ means ‘any persecution of a specific group of individuals based on Nazi ideology by the Government of Germany, its allies or agents, members of the Nazi Party, or their agents or associates, during the covered period’ (section 4(5)). The legislation is unclear in several regards. One is whether the equitable defenses, such as that based on laches, are also preempted. While the intent of the legislation is to remove all time-based obstacles to the recovery of stolen artworks, the statute refers specifically to ‘any defense at law’, a term that would exclude the equitable defenses. It is also unclear what the status of the various defenses will be to suits filed after the sunset. The legislation is unclear as to exactly who was a Nazi ally or agent and how far the term Nazi persecution extends, particularly given that the status of allies and agents shifted over time. Finally, and perhaps most significantly, there may be questions of the statute’s constitutionality based on the Fifth Amendment’s Takings and Due Process Clauses and the 14th Amendment’s Equal Protection Clause. The Ninth Circuit applied the HEAR Act to supply the statute of limitations and to preempt California’s statute of limitations in Cassirer v. Thyssen-Bornemisza Collection Found., 862 F.3d 951, 959–960 (9th Cir. 2017), and New York courts have applied the HEAR Act in Maestracci v. Helly Nahmad Gallery, Inc., 63 N.Y.S.3d 376 (App. Div. 2017), and in Reif v. Nagy, 2018 N.Y. Misc. LEXIS 3234 (N.Y. Sup. Ct 2018). None of these courts has addressed the question of whether the HEAR Act is constitutional.

Choice of Law As previously mentioned, most civil law nations, such as those on the European continent, accept some variant of the good faith purchaser doctrine by which even a thief can transfer title if the goods are sold to a good faith purchaser.

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This means that if stolen property is transferred in a civil law nation, then the title can be ‘laundered’ so that when the property is taken to a common law country, the current possessor can claim to rely on having acquired title in the civil law nation. Several cases have occurred in the United States where the defendant has relied on such a claim. Courts have been divided over whether to apply the law of a US jurisdiction (thereby applying the nemo dat rule) or to apply the law of a foreign jurisdiction (thus allowing the good faith purchaser doctrine to play a role). This scenario is exemplified by the well-known case involving the Pre-­ Iconoclastic Byzantine mosaics stolen from the Kanakaria Church in northern Cyprus in the late 1970s, following its occupation by Turkish forces in 1974 (Autocephalous Greek-Orthodox Church of Cyprus and the Republic of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F.  Supp. 1374 (S.D. Ind. 1989), aff’d, 917 F.2d 278 (7th Cir. 1990)). An art dealer from Indianapolis, Peg Goldberg, purchased the mosaics in 1988  in the Geneva free transit zone and brought them to the United States. When the Church of Cyprus learned the location of the mosaics, it sued for their recovery. Goldberg tried to rely on the Swiss good faith purchaser doctrine, claiming that she had acquired the mosaics in Switzerland in good faith. While the court’s analysis was extended, it held, following lengthy consideration of the choice-of-law rules, that the law of Indiana should apply. According to Indiana’s choice-of-law analysis, the substantive law of the jurisdiction with the most substantial contacts to the events underlying the claim will control. The court first considered whether the place where the wrong occurred (Switzerland) had little connection to the legal action. The court held that Switzerland had little connection to the sale of the mosaics because no one involved in the transaction was a Swiss citizen, and the mosaics had not entered the Swiss stream of commerce as the sale took place in the free port area of the Geneva airport. The second step of the analysis is to determine which jurisdiction has the more significant contacts or relationship to the suit. Because many of those involved in the transaction, the financing and the location of the mosaics at the time of suit all pointed to Indiana, the court chose to apply Indiana substantive law. In the alternative, the court analyzed the choice-of-law question under Swiss law and held that under Swiss choice-of-law rules, the law of Indiana would apply under the ‘goods in transit’ exception. A recent California case chose to apply the law of a foreign jurisdiction, in this case, that of Spain, although the reason for this may depend on the particular basis for jurisdiction over the Thyssen-Bornemisza Collection Foundation, the instrumentality of a foreign sovereign (Cassirer v. Thyssen-­

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Bornemisza Collection Found., 2015 U.S.  Dist. LEXIS 76590 (C.D.  Cal. 2015)). This dispute concerns a painting by the French Impressionist artist Camille Pissarro, Rue Saint-Honoré, après-midi, effet de pluie, that was expropriated by the Nazi government in 1939 through a forced sale from its owner, Lilly Cassirer Neubauer. The painting was sold through the art market, including several transactions in the United States, ultimately to Baron Hans-­ Heinrich Thyssen-Bornemisza, who later loaned and then sold it to the Thyssen-Bornemisza Collection Foundation in Spain. The painting has been on display in the Thyssen-Bornemisza Museum in Madrid since 1992, except for brief periods when it was on loan to other public institutions, and its current location and possessor were known from several publications. The District Court needed to determine whether the law of Spain or that of California should govern. Before making that determination, the court had to choose which choice-of-law rules to apply: the federal common law rules because jurisdiction was based on the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330 et  seq, or those of California. The federal common law approach is based on which place ‘has the most significant relationship to the thing and the parties …’ (Restatement (Second) of Conflict of Laws § 222). The Restatement’s specialized conflict of law rule is that ‘a transfer of an interest in a chattel by adverse possession or by prescription and the nature of the interest transferred are determined by the local law of the state where the chattel was at the time the transfer is claimed to have taken place’ (i.e., the lex situs rule) (Restatement § 246). The comment to the Restatement explains that ‘[t]he [S]tate where a chattel is located has the dominant interest in determining the circumstances under which an interest in the chattel will be transferred by adverse possession or by prescription’ (Restatement § 246, comment). This formulation means that, whenever a possessor claims to have acquired title by adverse possession or prescription in a jurisdiction that recognizes these doctrines, the possessor will prevail. The court concluded that Spain has the greatest interest in determining ownership of the painting and that Spanish law should therefore apply under the federal choice-of-law rules. The court further justified its conclusion by relying on the goal of protecting the parties’ justified expectations, the location of the painting in Spain for more than 20 years, and the relatively weak relationship between the painting itself and California. The court then came to the same conclusion in its alternative analysis of the California choice-of-law rules. First, the court noted that a true conflict between the law of Spain and that of California exists, in that the latter recognizes neither the doctrine of adverse possession nor prescription as applied to personal property. Each jurisdiction has a strong interest in applying its own

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law and furthering its choice among the conflicting policies that underpin the different approaches to claims for the recovery of stolen personal property. Spain’s law accepting adverse possession and prescription places greater emphasis on certainty of title, protecting defendants from stale claims, and encouraging plaintiffs to act diligently. On the other hand, California law focuses on the difficulty original owners have in locating their stolen property and the need for subsequent purchasers to search provenance and title before acquiring personal property. The court weighed the nature and strength of each jurisdiction’s interest in applying its own law for the purpose of determining not which policy is better but to determine ‘the appropriate limitations on the reach of state policies’ (quoting McCann v. Foster Wheeler LLC, 48 Cal. 4th 68, 97 (2010)). The court also looked to a jurisdiction’s interest in regulating conduct that occurred within its borders. Under this formulation, the court concluded that Spain had the greater interest in seeing its law applied because of the presence of the painting in Spain for such a long period of time and Spain’s desire to regulate conduct within its borders and to guarantee that individuals and entities within its border could rely on the availability of an adverse possession or prescription defense. In contrast, almost all of the transactions involving the painting, from the original expropriation in Germany, to multiple sales in various jurisdictions (except for one in California and a brief sojourn there in 1951) and its eventual acquisition and display in Spain, occurred outside of California. California’s interest was based on the ‘fortuitous decision’ of the Cassirer family to move to California and therefore is far less significant than that of Spain. The court thus concluded that the law of Spain should apply. The court noted that California law does not bar the application of adverse possession to personal property and stated that ‘[u]nlike a statute of limitations, the law of adverse possession does not present a procedural obstacle, rather concerns the merits of an aggrieved party’s claim’. The characterization of adverse possession as substantive in contrast to operation of the statute of limitations, which the court viewed as procedural, is perhaps ironic in that adverse possession, certainly in the context of land, is a function of the expiration of the statutory limitations period. The primary difference is that the European version of adverse possession, more properly termed acquisitive prescription (in contrast to extinctive prescription), vests title in the current possessor. Whether expiration of the limitations period in the various states of the United States similarly vests title is an open question and one that likely varies from state to state. Under the Spanish law of adverse possession (also termed usucapio or acquisitive prescription), a possessor can gain title to movable property if the

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possessor possessed the property (1) for the statutory period, (2) as owner, and (3) ‘publicly, peacefully and without interruption’ (citing Spanish Civil Code Arts. 1941–1948). The required statutory period is three years if the possessor acts in good faith and in six years if in bad faith. The court found it unnecessary to determine whether the Foundation’s possession was in good faith because it satisfied the longer time period of six years. The second element was met because the Foundation projected an external image of ownership of the painting since its acquisition in 1993; this element does not relate to the possessor’s ‘internal intention’ but only to its outward conduct, which, in the case of the Foundation, includes public display and lending the painting to other institutions. The element of public, peaceful, and uninterrupted possession was also satisfied through the Foundation’s public display and publication of its possession of the painting, which were sufficient to give the original owner at least constructive notice of the painting’s location. The possession was peaceful from the time of acquisition in 1993 until the Cassirer claim was filed in 2001, and it was uninterrupted for the same time period. The court concluded its opinion with a brief and somewhat enigmatic discussion that if the amended 2010 version of the California statute of limitations had retroactively revived the plaintiffs’ claim after it was time-barred, then the amended statute would deprive the Foundation of its property without due process and would therefore be unconstitutional. This conclusion seems premised on the idea that the expiration of the statutory time period does not merely bar an original owner’s claim but also vests title in the current possessor. While this is dicta, given the court’s choice-of-law decision, it is unfortunate that the court made this assertion of unconstitutionality without deeper analysis of the relationship between the statute of limitations and vesting of title. On appeal, the Ninth Circuit affirmed the District Court’s application of Spanish law but remanded to the District Court for reconsideration of whether Spain’s law of adverse possession had been properly applied. According to the Ninth Circuit, the plaintiffs had raised a triable issue of fact as to whether the Thyssen-Bornemisza Collection Foundation knew that the painting was stolen at the time it acquired the painting. If so, then the Foundation had not yet acquired title through adverse possession. In addition, the Foundation had not established that the Baron acquired the painting in good faith, thus leaving unanswered whether the Baron had acquired title under Swiss law (862 F.3d 951, 965–976 (9th Cir. 2017)). The decision to apply Spanish law in Cassirer is in line with a very short list of other US judicial opinions, which in cases of disputed title to cultural objects chose to apply the law of a foreign jurisdiction. One of the few US

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cases in which the law of a foreign jurisdiction was applied is Greek Orthodox Patriarchate of Jerusalem v. Christie’s, Inc., 1999 U.S.  Dist. LEXIS 13257 (S.D.N.Y. 1999). This case involved an Archimedes palimpsest that was stolen from the Patriarchate in Istanbul sometime in the early twentieth century, had been in a private collection in France from the 1920s, and was then consigned for sale at Christie’s in New  York in 1998. The New  York District Court applied French law to hold that the consignor had acquired title after 30 years under the French law of prescriptive possession. However, the court also held, in the alternative, that the claim would have been barred under New York law according to the doctrine of laches. This approach is similar to that in Autocephalous Greek-Orthodox Church of Cyprus, in that the courts chose to analyze the claims under both US law and the law of a foreign jurisdiction, and, in both cases, reaching the same conclusion under the laws of both jurisdictions, although for different reasons. The application of foreign law is perhaps more common in European courts. For example, in two cases, British courts chose to apply the law of a foreign jurisdiction, such as in Islamic Republic of Iran v. Berend, [2007] EWHC 132 (QB), [2007] 2 All ER (Comm) 132 (applying French law), and Winkworth v. Christie, Manson & Woods Ltd. [1980] 1 Ch 496 1 All E.R. 1121, [1980] 2 WLR 7 (applying Italian law). However, in City of Gotha v. Sotheby’s, [1998] 1 WLR 114 (Q.B. 1998), the court refused to apply German law under the exceptions to the lex situs rule where the current possessor is the thief or has acted in bad faith or where applying the law of a foreign jurisdiction would be contrary to English public policy. The tension over whether to apply the law of a US jurisdiction or that of a foreign jurisdiction appears to be the result of a shift of type of analysis used to determine which law to apply. This is well illustrated in Bakalar v. Vavra, a case involving an Egon Schiele drawing allegedly stolen from Fritz Grunbaum during the Holocaust and, after being sold through a sale to a Swiss dealer in 1956, being offered for sale at Sotheby’s in New York. The trial court judge followed the lex situs rule and, applying Swiss law, held that the Swiss dealer had acquired title to the drawing under the good faith purchaser doctrine (2008 U.S. Dist. LEXIS 66689 (S.D.N.Y. 2008)). However, on appeal, the decision as to which law to apply was reversed. The Second Circuit held that the lex situs rule was no longer the correct principle under New York law by which to resolve the choice-of-law question (619 F.3d 136 (2d Cir. 2010)). Rather, the question should have been analyzed based on an ‘interest’ test, which examines the contacts each jurisdiction has with the event, giving rise to the cause of action. Under this test, the Second Circuit concluded that New York had a compelling interest in the application

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of its law and in the outcome of the dispute. The court looked to the facts that the drawing was located in New York, that the current possessor acquired it in New  York, and that New  York had an interest in preventing the city from becoming a market for stolen artworks. This was in contrast to Switzerland, which the court viewed as having little continuing interest in the fate of the drawing. When the case was remanded to the District Court, the court analyzed the claim under New York law but held that the claim was barred under the doctrine of laches (2011 U.S. Dist. LEXIS 91851 (S.D.N.Y. 2011)). The choice to apply Spanish law in Cassirer seems unusual in light of other cases decided in the United States. However, in the Cassirer decision, jurisdiction over the Thyssen-Bornemisza Foundation, an instrumentality of a foreign State, was obtained based on the Foreign Sovereign Immunities Act (FSIA). More typically, federal jurisdiction is attained under diversity jurisdiction, in which the federal court is nonetheless bound to apply state law and the forum state’s procedural rules, including its choice-of-law principles, as occurred in Autocephalous Greek-Orthodox Church and Bakalar. Because federal jurisdiction in Cassirer was based on the FSIA, however, this meant that the court needed to apply a federal choice-of-law rule and turned, in this case, to the Restatement for the relevant rule. Cassirer thus presents an exception, and in cases based on diversity of citizenship, courts in the United States will continue to apply the forum state’s procedural rules which, in most cases, will lead to application of the forum state’s substantive legal rules as well. In turn, this means that in most cases of recovery of stolen artworks and cultural objects brought in the United States, the nemo dat rule, albeit tempered by the various judicial approaches that may extend or limit the time in which a claimant may bring a claim, rather than the good faith purchaser doctrine, will prevail.

Part III Art Fraud and Forgery

14 Profiling Art Forgers Noah Charney

You think of yourself as a fine painter or sculptor, but the market and critics disagree. You’ve given it a shot, but just can’t make a go of a career as a full-­ time artist. You also feel hard done by, your work having been dismissed, or ignored altogether, by the established art world, which feels like a closed, elitist club to which you have not been invited. You would like to earn your keep creating art. You would like to have your work praised by the establishment. And you would quite like to show up those snooty so-called experts, who know far less than they think they do. This is the motivational profile for the majority of famous art forgers. While there is no consistent profile for art thieves, art forgers do tend to possess a consistent set of initial motivations to pursue a career in art fraud, when their intended career path as a famous artist of original works did not pan out as planned. The consistency of motivations is so remarkable that it is almost easier to spot the outliers, those who do not exhibit this “forger’s profile”, than it is to count those that do (the original research in this chapter is detailed in Charney 2015c). Imagine, as a failed original artist, if you were offered the following Faustian bargain: if you can pass off forgeries, then you can fulfill all of your professional desires. You can earn a living as an artist, albeit working in the style of This chapter is drawn from several published sources written by the author, including Charney (2015a, b), both of which are based on research in the author’s book Charney (2015).

N. Charney (*) Association for Research into Crimes against Art, Amelia, Italy © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_14

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others. Your creations may be praised by the art world, although your name will never come up. And you will demonstrate the foolishness of the so-called experts, who cannot tell the difference between your work and that of an established master. The latter two victories must necessarily be private ones— unless—of course, you are found out. But that is a part of the offer that may not sound so bad either. Art forgers receive very small prison sentences, at low-security prisons, if they are sent to prison at all. Some of them have earned a fortune through their dark art prior to capture and, having gone from down-­ and-­out to wealthy, it may well be worth the risk of a year or two in a non-­ threatening prison, on the off chance that you are caught. But there may even be benefits if you are caught. Consider the two private victories. If you are caught, or if you “out” yourself voluntarily (as does happen), then the private triumphs turn public—often very public—as the media enjoys trumpeting the escapades of art forgers. Rather than having to cackle to yourself in the safety of your blinds-drawn living room, now the whole world can see that you have shown up the “experts”, representatives of an art world collective that had been so foolish as to have dismissed your original art. And your name will be touted as an artist as good as those you forged, for if experts couldn’t tell the difference then, the theory goes, you must be just as good as Picasso or Giacometti or Van Dyck or Vermeer. This theory does not hold water upon closer inspection, but you are unlikely to want to dissect a theory that praises you and that the general public will devour, for everyone likes the story of a hard-on-his-luck, self-made man, who overcomes the odds and cuts the elite down to size. The use of the word “man” is no accident: there have been no known female art forgers (though there have been numerous female accomplices). The media, both tabloid and broadsheet, makes celebrities of loveable rogues, larger-than-life rapscallions who seem to have fallen out of nineteenth-century novels, unthreatening criminals who exhibit touches of genius and are more pranksters than dangers. All this describes the majority of known art forgers, and none of it is negative. Sure, many will think you committed a crime, defrauded some wealthy people or institutions, though the media likes to imply that such victims can “afford” their losses and perhaps deserved to have some strands of wool pulled over their eyes. But no one was hurt, and the cultural-historical damage— such as the pollution of archives with forged documentation used to pass off forged artworks or injury to an artist or expert’s reputation—is little considered by the majority of the population. Unlike most crimes, there is essentially no societal condemnation of the actions of those convicted. Imagine you are at a cocktail party, and someone whispers to you that the dramatic-looking gentleman holding court by the punch bowl is a convicted drug smuggler,

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loan shark or Ponzi schemer. You’d likely slink away in the opposite direction. But a convicted art forger, whose works hang, unrecognized as such, in major art museums? How intriguing. Art forgers are painted as Robin Hood-like folk heroes, talented and clever and engaged in a “victimless” crime. While fraud in the art world is hardly victimless, few members of the general public would shed a tear for hoodwinked millionaire collectors or the finer details of the catalogues raisonnée of centuries-dead painters. The publicity that inevitably follows the arrest of a forger is largely positive, and quite a few forgers have taken advantage of their post-exposure limelight to establish lucrative careers. Forgery is a very British sort of crime. The British Isles have the dubious distinction of having produced an astonishing number of successful forgers, not only of art, but also of literature and relics of natural history. Of the 60 or so profiled in my book The Art of Forgery, England provided the most, followed by the Netherlands, with other nationalities far behind. Whether this is due to the fact that Blighty has truly produced more forgers per capita, or whether they just have a tendency to get caught and therefore come to light more than their foreign counterparts, is a question difficult to answer. But there are aspects of British sociology that make this nation a good playing field for confidence tricksters. When asked by Frieze Masters magazine to provide a “field guide to British art forgers”, I had little trouble filling out the roster and realized that there was almost an inherent British-ness to forgery. To keep this chapter brief, I had to be selective in my case studies, so the prominent British forgers are as good as group as any to serve as our exemplars of this dark art. All were highly successful forgers, at least until they were found out. But that moment of capture is not the end of a forger’s career, but can, in fact, offer the moment of greatest satisfaction. For the forger’s success at passing off his work (and for whatever reason it is inevitably a “he”) is a private one, until he is caught. Only then is his work praised for having fooled experts and the experts publically shamed for having fallen for it. And after serving inevitably brief prison sentences, many of these forgers went on to lucrative post-capture careers. Let us meet the murderer’s row of British forgers, a Dickensian collection of colorful characters.

William Sykes (Eighteenth Century) Dubbed a “noted trickster” by Horace Walpole, the libertine William Sykes is best known for having simply added a fake inscription to an authentic anonymous fifteenth-century Flemish painting he had acquired (a description of

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this painting may be found in Dodsley 1761 and Walpole 1780, as noted in Graham). With it, he managed to convince the Duke of Devonshire that the depiction of an unidentified Saint (currently in the National Gallery of Ireland) was actually a portrait of Saint Thomas a Becket, commissioned by King Henry V and painted by Jan van Eyck, whose works claimed the highest prices at auction of any artist in this period (information on Sykes may be found in Charney 2010 and Graham 2007).

William Henry Ireland (1775–1835) The hunger to make a great discovery, and thereby earn one’s name in the world of academe, has prompted numerous forgeries, all of which were propelled by the desire of the general public to find what the forger provided. William Henry Ireland’s father was an avid collector of Shakespeariana, so his son produced forgeries (unbeknownst to Dad) to fill out his collection and spread his father’s fame for having discovered lost documents about Shakespeare’s life. Ireland was foiled by hubris, when he tried to pen an entire lost play by the Bard. It had the audience going through Act One of its London premiere, but not for long after (the story of William Henry Ireland may be found in Stewart 2010 and Pierce 2004).

Charles Dawson (1864–1916) The Piltdown Man skull, found in a gravel quarry in 1912 and thought to prove Darwin’s theory of evolution, appeared to be part ape, part homo sapiens—the so-called missing link. It made the career of naturalist and collector Charles Dawson, as well as filling out his cabinet of natural curiosities, on display at his stately home (Blinderman 1986; Russell 2003). Until, that is, it was discovered that the skull was a handmade hybrid, combining the skull of a medieval man, the mandible of a 500-year-old Sarawak orangutan, and the fossilized teeth of a chimpanzee, all of which had been “aged” in a bath of chromic acid and iron.

Tom Keating (1917–1984) The British forger of Old Masters was as loveable as he was infamous. He turned to forgery to prove his artistic talent when his original works were dismissed by the art world—the origin of so many art forgers. He created

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more than 2000 forgeries of the works of over 100 artists, including an (in) famous version of Constable’s The Haywain, which he simply painted as a mirror of the original. After he was found out, Keating became the star of a popular 1976 British television series on Channel 4, in which he taught aspiring painters how to copy famous pieces. In the year of Keating’s death, Christie’s auctioned 204 of his works and found eager buyers (Keating et al. 1977 tell much of Keating’s story, as does a more recent article, MacGillivray 2005).

Eric Hebborn (1934–1996) Perhaps the most skillful and thoughtful of all art forgers, Hebborn was a graduate of London’s Royal Academy of Art and claimed to have produced approximately 1000 Old Master drawings, purported to be by Rubens, Raphael, Van Dyck, Poussin and Tiepolo, among many others, often creating what appeared to be preparatory drawings for famous paintings (most of the material on Eric Hebborn comes from his own books, see Hebborn 1996, 1993; Landesman 2001). These drawings were sold by noted auction houses to numerous prestigious collections, including The Getty. He was inspired to forge after a real drawing, which he owned, was knowingly undervalued by the famous London dealer Colnaghi. The dealer bought the drawing from him and then sold it on a few weeks later for many times the price. Hebborn wanted to get even, and he certainly did. He would later write two memoirs about his career, including The Art Forger’s Handbook, in which he teaches his tricks to aspiring forgers. He was murdered in Rome in 1996, under mysterious circumstances.

Shaun Greenhalgh (Born 1961) The most recently captured master forger, Greenhalgh was only convicted in November 2008. He and his octogenarian parents were involved in the most wide-reaching forgery campaign of all time, over a period of 17  years. Greenhalgh successfully fooled Christie’s, Sotheby’s and The British Museum, among many other illustrious victims, and created works of astounding diversity, from twentieth-century British sculpture to the “Amarna Princess”, an Egyptian statue purportedly from 1350 BC. He and his family were finally caught when a British Museum expert noted that Assyrian sculptural relief tablets, ostensibly from Sennerachib’s palace in 700 BC Mesopotamia, contained misspellings in cuneiform. But despite his success, and with nearly a

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million in the bank, he and his family lived humbly in a one-bedroom council estate apartment in Bolton. When caught and asked why they continued to live thus with so much money unused, his father said, with sincerity, “I’ve got six new pairs of socks in my dresser drawer. What more could I want?”.1

John Myatt (Born 1945) Over ten years Myatt forged works by Chagall, Giacometti and many more, to accompany provenance forged by his dealer, John Drewe, which was surreptitiously inserted into real archives to later be “discovered” by scholars. This not only causes problems with the forgeries in question, but also leads to collateral damage—scholars study archives, which may contain fraudulent material that they will assume is real. Investigators have recovered 60 forgeries, but another 140 remain unfound. After serving a very short prison sentence, Myatt helped the police track down other forgers still at large. He now sells “genuine fakes” bearing his signature for six-figures, hosts a Sky Arts television program and George Clooney optioned his life story to be made into a Hollywood film (the complete story of Drewe and Myatt is told in Salisbury and Sujo 2010). And lest we think that the forger’s profile is unique to Britain, consider a handful of others among the hundred or so I have researched over the years: Lothar Malskat (1913–1988) was commissioned to restore frescoes damaged during the Second World War in a German church (for more on these other forgers, see Charney 2015c). He and his partner found that almost none of the original frescoes had survived, nor did photographs that showed what they had looked like. Rather than giving up, he decided to paint his own “medieval” frescoes. It was a media sensation when what the world assumed to be beautifully restored medieval wall paintings were revealed—the German government even featured a detail from them on national postage stamps. But Malskat was unsatisfied with this private success and wanted notoriety. He announced that he had forged the frescoes—and no one believed him. He was so desperate for recognition that he took the unusual action of suing himself, in order to have a platform on which to demonstrate that he was the genius behind these paintings. It turned out that he had planted anachronisms in the  The Greenhalgh family story has been told in many publications, but the author’s insider insight comes from interviewing Vernon Rapley, the former head of Scotland Yard’s Arts and Antiques Unit and the man who arrested the Greenhalgh family. An interview with Vernon Rapley was undertaken by email in 2013 and also gleaned from several public talks that Rapley gave with me, during which he told the story of the Greenhalgh family.

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work, just in case he was not believed—one of the medieval ladies depicted on the church wall turned out to be Marlene Dietrich. Han van Meegeren (1889–1947) so thoroughly bamboozled the world’s leading Vermeer scholars that he nearly got himself executed. He had sold one of his forged Vermeers to Nazi leader Hermann Goring—a treasonous crime in post-war Holland and one punishable by death. With his life on the line, he had to prove, in court, that he had forged this “Vermeer” against the choke-hold certainty of experts that it was an original. Elmyr de Hory (1906–1976) claimed that he could fire off a passable Matisse in an hour and courted fame to such an extent that he allowed himself to be the subject of a best-selling book Fake! by Clifford Irving, which was made into a popular film, F for Fake by Orson Welles. Wolfgang Beltracchi (born 1951), only recently out of prison, has likewise published several books about his exploits and sanctioned a feature-­ length documentary film, while courting the media with the panache of a PR guru. That England’s history is thick with prominent forgers is, in part, down to the fact that London is the capital of the art market, so fraudsters see it as a rich poaching ground. The bizarrely opaque organism that we call the art trade (opaque and bizarre even in its multi-billion-dollar per year legitimate side) is largely to blame for the success of forgers working within it. This happens to the sort of crime that the public enjoy following (particularly the British public): those who hail from the lower social strata thrill at forger’s passive-aggressive defiance of perceived “elites”, a dose of schadenfreude, while those “elites”, the collectors and experts who are the victims, function within an atmosphere of gentleman’s agreement-style refusal to question the status quo and to avoid overt confrontation, resulting in relatively easy targets for clever criminals. The art trade has been the realm of aristocrats since the Renaissance and started up in earnest at the end of the eighteenth century, when those same grandees, no longer supported by the idle or warring life of the then-defunct feudal system, were feeling tight and so had to sell off the trappings of their aristocracy, beginning with their art collections. But Lord So-and-So didn’t want to advertise that he was in financial straits, and so early auction houses, Christie’s and Sotheby’s, accepted a code of anonymity. They would not reveal the name of the seller, simply referring to objects as “property of a gentleman” or “property of a lady”, implying the aristocratic origin, which meant that buyers could acquire a prestigious relic of the blue-blooded elite (and one that the blue-bloods could no longer afford, but that you, the buyer, could) without revealing the provenance or ownership history of the work. Much of this tradition remains intact today (see for an explanation of the art trade and its

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code of anonymity Charney 2015c). Provenance is listed, but sometimes it requires a police warrant to reveal a seller’s name. The art trade remains one chockablock with gentleman’s agreements, handshake transactions and a level of opacity that would be shocking in another field. What other multi-billion-­ pound annual trade is generally comfortable with transactions in the six- or seven-figure range without demonstrable proof that (a) the seller legitimately owns the object for sale and (b) the object for sale is what it purports to be. Could you imagine buying a lavish, multi-million-pound flat on Hyde Park without knowing the owner, without seeing a deed that proves that the seller owns it and relying on an “expert” real estate broker to tell you that it is indeed a nice flat and worth the money? This sort of thing happens in the art world, with paintings and statues swapped in for flats, where value is largely determined by “experts” who may or may not have true expertise. It is not unusual for antiquities, which might have been excavated and exported just a few decades ago, to have little or no provenance. And yet, they are bought for millions by major museums (as recent scandals at the Getty and elsewhere have demonstrated). Some of these objects turn out to have been looted (like the Euphronios krater) and others turned out to be forgeries (like the Getty kouros) (this is an oft-told story, but good summaries include Felch and Frammolino 2011 and Hoving 1997). But it is the opacity of the art trade that permits clever criminals to operate with a great deal of impunity within it. Enter the British-ness that can abet a forger’s success. There are two factors at play. On the one hand, there is a general willingness to accept the habits of tradition, particularly when they function within a context that appears socially elite. Those participating in the high-end art trade enter a sort of club of the wealthy, tasteful and posh. For centuries, certain practices, like the anonymity of buyers and contract-less transactions, were acceptable and so, those new to the world have a certain social pressure to continue to accept it. It is easy to see how wily confidence tricksters can take advantage of this. Likewise, the value of art is quite unscientific—it is based on how much similar works have sold for in the past—but there is also a large dose of expert opinion. It’s a bit like an extremely high-end version of a trip to the auto mechanic. If you don’t know how to fix a carburetor, or even what a functioning carburetor should look like, then you are forced to rely on the mechanic and his estimation of what the fix will cost you. If you see a painting that you quite like, but do not know anything about its history or authorship, then you must rely, as Eric Hebborn did, on the word of experts, who may be happy to pull the wool over your eyes. But now we get to the flip side of the equation. There is strikingly little disincentive to try forgery. The British love real-life Dickensian “characters”,

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loveable rogues, Loki-like tricksters, artistic magicians, artful dodgers and those who, in a clever and elegant way, stick two fingers up at the elite. Art forgers do just this. Most come from humble origins and, through skill and wile, hoodwink toffee-nosed Oxbridge specialists who, in theory, should know better and are cut down to size. Dr. John Stubbs, an award-winning British biographer sees this in English literature as well as life. According to an interview with John Stubbs, undertaken in the winter of 2015, “The English admire forgeries of human nature. It’s there in John Le Carre, it’s there in Oscar Wilde. The putting on of a stylish front. Oscar Wilde’s characters are moving works of art. There’s a clear step between that psychology of passing oneself off, and passing off one’s work as something more admirable and valuable than it actually is. It’s a trope of English literature: the interloper. The guy from nowhere who intervenes in the status quo, often from the lower social strata, and becomes a hero”. Satisfaction in such a story is not uniquely British, but a glance at headlines in tabloid newspapers demonstrates on a daily basis that it is beloved of the British. This means that, when a forger is caught and his forgeries revealed, there is little or no outrage at the crime of fraud committed. Instead, the press tends to paint the forger as a folk hero, a working-class Joe who outwitted the Establishment, with no one (who could not afford it) being too badly damaged by what is seen more as an elaborate practical joke than a true crime. And so, forgers, once found out, are often painted as stars by the media. Several on this list were made into stars quite literally: Tom Keating and John Myatt both had their own television series in which they taught how to paint like the masters. The combination of light prison sentences, popular and media interest and lack of a social stigma even once found out, art forgery is a crime that seems to pay. In centuries past, art was authenticated by connoisseurs—a matter of personal opinion could be the difference between a work worth seven digits or three. Witness the trial over the “American Leonardo”, an intriguing copy of Leonardo’s La Belle Ferroniere, which its owners, a working-class family from Kansas, called the Hahns, wanted to sell as an original (Brewer 2009). Sir Joseph Duveen and his top art authenticator, Bernard Berenson, dismissed the Hahn version as a copy, without having seen it in person, by virtue of the fact that the original was in the Louvre. The Hahns sued for libel, because the value of their painting had been vastly undercut by experts expressing their opinion. Today, provenance is the primary authentication method, provided the work in question looks reasonably good. This is where clever forgers most convince: if the documented history of the object is sufficiently compelling, even experts tend not to look too closely at the work itself, sometimes missing

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red flags that, in retrospect, seem obvious (like John Myatt employing emulsion paints rather than oils), but which were overlooked because the provenance appeared solid. The best way to be certain that art is what it claims to be is through forensic testing which, these days, is neither very expensive nor necessarily intrusive to the work in question. Forensic investigation of works, what we might dub “CSI: Art”, began at the 1932 trial of Otto Wacker, who was on the stand in Amsterdam on suspicion of having dealt in forged van Goghs. The provenance was suspicious (Wacker claimed he was selling the works on behalf of a Russian family that did not want to be named), and the two leading van Gogh scholars could not agree on the authenticity of a handful of the paintings. With neither provenance nor connoisseurship able to reach consensus, a chemist was called in, Martin de Wild, who cracked the case, finding a resin and lead in the paint of the Wacker van Goghs that the artist did not use, which had been added to speed up the drying of the oil, to make the forgeries market-ready faster (Tromp 2010). Scientific testing can rarely prove authorship, but can often demonstrate inauthenticity. It can find tell-tale signs that something suspicious is afoot, most often by identifying anachronisms in the material of the artworks, such as the use of titanium white paint in a work purported to have been made before that paint had been developed, as in the case of famous forger Wolfgang Beltracchi. It is much harder to create forgeries that can withstand forensic tests (among the pantheon of forgers who aped long-dead artists, only Eric Hebborn produced frauds of that quality), but forgers know that they do not have to, because the art trade tends to over-rely on connoisseurship and provenance, both of which are easier to fool. It need not be that way. Why not require positive forensic tests when acquiring art of past eras? The gentleman’s culture of the art trade discourages boat-rocking, but the fallibility of experts and the wily manipulation of provenance by successful forgers mean that buyers should feel well within their rights to request forensic testing on a significant art investment prior to purchase. For there have been dozens of forgers who have fooled connoisseurs and employed traps based on provenance, but there has been only one Eric Hebborn.

Bibliography Blinderman, C. (1986). The piltdown inquest. New York: Prometheus Books. Brewer, J. (2009). The American Leonardo. Oxford: Oxford University Press.

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Charney, N. (2010). Stealing the mystic lamb. New York: Perseus Books. Charney, N. (2015a, Spring). A field guide to British art forgers. Frieze Masters. Charney, N. (2015b, May 16). The art of forgery. The Times. Charney, N. (2015c). The art of forgery. London: Phaidon. Dodsley, R. (1761). London and its environs described. London: R. and J. Dodsley. Felch, J., & Frammolino, R. (2011). Chasing Aphrodite. New  York: Houghton Mifflin Harcourt. Graham, J. (2007). Inventing van Eyck. Oxford: Berg Publishers. Hebborn, E. (1993). Drawn to trouble. New York: Random House. Hebborn, E. (1996). The art forger’s handbook. New York: Overlook. Hoving, T. (1997). False impressions. New York: Touchstone. Keating, T., Norman, G., & Norman, F. (1977). The fake’s progress: The Tom Keating story. London: Hutchinson and Co. Landesman, P. (2001, March 18). A crisis of fakes. The New York Times Magazine. MacGillivray, D. (2005, July 2). When is a fake not a fake? When it’s a genuine forgery. The Guardian. Pierce, P. (2004). The great Shakespeare fraud: The strange, true story of William-Henry Ireland. Erfurt: Sutton. Russell, M. (2003). Piltdown man: The secret life of Charles Dawson and the world’s greatest archaeological hoax. Stroud: The History Press. Salisbury, L., & Sujo, A. (2010). Provenance: How a Con Man and a Forger rewrote the history of modern art. London: Penguin. Stewart, D. (2010). The boy who would be Shakespeare: A tale of forgery and folly. Cambridge, MA: Da Capo Press. Tromp, H. (2010). A real van Gogh. Amsterdam: University of Amsterdam. Walpole, H. (1780). Anecdotes. London: Strawberry Hills.

15 Examining Art Fraud Kenneth Polk and Duncan Chappell

Introduction In this chapter, we address the topic of art that is deemed to be non-authentic art that in other discussions might be referred to as “fakes” or “forgeries” (although we hope to make clear as we proceed why for our purposes as criminologists we will avoid using these terms). As the words are used here, “non-­authentic art” will require first a clarification of what is meant by “authentic art”, with “non-authentic art” becoming thereby art that is not “authentic”. Our understanding, and definition, of authentic art is that it is, simply, what it is claimed to be, with non-authentic art becoming art that is not what it is claimed, or appears, to be. For example, an art object that is asserted to be the creation of a famous artist, when it has been created by another, lesser known (if known at all) artist, would within this usage become “non-authentic art”.

An earlier and truncated version of this paper was presented at an Arts and Humanities Research Council funded workshop on the topic of “Art Fraud and Forgery” held at The Royal United Services Institute for Defence and Security Studies, Whitehall, London, on 16 January 2017.

K. Polk University of Melbourne, Melbourne, VIC, Australia D. Chappell (*) University of Sydney, Sydney, NSW, Australia © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_15

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The Issue of Authenticity in Art How can we be sure that any given art object is “authentic”? Conventionally, there are three approaches suggested as aids for examining claims about the authenticity of a given art object. First, one can submit the work to some form of scientific investigation to assess its origins. Second, the art object can be examined by known experts who have experience with the art in question, who, as connoisseurs, might be able to assess the claims made for the art. Third, the provenance, or ownership history, of the art can be examined to determine if a clear trail can be drawn from the time it was created by the original artist to the present time.

The Role of Forensic Science One suggestion for help in determining whether an object is authentic or not is to turn to a variety of scientific tests that explore possibilities in this regard. Charney (2015, pp. 26–32), for example, provides a list of 16 different tests that can be employed in such an examination. There are illustrations of the important role of such testing when these have been used in actual criminal trials of suspected frauds involving art, as in the early case of Otto Wacker who was charged with fraud for selling bogus van Goghs (these events took place in 1932). In the criminal trial, what Charney (2015, p.  27) called “definitive evidence” was produced by a chemist who found that the artworks in question utilized a mixture of resin and lead to make the oil dry faster, a technique that van Gogh never employed, that evidence being central in the conviction of Wacker. In a more recent case, the noted German fraudster Wolfgang Beltracchi was found out in part because of his use of titanium white, a paint scientific testing revealed that had not been developed when the artworks in question were supposedly created (Charney 2015, p. 157). Also in a recent case involving the Knoedler Gallery, a painting in 2011 supposedly by Jackson Pollock that had been sold for US$17 million when sent for forensic testing was found to have contained a yellow pigment not available until well after Pollock’s death (Charney 2015, p. 162). The results in these cases were definitive and helped bring down the fraudsters who employed techniques that testing demonstrated could not have been used by the artists claimed as the authors of what were determined to be non-authentic works. These cases, and other similar examples, demonstrate how scientific testing can play a defining role in cases where the authenticity question reaches a criminal court in the form of a trial for art fraud.

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Unfortunately, such testing can be much more effective when it provides clear evidence that the work in question is not what is claimed by the defendant. In actual use, it has proven less helpful in demonstrating that the work is authentic as described. Testing, of course, can be of assistance in building a circumstantial case. If the artist in question is left-handed, it is helpful (but far from definitive) to find from a microscopic examination of the brush strokes that the work appeared to be produced by a left-handed person. A general observation is that while scientific procedures may at times produce evidence that a work definitely could not have been done by the claimed author, such testing is acknowledged to be much less decisive in making the case that the work was done by the claimed author. In the terms of the present analysis, while scientific testing has proven to be decisive in establishing in some cases that the art in question is not authentic, it has time and again been shown to be far from conclusive in determining that the work is authentic.

The Role of Connoisseurship A second way of assessing the authenticity of a work is to consult those who have expertise in assessing the work of a given artist. At times, those who are experts in dealing with a given artist have what is to an outsider an amazing sense of the work of an artist and are able to judge the authenticity with a clear sense of command regarding the task. Often, such experts are family members of the artist, and their association over the years of being close to the artist gives them a unique sense, or “feel”, about a work’s authenticity. Unfortunately, however skilful such experts can be, there may be other experts who may not share the conclusions of such connoisseurs. Even when contrary opinions are not available, the language used by such experts may be far from convincing, especially if the matter reaches a courtroom. Furthermore, the record of connoisseurs indicates that such experts are not infallible. The history of art is riddled with experts who were shown to be wrong in their assessment of authenticity. One example of this is the false Vermeers produced by van Meegeren. In the 1930s, Abroham Bredius was considered to be one of the outstanding scholars regarding the works of Vermeer. However much he knew about Vermeer and his paintings, Bredius was wrong in his very public assessment of the false Vermeers produced by van Meegeren, since his praise of the “new Vermeers” ultimately was shown to be incorrect (see the story recounted by Charney 2015, pp. 94–100). The problem of the inconsistency of known experts has been recounted at length, so much so that observers such as Charney (2015, p. 26) are able to assert, with

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considerable evidence one should add, that the use of such experts has in the present day “been demoted from its perch as the definitive method for authenticating art”.

Provenance Provenance refers to the ownership history of the object in question. As we shall see, where the work has been produced in very recent years, the various players (artist, dealers, collectors) who have been directly involved with the work may still be available, or at least their actions regarding the object may be within the living memory of those close to them. In these circumstances, it may be possible to define a clear history of ownership. As time erodes these ties, the issues of provenance mount.

Confirmed Identity with Solid Provenance One form of what appears to be solid provenance arises when the work is purchased by a major collection or collector shortly after it has been created, often in the lifetime of the artists. The National Gallery of Victoria (the NGV) purchased several works by the noted Aboriginal artist Emily Kam Kngwarray before her death in 1996, including such paintings as Ananty (Wild Potato) purchased in 1989, the very large (roughly 3 by 8 metres) Anwarlarr anganenty (Big yam Dreaming) purchased in 1995 or Awaly purchased in 1991. The Gallery description of each of these gives a sense of the origin of the work and how it came to be in the collection of the NGV. In this case, there can be little room to doubt that the provenance of these works is firmly established. There are a number of other examples of purchases where the work was obtained shortly after it was created, so that there is little question about the authenticity of the object, as in the case of the painting by the Australian artist John Brack (who died in 1999) The Car (painted in 1955), purchased by the NGV in 1956, or his Nude in an Armchair (painted in 1957), purchased by the NGV in 1957. Similar conclusions can be drawn about the work of other Australian artists purchased by the NGV, such as Fred Williams, since many of the 478 works by this artist now in the NGV were purchased before, or shortly after, his death in 1982. Where the museum has purchased the work so soon after its creation, often while the artist is still alive, few questions can be raised about authenticity since the trail of ownership history is clear for all to see.

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A rather different example of what appears to be solid provenance has been provided by a recent auction conducted by Sotheby’s in Sydney (Cockington 2016). One of the items auctioned was the painting, Sydney Harbour by Sir Arthur Streeton. The work was painted in 1907 and first was acquired by a main patron of the artist, Sir Walter Baldwin Spencer, living in Melbourne, for £75 (at one stage, Spencer was said to have owned 41 works by Streeton). In 1919, the work was purchased by Sir Thomas Elder Barr Smith, a pastoralist in South Australia, for 500 guineas. It remained in the hands of that family until 1976, being sold at that time but staying in private hands. The work is still in its original frame. In this instance, the artist had established a solid reputation at the time the work was created, and the pathway of ownership from that time can be traced without interruption to the time of the current sale, and thus becomes yet another example of confirmed identity with solid provenance (although it is notable that, since its original purchase, the work has remained in private hands).

 xamples of Acceptable Provenance: Reasonably Firm E Identity with Acceptable but Perhaps Incomplete Provenance As we shift the focus to earlier centuries, it is no longer possible to rely upon, or to expect, thorough and complete ownership histories for art objects. We have the example of the tracing by Pitman (2006) of the provenance of the painting by Raphael, St. George and the Dragon, created in the opening years of the sixteenth century. The work can be found today in the National Gallery of Art in the United States, where it has been since being donated to the museum in the 1930s. Before that, it was definitely in the hands of the Russian Government, previously it had been in the collection of Catherine the Great and before that it was known to have been owned by Henry VII, Henry VIII and Charles I in England. Documentation indicates that it was commissioned by the Duke of Urbino in Italy in 1506. While it was presumed to be in England in the 1500s (it apparently was commissioned by the Duke of Urbino in response to overtures made to confer upon the Duke the Order of the Garter of England), the first known and dated sighting in England that can be verified was in 1627 (Pitman 2006, p. 106). While the gap in the provenance here involves a long period, today it is generally accepted that the St. George and the Dragon in Washington is a work by Raphael. Sometimes the identity of works of early artists is supported by work done by gallery scientists, as is the case of the Raphaels in the National Gallery in

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London that have been subjected to careful analysis, showing (among other things) that the procedures used by Raphael in the paintings were consistent with practices used at the time he was working (see, e.g. Ashok et al. 2004). What we see in these examples is a weaving together of observations based on what limited provenance information is available, expertise from those knowledgeable about the art period in question and scientific analysis which can be helpful in providing assurance that the techniques employed were consistent with what would be expected from the artist examined.

 xamples of Provenance That Is Less Firm, Where There E Are Unanswered Questions About the Origins of the Works Including Its Authorship, but Where the Present Owner Seems to Have Responded Responsibly to Questions of Authenticity An example where the provenance information is far from firm can be found in the painting of Henry VIII currently in the holdings of the Art Gallery of New South Wales (AGNSW). According to information provided by the AGNSW in their current website, the earliest information about the work is from a 1945 Christie’s catalogue, which listed the previous owners as “Messers Vokins” of London, England, dates unknown; the Earl of Wemyss, Scotland, dates unknown; and the Earl of Gosford, Northern Ireland (current owner). The work is reported as being connected with P&D Colnaghi and Co. in 1948, and then it was purchased by the Art Gallery of New South Wales at an auction at Sotheby’s in London in 1961. In a 1945 sale, there was a note that the work was “as by Holbein”, but in the current AGNSW listing, it is described as a product of an “Anglo-Flemish Workshop” with a date estimated to be 1530–1550. The vague and open dating is a common experience in the museum world. The work is clearly quite old, but unfortunately little is known about most of the years before the recent decades. There is, simply, no provenance data available for the work for much of the first 500 years of its existence. It seems reasonable to assume that it is not a work by Holbein, and the alternative description now provided by the museum is the vague workshop designation. While an accurate and correct description, and quite a reasonable one for the museum to give to the work, it is hardly a firm statement of the author of the object. It is necessary here to acknowledge that the absence of information about most of the early and middle years of this work, including the authorship, precludes any definitive statement regarding who was responsible for producing the painting, or even who has owned the work over the many years of its history.

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It needs to be recognized that this absence of historical information is quite common for works that are many years old, and in these circumstances, it must be assumed that even the artist who created the work may not be known. The correct designation for such a work, as the museum in this example indicates, is uncertain. In these circumstances, which must be acknowledged as common, the descriptive terms must give credence to the absence of definitive information regarding authorship. While comments such as the painting being a work from an “Anglo-Flemish Workshop” may appear vague, such terms appear to convey accurately what is known, and not known, about the object.

The Problem of Non-authenticity From the foregoing, we have seen that the question of authenticity can be complicated. In some cases, notably more common with works that have been recently created, it is possible to base the conclusions that the work is what it is claimed to be on the basis of the firm and known provenance of the work. In some cases, the authenticity of the work is generally accepted, despite the fact that there are gaps in its known provenance. In other cases, all that can be asserted is that the work belongs to a certain “school”, or is perhaps the product of a known “workshop”, the very words conveying the uncertainty about the work. In this last case, the authenticity of the work results from a ­recognition of the limits imposed by the absence of information. In all of these different situations, assertions can be made that the work is as it is claimed, that is, it is “authentic”. Taken together, these various distinctions provide a collective definition of authenticity. The procedures used to make these determinations also create the conditions that make possible the determination that a work is non-authentic. This problem—that of non-authenticity—arises when claims are made about the identity of a work that can be shown to be false. How often do we encounter situations where a work can be deemed non-­ authentic? Early on it is necessary to address the question of “how much” non-authentic art there is. The answer to that has to be, at least from us, that we are unable to provide a definitive answer, however important this question may be. Thomas Hoving, who served for a time as head of the Metropolitan Museum of Art in New York, asserted in his memoir book that in his time at that museum, he had examined at least 50,000 works of art, and he estimated that a full 40% were “phonies” (1996, p. 17). Sloggett is more modest, both in her use of language and in her estimate of the level of the problem, asserting

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that roughly 10% of the works appearing on the international art market are examples of “mistaken identity” (Porter 2007). There is ultimately no source that can be consulted for a precise number or percentage that can be used as a benchmark for the important, but unanswerable, question of “how much” non-authentic art exists. All we can attempt at present is to indicate the rather different forms that non-authenticity can take, with most being cases of what can be termed “mistaken” or perhaps “disputed” identity, while, as we shall see, relatively few cases can be found where work is the result of the dishonesty that must be established in cases of art fraud.

The Problem of “Honest Mistakes” A first group of non-authentic works consists of those cases that appear to mesh most neatly with Sloggett’s suggested term of “mistaken identity”, that is, cases where it is possible to determine that the original attribution is not correct; yet, there is no hint that the current mis-attribution is in any way dishonest or the result of a criminal intent to deceive. As an example of such possible “honest mistakes”, The Head of a Man painting was sold a number of times between the 1920s and 1930s, finally being purchased by the NGV in 1940. At the time, it was considered to be the only van Gogh in Australia and displayed proudly as such by the NGV. In the early 2000s, it was sent to an exhibition of the work of van Gogh in Scotland, where concern was expressed about the correctness of the attribution. Close and intensive inspection by authorities in Amsterdam decided that it in fact was not by van Gogh. It was, in short, a case of “mistaken identity”. At no point has there been any concern that the mistakes that occurred were a consequence of known dishonesty. The gallery in question in fact attempted to assure the public that, while the original attribution was not correct, this work should not be viewed as a “forgery” (NGV 2007). This tale becomes even more involved since the purchase in 1928 was by a German industrialist by the name of Semmel. As a Jew, he became concerned by the election in early 1933 of Adolf Hitler to power in Germany and he moved to Amsterdam where he sold the van Gogh at an auction in the summer of 1933. Semmel later moved to Chile and from there went to New York, where he died in the 1950s. Once they found out that the Head of a Man was in the possession of the NGV, the Semmel heirs asked that the painting be returned to them, arguing that the sale was a consequence of the coercion imposed by the political conditions in Germany at that time. Drawing upon the so-called Washington Principles (US State Department 1998) that were

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developed in the l990s to deal with precisely such claims, the NGV decided to return the painting to the Semmel heirs. Over the many years to the present, there has been the development of an appreciation of artistic work and with that the development of an art market and that in turn has created an increasing concern about the presence of false works attributed to famous artists. Indeed, of Corot it was famously quipped that: “Corot painted three thousand canvases, ten thousand of which have been sold in America” (this often-quoted observation has been attributed to Rene Huyghe, e.g. see Keats 2013, p. 99). This presence of false works attributed to famous artists has a number of negative effects, including, of course, the loss of value of authentic works, even objects with what appears to be solid provenance. One result is that those interested in the protection of the authentic body of works of an artist will take steps to preserve the identity of the artist. An example was begun in the late 1900s, when the Rembrandt Research Project (RRP) was created in The Netherlands to address the problem of the many works which were attributed, incorrectly, to Rembrandt. After many years of work, the RRP in its first three volumes of published research findings found that 52% of works examined by the RRP had been correctly attributed to Rembrandt, while 43% of the objects were not correctly attributed to this artist, and in 4% of cases, the correct attribution could not be determined. As a result of the work of these researchers, in other words, close to half of the art objects previously attributed to Rembrandt could be considered as the work of someone other than Rembrandt. They were, in short, in the opinion of the RRP, cases of “mistaken identity” (The Rembrandt Research Project 1983).

“Disputed Identity” Another group of works might be designated cases of “disputed identity” where a debate exists about the correct attribution of the work. In the BBC television programme “Fake or Fortune” (aired in Australia on 23 February 2016 by the Australian Broadcasting Corporation) the topic for the programme was a painting where the identity of the artist was in dispute. The painting had been included in the catalogue of works by Pierre Auguste Renoir published by the distinguished French firm Bernheim-Jeune (who also in earlier years had been the agents for the works of Renoir), but it had been rejected as not an authentic work of Renoir by the Wildenstein Institute, also located in Paris. Without the endorsement of the Wildenstein Institute, the painting will not be accepted for sale by the major auction houses. As such,

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the painting has little value. In the course of the television programme, considerable circumstantial evidence was reviewed which supported a claim of authenticity by the current owners, including a review of provenance information. The painting could be traced to the Monet family, which had held the painting since Renoir had gifted the work to his close colleague Monet, and it emerged from the Monet family as a consequence of the settlement of the estate of Blanche Monet in 1937. In addition, a variety of scientific findings supported the claim that the work had been done by Renoir (including a comparison of the pigments used by Renoir set out by the artist himself at the time the painting was completed, these pigments shifting to quite different pigments as Renoir’s career evolved). Further, there were supportive opinions of several Renoir scholars who were interviewed in the programme. The Wildenstein Institute reconsidered the earlier conclusion as a result of the submission to it of the new findings, but that organization concluded that the work still should not be considered an authentic painting by Renoir because it had not been signed by the artist, the provenance information was not compelling and the painting was weak and not up to the standard of a genuine Renoir. Another illustration of the problem of dispute about the identity of the author of a work can be found in the book produced by the Metropolitan Museum of New  York regarding the early Chinese artwork Riverbank. The opening chapter of the book is an “Indictment” listing 14 counts against the authenticity of Riverbank by Prof. James Cahill, arguing that the object is probably a modern bogus work created by the well-known Chinese faker, Zhang Daqian. In a later chapter, M K Hearn, then the curator of Asian Art at the Metropolitan, argued on the basis of an analysis of the physical evidence that: “While such a physical examination cannot settle the question of Riverbank’s authorship or period, it nonetheless makes it impossible to argue convincingly that it is of modern manufacture” (p.  112). This provides an important example of how scientific analysis can help in ruling out some hypotheses, but it leaves in place important questions about the “ruling in” of a hypothesis of authorship. Also, it provides an important example of the limits of connoisseurship. In this case, accordingly, if we accept the argument (and the data) assembled by Hearn, we are forced to reject the argument advanced by Cahill (accepted as a competent expert on Chinese art) that the object had been created in modern times by Zhang Daqian, but as an alternative all we can assert is that it has been created at a much earlier time. Thus, even if we accept Hearn’s argument, we remain with the observation he makes that we still do not know the identity of the original author of the work. We have “ruled out” the possibility that the work was created by a modern artist,

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but we are unable to “rule in” any conclusion about the identity of the creator of the work. Another example of how authenticity can be disputed concerns the Rembrandt Research Project (RRP) and its evaluation of the work, The Polish Rider, attributed to Rembrandt, which is in the Frick Collection in New York. In the first round of results of the RRP, Josua Bruyn suggested that characteristics of the work of Willem Drost, a student of Rembrandt, could be found in the painting (although the technique in the painting of the face seemed to suggest to many the hand of Rembrandt). The Frick at no point changed the attribution of the work, and recent opinion has tended to support this attribution (Bailey 1994). This notable rejection of the conclusion of the original Rembrandt Research Project is not unique. In fact, slightly over one-third (44, or 37%) of the original works originally attributed to Rembrandt and considered by the RRP not to be by Rembrandt in its first three volumes, apparently, by the time the last volume of the RRP was published in 2014, had been “reinstated” (White 2015). In our terms, the conclusions of the RRP about these 44 works had been disputed, and these were now successfully “reinstated” as legitimate works of Rembrandt. At times, the courts are called up to assess claims of authenticity where a dispute emerges. This situation arose recently in North America, where a well-­ known artist (although originally from Canada, he currently is based in both London and Trinidad) was involved in a US Federal court proceeding alleging that the artist had produced the work some 40 years ago (the suit according to press accounts was filed by the person who owned the disputed painting). In this instance, the lawsuit arose because the artist in question denied that he was the author of the work. Since the works of the artist have been sold for up to US$20 million, there was a considerable financial stake in the outcome. The judge in the case, however, found that the painting was emphatically not done by the famous artist, stating that he “could not have been the author of the work” (Perkel 2016, p. 1). An unusual feature of this case was that the lawsuit was not filed by the artist, but by the current owner of the painting in question. In sharp contrast, in a court case that took place in Australia, two artists entered into a civil action against a Melbourne art dealer, accusing him of selling non-authentic paintings allegedly done by them (Blackman and Ors v Gant 2010). This is probably a more common form of dispute, since often artists (or their legal representatives) are forced to seek legal means to protect their reputations from bogus artworks supposedly created by them. In this case, the court found that the artworks were not created by the two artists and ordered that the non-­ authentic works be given to the two artists, who then were able to destroy the

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false paintings. It is interesting that this was a civil, not a criminal, case and that actually the court did not address the culpability of the dealer in question, focusing solely on the issue of the lack of authenticity of the works of the two artists. Lest this be seen as unusual, an example was seen recently in Korea, where the representatives of the family of an artist are suing a museum they allege has been showing for a number of years a painting by the artist Chun Kyung-ja, which the family argues was not created by her (the artist herself, while alive, made the same claims). Interestingly for present purposes, a French firm has now been engaged to carry out scientific analyses to see if it is possible to determine the facts of this complex situation (Shin 2016).

Fraudulent Identity Finally, we arrive at the problem of non-authentic art, where there is clear dishonesty by those currently placing the object onto the market. In these situations, the deception must be viewed as more than a mistake, since, alongside the deception, dishonesty is involved. While diverse terms are used by those in the art market to describe this situation, here, we note that at the core of them there is the issue of criminal fraud as these terms are used in the criminal law. As we examine the narratives of mistaken or disputed identity above, where the art object can ultimately be found not to be what it is claimed, we can see that the focus properly is upon the object itself and the accuracy of the description provided. When we turn to the question of fraud, we find that, in addition to this issue of accuracy of the attribution, there is the dimension of the motivations behind the introduction of that object into the art market. Commonly in the criminal law, there are four “elements” that must be present for a successful prosecution for fraud to occur: (1) some form of deception on the part of the defendant must be proven and, in the case of an artwork, it must be shown that the object is not what it is claimed to be, that is, it is deceptive, or, in our terms, not authentic; (2) that deception must have arisen out of dishonesty or the criminal intention on the part of the defendant; (3) that dishonest deception must have produced harm felt by the victim; and (4) that victim was actually deceived by the defendant (Lanham et al. 1987). In the circumstance of fraud involving an art object, a first matter for the prosecution is to prove that the art is not authentic, that it is in fact deceptive. Proving this in most situations will involve the use of testimony of expert witnesses who will provide the necessary evidence that the art is not what it is

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claimed to be. At times, this will be a simple matter of presentation of evidence of materials of some sort that are inconsistent with the period of the artist, or a similar situation where the materials used provide clear evidence that the object could not be authentic. In other cases, proof regarding this important element may be more problematic and rely on evidence of stylistic differences between the artist claimed as the author and the style employed by the person creating the deception. The second element, dishonesty or criminal intent on the part of the defendant, will require proof that is most often circumstantial. For example, the working methods of the person creating the deception will be examined, since these often make clear that these procedures would only be considered if dishonesty was contemplated. Thus, there may be evidence, such as false labels among the working gear of those involved in the deception, or perhaps even the characteristics of the framing materials used in the creation of deceptive works. In cases of art fraud, once these two elements have been established, the other two elements, namely of deception that must have produced harm felt by the victim and that the victim was actually deceived by the defendant, while relevant, are actually manifest. Thus, if a work is claimed to be that of a Golden Age Dutch painter, when it is a modern creation and it has been sold as an old work to the victim at great cost, one hardly needs to spend time demonstrating the harm suffered by the victim. Similarly, in such a case, it will be obvious that the victim has actually been deceived by the false work; otherwise, the large payment would not have been made.

Cases of Art Fraud Are Rare From all of the foregoing, we can make the following observations. First, the instances of art fraud, despite popular concern, are actually quite rare. We know of less than a dozen cases of art fraud that have reached the courts in Australia over the past four decades or so. That country is obviously not a major player in the world art market, but even in such countries as the United Kingdom or the United States, this same observation can be made. Unfortunately, official statistics compiled by policing or court authorities are silent on the question of how much fraud there is, but in all countries where art is sold, we find few cases of art fraud being prosecuted. In books on the various forms of non-authentic art, support for this assertion can be found in the scarcity of cases and the frequent use of the same art fraudsters by quite different writers as exemplars of this activity.

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Five issues can be commented upon to account for this scarcity of cases of art fraud. First, we have to acknowledge that we can only know about cases that have been brought into the criminal justice system and where the media comment about the case brings it to our attention. Thus, there may be cases where either there is no comment by the media about the fraud or the frauds involved have not yet been uncovered by the criminal justice system. In Australia, Grishin (2015) has argued that he knows of at least 15 fakers who have been active in recent years and who have not yet been discovered. This number of “undiscovered” producers of what may be fraudulent art, while not a large number, is somewhat greater (to an unknown degree) than the small number of cases that have been brought forward into the courts of Australia. Second, the police are a necessary and important part of the criminal justice system, providing the entry point and the bulk of the investigation into the case. Yet, typically police are not eager to pursue cases of art fraud. This form of crime does not fit stereotypical patterns of what is considered to be “real” crime, few police have any training regarding art, the victims are often seen by police as not being “worthy victims” and the amounts involved most often hardly seem even to police concerned with fraud to be worthy of the effort involved. Third, their role in the fraud often places victims in a position where if they keep silent and are not identified as a victim in this instance, the non-­ authentic art that they have purchased, often for large sums, might later be passed on as authentic and sold on the market, thereby preserving the ­investment in the art that may otherwise become worthless. Fourth, and often overlooked, is that any of the large schemes to move non-authentic art onto a market as authentic works can only be successful if the works are produced by a person with some level of skill as an artist. Those who possess such skills are likely to seek recognition in their own name if they are artists. Fifth, we have to acknowledge that any prosecution will inevitably involve reasonably significant works of art, so that those working at the bottom of the market, for example, on EBay, for small amounts of money (e.g. US$500 or even less), will not appear in the records of prosecution for art fraud.

The Problem of Serial Offending As one reads many of the accounts of art fraud, one is struck by the obvious fact that had the criminals involved stopped after one, or perhaps two, of the fraudulent transactions, in all probability the crime(s) would not have been discovered. Time and again, however, the ultimate undoing of the fraudsters occurs when they attempt repeated entry into the art market. This repetitive

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entry into the market poses perils for the offenders. In addition to unpredictable accidents that are inherent in the enterprise, the fraudsters must attend to such issues as avoiding the emerging awareness of the market that fraudulent works are originating from a particular source and thus must be ready with ever-new inventive stories that can be told to provide an acceptable, but false, provenance for the object. Despite this, it would be exceptionally rare for even a skilful faker to be at work repeatedly producing works on the market without some within that market becoming suspicious. However unreliable they might be for legal purposes, connoisseurs are likely to be aware that a “new hand” is at play in the production of artworks. If there is continued entry into the market, rumours are likely to begin to spread, and even initial steps taken to address the source of the false works. At this point, it seems not uncommon that those involved develop what can only be termed “defective risk assessment” strategies, strategies that not only become “unstuck”, but then their very complexity leaves identifiable traces behind that ultimately provide critical evidence of the fraud that substantiates claims for the dishonesty of the defendants. (For an example, see the account of the activities of Drewe and Myatt in the work of Salisbury and Sujo 2009. These activities included the falsification of the archival records of major art institutions, like the Victoria and Albert Museum in London, which, when eventually detected, provided an invaluable ­evidentiary trail of deceit and deception leading back to the ringleader in the case, John Drewe.)

 Second Emerging Trend: The Issue of Two Kinds A of Expertise as a Feature of Art Fraud In addition to serial offending, we may also be seeing a trend whereby a person, who has ready access to a portal in the art market, uses that advantage to set up a fraudulent art scheme, rather than the artist creating the fraudulent object in the first place. This person makes use of a portal, or perhaps shifting portals, into the art market in order to insert the fraudulent objects. This form of art fraud involves two quite different forms of expertise. First, there must be an artist involved who can create objects that will pass review by knowledgeable individuals located in the art market. Second, there will be a person (who ultimately becomes quite central to the fraud) who arranges for the entry and sale of the object onto the art market. In one landmark case centred in the UK market, John Myatt served as the artist for the frauds, but it was John Drewe who arranged for the entry of the forgeries onto the art market

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(the details of the fraud, including rather elaborate schemes to obtain false support for claims of provenance, are described by Salisbury and Sujo 2009). These same dynamics are seen in the sad tale of the downfall of the Knoedler Gallery in New York, but in that case, the only portal selected by the fraudster was the Knoedler Gallery. The artist in this case fled to China, where he apparently remains free from extradition by the US authorities. In Australia, these dynamics were allegedly found in the combination of Gant (the dealer) and Siddique (the person who created the artworks), both convicted in 2016 but subsequently acquitted on appeal in 2017 (see McKenzie-Murray 2016; Brown 2017), and also in the early case of Curvers (Hills 2002) (who apparently was the fraudster and mastermind) and Blundell (whose “inneundos” were, according to his telling, known by Curvers to be false works). Since the police were unable to find evidence contrary to this account, Blundell was not convicted (Curvers had died before the inquiry had begun). While this division of labour has the advantage of permitting the individuals to use their talents to an advantage, the downside is that the repeated entry involved not only begins to strain the ingenuity of the fraudster passing the works into the market, it also begins to leave indelible signs of intentionality and dishonesty necessary for a successful prosecution for fraud, as we have already noted, for example, in the Drewe and Myatt case.

The Issue of What Terms to Use The perspectives found in the art arena are numerous, and it is absurd to think that there will be any consensus among them about how to use such terms as commonly used as “fake” or “forgery”. Some will elect to flop about, using one term here, another term there. Kurz, in the preface to the original edition of his classic book on fakes (his term), goes back and forth between the terms “fake” and “forgery” at least a dozen times on just the one page, implying equal meaning to these words (see Kurz 1967, p. vi). Others may attempt to impose a standard definition as they proceed. For example, Charney (2015) prefers the term “forgery” as the suitable generic term for intentional non-­ authentic art and defines this as “an object made in a wholesale, fraudulent imitation of something else”, which is seen as different from a “fake” defined as “an original object that has somehow been altered or ‘doctored’—a painting, for example, to which a spurious signature has been added” (Charney 2015, p. 16). A quite different take on how these words might be used can be found in the recent discussion by Sykes (2016), where we find that forgeries are: “what most of us are thinking of when we imagine art crime—bogus

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works made by accomplished modern-day artists deliberately to resemble the real thing”, whereas fakes “are works by other artists that are passed off as works by more important artists”, or this word can be applied as well to “copies of a work done at the same time or in the same era as the original” (Sykes 2016). We are not attempting to argue that other writers, especially those coming from other perspectives, should not use such terms as “fake”, “forgery”, “confabulation”, “bogus” or similar terms in their writing. In such usage, the terms will presume a meaning close to their dictionary definition. A word such as “fake”, of course, can be used as either a noun, an adjective or as a verb. Typically, the meanings of “fake” would be rendered as, if a noun, “any person or thing not genuine”, or “an object that is made to look real or valuable in order to deceive people”; if an adjective, “not genuine, spurious”, or perhaps “not real, but made to look or seem real”, while, if used as a verb, “to make up and attempt to pass off as genuine”, or “to make an object look real or valuable in order to deceive people”. There is a hint in some of these definitions (and in the common usage as found in the media) of some level of deception, which in some usages implies even more: that the deception is deliberate, even dishonest. Since it is recognized that terms such as “fake” or “forgery” are going to have wide currency in writing concerning art that is not authentic, it is ­important that we make clear why we have avoided such common terms. In our view, the word “fake” carries with it unfortunate connotations of intentional deception that may, or may not, be present when a non-authentic work is the focus of attention. This would be true in the situation of “an honest mistake”, or even “disputed identity”, as these terms have been discussed here. In the cases of, what we have termed mistaken or disputed identity, there is presently no concern with dishonesty. If dishonesty is not present, then the concern for fraud drops away. While we have not employed the term “forgery”, our reasons in this context are a bit more complicated. Those with a background in criminal law, for example, will know that use of the word “forgery” may present problems. There was a case (R v. Closs 1858) in the middle of the nineteenth century in England where the presiding judge laid down a finding that forgery was an offence that involved documents, but since a work of art did not constitute a document, the criminal law regarding forgery could not be applied. While the logic may prove a bit confusing in the contemporary context, in some common law jurisdictions, such as Australia, this case still constitutes the relevant precedent; so technically speaking, the charge of forgery may not be pursued where the false object in question is a work of art (a charge of fraud, however, may be applied).

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While words such as “fake” and “forgery” will have some reference to non-­ authentic art, only where the key elements of fraud are present is it going to be possible to speak of art fraud. It is interesting that many of the examples of non-authentic art discussed by Keats or Charney are actually examples of proven art fraud. Four of the six artists discussed by Keats (2013) as “modern masters” actually went to trial (although one, Keating, was let off by the prosecution when he became seriously ill). These same four are mentioned in Charney’s book, which includes the stories of several other individuals who were found guilty of fraud, including the recent cases (not mentioned by Keats) of such figures as Drewe, Beltracchi and those involved in the sad fate of the Knoedler Gallery in New York.

Conclusions A first conclusion is that understanding non-authenticity in art requires first and foremost a grasp of what underlies authenticity. For works that are many years old, there may be only fragmentary evidence that supports a conclusion that the work is authentic. Thus, the combination of information about ­provenance, the combined evidence of experts and the scientific evidence will at best lead to a tentative conclusion that the given work is authentic. Second, most of the situations where art is deemed to be not authentic will involve “mistaken identity”, either in the form of what have been termed here “honest mistakes” or “disputed identity”. Much of the time, dishonesty will not be a part of the current decision about the identity of the work, although at some time in the past, often in the distant past, the object may have been produced by individuals who were motivated by dishonesty. Third, despite recent well-publicized cases of fraudulent artworks entering the upper end of the international art market, this type of crime is still quite rare, at least on the evidence currently available primarily from criminal justice sources. These sources clearly have deficiencies, not the least of which is the reluctance of the victims of art fraud to report their victimization to law enforcement authorities. But most of the instances where an object is deemed to be non-authentic will be a result of mistaken identity and will not involve the criminal intent required for a conviction for fraud. Fourth, from the viewpoint of those working within a criminal justice framework, it is relatively easy to avoid the use of terms such as “fake” or “forgery”. In its common use, the word “fake” often presumes some level of dishonesty on the part of the person or persons placing the object onto the art market and such an interpretation would be inappropriate in cases of

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mistaken identity. While we would urge caution when describing the art object in a way that might cause confusion, we recognize that others may find terms such as “fake” or “forgery” more to their liking. We ourselves find it difficult to avoid using the term “faker” to refer to the artist that is responsible for the creation of an art object that is part of a fraud, especially when it is recognized that there may be a growing trend for the art fraud to be organized, on the one hand, by a fraudster who then, on the other hand, negotiates to find an artist willing to create the artworks (a “faker”) necessary for the fraud. In any case, those interested in the issue of non-authentic art will have to negotiate their way through language that at times may not correctly convey the exact legal meaning attributed to the art object in question.

Bibliography Ashok, R., Spring, M., & Plazzotta, C. (2004). Raphael’s early works in the national gallery: Paintings before Rome. London: National Gallery Technical Bulletin 25, Distributed by Yale University Press. Bailey, A. (1994). Responses to Rembrandt: Who painted the Polish Rider? A controversy considered. New York, NY: Timken Publishers. Blackman and Ors v Gant and Anor. (2010). VSC 109. Brown, G. (2017, April 28). Whiteley art fraud accused exonerated, p. 5, the news section of The Australian. Charney, N. (2015). The art of forgery. London: Phaidon Press. Cockington, J. (2016, August 24). Strong appreciation in Streeton works, pp. 2–3, the ‘Money’ section of The Age. Grishin, S. (2015, March 19). Is that a Whiteley? Why collectors buy Lousy Fakes as masterpieces. The Conversation. Retrieved October 10, 2016, from http://theconversation.com/is-that-a-whiteley-why-collectors-buy-lousy-fakes-as-masterpieces38832. Hills, B. (2002, May 23). Judge gives go-ahead to sell 1000 fake paintings. The Sydney Morning Herald. Retrieved January 7, 2017, from http://www.smh.com.au/articles/2002/05/22/1022038435765.html. Hoving, T. (1996). False impressions: The hunt for big-time art fakes. New York, NY: Touchstone. Keats, J. (2013). Why fakes are the great art of our age. Oxford: Oxford University Press. Kurz, O. (1967). Fakes (2nd ed.). New York, NY: Dover Publications. Lanham, D., Weinberg, M., Brown, K., & Ryan, G. (1987). Criminal fraud. Sydney: Law Book Company. McKenzie-Murray, M. (2016, May 21). Inside the Brett Whitely lavender bay fakes trial. The Age. Retrieved January 7, 2016, from https://www.thesaturdaypaper. com.au/news/law-crime/2016/05/21/inside-the-brett-whiteley-lavender-bayfakes-trial/14637528003269.

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National Gallery of Victoria (NGV). (2007, September/October). Not a forgery, but not a Van Gogh. Gallery Magazine, p. 10. Perkel, C. (2016, August 23). Painting owned by Canadian not by famous artist Peter Doig, judge rules. The Star. Retrieved August 26, 2016, from www.thestar.com/ news/world/2016/08/23/is-this-painting-a-genuine-peter-doig-or-a-worthlesspeter-doige-judge-to-rule-today.html. Pitman, J. (2006). The Raphael trail: The secret history of one of the world’s most precious works of art. London: Random House. Porter, L. (2007, December 2). Art imitating art. The Sunday Age, p. 18. R v Closs. (1858). 169 ER 1082. Salisbury, L., & Sujo, A. (2009) Provenance: How a Con Man and a Forger Rewrote the History of Modern Art. New York, NY: The Penguin Press. Shin, J.  (2016, September 23). French firm to authenticate controversial Korean painting. Korea Bizwire. Retrieved September 24, 2016, from http://koreabizwire. com/french-firm-to-authenticate-controversial-korean-painting/66764. Sykes, T (2016, October 8). How Sotheby’s got hoodwinked: The art world’s $20m forgery scandal. The Daily Beast. Retrieved October 11, 2016, from www.thedailybeast.com/articles/2016/10/08/how-sotheby-s-got-hoodwinked-the-art-worlds-20m-forgery-scandal.html. The Rembrandt Research Project. (1983). The Burlington Magazine, 125(968), 661–663. US State Department (USD). (1998). Washington conference principles on Nazi-­ Confiscated art. USD. Retrieved January 7, 2016, from http://www.ngv.vic.gov. au/wp-content/uploads/2014/05/Washington-Conference-Principles-on-Naziconfiscated-Art-and-the-Terezin-Declaration.pdf. White, C. (2015). The Rembrandt project and its denouement. The Burlington Magazine, 157, 71–73.

16 Case Study 1: Beltracchi and the History of Art Fraud in Germany Saskia Hufnagel

Introduction Art fraud is not a new area of crime, particularly not in Germany. Many prominent art forgers have come from Germany or have committed their crimes in Germany. Lothar Malskat, for example, fooled the German art world with his forgeries in the 1940s and 1950s. Edgar Mrugalla forged everything from Rembrandt to Franz Marc and was a prominent German forger in the 1970s and 1980s. Wolfgang Lämmle and Rüdiger Faller worked throughout the same period and distributed a significant number of forgeries throughout the world before being caught by German police. Forty years later, Tom Sack invented the names of the painters of his works and gave them all a very impressive vita to sell the pictures for more money than he could ever sell his own for. At the very top of German forgers, in particular with regard to the damage incurred by the victims, ranges the Beltracchi case, the self-proclaimed Robin Hood of German forgers, which the media baptised, slightly more disrespectfully, Till Owlglass. This chapter developed out of a number of previous single- and co-authored publications by the author on the topic of German art fraud more generally and the Beltracchi case in particular (Chappell and Hufnagel 2012, 2014, 2016; Hufnagel 2015, 2018). It gives an overview of a number of German art

S. Hufnagel (*) Queen Mary University of London, London, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_16

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fraud cases throughout history with a particular focus on the Beltracchi and other more recent forgery cases. All cases portrayed here caused, to greater or lesser extent, damage to buyers, experts, galleries and the reputation of the art market more generally. This chapter addresses the peculiarities of both victims and offenders in these cases and the criminal justice responses encountered by them. The chapter concludes by addressing how these cases might have impacted the current (and future) prevention, detection, investigation and prosecution of art fraud cases in Germany and beyond.

A Short History of Art Fraud Art crime, and in particular art fraud, is not a new phenomenon. Forgers have committed their crimes around the globe for centuries, though until the fifteenth century, art fraud was not criminalised. One reason for this was that artists only developed a sense of legal ownership of their works in the fifteenth century. The oldest known case of art forgery involved the German artist Albrecht Dürer (1471–1528), who lived at a time when many artists even welcomed distribution of copies of their works. Albrecht Dürer was known to allow the copying of his works, though not the reproduction of his signature. The original woodcut The Apocalyptic Woman, for example, is displayed in the National Museum in Nuremberg, Germany. A ‘legal’ reproduction of this work can be seen in the City History Museum in Nuremberg, but is signed ‘AD IVF’ (Iheronimus von Frankfurt). Iheronimus was authorised to create the reproduction, but had to mark it with his own name. Dürer had created this process to ensure that his original works would retain a higher value than the reproductions (Schreiber 2009, p. 21). What could be seen as one of the earliest known copyright protections for artists emerged in England in the eighteenth century. The famous engraver William Hogarth created the very successful print A Harlot’s Progress in 1732. Due to its salacious nature, and display of naked female flesh in particular, this print was imitated widely as soon as it was published. Hogarth was not the only victim of these methods. In the 1720s and 1730s, many engravers complained about the ‘piracy’ relating to their works. Hogarth decided to take matters into his own hands and lobbied in the parliament for greater legal control over the reproduction of his and other artists’ work. The result was the Engravers’ Copyright Act 1735 (known as Hogarth’s Act) (Hunter 1987, p. 128). Between the fifteenth and the eighteenth centuries, we can thus observe a shift from private to State protection of the intellectual property of artists. This was not a real move to criminalisation though, as the copyright law was

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geared towards civil law compensation rather than criminal law retribution. Copying works of talented artists remained for a long time a means of promoting their work, and criminalisation remained rare. Despite several forger celebrities in the nineteenth and early twentieth centuries (Hufnagel 2015), forgery as a crime only started to become prominent with the shift from art as cultural artefact to art as a traded commodity. The move to the commoditisation of art is evident in the Scull Auction in 1973, which was the first standalone auction in the United States to sell contemporary art (Horowitz 2014, p. 10). Hitherto, contemporary art was sold in galleries, not auction houses, and prices were low. In 1997, the Ganz Auction lifted this development to yet another level, as 58 works of the collection were sold at Sotheby’s in New York. The collection had been acquired for US$2 million and sold in that auction for US$206.5 million (Wagner and Westreich Wagner 2013, p. 78). This constituted a significant shift in how art was traded and collected, making it both easier and more lucrative for forgers to operate. Today, art fraud is viewed as a property crime grounded in dishonesty and deception, and as such is regarded as a criminal offence around the globe. That said, cultural attitudes towards it still differ widely. In China, it is seen as a reverence to the master when students copy his or her work, and attitudes towards ‘forgeries’ and ‘copies’, more generally, are rather tolerant (Bull and Gruber 2015). However, even when we stay in the Western world, art fraud does not generally attract attention from law enforcement and prosecution agencies. The few cases that do make it to court and a conviction result in typically low sentences, which is particularly discouraging for the police and prosecutors involved in the very complex and time-consuming investigations of art fraud (see with regard to police responses to the sentence in the Beltracchi case Chappell and Hufnagel 2012, 2014, 2016).

The Criminalisation of Art Fraud in Germany The problem of trivialisation of art crime begins with the challenge of criminalisation. Generally, the criminal law does not prohibit and punish ‘art fraud’ as a distinct offence. Offences that are potentially applicable include the standard offence of fraud, as well as falsification of documents and infringements of copyright legislation. Whether the falsification of documents offence applies to the case of art fraud depends on the legal system. While most civil law systems use a charge under this offence together with fraud in art crime cases, common law systems do not view a piece of art as an official ‘document’—this means that only general fraud offences are available.

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The maximum penalty for fraud in most common and civil law systems is five years’ imprisonment and/or a fine. For serious cases of fraud, the penalty is around ten years’ imprisonment, requiring that the fraud was committed by the offender as part of an art crime gang and for commercial gain (organised crime in some countries). In Germany, a criminal law prohibiting and punishing ‘art fraud’ as an offence does not exist. The offences that are potentially applicable are fraud (§ 263 German Criminal Code—Strafgesetzbuch or StGB), falsification of documents (§ 267 StGB) and infringements of Copyright Laws (§§ 106  ff. German Copyright Code—Urheberrechtsgesetz or UrhG). The maximum penalty for fraud is five years’ imprisonment or the equivalent fine, but for serious cases of fraud the penalty is ten years’ imprisonment, requiring that the fraud was committed by the offender as part of an art crime gang and for commercial gain. The Beltracchi case, for example, fell under the definition of serious fraud and was therefore punished more severely. However, the sentence was still very low (Beltracchi received a six-year jail term), with a view to the damage caused (estimated at €34 million). German art fraud cases are generally considered disappointing with regard to the sentences, particularly by police and prosecution involved in the investigation and trial. Due to the low sentences in art fraud cases, the German criminal legal system has been criticised by academics and practitioners to be ‘incomplete’ with a view to art crime (Löffler 1993); (Hufnagel 2014). In particular, recent cases of art fraud in Germany have been criticised, mainly by the practitioners investigating them, for being dealt with too leniently by the courts. The most significant of them is the Beltracchi case. Wolfgang Beltracchi received a maximum of six years of imprisonment, his wife Helene Beltracchi four years, her sister Jeanette Spurzem, one year and nine months of suspended sentence and the ‘logistical expert’, Otto ­Schulte-­Kellinghaus, five years’ imprisonment. Considering that the damage caused was estimated around the €34 million mark, these sentences are minimal (May 2016; Deutsches Presse Amt 2011). And, from the viewpoint of the police investigators and prosecutors involved, simply dissatisfactory. Compared to other cases that occurred at the same time, the Beltracchi sentences are also outstandingly low. In the 2009 case of the ‘Count of Waldstein’, a dealer of fake Alberto Giacometti sculptures received a nine-year jail term, though the damage caused (€4.75–8  million) was a fraction of that in the Beltracchi case (Schmid 2015; Röbel and Sontheimer 2011). In another famous German art fraud case, the Hitler diary forgeries, the sentences were even lower. Konrad Kujau, the forger of the diaries, received a two year and six months sentence of imprisonment and his accomplice, the journalist Gerd

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Heidemann was convicted to two years and eight months of imprisonment (Vensky 2010). It could be concluded that while art fraud historically has received very low penalties in Germany, in recent years prosecutors have been increasingly critical of this leniency. In comparison to other fraud sentences, the damage/sentence ratio is also low. For example, within the banking sector, in a case where the damage amounted to €6.3 million, the sentence was six years (Frankfurter Rundschau 2017). Compared to UK cases, German sentences could be regarded as rather high, however. Sentencing in UK cases of the last 20 years tended to display even more leniency. Shaun Greenhalgh, an extremely versatile forger of the twenty-first century, similarly active as Beltracchi, received four years and eight months of jail sentence in 2007 and John Myatt, who produced an estimate of about 200 forgeries, received a one-year sentence for conspiracy to defraud in 1999 (see Interview with John Myatt in this volume).

 erman Art Fraud Cases and Their Impact G on the Detection, Investigation and Prosecution of Art Fraud One of the oldest known art fraud cases in Germany is that of Albrecht Dürer (1471–1528), as already mentioned above. The fact that he allowed the copying of his works, but not the reproduction of his signature, leads to the conclusion that his case had a significant impact on the way artists could protect their rights, and, in particular, the monetary value of their original works (Schreiber 2009). While this did not bring about changes to substantive German (criminal) law, it certainly changed the practices within the engravers’ profession. One of the oldest German ‘legends’ of a Dürer forgery involves his Self-­ Portrait (in a fur jacket), which was created in 1500. Three hundred years later, the painter Abraham Wolfgang Küfner was commissioned to create a copy. There are several assumptions as to what happened next. In the first legend, Küfner split the 2 cm thick wooden plank; the portrait was painted on, and he sold the original painting without the seal of authenticity on the back. On the part of the plank that retained the seal, he then painted the copy. Another assumption is that he did not split the plank, but separated the seal from the original and attached it to the copy. The ‘front’ and probable original of the portrait is today one of the main attractions in the Old Pinakothek in Munich. The ‘back’ with the remains of the seal is still in Nuremberg and the Museum

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is eager to keep the myth alive, doubting on its website whether the original is actually in Munich (Museen Nürnberg 2012). In this particular case, the forgery had no detrimental impact on the art market or the buyers. To the contrary, the forger legend made both—the fake and the original—much more valuable. The buyer of the fake, 200 years ago, however, is very unlikely to have benefited from receiving the forgery. This shows that the ‘value’ of a fake can change over time and in different contexts. What might have been a significant loss 200 years ago, becomes an asset today. Another German forger story, though more recent, revolves around the Cranach painting Madonna under the fir tree. This painting of 1510 was painted for the Breslau Cathedral (at that time Breslau was in Germany, today it is Poland). The painting remained in the cathedral for about 430 years. In 1961 it was discovered that the Cranach in Breslau was not the original anymore. The Odyssey of the painting probably began in 1943 when it was, together with other Breslau art treasures, hidden in a Cistercian cloister in the countryside. Three years later—the story goes—the chaplain of the Breslau Cathedral commissioned the painter Georg Kupke to make a copy of it, which he executed, though poorly. It is alleged that the chaplain wanted to save the original from the Russians and take it with him to the West. Until 2012 the original kept resurfacing at different occasions, usually connected to an offer for sale. However, it only finally made its way back to Breslau in 2012. The heir of the Swiss collector who had last owned it returned it to the Polish Government, which in turn gave it back to the cathedral. Who the last owner was, is still unknown. Apparently, the disclosure of the identity would infringe the confessional secret. Whether the Madonna is the original has also not yet been confirmed (Schmitter 2012). While this story is an interesting criminalistic puzzle that can potentially tell a revealing story of the art market, it did not have a major impact on the way forgeries are treated within the justice system, or other cases of repatriation. An important aspect of the case though is that here an original has been replaced by a forgery to be safe from theft and damage. The forgery thereby appears in another context: it is not a criminal act, but a means to save the original, that is, to prevent a crime. While the practice of placing forgeries on display where there is a risk of theft and looting has been practised frequently throughout history, the Cranach was until recently one of the few cases that received public acknowledgement for this preventive technique. In early 2019 a Brueghel (the younger) was stolen from a church in Italy, but Italian police revealed it was a copy deliberately placed to foil heist (Giuffrida 2019). A German forgery scandal, relatively unknown to the general public (although more than 700 articles and papers were published on it), involves the Bode

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Museum in Berlin. The wax bust of Flora had been acquired by the then director of the Berlin Museum, Wilhelm Bode, in 1909. Bode was convinced that the bust, which had only shortly before surfaced on the English art market, was an original Leonardo da Vinci. He stuck to this belief, although there were clear warning signs that the bust had actually been created by the English artist Richard Cockle Lucas, and his son, Albert Dürer Lucas, had confirmed this. Ulrike Wolff-Thomsen calls this, in her in depth analysis of the case, published in 2006, the ‘System Bode’ (a term coined by Karl Voll in 1910), as it shows that a strongwilled and powerful director of a museum can in fact turn a fake into an original. However, today the bust can still be admired in the Bode Museum, but is labelled ‘England? Nineteenth century?’. The true story is—probably—that Lucas created the bust with broken remains of a similar one created in the workshop of C. Domenico in eighteenth-­century Rome. He ‘glued’ the pieces together and used a painting by da Vinci to model missing pieces off it (Wolff-Thomsen 2006). In this case, the behaviour of the ‘victim’, here the museum director, can be said to be detrimental to the detection and investigation of art forgeries. It shows that art fraud is often covered by its victims. The fear of losing credibility, but also the fear of losing a significant amount of money, leads to forgeries remaining with museums, galleries, private homes or dealers despite evidence of them being fake. The justice system therefore has no handle to detect, investigate and prosecute crimes in this field and Bode is just one of many examples of victims not reporting fakes. An interesting case from Southern Germany involved a real-estate agent in Bavaria. Between 2003 and 2008, he dealt with a significant number of paintings including from (allegedly) Manet, Matisse, Dali, Chagall, Picasso and Schiele. Several of them were declared to be forgeries by forensic experts involved in his court case for attempted fraud charges before the local criminal court of Rosenheim (Rosenheim24 2009). He was sentenced to only three years’ imprisonment in 2010. He appealed, but the district court in Traunstein upheld the decision a year later. Interestingly, he never sold a single picture. The only time he did make a deal was with an undercover operative of the Bavarian police, which also marked the end of his career as an art dealer. He also never revealed the source of the pictures. The judge in the appeal court foreshadowed that he would reduce the sentence if the defendant admitted the crimes. He refused: the paintings were real, he claimed until the end (Ibid.). This particular case was discovered due to a successful policing effort, but the actual forger could never be arrested due to the lack of cooperation of the victim (or accomplice). Unit the end of the trial, the defendant invented brilliant stories as to why the paintings were real and his lawyer had to frequently stop him. However, the appeal judgment became legally binding (Effern 2011).

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A German art fraud case from the start of the twentieth century came to the attention of the general public as it involved, very peripherally, the prominent non-German art forger Elmyr de Hory. In the news of 24 July 1911 of the German museum’s association to its members (Deutscher Museen-­ Verband 1911), it says that the German art dealer Max Heimann and his accomplice Viktor Batteux of Brussels were sentenced to a one-year prison sentence each for fraud and attempted fraud. Heimann apparently employed a whole group of artists and artisans to create forgeries of mainly sculptures from the era of romanticism up to the late German Gothic period. He used the forgeries to replace real artefacts, mainly from churches, and then sold the originals. In 1909 these offences were discovered, and in 1911 the forgers were put on trial. There are some claims that Elmyr de Hory learned his trade partly in Heimann’s forger workshop (Partsch 2010, p. 132). In this case, another type of art fraud can be observed, forging to replace originals, to then sell the original rather than the fake. In these cases, there are potentially two victims, the unsuspecting buyer (if they were in fact unsuspecting) and the actual owner of the original. This type of art crime can be said to require a very high amount of criminal energy and encompasses in fact three crimes: theft, fraud and fencing. The accused in the present case were only convicted of fraud. Considering the high complexity of these crimes, it is surprising that the sentences were this low. However, it does show a certain consistency of limited punishment for art fraud in German history. A German forger of relative great acknowledgement is Lothar Malskat. He became (in-)famous in German art history not because his forgeries or personality were outstanding, but because one of the most well-known German contemporary authors, Günther Grass, incorporated him in his novel ‘The Rat’. Malskat’s first known forgery was the wall painting in the cathedral of Schleswig, the St. Petri-Dom. According to Keats, this was not actually his forgery, but the forgery of the original painter restoring the cathedral, August Olbers. Olbers had started to invent motives for the cathedral when restoring its wall paintings as the originals were so badly destroyed that they could not be reconstructed. Malskat then simply followed his example and continued his work resulting in the famous ‘turkeys’ in the painting—which had not yet been introduced to Germany as a species at the time the cathedral had originally been decorated. This was not interpreted by experts to be a sign that the paintings were fake, but used for Nazi propaganda during the Second World War. The independent historian Freerk Haye Schirrmann-Hamkens asserted in 1938 that the turkeys in the painting meant that not the Spanish discovered the New World in the 1550s, but the Vikings must have discovered America earlier. The turkeys therefore became iconic for the skills

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of Aryan seafarers and although they should have been a clear indication of a forgery, nobody at the time—and long after—actually wanted to believe that the murals were a fake (Keats 2012). A similar fate befell Malskat’s second great coup and so his story can be taken as a good example as to why forgeries are so often not detected, because people identify with them regionally or nationally and want them to be genuine and hold on to this belief long after the pieces of art have proven to be fake. After the Second World War, Malskat started to paint forgeries, such as Barlach, Beckmann, Chagall, Munch, Pechstein and Utrillo. His friend Dietrich Fey sold them and it is alleged that Malskat first did not know they were sold as real works of the artists. The enormous amounts of money Fey made with them should have indicated this though. After the German currency reform in 1948, the sales became more difficult. Malskat and Fey were then commissioned to restore murals in the Marienkirche in Lübeck. This was partly done, but some remains were so badly buried under plaster that they would have been destroyed in the process of uncovering them. Malskat therefore painted 21 new figures instead of revealing the old remains. When the church was reopened in 1951, Fey received a lot of praise for the restorations and Malskat was not significantly acknowledged. Angry about the lack of attention for his art, he demanded that Fey reveals the secret of the 21 figures in the church, but Fey refused. Malskat then turned to the press in an attempt to become famous for his art. As Fey kept denouncing the crimes and the church and journalists did not believe him, Malskat turned himself and Fey in to the police in 1952. Even the police did initially not believe Malskat and he had to hire a lawyer to substantiate his case. Both Malskat and Fey were finally arrested and tried and received minor jail sentences of 18 and 20 months, respectively. Malskat first fled to Sweden, but later returned to Germany and went to prison. When he was released, he settled down in Lübeck and became a relatively well-known German painter, at least regionally (Partsch 2010, pp. 147–151). Malskat was never really a prominent forger. He never received a significant jail sentence. He was also never the only culprit in reinventing church decorations. Some art experts still claim that he was one of the main forgers of the last century, but closer research reveals that he was nothing but a very good painter who, unfortunately, was never internationally recognised but through a couple of unfortunate blunders in his early career (Keats 2012). The reason why this case is important for the present chapter is again the behaviour of the victim. Had Malskat not vehemently pushed for his own conviction and recognition as major forger, the church and state would have happily held on to the belief in the authenticity of the paintings. The detection of this crime would have been impossible, despite the obvious ‘turkeys’.

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Another extremely industrious German forger was the son of a scrap metal merchant who first took on his father’s trade and later dealt rather unsuccessfully with paintings and antiques, Edgar Mrugalla. He died in 2016, praised by the German newspaper Der Spiegel as ‘the most famous German art forger’ (Spiegel Online 2016). Beltracchi must have been furious. Mrugalla’s autobiography is rather unspectacular and there is no embellishment or sensational element to his personal history. However, it also appears to be rather inaccurate, seeing that even the sentence he once received for fraud differs from that cited in other sources (it must have been two rather than three years, as he claimed). In his autobiography, which appeared in 1993, he explains that he was forced to forge paintings and never really wanted to be a criminal. Nevertheless, he titled his book ‘King of Forgers’ (Mrugalla 1993). It is assumed that about 3000 forgeries go on his account—claimed to still be part of important museum collections (Hülsmeier 2010). Mrugalla painted nearly everything, from Picasso to Lesser Ury. There is no evidence that he made a fortune with his sales, but an interesting observation in comparison to Beltracchi is that he sold far more paintings, many of which are probably still in museum collections. While this case had little impact on the detection, investigation and prosecution of art crime, the offender here shows the classic curriculum vitae of a forger, comparable also to Beltracchi and Konrad Kujau (who forged the Hitler diaries); Mrugalla was an artist who could not make a living with his original art, hence took up forgery and became famous when the crimes he committed were prosecuted. Four other German forgers of the nineteenth, last and current centuries shall be mentioned here. The first is Wolfgang Lämmle, a forger of the 1970s and 1980s who forged southern German painters of the nineteenth and twentieth centuries. Police tracked him down in 1988, and he received a suspended sentence, but little fame and in 2007 he emigrated to Australia. While his Wikipedia entry mentions him in the same sentence as Mrugalla, none of the current websites on his work and life point out any link to his previous occupation as a forger. In Australia, he is known as a painter and teacher of arts, and no reference was made to his shady past until he reappeared in the news in 2015 (Donaghey 2015). He had sold copies of a relatively unknown artist’s work under his own name, yet another, rarely reported, form of art fraud. He claimed that as the original artist had been dead for more than 70 years, copyright laws had expired and it was ‘like painting from a photograph’ (Ibid.). To Lämmle, copying is not forging. The copy is always a painting in its own right and—if anything—a reverence to the master. While this is an interesting art historical approach, it certainly is not a valid point under Australian, or German, criminal law. The other painter to be mentioned is Rüdiger Faller. He specialised in paintings by Otto Dix which he composed according to the real drafts of the

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painter’s artworks. This method made them appear very realistic while saving the forger the hassle of being overly precise—a painting is rarely executed exactly like the draft. In 1983 the police seized 20 Dix paintings in his house, but returned them as they had been examined by experts who were convinced that they were genuine. However, in 1986 he was arrested and sentenced to a three-year jail term. Despite his initial success and even fooling the police experts, he said in an interview, in 2002, that he was not a great painter. Nevertheless, today he lives of his own art which is impressively displayed on his homepage (Rossner 2002). In 2015, after the publication of his biography, public attention was again attracted to his work and he revealed in a newspaper article that he was unaware himself as to how many more of his forgeries were on the market - or on display in museums (Buchmeier 2015). This case displays another major problem in the detection of art fraud. Some forgeries appear so authentic that they will never be discovered. The youngest forger discussed in this chapter and probably the youngest known in the history of German art forgery more generally is Tom Sack. According to his Wikipedia entry, he was born in 1982; other than his forger compatriots mentioned so far, he did not only copy known artists but specialised in creating paintings along with the vita of invented artists. He established his own art gallery when he was 18 and sold the works of artists that never existed over the internet. This behaviour cannot, however, be seen as fraud and his works could be acknowledged as ‘concept art’. He was sentenced to a minor fine for painting the prosecutor responsible for his case without his consent and trying to sell the painting and a video of the police search of his house over the internet. He allegedly also received a suspended sentence of one year in 2011 for selling forgeries of known artists over the internet. It has been claimed that the sentence was deliberately mild as to enable him to finish his law degree and gain admission to the bar, which is not possible if the sentence is higher. Tom Sack is a curious person to write about, as not much public knowledge is available on him. The main source of information was his website, which has by now been taken down, and his Wikipedia entry, both of which need to be treated with extreme caution. However, he is a relatively unknown (potential) forger who seems to self-promote more than he receives media attention. His motives for committing the potentially criminal acts are further unclear, unless he wanted to attract media attention to make his art gallery (which had a web-entry until recently, so it might still exist) more well known. However, one should think that a criminal reputation does not attract clients to a dealer. Lastly, Reinhold Vasters (1827–1909) should be mentioned who is not a well-known, but major German forger of metal works. He worked in the nineteenth century and was known then for his forgeries rather than his own

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pieces. Vasters lived as a metal smith in Aachen, Germany, during the nineteenth century and restored several pieces in the Aachen Cathedral. After the significant destruction and dislocation of works of art by the Napoleonic conquests, there were new interests in arts and antiques in Europe. Vasters specialised in restoring damaged works of art, in particular metal works, but deceived about their provenance adding inaccurate descriptions and pedigrees when selling them. The wealthy buyers were happy to close their eyes to gaps in provenance, and Vasters’ works became very popular (Krautwurst 2008). Apart from the museums with a specialised interest in these objects, few people know his name. However, some New Yorkers will remember that, in the early 1980s, a Metropolitan Museum’s admired Renaissance treasure was discovered to be fake. The ‘Rospigliosi Cup’ turned out to be the invention of Vasters. The object had been bought in 1913 as a work of Benvenuto Cellini. Several years after the ‘Cellini’ cup entered the Metropolitan, a significant number of Vasters’ drawings were handed over to the Victoria and Albert Museum in London, but not analysed. Only in 1975, experts discovered among the drawings the ‘Rospigliosi Cup’. After that, dozens more ‘Renaissance’ jewels in distinguished private and public collections the world over were determined to be created in Vasters’ workshop (Grassi 2013). From his own records, it can be concluded that there are still many pieces out there under names like ‘Cellini’, that were in fact created by him. Despite his relative anonymity in the art fraud literature, Vasters was one of the few forgers who had a visible impact on the art market with a view to the detection of forgeries. Due to his nearly industrial amounts of forgeries, museum collections are today very wary about renaissance metal works. Two of the most recent art fraud scandals are the Giacometti forgeries (2011) and the ‘Russian Avant-Garde’ case (2013). The Giacometti forgeries were sold by a self-proclaimed ‘Count of Waldstein’, also known under the name of Lothar Senke. He worked together with his business partner, Herbert Schulte, and the Dutch forger of the sculptures, Robert Driessen, over a period of seven years, amounting to an estimated damage, as was later determined by specialist police detectives, of about €4.75–8 million. During the search of a store room in Mainz, police had found 1000 sculptures, and to their surprise, each of them was different, which indicated extreme efforts on the part of the forger. Although it was later claimed by experts that the pieces were easily recognisable as forgeries, the amount of the damage and significance of the stock indicate that many buyers did not effortlessly see through the scam. The news magazine ‘Spiegel’ claims that this was the largest art fraud case in the history of the German art market. However, many of the cases discussed above would dispute this assertion and in both the Mrugalla

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and the Beltracchi cases many more pieces of art were sold for higher amounts of money. The case is, however, outstanding, as in 2009, Lothar Senke received the probably highest known jail sentence for fraud in Germany: nine years (Röbel and Sontheimer 2011). Until 2011 the workshop where the sculptures were cast had not been found. However, in 2012 the police in Stuttgart successfully uncovered the whole story. The fake Giacomettis had been produced in the Netherlands by the Dutch national Robert Driessen. He sold them to the art dealer Herbert Schulte in Germany and they were distributed by the charlatan Lothar Senke. While Senke received the highest sentence, Schulte was probably the criminal mastermind, also because he wrote a book called ‘Diego’s Revenge’ only to create a more plausible story around the many new Giacomettis on the market (about 1000 Giacomettis had been produced by Driessen). The story was that Giacometti’s brother Diego had ‘saved’ the statutes from destruction by the artist and hidden them in a store room in Paris where he handed them over to his friend Lothar Senke who now sold a select few pieces (Brandt 2015). Subsequently, Robert Driessen received a jail sentence of five years and three months. He had been arrested in the Netherlands in 2014 when he was visiting from his by then permanent home in Ko Samui, Thailand. An international arrest warrant had been issued against him and he was extradited to Germany where he was tried in a Stuttgart court. Herbert Schulte, as the criminal mastermind, received seven years and four months of jail sentence. Lothar Senke’s sentence might have been the highest as he never admitted to the crimes (he consistently claimed the sculptures were real Giacomettis). A number of interesting conclusions can be drawn from this case. First, the sentence for the forger in the Giacometti forgery case, unlike in the Beltracchi case, was lowest for the forger and highest for the actual distributor of the sculptures, who fooled the buyers. In the Beltracchi case it was the forger, not the distributors, who received the highest sentence. Furthermore, in this, as in many other forgery cases, the victims until the end wanted to believe that the sculptures were originals. Many of them claimed that they were great pieces of art, even if not by the master. Unfortunately, all pieces found in the victims’ and in Senke’s possession were, however, destroyed in 2012 (Ibid.). They are hence lost for experts who learn to distinguish real from fake Giacomettis, and for critics alike. The last case that needs to be mentioned as it was, at least volume-wise, one of the greatest art fraud affairs occupying police, prosecutors, museums and galleries in Germany alike, is the ‘Russian Avant-Garde’ case. In Germany alone, this international art forger ring was alleged to have sold 1000 paintings of Russian avant-garde artist, such as Malewitsch, Popowa, Puni, El

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Lissitzky and many more (in the above Giacometti case 1000 statutes had been produced, but not sold). In Russia, Spain, France and Switzerland there were further cases that had been uncovered. The forger ring is said to have operated from Israel, and in June 2013 two suspects were arrested in Wiesbaden (Germany) for allegedly selling forgeries from their gallery between 2006 and 2010. It is claimed that the gallery was only established to enable the sale of fake works of art. However, when the defendants had to close the gallery down in 2010, they continued selling their forgeries to collectors for an estimated €2  million (Timm 2013; Kurianowicz 2013; Koldehoff 2013). This forger ring focused on the Russian avant-garde as these works of art are relatively easy to forge and bring onto the market due to the often very patchy provenance and lack of documentation. Even for genuine works of the Russian avant-garde artists, it is very difficult to determine provenance, as many of them have never been catalogued and/or vanished during the Second World War. The case is mentioned here, as some categories of art are more vulnerable to forgery than others and the detection of such crimes is hence extremely complex, but, as this case shows, not impossible. One of the most famous forgers in German history is Konrad Kujau. He acquired significant fame for faking Hitler’s diaries and selling them to the prominent German news magazine ‘Der Stern’. Kujau was investigated in 1983 for forging the diaries, which ‘Der Stern’ had bought despite being advised against it by the German Federal Criminal Police Office (Bundeskriminalamt or BKA). The magazine had bought the 62 volumes of diaries, claiming to chronicle Hitler’s life between 1933 and 1945, for £2.5 million (although reporting on this amount varies in different sources). The acquisition of the diaries seems completely unreasonable after ‘Der Stern’ received knowledge of police warnings relating to authenticity, and two weeks after buying the diaries the West German Federal Archives also announced that tests had proven the paper, the thread to bind the books and the ink used for writing to be of post-war manufacture and that the diaries were obviously fake. The story became a disaster for ‘Der Stern’. The news magazine lost a significant sum of money and some of its highest ranking staff. Here, the will to believe (beyond reason) of the buyers made the offences possible, rather than the criminal energy or technical virtuosity of the forgers. The significant historical value of the item offered for sale led to the acquisition of the blatant forgeries despite all better judgement (Vensky 2010). The forger, Konrad Kujau, like Wolfgang Beltracchi, formerly known by the surname Fischer, was born in 1938 and worked as a dealer in Nazi memorabilia during the 1970s. Throughout his career as a dealer, he had occasionally supplemented genuine artefacts with forgeries. In the late 1970s he offered

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to supply a client with a Hitler diary. The Stern reporter Gerd Heidemann found out about this and wanted to close the deal for the magazine. He was aware of the fact that the diaries were not authentic, but wanted to go ahead regardless—for a significant commission. Kujau hence started to work to order, forging a significant number of volumes of diaries. His knowledge in forging artefacts from the era helped him to make the diaries appear old, but they contained major historical and technical flaws. For example, when Kujau was missing the letter A for Hitler’s initials on the cover of the diaries, he started to replace it with F.  Even that did not attract the Stern’s attention. Kujau also managed to convince handwriting experts of the authenticity of the books by providing forged examples of Hitler’s handwriting (Ibid.). After the fraud was discovered in 1983, Kujau confessed to the crime and during a search of his home, police found further evidence of his fraudulent activities, such as forged works by Dürer, Rembrandt and Goya. In 1985 Kujau was convicted of fraud and given a jail sentence of four and a half years. Heidemann was sentenced to four years and eight months of imprisonment (Ibid.). After his release from prison Kujau opened a gallery in Stuttgart, specialising in fake works of famous artists (but with Kujau’s signature). He became extremely popular in the German media and appeared regularly on the most well-established TV shows. The famous German director Helmut Dietl converted the real-life farce into a movie titled Schtonk (after Charlie Chaplin’s The Great Dictator in which the dictator frequently utters this invented word). Dietl gathered a number of very well-known and popular actors to represent the main characters, and the movie became a ‘cult’ hit of the 1990s (Ibid.). The high level of attention this case has received can be explained by three factors. First, the forged items were of extreme historical interest for the German people at the time. The trauma and fascination with the recent past were the main reasons why even a serious political magazine such as Der Stern wanted to remain blind to the evidence that the diaries were fake. Furthermore, the forger was a charismatic personality who became prominent in the German media afterwards and knew how to promote himself. Lastly, the case itself was immensely entertaining (as evidenced by the success of the comedy movie resulting from it) and it made the Germans, probably for the first time after the war, laugh about their own trauma suffered from the Second World War history. Being a very specific case in terms of the items forged, it did not have any reported effect on the subsequent detection, investigation and prosecution of art fraud. However, Kujau, who died in 2000, would have smiled at the fact that watercolours signed ‘A. Hitler’ are still circulating in the art market (which they should not for a number of reasons) and it was recently discussed again that numerous of Kujau’s forgeries had actually made it into a 1983 catalogue of Hitler’s works (Schuetze 2019).

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From the cases outlined above, it can be concluded that the detection, investigation and prosecution of art fraud is as complex in Germany as it is in other parts of the world. Victims often prevent both the detection and the investigation of art fraud as they want to—for various reasons—hold on to the belief that the pieces are real. Detections and investigations are further complicated by the sheer amount of forgeries on the market. Some cases, such as the metal forgeries of Reinhold Vasters, have, however, created a higher vigilance, at least among art professionals handling such objects. Without the will to go public by some forgers, many crimes would have never been detected.

The Beltracchi Case A case that reached a high level of attention in Germany in recent years is the Beltracchi case. In 2011 Wolfgang Beltracchi (born 1951), his wife Helene, her sister Jeanette Spurzem and Otto Schulte-Kellinghaus were accused of 14 counts of fraud in conjunction with forgery of documents. Wolfgang Beltracchi was born in Germany under the name of Wolfgang Fischer. He was expelled from school at the age of 17 and went to art school but never completed his studies. Between 1972 and 1983 he travelled as a ‘hippie’ and sold some of his (original) paintings. In 1992 he met his wife and later co-­defendant while working on a documentary movie. The couple had a daughter, while Beltracchi also had a son from a previous relationship. The family ultimately settled in the south of France in 2000. They also bought and renovated another home in Freiburg, Germany, for about €5,000,000 in 2007. Beltracchi had no criminal record at the time of his arrest by German police in Freiburg in 2010 (see for the facts of the case: Urteil Landgericht Köln vom 27/10/2011, Az. 110 KLS 17/11). Beltracchi has a very charismatic personality. Through the reporting on his criminal trial he became a memorable figure. He has long hair and a cheerful and flamboyant style. He also repeatedly claimed that he did not forge paintings for the money, but as a prank to fool the art world, which made him a likeable character to the media. Cynical voices, however, claim that Beltracchi might have felt frustrated with the lack of recognition of his own original pieces and therefore wanted to get back at the art world (Hammer 2012). Since his trial, Beltracchi has been a prominent figure in the popular media and even though he received a six-year jail sentence, he is already working on— and has completed—a number of new projects that are hotly debated in the press and on TV shows. With his colleague Manfred Esser he has produced paintings that comprise photographic works by Esser, which are painted over

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by Beltracchi. He also published two books with his wife, Helene. One on his story as a forger and one about his relationship with his wife while in prison. Also, a movie was produced about his life ‘Beltracchi—The Art of Forgery’ which came out in 2014. He is today exhibiting his artworks (his own and paintings ‘in the style of ’) in various fora around the world. During his time as a forger, Beltracchi created twentieth-century works of art by respected artists including Max Pechstein, Heinrich Campendonk, Kees van Dongen and Max Ernst. The ‘cover stories’ given for the forged paintings were so convincing that his crimes remained undetected for a long time. The forgeries were often paintings that had knowingly gone missing during the Second World War or that had been displayed in old catalogues, but without a photograph (Friedrichsen 2011). Additionally, the Beltracchi couple faked photographs to highlight the authenticity of the paintings. Wolfgang had photographed his wife Helene disguised as her own grandmother in their house in France sitting in front of several forged paintings which were later sold as originals (Koldehoff and Timm 2012, pp. 69–70). Another factor that prevented Beltracchi’s conviction for a long time was that his name had been changed from Fischer to Beltracchi when he married his wife Helene, so that it was difficult for police to establish a link between the different perpetrators bringing the forgeries onto the art market (Chappell and Hufnagel 2014). It was alleged by investigators that the actual sum obtained by the group totalled €35 million, but there is every reason to believe that the real income was significantly higher (Huth 2012). Considering the damage, the sentences were surprisingly low. As outlined above, Beltracchi was sentenced to six years in jail; his wife Helene received a four-year term; her sister Jeanette was given a suspended 21-month sentence; and the accomplice Otto Schulte-Kellinghaus was sentenced to five years. A total of 53 cases of suspected fake paintings by Beltracchi were investigated, but only 14 could ultimately be established to be forgeries to the point of being the subject of a specific criminal charge (Sontheimer 2011). Many of the victims sued experts, galleries and auction houses before civil courts for damages. One of Beltracchi’s paintings was purchased by an ex-­ publisher and art collector, Daniel Filipacchi in New York for €5.5 million. The prominent German Max Ernst expert Werner Spies had indicated that he was amazed by the quality of the paintings and even pointed to one of them as being a masterpiece in the artist’s Œuvre (Koldehoff and Timm 2012, pp. 113–115). Other than the Hitler diaries, the Beltracchi case seems to have prompted considerable alarm in the art market regarding the risks associated with

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­ urchasing high-value art and has prompted fresh searches for technological p devices that might minimise these risks. It has been reported, for instance, that the German auction house caught up in the Beltracchi affair, Kunsthaus Lempertz, has invested in an expensive ‘Thermo Scientific Niton X ray fluorescence analytic machine’ which may be used in the future on a routine basis to examine the types of pigments used in a painting and matching those with the ones known to have been used by a particular artist. However, such testing will only be of assistance if the forger did not use the correct pigment. Unlike other cases discussed, the Beltracchi case set a number of important developments in action to improve the detection of fakes and forgeries.

Conclusion What can be concluded from the cases discussed above is that there is no correlation between the complexity of the investigations and the sentence received by offenders. There is equally no consistency of the correlation between the damage caused by offenders and the impact on the detection, investigation and prosecution of art fraud as well as preventive strategies implemented by the art market. The sentence in the Beltracchi case was very low, as was the sentence in the Vasters (metal smith) case. Nevertheless, these two cases can be said to have had an impact on preventive strategies implemented by the art market. A tentative conclusion could therefore be that the higher the damage, or, more precisely, the more forgeries of the offenders are still suspected to remain in the market, the more likely will the case impact on practices in the market, as well as law enforcement practices. This is, however, only a very tentative result of the study, as forger Mrugalla sold more than 3000 paintings, many more than Beltracchi, but his case did not result in any impact on prevention practices. Decisive seems therefore to be the era when the forgeries were detected and the way the art market worked at that time. While Mrugalla worked in the 1970s and 1980s, when art just started to become a highly priced commodity, Beltracchi sold his works in the craze of the art market during the 1990s and early twenty-first century, when the art market was booming and prices became exorbitant. This does, however, not explain the impact of the Vasters case. Changes in criminal law could, in general, not be detected as a result of any of the cases. Victims play an important role in preventing the detection, investigation and prosecution of art fraud. They cover up the crimes, either because of embarrassment or vanity, or because they want to trade in the object anyway. In many of the cases discussed above, the victims wanted to believe in the

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myths created around the objects by the forgers, either because they wanted to remain recognised as prominent experts (Wilhelm Bode) or because the objects had such an important meaning for them (Giacometti forgeries) or their nation/region/city that they could not believe or admit to the object being a fraud. This psychology has been exploited by a number of forgers in this chapter. In general, it can be concluded that the criminalisation of art fraud is a fairly recent development. It evolved mainly with two factors, first, the legal development of copyright law and second, the progression of the art market towards a high value, transnational commodity business. Today, the lack of knowledge of the art itself and the large amounts of money involved make it a profitable business for forgers as a high-profit, low-risk crime. However, it also needs to be stated that the criminalisation of art fraud remains culturally bound and that some cultures do not consider a copy as diminishing the value of the original. With regard to the policing and prosecution of art fraud, they are rare and difficult, leading to lenient sentences and frustration of investigators and prosecutors alike. Finally, there are cultural conditions that help legitimate some art crime, such as historical particularity or simply the condonation by high-level experts and dealers claiming authenticity. It ­ remains to be seen how police and courts deal with cases in the future. Given the high stakes involved, it seems likely that art fraud often of very significant value will continue, in tandem with limited policing and difficulty of prosecution and punishment of this ‘victimless’ crime.

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Chappell, D., & Hufnagel, S. (2014). Fraud and fakes in the art market: Some contemporary case studies. In D. Chappell & S. Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp.  57–78). Farnham: Ashgate. Chappell, D., & Hufnagel, S. (2016). The Beltracchi affair: A comment and further reflections on the “Most Spectacular” German art forgery case in recent times. In N. Charney (Ed.), Art crime: Terrorists, tomb raiders, forgers and thieves (pp. 9–20). Basingstoke: Palgrave Macmillan. Deutscher Museen-Verband. (1911). Mitteilungen des Museen-Verbandes als Manuskript für die Mitglieder gedruckt und ausgegeben am 26. August 1911 (31). Mittheilungen des Museen-Verbandes als Manuscript für die Mitglieder Kunstbibliothek Berlin. Retrieved July 12, 2018, from http://digiview.gbv.de/ viewer/fulltext/PPN616534280_191108/8/. Deutsches Presse Amt. (2011, August 31). Prozess um millionenschwere Fälschungen beginnt in Köln. Monopol Magazin. Donaghey, K. (2015, March 28). Sunshine coast artist caught palming off copied paintings as originals. The Courier Mail. Retrieved July 13, 2018, from https:// www.couriermail.com.au/news/queensland/sunshine-coast-artist-caught-palming-off-copied-paintings-asoriginals/news-story/b38c95d0b9c45d87eb9c8ca9730083e6. Effern, H. (2011, July 9). Die gefälschten Bilder des Herrn S. Süddeutsche Zeitung. Frankfurter Rundschau. (2017, April 5). Landgericht Marburg, “Haftstrafen nach Millionen-Betrug  – Vier Männer Sind in Marburg zu Haftstrafen Verurteilt Worden. Sie Haben Bundesweit Hunderte Anleger um Insgesamt Rund 6,3 Millionen Euro Geprellt”. Frankfurter Rundschau. Friedrichsen, G. (2011). Eulenspiegel oder Künstler. Der Spiegel 43, pp. 148–149. Giuffrida, A. (2019, March 13). Italian police reveal ‘€3m painting’ stolen from church was a copy. The Guardian. Retrieved April 5, 2019, from https://www. theguardian.com/artanddesign/2019/mar/13/thieves-steal-3m-paintingby-brueghel-the-younger. Grassi, M. (2013, February). Nothing more than weeds: A review of Caveat Emptor: The Secret Life of an American Art Forger by Ken Perenyi. The New Criterion. Hammer, J. (2012, October 10). The greatest fake art scam in history. Vanity Fair. Retrieved April 5, 2019, from http://www.vanityfair.com/culture/2012/10/wolfgang-beltracchi-helene-art-scam?currentPage=all. Horowitz, N. (2014). Art of the deal. Contemporary art in a global financial market. Princeton: Princeton University Press. Hufnagel, S. (2015). Art fraud in Germany: Lessons learned or the fast falling into Oblivion? In J. Kila & M. Balcells (Eds.), Cultural property crimes (pp. 111–129). Leiden: BRILL. Hufnagel, S. (2018). A brief history of art, fraud and the framing of law. Criminal Law Journal, 42(2), 122–124.

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Schuetze, C.F. (2019, March 6). Are These Paintings Really by Hitler? German Authorities Are Investigating. The New York Times. Retrieved April 5, 2019, from https://www.nytimes.com/2019/03/06/arts/design/hitler-paintings-fake.html. Sontheimer, M. (2011, October 27). A cheerful prisoner: Art forger all smiles after guilty plea seals the deal. Spiegel Online. Retrieved July 3, 2018, from http://www. spiegel.de/international/germany/0,1518,794454,00.html. Spiegel Online. (2016, October 18). Der König der Kunstfälscher ist tot. Spiegel Online. Retrieved July 12, 2018, from http://www.spiegel.de/kultur/gesellschaft/ edgar-mrugalla-der-koenig-der-kunstfaelscher-ist-tot-a-1117199.html. Timm, T. (2013, June 20). Radikal erfindungsreich. Die Zeit. Vensky, H. (2010, July 8). Von der Sensation zum Alptraum. Die Zeit. Wagner, E., & Westreich Wagner, T. (2013). Collecting art for love, money and more. New York: Phaidon. Wolff-Thomsen, U. (2006). Die Wachsbüste einer Flora in der Berliner Skulpturensammlung und das System Wilhelm Bode – Leonardo da Vinci oder Richard Cockle Lucas? Kiel: Verlag Ludwig.

17 Case Study 2: The Knoedler Art Forgery Network Derek Fincham

It seems a sad reality that so long as the art market thrives, it will be targeted by fraudsters and forgers. In the United States, forgery of art has never been specifically listed in any state or federal criminal code. To the extent it is a crime, it is the general law of fraud which offers victims a remedy. The most common avenue for securing a prosecution for art forgery will likely be fraud. Yet proving the necessary element of intent to deceive will always be difficult. An art fraud defendant will often claim honest belief that a forged work was genuine. Unsurprisingly then, the number of art forgers who are in fact punished remains very low. Far more numerous are the notable works by “reformed” art forgers who have attempted to cash in on their notoriety after the full extent of their fakes and frauds are revealed (Irving 1969; Cf. Hebborn 1993). In his introduction to a symposium proceeding on forgery of art at the Hague in 1962, Professor J. M. van Bemmelen offered three reasons for the inability of the criminal law to attach directly to art forgery: historical, social, and practical (van Bemmelen 1962). The historical reason can be traced to Roman law, which recognized that forgery, or “falsum”, was recognized late in the development of Roman law, as the “crimes of forgery and fraud were never properly distinguished from one another”. The second, social, reason Prof. van Bemmelen outlines relates to the nature of artists. They often do not make large sums of money from their works, and thus only after an artist’s death do

D. Fincham (*) South Texas College of Law Houston, Houston, TX, USA © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_17

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the works of an artist become valuable enough that it would make them worth forging. Both the deceased artists and the living artist without a robust market, Prof. van Bemmelen argued, “derive no benefit from criminal proceedings” and yet, even some well-known living artists were sanguine about forgery, as Picasso would reportedly find imitation of his works flattering. The final reason is that not every wrong can be made a crime without “thereby inflicting more damage than gain on the community”. These historical, social, and practical reasons for limited prosecution of art forgeries though can be overcome when a high-profile and atypical forgery network surfaces. The spectacle which has unfolded at the Knoedler Gallery in recent years illustrates this directly. Forged works of art purporting to be by Pollock, Motherwell, Diebenkorn, Rothko, and de Kooning all passed through Knoedler in recent years. Which is shocking because of the storied history of the Gallery, which opened as “a representative of French engravers Groupil & Company” in New York in 1846 (Cash 2011). It soon gained a reputation as one of the very best art galleries in the world. It had earned this reputation by cultivating  a who’s who of art collecting clients including Andrew Mellon, J. P. Morgan, Henry Clay Frick, the Metropolitan Museum of Art, the Louvre, the Tate; and showing works of art by Frederic Edwin Church, Winslow Homer, George Bellows, John Singer Sargent, Jackson Pollock, Milton Avery, and  Helen Frankenthaler. The Koedler had helped to spur on the value of works from the Hudson River School and had even represented the prominent abstract expressionist artist Robert Motherwell. Despite this storied history, a forgery scandal engulfed the gallery, which closed in November 2011 as a result of what it called “a business decision made after careful consideration over the course of an extended period of time” (Halperin 2011). That business decision was likely prompted by the stunning revelation that Knoedler had been selling forged artworks for years. Soon after, in 2012 the New York Times reported that perhaps as many as 40 works, some sold for several millions of dollars, had no documented provenance and very likely may have been inauthentic (Cohen 2012a). Another contributing factor may have been the recession of 2008–2009, which likely forced the gallery sell its town house on the Upper East Side of Manhattan for a reported US$31 million (Cash 2011). Days after the art gallery was sold, its former director Ann Freedman visited the building that last held the gallery and told a Vanity Fair reporter that “[i]t’s amazing to think that this institution never stopped for 165 years […] [not] during the Civil War, World War I, World War II […] I kept it open on 9/11” (Shnayerson 2012). Just a few days after the gallery closed, a Belgian hedge fund manager named Pierre Lagrange brought a lawsuit alleging Knoedler had sold him forged artworks (Lagrange v. Knoedler Gallery Llc. 2011). He had purchased a work by

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Jackson Pollock in 2007 for US$17 million. Though the work had not been listed in the artist’s catalogue raisonné, Knoedler made promises that the work would be included in a new addition (Halperin 2011). Matthew Dontzin, the attorney for Lagrange remarked: “[i]t’s a sad day when a venerable gallery goes out of business when confronted with the fact that it sold its clients a $17 million fake painting rather than stand by their client” (Cohen 2011). The suit centered on a painting allegedly by Jackson Pollock, Untitled 1950. The painting contained yellow paint pigments which were not commercially available until 1970—a problem for the authenticity of the piece, given the artist had died in a car crash in 1956 (Shnayerson 2012). Marco Grassi, the owner of Grassi Studios gallery in Manhattan pointed out in an interview that the Knoedler forgery scandal “ruined one of the greatest galleries in the world. It has trashed a lot of people’s money. It seems to me Ms. Freedman was totally irresponsible, and it went on for years, […]. Imagine people coming to someone and saying every painting you sold me is a fake. It is an unthinkable situation. It is completely insane. A gallery person has an absolute responsibility to do due diligence, and I don’t think she did it. The story of the paintings is so totally kooky. I mean, really. It was a great story and she just said, ‘this is great’” (Panero 2013). To understand how this and so many other works of art were able to be sold to unsuspecting buyers, it may be helpful to think about how the art market determines authenticity. There are three main avenues of inquiry: connoisseurship, scientific analysis, and the provenance of a work of art. These methods all have their strengths and weaknesses and work best when employed in concert with each other. Connoisseurship includes evaluation by expert art scholars or curators. There are also judgments by expert boards or committees. Using stylistic aspects of a work or object to determine its creator, date of creation, and its influence comes from a desire during the Enlightenment in the eighteenth century to order and classify material culture. This led to the idea of “connoisseurship”, the “method by which quality could be determined empirically” (Syson 2003, p. 118). Law Professor Patty Gerstenblith has argued that “connoisseurship alone cannot reliably determine authenticity as the acceptance or rejection of particular works as authentic has been known to change over time” (Gerstenblith 2012, p. 338). There has long existed a false dichotomy in the world of art authentication—the battle between scientific examinations of authenticity on the one hand and the use of art historical aesthetic examinations on the other. Even in the 1960s, experts were complaining of the need to uncouple aesthetic judgment from authentication. One of the finest examinations of many kinds of art forgeries is a work by Otto Kurz. He wrote in the 1968 second edition to his work that “[f ]or many years attempts

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have been made to emancipate the examination of pictures from aesthetic standards” (Kurz 1968, p.  22). He described the state of the art as it then existed in determining the authenticity of painting, including X-ray photographs of works, chemical analysis of pigments, and the like. But he pointed out a truth that still holds true irrespective of the advances in scientific examination and forensic testing. That many false works of art will be able to pass scientific examination, particularly if the forger is anticipating the scientific test and knows what data points to account for. “No available method of scientific analysis allows us to dispense with sound and unprejudiced judgment, based on comparison and experience” and he noted, “above all on the correct assessment of the artistic qualities of the picture in question” (Kurz 1968, p. 23). Provenance, the collecting history of an object, and its documentary evidence can often help determine the authenticity of a work of art. One art curator, for example, shows the potential flaws in relying on provenance: “[m]y experience is that provenance, or purported provenance, counts for little; a good provenance can be attached to a poor work, and it is the work itself that has to stand up under scrutiny” (Stebbins, Jr. 2004). Securing an attribution can be a delicate problem. Experts in works of art are often inaccessible without an intermediary, such as a well-respected art dealer or auction house. And this can lead to obvious conflicts of interest. If, for example, an auction house doubts the authenticity of a work of art, it may not make the work available to scholars. There are other concerns as well. If works are not made available to experts, there is a great risk that art history can suffer in the long term, as some wonderful works of art may disappear or be forgotten because they are not recognized for what they are. An authentic work generally will not be considered an intentional fraud of course, but there are works that are not intended to deceive as forgeries, but are also perhaps mistaken. The art law expert John Henry Merryman posited two categories of non-authentic works based on: first, the intent of the maker of the object and, second, the likelihood a work can be mistaken for the original (Merryman 1992, p. 43). Between these extremes of intentional forgeries meant to deceive and harmless reproduction figure photomechanical reproductions, exact reproductions, study works, works emulating style, and simulationalist works. Increasingly, the job of authenticating works of art has shifted to artist foundations and authentication boards that have been created by an artist or crafted from an artist’s estate. This has become widespread with respect to modern and contemporary artists. Artist foundations may sometimes authenticate a work of art on an individual basis, or will produce a more comprehensive catalogue raisonné. The Delaware Chancery Court has defined a catalogue raisonné as “a

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group of scholars who are intimately familiar with the work of a particular artist. Normally, either an art gallery or a group of art collectors will raise and commission such a committee to create an exhaustive list of an artist’s authenticated works […]” (Krahmer v. Christie’s Inc. 2006). Art history as a field has gradually turned away from connoisseurship to a variety of theoretical approaches. This has opened up some exciting new ways of thinking about art, but at the expense of connoisseurship, which may make it more difficult for art dealers, art buyers, and the public to find objective and skillful understanding of the works of individual artists. At least one prominent art historian has even described connoisseurship as a “dying skill” (Stebbins, Jr. 2004, p.  140). A number of commentators on the art world attempt to pit authentication with science against the traditional methods of connoisseurship (Cohen 2013a). We should strive to avoid such a false duality. Art authentication should be an interdisciplinary academic process, using all of the best tools that science and art history can offer. It was all of the tools of authentication—connoisseurship, science, and provenance—which ultimately revealed the Knoedler scandal. The art market has traditionally had difficulty engaging in rigorous self-­ regulation. Luke Nikas, a lawyer for Freedman, told the New York Times that “[l]abeling a work a forgery is an extreme step, especially when substantial evidence of authenticity exists” (Cohen 2012b). Yet, New York State Supreme Court Judge J. Shorter noted that more diligence in the art market is sorely needed: “In an industry whose transactions cry out for verification of both title to and authenticity of subject matter, it is deemed poor practice to probe into either” (Porter v. Wertz 1978). In 2003, a potential buyer of a work at the Knoedler gallery asked the nonprofit International Foundation for Art Research (IFAR) to evaluate the authenticity of a work allegedly by Jackson Pollock, Untitled 1949. The work appeared on the market and had not been included in the catalogue raisonné and, with the owner of the work unknown, IFAR “could not substantiate any of the limited provenance provided” (Shnayerson 2012), and the organization declined to authenticate the work (Cohen 2011). IFAR offers an authentication service if the request is made by the owner of the work and if the owner agrees to waive the right to sue (“International Foundation for Art Research (IFAR)-Authentication Research” n.d.). IFAR can keep the names of the experts it consults confidential, which allows specialists to render opinions free of the constraints of their position of employment. IFAR also reserves the right to publish the results of its research while keeping the names of the owners confidential. IFAR reserves the right to change an authentication determination in the future if circumstances change and also reserves the right not to make a determination if the circumstances warrant. IFAR’s determinations

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are more fluid (Butt 2004, p. 84). This system works well to assist buyers and the market in many cases, but it presupposes that art galleries are above board. The system can only assist buyers in individual cases, it cannot out a gallery as consistently selling inauthentic works. Other parts of the art world have similar problems. The College Art Association has told its member art historians to generally refrain from giving an opinion on the authenticity of a work of art unless “there is a written request by the owner of the work” (“Standards and Guidelines: Authentications and Attributions” 2009). It suggests that, even then, a scholar should request the owner of a work of art indemnify them against legal damages. These problems are not new. Arguing in 1964, Thomas Würtenberger, then the Director of the Institute of Criminology and Penology at the University of Freiburg, Germany, said: “It has happened again and again that art dealers have co-operated with an artist who has forged works of art and thus has committed criminal offenses of fraud and forgery. Due to such detestable manipulations the honest art-traders have been injured most of all, and the honest art dealers have a right to protection against the unfair competition of their criminal colleagues” (Würtenberger 1964, p. 88). Even honest art market participants can exacerbate problems. Law Professor Stephen Urice noted the scale of puffery and exaggeration in the art world can reach great heights where “[i]n the fantasy land of marketing in the fine arts” the names of well-known artists are “dropped freely as rain” (Cohen 2014a). Courts and the art market have different standards for determining authenticity for works of art. As art lawyer Ronald Spencer explains, in a private dispute, “the standard of proof is ‘more likely than not.’ Now picture yourself walking into a gallery and seeing a Picasso. You ask, ‘Did Picasso paint that?’ and the dealer says, ‘Yes, more likely than not.’ You wouldn’t buy that” (Cohen 2012a). To understand how so many forgeries passed through Knoedler, some attention should be devoted to understanding the individuals responsible. Perhaps the most enigmatic individual involved in the scandal is Ann Freedman. She began her career in the art market as a receptionist for the André Emmerich Gallery in 1971. She earned a good reputation for her ability to sell art. Will Ameringer, who worked with Freedman, remarked that Freedman could “sell the proverbial snow to Eskimos”, and that she rarely failed to close a sale if a client was in the gallery or showroom” (Shnayerson 2012). According to Ameringer, she would often engage in puffery, which would have been extreme, even in the high-end art world: “She could point to the blue sky and tell you it was red, and she would believe it” (Shnayerson 2012). She was the director of the Knoedler gallery for 32 years before leaving in 2009 amid allegations that the Knoedler Gallery was supplying forgeries.

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But, up to that point, her career had been successful. Roger Kimball who edited and published The New Criterion said: “She ran Knoedler with great panache” and that she “cares passionately about art and artists” (Shnayerson 2012). Michael Davis, an artist who worked with her at Knoedler said she really emphasized making money: “I think for her it was always about making it rain, […] I think that was how she defined herself. She was great at what she did, [but] she had an edge, she took no prisoners, and she could be vindictive” (Shnayerson 2012). Freedman acquired many contemporary works from Glafira Rosales, who had only been an art dealer since 1993. Rosales had her own gallery in Mahopac, New York. She claimed to have been the broker for an anonymous Mexican collector. Writing to Freedman in 2007, Rosales said the collector acquired the Modernist works directly from the artists, and that they were passed on to the collector’s son when the elderly anonymous collector died. Freedman claimed that many of the dubious objects which passed through Rosales were from an anonymous owner she called “Mr. X Jr.”. When questions began to arise about the history of these works of art, Freedman’s penchant for puffery emerged in remarks to the press. She claimed the questionable works should not be questioned because they “are of a five-star quality”, with only a few “four star, but mostly five-star, which is why they’ve stirred such attention” (Shnayerson 2012). Rosales had sold works by a number of prominent American contemporary artists, including Mark Rothko, Granz Kline, Clyfford Still, Jackson Pollock, Robert Motherwell, Richard Diebenkorn, and Willem de Kooning (Halperin 2011). Many of those works were later shown to likely have been forgeries. Freedman has consistently maintained publicly that she stands behind the authenticity of the works of art she sold. To demonstrate this, she claims to have purchased a Motherwell, a Pollock, and a Rothko from the merchant Glafira Rosales for her own personal collection. In a profile of Freedman for Vanity Fair, Michael Shnayerson spoke with three anonymous art dealers, who had serious misgivings about the high-­ profile works that would appear at Knoedler without any previous history. Said one dealer, “[e]veryone would say, ‘Huh?’ You’d look it up and there wouldn’t be any record on it” (Shnayerson 2012). Another said the new works “didn’t feel right”, especially the Pollock’s that passed through the gallery “were too perfect, too symmetrical”; but despite this, the experts in the art market “don’t say anything—they just turn their backs”. A third anonymous dealer noted “There was always incredulity among dealers” when Freedman displayed new high-profile works. Freedman though claimed that when a work came from Rosales “we’d hang it in the [Knoedler’s] booth at the [Park

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Avenue] Armory, […] Had anyone found anything wrong, meaning they weren’t ‘right’, believe me, I would have been told, ‘Take that down off the wall’. No one ever did that”. Freedman never attempted to learn the identity of the collector who was supplying these high-profile works. When a new painting appeared, Rosales would travel to Mexico or Switzerland, apparently the places where Mr. X Jr. had his art collection. E. A. Carmean, a former curator at the National Gallery of Art questioned the provenance offered by Freedman and the Knoedler. Carmean was a former curator at the National Gallery of Art in Washington, D.C.; he believed Knoedler likely had invented connections tying works of art to David Herbert (Gilbert 2014). Herbert was allegedly a prominent figure with connections to Abstract Expressionists. Many of the works of art which may have been forged came from this “David Herbert collection” as Knoedler described it. Yet, none of the works connected to Herbert can be tied to galleries or the artists’ studios (Shnayerson 2012). In 2011, the Knoedler gallery, Freedman, and Rosales were all being investigated by the FBI and the United States Attorney for the Southern District of New York. The attorney for Rosales, Anastasios Sarikas, said his client “never intentionally or knowingly sold artwork she knew to be forged” (Cohen 2011). Establishing criminal charges against an art forger can only be accomplished with sufficient evidence demonstrating the forger’s intent and evidence demonstrating the identity of the creator. But attaching criminal charges to an art dealer or middleman will be much more difficult. A prosecutor must show not only that a work is inauthentic, but also that the dealer knew the work to be false. Establishing this kind of bad faith or fraud will be problematic in most criminal contexts. Prosecutors though were able to show this kind of bad faith because of interactions between Rosales, Freedman, and artist foundations. In 1993, Rosales began selling works of art from prominent contemporary American artists, including Richard Diebenkorn. Seven of those works were rejected from the Diebenkorn catalogue raisonné because of a lack of firm provenance. Richard Grant, the son-in-law of the artist and executive director of the Diebenkorn Foundation, noted the works were rejected and that “[i]f we don’t have documented provenance of a work, we are immediately very skeptical” and that they had “hoped that there would be some sort of investigation of this” (Cohen 2011). That investigation ultimately took place, but not before many other works of art with seeming serious flaws in their provenance and authenticity were sold to buyers. Grant was aware that Rosales and Freedman were dealing in suspicious objects allegedly by Diebenkorn, particularly, a group of seven works from an

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“Ocean Park” series, which were abstract representations of the landscape near Santa Monica, California. Members of Diebenkorn’s family approached Freedman at Knoedler and let her know that these works may not be authentic. Soon after Diebenkorn died in 1993, members of his family approached Freedman and Knoedler with concerns about the authenticity of two works, which were allegedly part of the artist’s Ocean Park series. Grant said the works “didn’t look quite right”, and the history of the works was “wacky and the story behind the provenance makes no sense” (Cohen 2012c). In yet another dispute, in 2004, art collectors from South Carolina, Eleanore and Domenico De Sole purchased from the Knoedler Gallery for US$8.3 million a work of art allegedly created by Mark Rothko. In their 2012 lawsuit, the De Soles alleged that Freedman misled them about the authentication of the works (De Sole v. Knoedler Gallery 2016). Freedman claimed that the work had been authenticated by Rothko’s son, Christopher Rothko, as well as David Anfam, author of the Rothko catalogue raisonné. John Elderfield, former curator of the Museum of Modern Art in New York, testified in the trial that he cast doubt on the authenticity of the Knoedler’s alleged Ocean Park Diebenkorns: “My reaction was that they were very dubious, […] I said to Phyllis, ‘Can we talk about these?’ I felt they were not done by the same artist whose work I’d seen very extensively. […] These seemed flat and bland […] the line on top didn’t read like a windowpane” as the other authentic works in the Ocean Park series would have and that he was “surprised and dismayed” that the works were later sold (Kinsella 2016). Gretchen Diebenkorn, the artist’s daughter, testified that she had serious concerns about the works because they “had no soul. They didn’t breathe”. In 2012, Freedman vigorously contested the Diebenkorn family’s version of the meeting which took place, claiming that Knoedler sent the family a letter in 1995, confirming that the work had been authenticated by the family (Cohen 2012c). Stepping back to examine the different versions of this meeting, a couple of problems emerge for Freedman and Knoedler. First, sending a letter after a meeting to confirm what took place at that meeting, and therefore spin the detail and result of that meeting does not equate to an authentication on the part of the artist’s family. In fact, if a family shares concerns about the authenticity of a work, a reputable gallery exercising due diligence should conduct further inquiry into the history of that particular work and attempt a formal interdisciplinary authentication of the work. Grant learned in 2006 that Knoedler sold one of the works in the series to the Kemper Museum of Art in Kansas City. After contacting Freedman with concerns about the work, he contacted the museum. Freedman requested more information about the history of the works. Not long after that work

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was removed from display, another work by Diebenkorn with a clear provenance was gifted to the Kemper by Freedman. The alleged Diebenkorns had been stamped with a label from the Vijande gallery in Madrid. So how had that gallery acquired the works? According to Cesareo Fontenla, the gallery got them due to a restaurant he owned near Castellana Plaza in Madrid during part of the 1970s and 1980s. That restaurant “was an artists’ hangout: everyone from Francis Bacon to Andy Warhol had come through its doors. Many were brought to the restaurant by gallery owner Fernando Vijande. In 1981 and 1982, Fontenla said  the works by Diebenkorn were obtained from Vijande in a variety of ways, “some as part of a trade for a work by Dalí, and some in payment for Mr. Vijande’s account at the restaurant” (Shnayerson 2012). In May 2013, the US Attorney for Manhattan, Preet Bharara alleged Rosales “gave new meaning to the phrase ‘artful dodger’ by avoiding taxes on millions of dollars in income from dealing in fake artworks for fake clients” (‘Manhattan U.S.  Attorney Charges Art Dealer With Hiding Millions Of Dollars In Income From Fraudulent Sales Of Artwork’ 2013). In September 2013 Rosales pleaded guilty in federal court to nine counts, including wire fraud, tax evasion, and knowingly selling fake works of art (United States v. Rosales 2013). Federal prosecutors alleged that Rosales sold previously unknown paintings. From 2006 until 2008 she sold 12 of these works for US$14 million. She used a fictitious anonymous collector from Switzerland and another fabricated collector from Spain to create histories for the paintings. Federal prosecutors were able to prosecute Rosales for failure to pay taxes on US$12.5  million in income from 2006 until 2008. Internal Revenue Service (IRS) Special Agent-in-Charge of the investigation George Venizelos alleged Rosales “committed tax fraud in falsely reporting that she was selling art on behalf of clients. In truth, those clients were just part of the picture she painted to perpetrate her multimillion dollar scheme. There is consistency in the scheme, however: The artwork Rosales sold appears to be as fake as her story about the clients she claimed to represent”. Unsurprisingly, perhaps, Rosales pleaded guilty. In federal court, when admitting her wrongdoing, she acknowledged before the court that she had “falsely represented authenticity and provenance” on the works she had sold through Knoedler and that the works were “actual fakes created by an individual residing in Queens” (Kinsella 2013). After Rosales pleaded guilty, Freedman expressed shock: “I am as shocked as everybody, more shocked, as I am the central victim, […] Fifteen years. In my head, these paintings have been right up until five days ago. Horrible” (Kinsella 2013).

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After Rosales pleaded guilty, other figures in the scandal emerged. In April 2014, Jose Carlos Bergantiños Diaz was arrested in Seville in connection with his partnership with Rosales (Rashbaum 2014; The Guardian 2014). Bergantiños shared a home with Rosales. He is an art dealer and art consultant from Spain (Cohen 2011). Pei-Shen Qian supplied Rosales with the fake works of art. Qian emigrated to Queens from China. He was discovered by Diaz in the 1980s. He was paid initially only a few hundred dollars for each fake work, but by 2008 he was paid as much as US$7000 for each work he would fabricate (Rashbaum 2014). Qian may evade prosecution. He returned to China before federal authorities brought charges. Those charges were brought in 2014 for wire fraud, conspiracy to commit wire fraud, and for lying to the FBI. Given that China and the United States do not have an extradition treaty, Qian will likely escape prosecution, if he never returns to the United States (Bloom 2008). According to prosecutors, Qian once painted portraits of Chairman Mao in China. He arrived in the United States as a student in 1981 and was discovered by Jose Carlos Bergantiños Diaz painting on a street corner. The Bergantiños Diaz brothers instructed Qian what kinds of works to create and even purchased old canvases and paints to mimic older works of art (Maslin Nir et al. 2013). The indictment also alleged Qian “stained newer canvases with tea bags to give them the false appearance of being older than they really were” (Swaine 2014). In an interview with Bloomberg News in 2013, Qian maintained his innocence saying “I made a knife to cut fruit. But if others use it to kill, blaming me is unfair” (Lawrence and Fan 2013). He also maintained innocence, saying his copies were essentially study copies and that “[n]obody would take them seriously, […]. It’s impossible to imitate [the contemporary masterworks]—from the papers to the paints to the composition. It’s impossible to do it exactly” (Lawrence and Fan 2013). Artist Foundations had all been independently casting doubt on the authenticity of works by Diebenkorn, de Kooning, Barnett Newman, and Robert Motherwell. Jack Flam, an art historian and president of the Dedalus Foundation, was one of the first to cast strong doubt on works passing through Rosales and Knoedler. He said one of the biggest perceived threats by art experts was the fear of being sued, yet “[p]eople give credibility to works unwittingly by keeping quiet” (Cohen 2014a). The Dedalus Foundation serves as the late Robert Motherwell’s artist foundation. It oversees copyrights and compiles the catalogue raisonné of the artist’s works. Officials from the foundation visited Robert Weissman’s gallery and were researching whether a previously unknown work should enter the Motherwell catalogue raisonné (Halperin 2011). Weissman, in 2007, sold a

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work of art purportedly by Robert Motherwell. Weissman asked the Dedalus Foundation to offer an opinion on the authenticity of the work. At the time, the foundation found the painting to be authentic—though it reversed the opinion two years later. Some sources claim that the authentication was reversed after scientific analysis revealed the pigments to have been modern. In other words, they would not have existed in the 1950s when the work was allegedly created. But Motherwell frequently returned to older works much later in his career. The best factors that pointed to a re-evaluation of the work were the lack of any clear provenance and the existence of six other works that were uncharacteristic of Motherwell’s style. These questionable works and the doubts cast on the work by the scientific examination all created a strong pall over the authenticity of these works. These questionable works all passed through Rosales before moving on to Freedman. In February 2010, the buyer Blondeau argued that he would not have purchased the works without the firm affirmation of the Dedalus Foundation. So, he brought suit against Weissman and the foundation in U.S. District Court (The Martin Hilti Family Trust v. Knoedler Gallery, Llc 2015). The foundation responded by alleging Weissman had known the works were forged. In September 2011, a settlement was reached where Blondeau’s gallery, Killala Fina Art, received a US$650,000 settlement, which was the price that Blondeau had paid for the work in 2007. The Dedalus foundation received US$200,000 and the right to stamp the back of the canvas with a warning that the work was not an authentic Robert Motherwell. Most of this settlement money was paid by Rosales, with Weissman paying the remaining portion. Weissman’s attorney told the New York Times that the case was settled due to his client’s ill health and was not an admission of the inauthenticity of the work. Another aspect of the agreement was the retention of the work by Blondeau’s attorneys. They held the painting for up to six months to allow law enforcement authorities to investigate the work as part of a larger criminal investigation. Anastasios Sarikas, an attorney for Rosales, was quoted in a story for the New York Times that even the allegations of impropriety leveled against a member of the art trade can have damaging consequences: “[s]ince the Motherwell matter was made public, her ability to engage in this business— even with pieces beyond reproach and with absolutely sterling pedigree—has been severely circumscribed and damaged” (Cohen 2011). Even though artist foundations are best positioned to authenticate works, they have increasingly decided to withdraw from the market and authentication. A recent suit was brought against the Andy Warhol Foundation for failing to authenticate works allegedly by the artist (Simon-Whelan v. The Andy

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Warhol Found. 2009). Whelan alleged conspiracy to control the market in Warhol’s works and argued that the Foundation was attempting to inflate the value of other works by the artist which were controlled by the artist’s Foundation. The plaintiff alleged violation of the Sherman Act (the federal antitrust statute, which prohibits monopolization), the New York Donnelly Act (which is a state antitrust statute for New York), the Lanham Act (which is the federal intellectual property law and prohibits among other things, false advertising), and included claims for fraud and unjust enrichment. The plaintiff’s conspiracy in restraint of trade claims were able to survive a motion to dismiss because the plaintiff had properly alleged a conspiracy between the Board, which authenticates individual works, and the Foundation, which produces the catalogue raisonné, and had identified a relevant geographic area. Yet, the plaintiff did not properly allege any damages suffered from the artificial inflation of the price of Warhols. In 2010, both parties to the suit seemed to admit failure. Simon-Whelan dropped the suit against the Andy Warhol Foundation because he lacked the means to pursue federal litigation (Crow 2011). Though the end of the litigation may seem a victory of sorts for the Warhol Foundation, the case reveals the importance of money and legal experience in complex federal litigation. The Andy Warhol Foundation in response to the Simon-Whelan litigation and other pressures announced that it would withdraw from the authentication question entirely, stating it would focus resources on preparing a catalogue raisonné and other initiatives. The President of the Foundation, Joel Wachs, explained the decision to the Art Newspaper in the following terms: “[T]he Warhol catalogue raisonné serves a non-market purpose” and yet “[t]he market seems to want to use the authentication board, but that can’t be our concern”. He continued, “[i]t is a matter of priority, and our responsibility to Andy’s mission. Our money should be going to artists, not lawyers” (Burns 2011). This seems to signal a desire on the part of the Warhol Foundation to still engage in the important scholarly function of defining the known works of an artist via the catalogue raisonné and stepping back from the more urgent market-requested demands. Yet, this fails to acknowledge how important a catalogue raisonné can be to a market. Just stepping back from a transactional evaluation process and toward a more comprehensive catalogue raisonné indicates the failure with which the art market has accepted any responsibility for the authentication of artworks. Courts have said this as well: If buyers will not buy works without the Foundation’s listing them in its catalogue raisonné, then the problem lies in the art world’s voluntary surrender of that ultimate authority to a single entity. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder’s specifications, and that

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Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work ‘authentic’. Plaintiff’s problem can be solved only when buyers are willing to make their decisions based upon the Work and the unassailable facts about its creation, rather than allowing the Foundation’s decisions as to what merits inclusion in its catalogue raisonné to dictate what is worthy of purchase. (Thome v. Alexander & Louisa 2009)

This may be minimizing too much the ability of the art market to get out of the process of authentication. As Professor Janet Ulph points out, attribution will often be “of the utmost importance”, because “once a forgery is recognized as such, it will be worth relatively little” (Ulph 2011, p. 264). One American commenter has argued that the art market produces tremendous inefficiencies, and that given its under-regulation by the Uniform Commercial Code and most state laws, it assumes a level of information about the history of title of a work of art that is seldom the norm (Day 2014, pp.  484–485). Day makes some interesting observations about the economics of the art market, pointing out how it works unlike any other market, but he fails to understand a basic operation of the market itself. Determining whether a work of art is or is not authentic requires difficult work, tireless scholarship, and serious academic study. The discovery of an inauthentic work is not automatically the result of fraud or a crime. Some of the same dealers will often appear at the periphery of art forgery scandals. In his memoir, the art forger Ken Perenyi discusses Anthony Masaccio as a skilled dealer of fake paintings (Perenyi 2013). Masaccio also surfaced in a complaint against Knoedler by John Howard. Howard sued Freedman and Knoedler after he purchased a US$4 million work purportedly by Willem de Kooning. Charles D. Schmerler, the attorney representing Howard in the suit, argued that the gap between the truth and what Freedman and the Knoedler were attempting to argue was widening: “There is a very wide gap between what plaintiffs now have alleged in a last-ditch effort to save their failing claims and what the evidence clearly shows to be the truth” (Cohen 2013b). One of the works supplied by Rosales to Knoedler was a work allegedly by Jackson Pollock dated 1949; yet, the work misspelled the artist’s name “Pollok” (Cohen 2014b). Luke Nikas, a lawyer representing Freedman was given the unenviable task of attempting to defend the due diligence practices of his client. He told the New York Times that: “It is absurd to believe that Ms. Freedman would have paid nearly $300,000 for the work, asked a world-­ renowned expert to examine the work, hung the work openly in her apartment for over a decade, if she knew the work was a forgery or if she purchased the work to keep it hidden from critical eyes” (Cohen 2014b). To date, only one of the various suits brought against Freedman and Knoedler has gone to trial. The plaintiffs in the case were Domenico and

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Eleanore De Sole, who paid US$8.3 million for a work of art that at the time was alleged to have been a work by Mark Rothko, Untitled, 1956. De Sole is a former chairman of Gucci, but at the time of the suit was the chairman of the board of Sotheby’s auction house (Moynihan 2016). The case went to trial in United States District Court in Manhattan in 2016 and the testimony offered at the trial revealed the forgery network operated at the Knoedler by Rosales. Jose Carlos Bergantiños Diaz, his then girlfriend Glafira Rosales, and his brother Jesus Angel Bergantiños Diaz were all alleged in the trial to have fabricated collections with faked and forged works of art. The collections were from individuals named Mr. X and Mr. X Jr. In the trial, Freedman was the primary defendant, but also painted herself as a victim, as she purchased some of the alleged forged works. She argued at the trial through her attorneys that this showed her not as a perpetrator but a victim. The De Soles argued that the Racketeer Influenced and Corrupt Organizations (RICO) statute should apply to the defendants in the case.1 That law targets the proceeds of organized crime and permits triple damages for successful plaintiffs. Knoedler and Freedman though settled the case with the plaintiffs before the case could be decided. The extent to which Freedman knew about the inauthenticity of the works has not been firmly established, as the case was settled on undisclosed terms. At the very least, though, arts commentators and participants in the art market have criticized Freedman and Knoedler’s ineffectual diligence enquiry for the works. And the ever-growing number of settlements for the works certainly point toward the deep-seated problems at the Knoedler under Freedman.

Conclusions As more and more lawsuits against Knoedler and Freedman were quickly settled, there was little optimism within the art market that suits against Freedman and Knoedler would move beyond the settlement stage and reveal publicly the extent of the forged art network. And yet, the law worked well with respect to the art forgers and their forged art network, including Rosales, Freedman, and Knoedler. Victims have been made whole. The gallery can no longer be used to funnel fake works of art to museums and collectors. Admittedly, there has been a devastating blow to the honest art market, particularly in New York. Hopefully, the market will be chastened in the wake of the Knoedler chicanery.

1

 Racketeer Influenced and Corrupt Organizations Act 18 U.S.C. §§ 1961–1968 (2012).

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Many transactions in the art trade still involve surprisingly little information being exchanged about previous purchase, the previous owner of a work, and so on. As Phelan (2000, p. 662) has commented, “The pervasive secrecy of the art trade is another reason why buyers and collectors need to take independent and informed precautions. One scholar has related that the most striking thing to a lawyer who comes upon the art world is the assumption that transactions should normally be, and are certainly entitled to be, secret”. This veil of secrecy continues to the present day, even as criminologists have demonstrated convincingly that “[a]rt fraud […] is a recurring problem for the international art market” (Polk and Chappell 2009, p. 72). One reason for this may be the reluctance of plaintiffs to make themselves known by bringing suit, even when a lawsuit may be a wise decision. Claims were swiftly brought against the Knoedler gallery by a number of plaintiffs as the scale of potentially inauthentic works became known. As more plaintiffs emerge, there will be less and less likelihood they will collect. Given that choice then, some potential plaintiffs may elect not to come forward, for fear that a very expensive work they have purchased may become nearly worthless. This perverse calculation encapsulates why self-regulation of the art market is so difficult. Determining the authenticity of a work of art takes time and skill. Best practice requires that art be authenticated in an interdisciplinary manner, drawing on provenance, art history, and forensic scientific examinations. When possible, artist foundations should also be consulted to allow the best possible experts and those most familiar with an artist to give their best judgment about the authenticity of a work of art. Many of these authentication tests were employed on the various works which passed through Knoedler and Rosales. Yet, it took many unwitting victims before the full extent of the con was revealed. To prevent similar frauds in the future, the market will have to revisit its self-regulation and the extent to which various art experts work with each other and share the results of their authentications.

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Butt, S. (2004). Authenticity disputes in the art world: Why courts should plead incompetence. Columbia Journal of Law & the Arts, 28, 71. Cash, S. (2011). Knoedler gallery closes abruptly. Art in America. Retrieved July 25, 2016, from http://www.artinamericamagazine.com/news-features/news/knoedlergallery-closes-abruptly/. Cohen, P. (2011). Federal inquiry into possible forging of modernist art. The New York Times. Retrieved December 6, 2011, from http://www.nytimes.com/2011/12/03/ arts/design/federal-inquiry-into-possible-forging-of-modernist-art.html. Cohen, P. (2012a). When judging art’s authenticity, the law vs. the market. The New  York Times. Retrieved July 16, 2015, from http://www.nytimes. com/2012/08/06/arts/design/when-judging-arts-authenticity-the-law-vs-themarket.html. Cohen, P. (2012b). Knoedler made huge profits on fake Rothko, lawsuit claims. The New  York Times. Retrieved July 26, 2016, from http://www.nytimes. com/2012/10/22/arts/design/knoedler-made-huge-profits-on-fake-rothko-lawsuit-claims.html. Cohen, P. (2012c). Diebenkorn family says it warned Knoedler on drawings. The New  York Times. Retrieved July 28, 2016, from http://www.nytimes. com/2012/05/07/arts/design/knoedler-now-in-dispute-over-diebenkorndrawings.html. Cohen, P. (2013a). A real Pollock? On this, art and science collide. The New York Times. Retrieved July 26, 2016, from http://www.nytimes.com/2013/11/25/arts/ design/a-real-pollock-on-this-art-and-science-collide.html. Cohen, P. (2013b). New details emerge about tainted gallery. The New York Times. Retrieved July 26, 2016, from http://www.nytimes.com/2013/11/04/arts/design/ knoedler-gallery-faces-another-forgery-complaint.html. Cohen, P. (2014a). Selling a fake painting takes more than a good artist. The New York Times. Retrieved May 3, 2014, from http://www.nytimes.com/2014/05/03/arts/ design/selling-a-fake-painting-takes-more-than-a-good-artist.html. Cohen, P. (2014b). Note to forgers: Don’t forget the spell check. The New York Times. Retrieved July 29, 2016, from http://www.nytimes.com/2014/06/12/arts/design/ note-to-forgers-dont-forget-the-spell-check.html. Crow, K. (2011). Is that Warhol fake? Even his foundation isn’t sure. Wall Street Journal. Retrieved January 8, 2016, from http://www.wsj.com/articles/SB100014 24052970204618704576641623099797998. Day, G. (2014). Explaining the art market’s thefts, frauds, and forgeries (and why the art market does not seem to care). Vanderbilt Journal of Entertainment and Technology Law, 16, 457. De Sole v. Knoedler Gallery Llc, No. 12 Civ. 2313 (PGG) (HBP) (Southern District New York 2016). Gerstenblith, P. (2012). Keynote 1: Getting real: Cultural, aesthetic and legal perspectives on the meaning of authenticity of art works. Columbia Journal of Law & the Arts, 35(3), 321.

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Gilbert, L. (2014). Document dump reveals new details in Knoedler case. The Art Newspaper. Retrieved July 28, 2016, from http://old.theartnewspaper.com/articles/Document-dump-reveals-new-details-in-Knoedler-case/35881. Halperin, J. (2011). Everything you ever wanted to know about the Knoedler forgery debacle but were afraid to ask. Artinfo. Retrieved February 3, 2018, from http:// www.blouinartinfo.com/news/story/753301/everything-you-ever-wanted-toknow-about-the-knoedler-forgery. Hebborn, E. (1993). Drawn to trouble: Confessions of a master forger (1st ed.). New York: Random House. International Foundation for Art Research (IFAR)-Authentication Research. (n.d.). Retrieved July 27, 2015, from http://www.ifar.org/authentication.php. Irving, C. (1969). Fake – The story of Elmyr De Hory. London: McGraw Hill. Kinsella, E. (2013). Glafira Rosales pleads guilty in Knoedler case, faces up to 99 years. Artinfo. Retrieved July 26, 2016, from http://www.blouinartinfo.com/ news/story/959059/glafira-rosales-pleads-guilty-in-knoedler-case-faces-up-to-99. Kinsella, E. (2016). Diebenkorn’s daughter takes stand at Knoedler trial. artnet News. Retrieved July 28, 2016, from https://news.artnet.com/market/gretchen-diebenkorn-knoedler-forgery-trial-414617. Krahmer v. Christie’s Inc., 911 A. 2d 399 (Court of Chancery 2006). Kurz, O. (1968). Fakes (2nd ed.). New York: Dover Publications Inc. Lagrange v. Knoedler Gallery, No. 11-cv-8757 (S.D.N.Y. 2011). Lawrence, D., & Fan, W. (2013). The other side of an $80 million art fraud: A master forger speaks. Bloomberg.com. Retrieved July 30, 2016, from http://www. bloomberg.com/news/articles/2013-12-19/the-other-side-of-an-80-million-artfraud-a-master-forger-speaks. Manhattan U.S. Attorney Charges Art Dealer With Hiding Millions Of Dollars In Income From Fraudulent Sales Of Artwork. (2013). Retrieved July 29, 2016, from https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-charges-artdealer-hiding-millions-dollars-income-fraudulent. Maslin Nir, S., Cohen, P., & Rashbaum, W. K. (2013). Struggling immigrant artist tied to $80 million New York fraud. The New York Times. Retrieved July 30, 2016, from http://www.nytimes.com/2013/08/17/nyregion/struggling-immigrant-artist-tied-to-80-million-new-york-fraud.html. Merryman, J. H. (1992). Counterfeit art. International Journal of Cultural Property, 1(1), 27–78. Moynihan, C. (2016). Trial begins in art forgery case against Knoedler gallery. The New  York Times. Retrieved February 6, 2016, from http://www.nytimes. com/2016/01/26/arts/trials-begins-in-art-forgery-case-against-knoedlergallery.html. Panero, J. (2013). “I Am the Central Victim”: Art dealer Ann Freedman on selling $63 million in fake paintings. Daily Intelligencer. Retrieved July 29, 2016, from http://nymag.com/daily/intelligencer/2013/08/exclusive-interview-with-annfreedman.html.

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Perenyi, K. (2013). Caveat emptor: The secret life of an American art forger (1st ed.). Cambridge: Pegasus. Phelan, M. E. (2000). Scope of due diligence investigation in obtaining title to valuable artwork. Seattle University Law Review, 23, 631. Polk, K., & Chappell, D. (2009). Fakes and deception: Examining fraud in the art market. In N. Charney (Ed.), Art and crime: Exploring the dark side of the art world. Santa Barbara: Praeger. Porter v. Wertz, 23 UCC Rep. Serv. 614 (N.Y. Sup. Ct. 1978). Rashbaum, W. K. (2014). Jose Carlos Bergantiños Diaz, suspect in art swindle, is arrested in Spain. The New York Times. Retrieved July 26, 2016, from http://www. nytimes.com/2014/04/21/nyregion/suspected-player-in-art-scams-is-arrested-inspain.html. Sealed Compl., United States v. Rosales, No. 13 MAG 1324 (S.D.N.Y. 2013). Shnayerson, M. (2012). A question of provenance. Vanity Fair. Retrieved February 3, 2018, from http://www.vanityfair.com/culture/2012/05/knoedler-gallery-forgery-scandal-investigation. Simon-Whelan v. The Andy Warhol Found., WL 1457177 (Southern District New York 2009). Standards and Guidelines: Authentications and Attributions. (2009). College Art Association. Retrieved August 1, 2016, from http://www.collegeart.org/guidelines/ authentications. Stebbins, T. E., Jr. (2004). The art expert, the law, and real life. In R. D. Spencer (Ed.), The expert versus the object: Judging fakes and false attributions in the visual arts. Oxford: Oxford University Press. Swaine, J. (2014). Artist at centre of multimillion dollar forgery scandal turns up in China. The Guardian. Retrieved July 30, 2016, from http://www.theguardian. com/artanddesign/2014/apr/22/forged-art-scandal-new-york-artist-china-spain. Syson, L. (2003). The ordering of the artificial world: Collecting, classification and progress. In K. Sloan (Ed.), Enlightenment: Discovering the world in the eighteenth century (p. 108). London: British Museum. The Guardian. (2014). Spanish art dealer wanted for US fraud arrested in Seville. The Guardian. Retrieved July 26, 2016, from http://www.theguardian.com/ world/2014/apr/20/spanish-art-dealer-fraud-arrested. The Martin Hilti Family Trust v. Knoedler Gallery, Llc, No. 13 Civ. 657 (PGG) (HBP) (Dist. Court 22 December 2015). Thome v. Alexander & Louisa, 890 NYS 2d 16 (Appellate Div., 1st Court 2009). Ulph, J.  (2011). Markets and responsibilities: Forgeries and the sale of goods act 1979. Journal of Business Law. Retrieved June 19, 2015, from https://lra.le.ac.uk/ handle/2381/28193. Würtenberger, T. (1964). Criminal damage to art – A ciminological study. DePaul Law Review, 14, 83.

18 Case Study 3: A Perspective from the Fakery Frontline—An Interview with an Art Forger Duncan Chappell and Saskia Hufnagel

‘Why Brad, darling, this painting is a masterpiece! But isn’t it a … forgery?’ —John Myatt

Introduction At casual glance readers of this handbook who are aficionados of modern art will no doubt have recognised that its cover seems to be graced by a work of the famous American Pop Artist Roy Lichtenstein. But on closer scrutiny some may have also discerned that the painting, while a ‘masterpiece’, is in fact a ‘genuine forgery’, in the style of Lichtenstein, by art forger John Myatt. John Myatt achieved notoriety during the 1990s when he partnered an infamous con man, John Drew, in carrying off what has been described as one of the twentieth century’s most audacious art frauds. In a gripping account of their exploits, Salisbury and Sujo (2009) set out how ‘together they exploited the archives of the upper echelons of the British art world to irrevocably legitimise the hundreds of pieces they forged, many of which are still considered

D. Chappell University of Sydney, Sydney, NSW, Australia S. Hufnagel (*) Queen Mary University of London, London, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_18

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genuine and hang in prominent museums and private collections today’ (Salisbury and Sujo 2009, cover). Their crimes were ultimately discovered and led to their prosecution and conviction. Drew, the instigator and facilitator of the art frauds, was convicted of conspiracy to defraud, forgery, theft and using a false instrument with intent. He was sentenced to six years in prison. Myatt, the artist who created the various works of art involved, received a prison sentence of one year (Salisbury and Sujo 2009, 289). Today, after this experience, John Myatt still remains an artist who is now much sought after and admired for his works, many of which, like the Lichtenstein book-cover painting, are commissioned and labelled ‘genuine fakes’. He has also achieved prominence and fame as a media identity, largely through the Sky TV series Mastering the Art. In this programme, hosted by Myatt, he taught aspiring artists how to paint in the style of some of the great painters. Further programmes of this type have followed (see, in general, Mount 2017). In January 2017 John Myatt very generously agreed to participate in an international workshop on art fraud organised by the editors of this book and held at the Royal United Services Institute in Whitehall, London. This workshop was one of three such art crime-related gatherings which, as mentioned in the preface to this book, were conducted by the editors under a United Kingdom Arts and Humanities Research Council grant. The workshop proceedings were all recorded, including the following edited version of the session at which John Myatt spoke and responded to questions from the audience of scholars and practitioners.1 The session was chaired by Duncan Chappell and the session’s background screen slide was the Myatt painting, now on the cover of this book, in the style of the famous American Pop Artist Roy Lichtenstein.

Bibliography Mount, H. (2017). The fakes progress: How the masterpieces of Britain’s greatest art fraud are now being shown in top galleries. MailOnline. Retrieved April 26, 2018, from http://www.dailymail.co.uk/home/event/article-4317370/Britain-s-greatest-art-fraud-exhibits-galleries.html. Salisbury, L., & Sujo, A. (2009). Provenance. How a con man and a forger rewrote the history of modern art. London: Penguin Books.  The editors are deeply grateful to Ms. Trudy Wiedemen for her transcription of the workshop proceedings. 1

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A Conversation with Art Forger John Myatt Duncan Chappell Well, you now, I think, we have a treat in store because our next speaker is [John Myatt]. I don’t quite know how to describe him—a former art forger he says—but a retired practitioner of considerable fame and, I’m sure, very well known to most of you from his many media appearances. I’m a great fan of his TV programmes, I have to say and also of this particular slide [in the style of the famous American Pop Artist Roy Lichtenstein]  which, I think, sums up pretty much what his [current work comprises]. John Myatt Good man! That’s wonderful … pretty good … Duncan Chappell (chuckle) I like it! In fact I have one or two more which I might just show you quickly, to [illustrate] some of the work that he’s done. [slides shown of paintings by John Myatt in the style of Claude Monet and Amedeo Modigliani] Just to give some indication, John, of your prowess. Now let me hand the microphone over to you.… John Myatt Thank you ladies and gentlemen and thank you Duncan and Saskia. There are seven questions that were on the email that Saskia set up. I’ll rattle through them very quickly: What is the prevalence of art forgery? Who’s doing it? How effective are the regulatory mechanisms? Is self-regulation any use? How are forgeries placed on the art market? How valid, or useful, are scientific measures? What do you do with known fakes once they’re  uncovered? How can risks be reduced in authenticating works of art and people who are then open to litigation further down the line which, you know, happens quite frequently—the Warhol—all that kind of thing. Briefly, I will give you my story as it was and, how I got into it and, indeed, how I got out of it and, what’s happened subsequently. I’ve talked many times before, but there might be aspects of it that you find interesting. I always thought I was a

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musician. I was a professional musician down here in London between 1974 and 1980. As a sessional musician, I worked at most of the recording studios in Central London and I lived in W2. When my contract came up with Decca Records, my boss had just been out for dinner with Sir Marcus and Lady Sieff who, at that time, owned Marks and Spencer. Sir Marcus had bought two paintings by Raoul Dufy and Mr. Lehey, who was my boss, and his wife were very impressed by these paintings. They were sitting in the office saying why these paintings by Raoul Dufy are ‘just fantastic, south of France, you know, joie de vivre, lovely colours, all that kind of thing’. And I said ‘well, I can do something like that Dick’. They knew I had been an art student for years. I had been from Stafford Art College to Gloucestershire College of Art in Cheltenham to Bristol University. Then I taught technique up in Lancashire, before I got meningitis. Actually [it was] then that I packed all that in and became a teacher. So he said ‘I’ll give you £250 for two paintings in the style of Raoul Dufy’. They weren’t very good. He gave me £200 each for the two paintings. He spent £750 each on the frames. They were framed by the Queen’s framer, which is a bit annoying. He had a lovely house at the top of Richmond Hill called ‘The Wick’; he bought it off one of the Rolling Stones. The door opened onto the road, you went in and, I thought lovely, there were the Dufy’s. So when Sir Marcus and Lady Sieff came back from lunch, there on the wall were two paintings, very similar but bigger than theirs. And it was hilarious—my Dufy’s are bigger than your Dufy’s kind of thing. At that time, I think, Sir Marcus had paid £80 K-100 K each for the Dufy’s. We all had a good laugh and I thought it was funny and time passed by. I got married and moved up north again. My marriage collapsed. My wife left two little youngsters behind, one was 3 and one was 18 months. I had to stop teaching frankly. There was no way I could carry on teaching because there was no way I could afford to care for the children. So, I had to think of a way of staying at home, at least for the next 3 or 4 years,

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getting some money coming in. I put an ad in Private Eye magazine ‘genuine fakes from nineteenth and twentieth century paintings from £150’, and ‘50 to 250’ I think. Luckily, there was a lot of interest. Enough interest to stop the wheels coming off; at least at home anyway. I made no secret of the fact, to any customer, that I was not using oil paint. I had never used oil paint, I don’t like it very much; it smells, it gets on your clothes, and I know they do signs on doors these days as a turps substitute. Oil paint is very useful as a finisher—to finish off. If you’re looking at 18 or nineteenth century paintings for final glazes, it’s perfect. Any thin glaze over the top of water-based paint, it’s wonderful, but actually, the whole business of building up layer upon layer just takes too long. So, I don’t use it. I’ve got it, I’ve got plenty of it at home but I hardly ever use it. I can, more or less, make water-based paints do anything that oil paint can do; and, I can do it quicker. Anyway, different customers came along. Some jobs were hilarious. I remember one job. A man wanted a painting by Joshua Reynolds of some chap looking out to sea like Nelson—with a change of face, of course. We changed the face from whoever it was to him. It didn’t have to be a good likeness, but people would look say





–– ‘Gosh it looks quite like you.’ And he would say ‘Oh, yes and that’s my great, great, great, great Uncle so forth who fought at the battle of whatever’. –– Oh, yeah? –– Really you know! It’s really funny. In fact, I’m actually doing a job like that right now for a gentleman who owns an island in the middle of Derwent Water. It’s funny how these things go round in circles. But one of the customers didn’t seem to know much about painting but he kept on coming back. We started off with Matisse, we went through Picasso, Braque, we went back to Jacob Backer in the seventeenth century—a Dutch—then van Goyen because I think his wife was Dutch, or at least he said she was.

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 John Myatt’s wife.

2

And where did we end up? Most customers were good for about two or three paintings—tops. This guy just kept on coming back. Over two or three years, it was one painting after another every two months. In the end, it was pretty obvious that he had kind of run out of steam and he said to me –– ‘What would you like to do?’ Which was most peculiar really coming from a customer. –– ‘What would you like to do?’ –– ‘Well’, I said ‘I had always been very interested in Cubism’. Rosemary2 and I made a pilgrimage to Le Bateau-Lavoir last year and stood outside. I know it burnt down a couple of decades ago, but it’s still kind of there. That whole wonderful area where Picasso and all the rest of them developed Cubism. He said, –– ‘Well just do something then’. So, off I went and I came across a drawing by a German cubist called Albert Gleizes who is not really majorly thought of; sort of, bit of, a kind of academic cubist type. But I turned the drawing into a painting; small, oval painting, comme ça. I left the painting with Professor Drew, as he had introduced himself. He said thank you very much, gave me my cheque and I thought, well that’s the last I’m going to see of him. But it’s been wonderful; a really good customer! About ten days later the telephone rang and he said –– ‘Hello John, it’s Professor Drew here’, in that voice of his which was, looking back on it, an hilarious kind of smooth voice. And, he said –– ‘Are you sitting down?’ –– And I said ‘Yes, yes’; the telephone was at the bottom of the stairs so I sat at the bottom of the stairs and listened. –– ‘You know’, he said, ‘I’ve taken your Albert Gleizes to Sotheby’s and they have valued it at £25  K.  Are you interested in £12½ K in a brown envelope?’

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–– And I said ‘yes, I’m very interested in £12½  K in a brown envelope. Thank you very much I need new stairs, the kids need clothes, this is a lot of money’. –– And he said ‘Well, I don’t plan to sell it through Sotheby’s but I do have, what you might call, an expertise from Sotheby’s in that they recognize this is an original painting’. I went across to his house, and had a look at it. He had reframed it in a beautiful black lacquer oval and suspended it against a kind of hessian backdrop. It looked really gorgeous; much better than when it had left my hands. And fortunately, or unfortunately, had I left it there I wouldn’t be talking to you today. No doubt about it. But I don’t know; it’s just a question of motive, means and opportunity isn’t it. And today I would have the means but I wouldn’t have the motive. I wouldn’t be interested. I think it would be criminal to do it. Unethical! A bad thing to do but it didn’t occur to me at the time that it was a bad thing to do at all. I thought it was a rather good way of making money, in a sense, and I really believed there were no victims. Not true, of course, but people do like to delude themselves that this is a victimless crime. Well, it isn’t, but you think it is! Time went by, I got fed up with it. I had! I don’t know, what would you say? I never really thought of myself as a criminal. It occurred to me about four or five years later, mind you, not months, [but] years later that this was an extremely bad thing that I was doing. I’ve got to get out of it and I would be very lucky to get out of it with my life frankly because Drew was threatening and a deeply unpleasant character in some ways who had guns. So, I stopped doing it. But I stopped doing it too late. Eighteen months, two years after I had stopped working with Drew, the police were banging on my door and they knew pretty much the whole pattern of the crime. What was unique about it was the forgery of provenance. What he had done, had to have been done beforehand. It most definitely had been done before but not on this scale.

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Take one of my paintings. In the end I always admired the paintings of Ben Nicholson very much. I love painting that way—the pencil lines, the shapes, the lovely kind of goblet shapes he makes. Drew would forge the provenance. He would get a reader’s ticket into the V&A, the Tate; you name it, any museum, institution. He would insert old fashioned photocopies of my forgeries into their catalogue. So, when the time came when the paintings were put on the market, and were scrutinized, there was its past history in a museum. That was irrefutable to most of the academics. All of the academics, to tell you the truth. That was one way he did it. The other way he did it was by taking the paintings to an authority who was either related to or had written a very academic type book, well researched on these specific artists. And this was the way the system works. Still here, I think it is a perfectly acceptable way of doing it. You would take on, and I’m not going to mention names and reputations. I’m not in the job of trashing people’s reputations. But you’d take a painting to a particular, well-known and well-respected member of the artistic community in London. –– ‘Is this painting by Ben Nicholson?’ –– ‘Oh, yes, it looks very good to me.’ And then you would take it to Sotheby’s or Christie’s or any gallery and say, –– ‘Well, so-and-so has seen this and he likes it.’ –– ‘He likes it, does he?’ –– ‘Yes, he does’. Good, job’s over! And that’s how it’s done. Now, one of the questions is then, ‘Is there a better way of doing this?’ The answer is, actually, no! Despite this, the system you are currently operating is the least worse system. All other systems that you might care to replace [it with] are going to be worse than this one. I think most of the people in the arts business are honourable people. It is very possible for honourable people to be corrupted by dishonourable people. Honourable people think that everybody else is honourable. They see someone coming

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through the door with a painting, they don’t think ‘this is a fake’. They think it might be. They, but, they are honourable people and the art industry, as such, is full of honourable people. What is the prevalence then? Let’s go through these as quickly as we can and see. [But] before I leave that one behind, might I say that all of my work was done in house-hold emulsion paint. That’s what really strikes me as peculiar. The paintings behind you [on the screen] are done in emulsion paint and a little bit of acrylic which is why I find it so hard to believe. When I was actually told such, I this painting is being auctioned at such-and-­ thought it can’t be; it’s house paint; it’s stuff they paint the walls with. Prevalence. What is the prevalence of art forgery? The current figures that I’ve heard are between 20 and 30% of everything that is sold through auction is, in one way or other, forged or faked. Who does it? For my money, quite a lot of it comes from within the art business itself. If you are going to be an art forger, one of the best ways you can become an art forger is to work as a restorer. So much work will pass through your hands, nineteenth century, twentieth century, seventeenth century, sixteenth century work will pass through your hands. You learn by looking, by being with it, and by seeing the back of paintings. You learn by holding them in your hands, what they feel like, what they smell like. So, I do apologise for any of you who actually are in the art restoring fraternity right now (laughs) I really do. But I honestly think it is from within your ranks that quite a little bit of dodginess occurs. You know what the Victorians used to do if they couldn’t sell a painting. They said –– ‘Gosh that dog is you know … that woman doesn’t look very nice … just make her look prettier, put a dog in the corner.’ –– ‘Oh, alright.’ –– ‘Then it will sell.’ Art restorers have always done that.

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So who does it? Yes the odd chancer like Professor Drew but, for my money a lot of it, and then of course leaving aside … but remember that massive thing when communism collapsed and the Russians were flooding the market with all kinds of Goncharova’s and that kind of stuff plus high cons. They all came in with certificates from the Russian government; good old Boris Yeltsin. You know, they needed the money. So, to some extent, there is collusion at the very senior level. Certainly back then in Russia there was. How effective are the regulatory mechanisms? I think I have answered that one. The whole business of fondation that they’ve got in France, the whole business of signature that passes on from one person to another, is not a good system. But I can’t see how it can be improved frankly. Take a little artist that no one knows too much about, Gustave Loiseau, anybody heard of him? Yes, well, most of you have. His time will come. He was a good, technical painter, nothing brilliant, but somebody somewhere will be writing a massive book about what he did, who he married, who he divorced and so on and so forth. That person will know more about him than anybody else. And if you’ve got one, you will go to that person and you’ll say, ‘Oh well Madame so-and-so has seen this and she thinks it’s a Gustave Loiseau’. Great stuff! Done! Think of a better system, ‘cause I can’t. Is it a better system if his wife or his grand-daughter or his great, great, granddaughter or something has got the signature and she says, ‘Oh yes, my great, great, great, great, …’, no, of course she doesn’t. So, relying on honourable academic expertise is the best way forward for all of us. How are forgeries placed in art? On the market? In my particular case, my forgeries came as a package deal. They already had an exhibition history. It was a great help that the galleries, who had exhibited them, were all bankrupt and that the books were in the ICA in The Mall. Unbelievably, John Drew walked in and the whole catalogues from goodness knows how many galleries were in cardboard boxes, damp, on the floor in a room. He just picked them up and walked out. That situation will be the

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same in provincial galleries up and down the country now. Little towns up north somewhere where nobody can be bothered to keep an archive in good shape. Scientific measures. I love this one. I’ve got a great one for scientific measures. Here is my idea of scientific measures. I think that around the edge of every painting, right where the frame has covered it up, there are going to be thumb marks. You pick up your painting and hold it like that! Inside are the thumb marks. O.k., I think there should be a database where you look at the works of artist X and you collate all the thumb prints along the side of the painting and you say, well, we have found these thumb prints on 80% of … so that means probably these are Rembrandt’s thumb prints or whoever, Gustav whazzo’s thumb prints. And in the absence of those thumb prints, you might think to yourself, ‘why aren’t they there?’ That’s my idea anyway. Any of you scientists out there might like to start getting galleries to take their works out of the frame: Don’t forget you see the edges of the work are protected by either the canvasing set or by the overlap of the frame itself. So you are actually looking at a part of a work of art, maybe half an inch, that hasn’t been seen for a very long time. What do you do with known fakes? I’ve got a great story about known fakes. A newspaper reporter from Sweden, I think, came to interview me and he had just interviewed the head of the Swedish National Art Gallery and they had just had an exhibition of Van Gogh, or van Chork I think you’re supposed to say! Not Van Go anyway! This exhibition was a great success and the gallery director said ‘you know the funny thing when I heard about this exhibition in Stockholm is they were queuing all around the block to see these Van Gogh’s, but if I had shown an exhibition of fake Van Gogh they would have been queuing all around the block and all the way down to the Railway Station’. Why is that? I think that fake paintings give you the right not to like them. I think fake paintings actually say, o.k. I’m a fake—now what are you going to do? I’m not a Cezanne, I’m not worth $250 M. I’m a painting. And I think that is why

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there is something authentic about a fake. The original is dressed up in so much, pardon the expression, bollocks about capitalism, about art appreciation, about elitism, about finance, about the rest of it, that it’s almost impossible to look at them. A fake gives you the right to say ‘Is this going to go with the curtains?’. So, I think, despite many people thinking that fakes should be destroyed and the French, you know, want to burn them all, and all the rest. I think they should be on exhibition. The Americans have got one, haven’t they somewhere? It was in one of those touring shows they had. But honestly, I do think that if we could have a really good museum of fakes, people would love it. I would anyway. I could get some stuff in there. How can risks be reduced in authenticating? I don’t know. It’s a legal problem isn’t it? The way that rich people who cannot get a certificate out of the Warhol Foundation or the Wildenstein’s or whoever, can just sue them out of existence. I don’t know. But as the previous speaker, Saskia, was saying, there is so much, so much money around now that it makes it almost impossible to defy the wishes of the hyper-rich. I’ve been talking for about half an hour. I’ll take any questions or else I’ll go home—it’s up to you.

Q&A Duncan Chappell Thank you very much, John. Actually, I’d like to ask the first question if you don’t mind and it follows on a little bit from what you’ve just said about wanting to have a Museum of Fakes. I was looking at a review of the book that describes some of the activities that you were engaged in and the then National Gallery Director, Nicholas Penny—I’m not sure if he still is—was speaking in 2010 about an exhibition they had [titled] ‘Close Examination: Fakes, Mistakes and Discoveries’. And he said ‘I wish we had more fakes in the collection’. Now, he may well have more fakes than he thinks! And perhaps some of yours? I’m interested to find out. But he said ‘you only get good

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at spotting them by seeing them’ and is it perhaps an idea that places like the National Gallery should be collecting fakes, [and] when they are identified, put them on display? They’ve done that! We saw a show at the National John Myatt  [Gallery] downstairs, I think, where they did, actually, have an exhibition of that kind where some people have actually been painting the craquelure with very fine brushes on the surface. That kind of stuff. I did a TV program for Sky Arts—broadcast in March or April—called Fake! The Great Masterpiece  Challenge and we went to the Ashmolean and they took a painting off the wall. That’s right, what was his name Rosemary? The artist in the Ashmolean? Anyway, we also went to the Lady Lever [Gallery on Merseyside] and there was a Gainsborough in the Gallery. I copied the Gainsborough and we copied the frame and put it back on the wall. The public were invited back in and we  said ‘Mr and Mrs. Public, somewhere in these four walls there is a copy painting, would you please tell us which one you think it is’. There were 12 galleries up and down the country that participated in this project, put together by Sky Arts TV … and I still can’t think of his name; he painted photographs and studied with Degas; he was British and supposed to be Jack the Ripper. Voice in Audience Walter Sickert. John Myatt Walter Sickert—that’s right! From 1916 and I also took that as well. The people who then had gone to all 12 galleries were spotting all the fakes. Giles Coren who fronted it, really nice guy. I don’t like celebrities but frankly every time I meet one I think they are really lovely. Giles Coren was fabulous. The people in the Ashmolean were getting worried more and more about people with massive microphones going around that far away from priceless art and he was just calming the whole set down. ‘Just take it easy everybody … this is going to be fine’. And it was! And, in fact, despite what I thought was quite an abysmal copy—they wouldn’t let me have the original of course; you had to work from prints and photographs and stuff. If you want to do a good fake and a good copy, you need

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an original in front of you to do it properly—to get the feel of the thing. What surprised me actually was that, in fact, so few of the general public got it right. They didn’t get it right and you kind of thought, I mean in a couple of cases I actually put in the Sickert, I actually admitted figures. I didn’t like Sickert; he’s not my favorite artist anyway. In fact I don’t like him. But I just fooled around with the painting, you know moved some of the figures about and that was a surprise—a big surprise! But, I don’t know what conclusions we can draw from that but it’ll be up there on Sky TV—oh, and I got to paint the prize for the nice bearded graphic designer who won it. He won the whole thing. But it did draw people in, and I think that is what I’m trying to ramble my way round to saying. It brought people in. Ladies and gentlemen, somewhere in this room is a painting which is not what it appears to be. Ooohhh, let’s go and have a look. They love it. Thank you.  John, there was a wonderful exhibition at the V&A [Victoria and Albert Museum] of fakes and Claire Hutchins [Former Head Scotland Yard’s Art and Antiques Charles Squad] predecessor, Vernon Rapley, who will be here Hill [Former [to  speak] this afternoon—actually recreated Shaun detective, Greenhalgh’s [prolific British art forger 1989-2006] garScotland Yard’s den shed where he did all his fakes and you’re absolutely Art and right the cubist exhibition’s queue extended through the Antiques Squad] V&A out into the street. So it’s like your Stockholm Director who was absolutely right—fakes have a fascination. That was a good few years ago but it works and in fact Vernon went on from there from being a Detective Sergeant at the Yard to being Director of visitors’ services at the V&A.  However, my question to you is this, I’ve asked it already, Fake Science is a two-edged sword and we’ve heard a lot about science being able to reveal fakes and forgeries and that sort of thing. But comparable to what Drew did to you and your work, faking the provenance and so forth, do you see the problem with fake

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Science legitimizing fakes and forgeries and authenticating things that should not be authenticated in the future? John Myatt When you say fake science, do you mean corrupt science in the sense that … or do you mean science that is looking at fakes? Both bad science and corrupt science. Charles Hill John Myatt Well, one has to admit the fact that the scientists would be as open to persuasion by financial means or other means as anybody else. Conflicting opinions are what you want …. May I say what an honour it is for all of you to have Mr. Hill here right now. Charley was part of the team that arrested me and has a most wonderful and colourful history in the detection of art forgery and the entrapment and imprisonment of much bigger fish than I, might I say, have been hooked by Mr. Hill. In law, strictly in law, we were discussing this business with the [provenance of the] Frans Hals that recently came up and they took a sample of the paint and they discovered that in fact the binder, I think it would be the poppy oil, the linseed oil or something like that could not have been seventeenth century. Now here’s the thing. In order to prove legally that Frans Hals was a fake painting you wouldn’t just have to take paint from here and here and here and here and here, and find that those were nineteenth century binders. God help you if you had gone all the way around this painting, taking bits out of it, and in the middle you found a bit of seventeenth century binder, cause you’ve just buggered up a genuine painting by Frans Hals which has been restored in the eighteenth century and in the nineteenth century—now what you gonna do? It’s restoration! And unless they have actually shown that that [the] Hals that Sotheby’s paid all that money for is in fact, right the way down from the top to the bottom layer that it is all nineteenth century or even twentieth century that it’s supposed to be. Then in Law, it is an original. All they need to do is destroy the whole painting to prove that it’s a fake. Shall I repeat that? All they need to do is to destroy the whole painting to prove that it is a fake. All the binders and all the paint

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are twentieth century binders and it definitely is a fake. Yes? I wanted to speak a little bit in defence of conservators; to say actually that we don’t need to destroy the whole paintRobyn ing in order to [do] the sampling techniques—I [shall] Sloggett [Art talk a little bit later in my presentation about selection of Conservator, sampling and sampling techniques—but as much as posUniversity of sible we really privilege non-destructive sampling techMelbourne] niques. So that’s one thing. I’ll talk later also about—you were talking about fake science—I’m interested in talking about that but anyway that’s for later. And another thing, you were talking about the possibility of using the thumb prints on the sides of paintings? John Myatt Yes. Robyn Sloggett I’m not a paintings conservator but I was going to point out that there is something paintings conservators already do and that is when they take the painting off the stretcher, they take photographs of the edges of the canvas and those are kept on record. So, that’s sort of similar to what you are proposing. John Myatt Including thumb prints and that kind of thing? What you’re saying is, in fact, if you did—you have a way of looking at the whole surface of a work of art … without actually sampling it … and saying well this is o.k., this is fine, we like this bit. Robyn Sloggett You know, I have to say that there are so many new analytical techniques that are being developed and applied every day that a conservator or somebody who is wanting—as conservators, more than anyone else, know it’s impossible now to fake or to beat the test, the best analytical test because even if you can beat the test that we are using today, which to me is already inconceivable, you can’t beat the tests that are coming around the corner next week or next month or the month after that because … So, what do you do about it? John Myatt Robyn Sloggett We don’t know what those tests are yet. John Myatt So, what do you do about restoration then? If you are looking at something that is three or four hundred years

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old. What do you do about something that has been over-restored or even …. Robyn Sloggett See, there’s even … there’s a difference between conservators of today and the restorers of yesteryear and we have a line that we draw in the sand and I’ll talk later about what we consider to be an ethical and acceptable modification and what’s considered a not acceptable modification. But today we don’t look at restoring paintings the way that we used to. Restorers of the past, say before 1950, they were mostly artists who were paid to touch something up and make it look pretty. Today, we don’t call ourselves restorers because you are implying that you are bringing back to a previous condition which you can’t really do and the intervention that we do now is supposed to be to prevent any further deterioration and where we don’t know exactly what was there, there’s no infill, we don’t invent anything and everything we do is reversible, it can’t interfere with the chemical integrity of the object. John Myatt Doesn’t seem to me that a clever lawyer couldn’t work their way round this pretty quickly and pretty easily frankly. But thank you very much. Just a short question. Did they do … carbon dating on Unnamed the canvas? I didn’t see any in the news, you know, because Member of with this you don’t need to destroy the whole painting. Audience You just look … John Myatt I was told this back in 1995 … I went to court in 1999 so in 1995, which is what, 20 years ago, I was actually told, in law, at that time if you picked up a painting from somewhere and it had been flood-­damaged/destroyed/ been burnt, beyond all kinds of recognition but it had been at one time a Rembrandt, o.k., and then you had it restored by someone who used modern materials: Is it or is it not a Rembrandt? To the extent that bits of paint— it’s much like the Vermeer thing—you know the same kind of things going on there with him. I would say that if that item had actually been held in Rembrandt’s hands and subsequently had been damaged by years of warfare, you know, machine guns and God knows what—to some extent, it was still a Rembrandt. And despite the fact that 80% of it was a modern day restoration, it would still be

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a painting that had been in his eyes, in his hands, in his studio. It’s just one of those areas where the lady over there will say ‘no, it’s not’ because it’s, what’s the word, it’s a hybrid. It’s not really what it seems to be. But then, what is? The whole point, you know, of this whole fake thing is that it’s not so much seeing as believing, it’s believing is seeing and that we all, with our heads full of art history and that kind of stuff think we know what we are looking at. And we don’t half the time. Honestly, I really envy those people who paint for pleasure. I used to teach granny’s who would take a postcard from their holiday and they would sit there and would put the blue on and you would watch a simple, lovely pleasure of putting paint onto the surface. And I think, why can’t I feel like that? Oh, I can’t feel like that because I’m an artist. We’re too damn clever by half; that’s the problem with most of us. I’m going to finish and I’m going to say what I said at the beginning. If you are looking for a system that is better than the one you’ve got, you’re not going to find it. The system you’ve got is a good system. It’s got all kind of problems and the previous speaker was talking about massive malign effect of money on what’s going on. But it still works as a system. The fact that you people are here, and I’m here, in a sense proves it kind of works. Mr. Hill would know more than many of us. And I think it is a great shame that the old [Art and Antiques Squad] kept on having their budget cut all the time because there are aspects to the art for business in terms of terrorism, in terms of horrible things going on in the planet that it’s way above my pay grade to discuss but I think maybe other people may talk about that. Thank you very much for listening Ladies and Gentlemen. Duncan Chappell Thank you very much indeed … John Myatt for an extremely interesting talk. I don’t know if you are [still] taking orders for genuine fakes or not but you might over lunch because I think it’s lunch time now.

19 Unmasking Art Forgery: Scientific Approaches Robyn Sloggett

Determining Authenticity ‘Unmasking art forgery’ sounds like the final chapter in a crime fiction novel where the climatic denouement is revealed, and after the reader has been led through a long, convoluted and gradual process of stripping away of layers of cunningly fabricated artifice that has made the fake a convincing painting. In reality there is more plodding (through process and paperwork) and plotting (of data on seemingly ever-expanding graphs and tables) than peremptory revelation, and the complexities of law mean that even if the work is a fake, there may be no denouement. Instead the work may slip quietly back into the hands of its owner and disappear for all time, resurface at a later stage when the market is less discriminatory, or the work has been reascribed in line with the findings of an art historical or scientific enquiry. In practical terms, the determination of fraud and forgery is a legal one, and occurs at some distance from the scientific approaches that are involved in the amassing of relevant and useful evidence. In addition, the process of determining whether an artwork is a fake or not is hardly ever linear. Finding the pathway from the proposition that a work is a fake to the evidence-based conclusion that it is indeed a fake requires careful appraisal of the process at each step. Determining authenticity is a process of triangulation that brings

R. Sloggett (*) University of Melbourne, Melbourne, VIC, Australia e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_19

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together multiple approaches that include relevant expertise, a number of sources of data including primary documents and relevant research and various theories and methods of investigation. Nevertheless, it is always the case that any approach to unmasking art forgery must be secured within rigorous scientific methodology, where data that is produced as part of the investigation must be assessable, verifiable and contestable. This is what differentiates scientific approaches to art attribution from connoisseurship, which is characterised as a method where a recognised expert with specialist knowledge in a particular artist, school or period brings their expertise and experience to the authentication process. This can be problematic when the conclusions are drawn from individual experience, and it is, therefore, difficult to verify the data set used by the connoisseur. In courts of law, where expert connoisseurs were matched against other expert connoisseurs, differing points of view often left the judge and jury to decide an outcome based on an assessment of the expertise of the connoisseur, not on the evidence about the work in question. There are a number of excellent texts that provide details of scientific techniques available for art attribution and authentication, including Stuart Fleming’s Authenticity in Art: The Scientific Detection of Forgery (1976) and Paul Craddock’s edited volume Scientific Investigation of Copies, Fakes and Forgeries (2009). The aim of this chapter is broader: to examine scientific approaches to attribution and authentication. This chapter, therefore, describes the processes and protocols that are required to deliver a sound and scientifically valid finding as well as discussing some of the widely used techniques.

Scientific Beginnings The use of science to ‘unmask art forgery’ has its beginnings in the scientific studies of materials and techniques of artists that were established in the late nineteenth century and early twentieth century. Early pioneers included Friedrich Rathgen at the Royal Museums of Berlin from 1888 (Gilberg 1987) and Alexander Scott who established the British Museum Research Laboratories in 1920 (Lambert 2014). In 1928, Director of Harvard University’s Fogg Museum, Edward Forbes, opened the Department of Technical Studies to house his extensive pigment collection, and hired chemist Rutherford John Gettens and conservator George Stout to develop programmes of scientific investigation for art studies (Torres 2013). A year later, in New York, Mrs. Andrée Lardoux Hahn commenced her case against Lord Duveen over a work purported to be by Leonardo da Vinci, where for the first

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time connoisseurship and science were called to the service of authentication (Hahn and Benton 1946; Cohen 2012). When Dutch forger Han van Meegeren was convicted of fraud, at the end of the Second World War, forensic science was considered a critical part of rigorous art authentication. Paul Coremans (1949) and the scientific committee assessing the van Meegeren fakes provided both the comparative data sets and the analytical pathways, which enabled evidence to be independently assessed, verified and contested in ways that could be clearly observed and understood by external parties. Scientific analysis, therefore, became an important third platform for art authentication, joining art historical knowledge and provenance as the modus operandi for understanding where a work of art might fit within an understanding of an artist and their oeuvre. At this point the distinction between scientific approaches and scientific analysis should be noted. The former describes a method of building data using a correct process to ensure verifiability, the latter describes particular investigative techniques that may be used within this method. This chapter deals with both. Before examining specific methods of analysis it is, however, useful to examine the intellectual traditions of connoisseurship and forensic science, which inform scientific approaches to attribution and art authentication, and the two historical figures who loom large in these traditions, Giovanni Morelli (1819–1891) and Edmond Locard (1877–1966).

Giovanni Morelli Giovanni Morelli was an Italian art historian, collector and politician. He brought an evidence-based approach to the study of art history and in particular to collection assessment and attribution. His methodological approach was based on his training in medicine and comparative anatomy (Anderson n.d.). He proposed that, when provenance is insecure, a thorough examination and subsequent comparison of detail was the best way to determine the authorship of a painting. This theory gained him an influential reputation as a connoisseur. Art historian Edgar Wind described Morelli as ‘a clear headed amateur’, explaining how Morelli had […] worked out a well-defined method […] which he claimed […] transformed attributions from inspired guesses into verifiable propositions […] adopted by Frizzoni, Berenson, Friedländer and others, and now in use in all the schools of art history, Morelli’s method rests on a meticulous technique of visual dissociation. (Wind 1960, p. 2)

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He went on to characterise the Morellian method as ‘an extreme case of the kind of detachment’ (Wind 1960, p. 2). Art historian Max Friedländer ridiculed Morelli’s claims of objectivity, arguing that Morelli was simply validating intuition rather than applying rigorous process (Spencer 2004, p.  34). Analytical studies of Morelli’s technique, however, have reached a different conclusion. Tocchini-Valentini and Tocchini-Valentini (2012), examining the links between Morellian methodology and Bayesian methods for determining statistical likelihood (devised by the Reverend Thomas Bayes and published three years after his death in 1764), concluded that Morelli was using Bayes’ method of probability. They demonstrated statistical validity in Morelli’s deductive methodology, based on the Bayesian process of determining the conclusion from the probability of a hypothesis being correct. According to Tocchini-Valentini and Tocchini-Valentini (2012, p.  4), this probability is determined in turn by: 1 . prior belief about E or the probability P(E) and 2. likelihood, probability of observing the evidence given that the hypothesis is true. Or as they more succinctly describe:

P(E / H )P(H )



P(H / E) = P(E)



Today, probability, which identifies the degree to which the evidence supports a theory of a work being by an artist or conversely not being by the artist, is a significant part of the scientific methods used in attribution. In practice, Morelli’s working proposition was ‘that a painting should not be judged by forms that could be easily imitated’ such as composition, subject matter, colour and form but rather by ‘the kinds of forms that were not influenced by school or tradition’ (Vakkari 2001, p. 46). Morelli’s method assumed that a forger is less likely to be interested in, or able to reproduce, the characteristics of brushstrokes, nuance in paint application, variations in tone, application of paint and the like, in areas that cannot be dealt with generically. Subject matter, composition and palette, on the other hand, can all be easily reproduced and are therefore of little use in assessments of attribution. The Morellian method, therefore, relies on examining the minutiae of a painting rather than the overall impression: the lace in a painting by Rembrandt, or the ear lobe in a work by Raphael for example. His books on attribution contain

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‘[…] illustrations of fingers and ears, careful records of the characteristic trifles by which an artist gives himself away’ (Wind 1960, p. 5). Morelli’s assertion that ‘the starting point for identification of the fundamental forms must be an authenticated work of art which provides a source of comparison’ (Vakkari 2001, p. 47) is a keystone of contemporary attribution studies, the existence of the secured record from which to draw comparison. Without a secure body of works with direct, validated and verifiable links to the artist, it is impossible to determine where a work of unknown provenance may fit. Conversely, if works that do not have validated and verifiable links to the artist are allowed to corrupt an artist’s oeuvre then it becomes increasingly difficult to find secure points of verification. A result of this is that scholarship relating to an artist’s oeuvre and their place in art history may be compromised. Morelli was also a regular visitor to Giuseppe Molteni’s restoration studio where great works were restored and sometimes attributed or reattributed prior to their export to places such as the National Gallery of London (Anderson n.d.). His familiarity with the process of restorative intervention led him to also stress the need to understand the condition of a work and ascertain the extent of previous restoration prior to ascribing authorship. Morelli’s methodology produced extraordinary results. In the Dresden Gallery a work that was catalogued as the copy of a lost Titian by Sassoferrato was reascribed to Giorgione. The work in question is Giorgione’s masterpiece ‘Sleeping Venus’. After Morelli completed his examination of the Dresden Collection, over 45 works were reascribed (Wind 1960, p. 4).

Edmond Locard The second intellectual pioneer in establishing scientific approaches to attribution and authentication was Edmond Locard. Like Morelli, Locard had studied medicine but he also studied law. In 1910, he founded a laboratory for the study of criminalistics under the auspices of the Lyon Police Department, and in 1931 he published his groundbreaking treatise Traité de Criminalistique; Les Empreintes et les Traces dans l’Enquete Criminelle (Treatise on Criminalistics, Prints and Traces in Crime Investigation). Locard’s criminological aphorisms are frequently quoted including ‘Le temoignage est un fait vu a travers un temperament’ (Testimony is a fact seen through a temperament) and ‘Le temps qui passe c’est la verite qui s’enfuit’ (As time passes truth flees) (Giovenelli 1938, p. 448). The most significant quotation ascribed to him, however, is what has become known as the Locard Principle, ‘Every contact leaves a trace’.

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The Morellian method demonstrated that the entire artwork is capable of being presented as the trace of a set of activities relevant to an attribution or authentication investigation. This means that the work can be ‘interrogated’ from the aspect of its materials and techniques, its stylistic attributions, its method of construction and many other aspects that can be verifiably matched to a point of production. This assumption forms the methodology for the scientific analysis of artwork, where the aim is to determine the link between the work and a particular artist, and indicates again the necessity for a comparative set of securely provenanced works. In his review of the first two volumes of Edmond Locard’s seven-volume Treatise on Criminalistics, Heinrich (1932, p. 939) claimed: It is a basic principle in criminal investigation that active movements of persons, animals and things always result in disturbances to locale which are recorded or evidenced by scattering of dust and minute debris, by scars, scratches, imprints, odors, color phenomena sound phenomena etc. in greatest variety. These traces are physical. They are concrete. They are facts […] they are always indicative of their source and the kind of action that produced them. Singly or in combination these traces reveal the drama of action. These physical facts are the foundation of circumstantial evidence.

In his review of Locard’s second two volumes Heinrich (1934) argues that Locard demonstrates: It is more useful and unerring for him [the police] to know the exact color of the eye than its expression; the true shape of a certain facial feature than their complex play in emotional mimicry; and so on. (p. 993)

He goes on to explain how in Vol. IV Locard […] deals with scars and markings; observable veins such as those in the hands and forehead; the utilization of photographs; habitual actions and mannerisms; anthropometric measurements and reference tables; and certain applications of intelligence tests. (p. 994)

Scientific approaches to determining forgery seek to ascertain whether a work is what it was purported to be, not what the intention of the artist may have been, and while the purposeful construction of a work to appear to be other than what it is constitutes forgery, and profiting from the sale of what is known to be a forgery is the crime of art fraud, proof of intentional deception that results in profit is required to substantiate fraud. Whereas evidence of

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how this deception was manufactured can often be clarified by the scientific analysis of artwork, and while this might be sufficient to determine that the work should not be in the marketplace, it is not sufficient to determine art fraud. Artworks can be misattributed by mistake rather than intention, but art fraud requires an intention to enable the van Meegeren to trade as a Vermeer, the Hebborn as a da Vinci, the Myatt as a Matisse and so on.

 cientific Theory: Falsification and Points S of Identification Both Morelli and Locard established comparative methodologies, but the ability to compare data requires having valid data sets that can provide points of identification from a known set of data (works by Vincent van Gogh) to a propositional set of data (a work claimed to be by Vincent van Gogh). The security of comparative data sets is therefore important, so that the data that might be provided by fake works do not corrupt the evidential data used for comparative purposes. This is why study collections, such as that which was established at the Fogg Museum (now the Strauss Centre for Conservation and Technical Studies) and securely provenanced works in public institutions, are important. There are also standard spectral atlases available, such as those used for Raman infrared reflectography, or mass spectrographic instrumentation such as gas chromatography-mass spectrometry (GC-MS), that provide comparative data. In some cases there is no comparative data and a set of standards needs to be developed. Peer-reviewed journal articles or expert research reports such as those published in the National Gallery of London’s Technical Bulletin also provide useful information on both artists’ materials and techniques and methods of technical analysis. An initial step in unmasking art forgery, then, is to determine what data can be verified in an authentic work by the artist in question, so that comparisons between secure data and data in the work under investigation are possible. As positive results for all the questions below are likely to be the same for thousands of works, such results are not sufficient to confirm a theory of authorship. One adverse finding, however, may be sufficient: Did the artist use lead white and does this work indicate the use of lead white? Yes. Did the artist use cadmium yellow and does this work indicate the use of cadmium yellow? Yes.

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Did the artist use bone black and does this work indicate the use of bone black? Yes. Did the artist use Prussian Blue and does this work indicate the use of Prussian Blue? Yes. Did the artist use Cobalt Green and does this work indicate the use of Cobalt Green? Yes. And so on through an encyclopaedia of possible pigments, or alternatively Did the artist use titanium white and does this work indicate the use of titanium white? No. The artist painted before titanium white was produced as a pigment. Yes, this work is painted using titanium white. It is necessary, therefore, to establish which points of identification are going to be most useful. Scientific analysis may demonstrate an anomaly, for example finding of a twentieth-century pigment in a painting purported to be from the nineteenth century. If, however, further investigation shows that the work had been heavily restored in the twentieth century then the indication of a twentieth-century pigment may not be anomalous. If, however, a painting purported to be from the fifteenth century is executed on a canvas containing polyester, which was first commercially produced in 1941, then this is evidence against its authenticity. Falsifiability enables a theory to be contested, and finding an anomaly in the investigation of art fraud is critical.

Determining Evidence The Morellian method determined the requirements for good comparative data sets. The Locard Principle demonstrated the need for rigorous analytical testing. Both require secure documentation, and in art attribution the Condition Report is the key document. It includes identificatory details about the work: the title, the artist to whom the work is attributed, its method of construction and media, any indications of change in condition and other relevant information and a high-definition image. It provides a strict framework for recording information about the work and forms the basis for all subsequent documentation for the work. Importantly, it verifies that the work in question is the work that has been examined, securing the evidential link between the work under investigation, the evidence provided during the investigation and the assertions drawn from that evidence. The Condition Report provides the points of identification that set out the authentication process for that particular work. For example, the Condition

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Report might show that there are parts of the artwork that appear to be heavily restored, and therefore the twentieth-century pigment titanium dioxide found in the work is not evidence of forgery but of restoration. In a Condition Report that indicates no evidence of restoration the presence of titanium dioxide would support the hypothesis that the work may be a fake or at least misattributed. The Condition Report also informs decisions about the analytical pathway that will be chosen for the work in question, based on the general principle that examination and analysis proceed from the most basic visual analysis through more lab-based techniques to high-end analytical techniques. As decisions relating to the analytical pathway rely on what information is required from the examination, there is not one defined analytical pathway that suits every attribution investigation. The following provides an overview of the kinds of questions that science can assist with but always with the proviso that a set of standards exists, usually consisting either of securely provenanced works by the artists or a set of scientific standards against which to compare the work in question. The following outlines areas that are most likely to form the basis for data collection when assessing whether a work is likely to be a forgery.

Material Characteristics • Material type: For example, it may be important to know whether the paint may be oil paint or acrylic paint, or to be able to identify other materials that may have modified the behaviour and appearance of the paint. • Material constituents (in some cases examining trace elements at parts per million): They may help to identify, for example, the source of a pigment such as a particular form of ochre or additives that indicate a particular manufacturing process. • Qualitative and quantitative: What kind or how much of particular materials occur in the artwork? • Age: Does the paint surface exhibit cracking and what kind (mechanical, drying or environmental?). • Environment: Is there evidence that matches the history of the work? For example, if it is argued that the work was displayed in a men’s club in London in the nineteenth century, is there evidence of carbon deposits (London smog) or nicotine staining? If it was produced in the Australian desert, is there evidence of red dust?

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Materials Manufacture • Grinding method: Morphology and size can help determine whether a pigment was ground by hand or by machine and assist in assessing a possible date or place of production. • Additives: These are found at different periods and for different manufacturers, and may include driers, extenders and other forms of modifiers. • Recipes, batches: In some cases it is possible to identify particular recipes, patents or production batches. • Carrier, binder, medium: Material analysis will assist in determining what kind of material binds the pigment, including oil paint, acrylic or egg tempera.

Object Manufacture • Layers of application: For example, what kind of ground was applied, if there is underdrawing, what layers exist and how are these constructed, are there glazes present? • Artist’s choices made during manufacturing: These may include changes to the composition. • Later additions, restorations: For example, the application of a new support such as a new canvas adhered to the back of the work. • Artist’s preferred materials: Some artists have a set of preferred materials, often obtained from one manufacturer that can be identified in archives such as letters and invoices.

Materials Behaviour • Ageing characteristics: With time materials change due to inherent degradation or external influences with characteristic and measurable chemical and visual changes. • Mechanically induced changes: For example, embrittlement, cracking and dimensional changes. • Environmentally induced changes: Light, pollution and temperature fluctuations all affect materials and the subsequent appearance of the object. • Inherent vice: Different materials, or different modifications to materials, have characteristic ageing mechanisms that produce deterioration such as the discolouration of papers or canvas through oxidation or the drying cracks in paint.

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Once the work has been examined a determination needs to be made about what evidence will be collected. It is important that the process for collection is systematic so that the link between the proposition (premise) and decision as to attribution (conclusion) is verifiable. For these reasons, investigations generally proceed from macro-investigation to micro-investigation in the following stages.

The Initial Examination and Documentation An initial examination assesses the work, which is then accessioned and receipted, and the more comprehensive Condition Report is completed. At this point a proposition can be formed based on the data that have been collected. During this process the context for the inquiry will be developed and a framework for identification established. An assessment of primary sources and secondary sources that relate to the artist or the object is usually completed, and securely provenanced works by the artist in question are assessed. Such investigations confirm what points of identification might best be considered, for example the palette, ageing characteristics, use of underdrawing or specific materials. Based on this assessment the most relevant analytical pathways will be determined.

Macro-investigation A hierarchy of examination techniques is employed in the analysis of artwork, generally proceeding from non-invasive, low-tech examination to precision instrumental analysis. Non-invasive visual examination employs a range of advanced light sources to enhance the investigator’s visual acuity, thus extending the ability of the naked eye to detect information that might be of interest to the investigation. This visual enhancement is done in three ways: 1. By using visible light in a variety of ways to extend the ways in which the object can be examined 2. By using light at ends of the spectrum that is in the UV or infrared range 3. By employing a combination of these tools with magnification. The light spectrum can be understood as a continuum of electromagnetic waves with extremely short wavelengths at one end of the spectrum to long

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wavelengths at the other; the shorter the wavelength the higher the energy of the light at that point in the spectrum. Light is measured in nanometres (nm) or micrometres (μm). A total of 1000 nm make 1 μm. Visible light (0.7 μm–0.4 μm) sits in the middle of this wavelength band. Ultraviolet (UV) light (0.3 μm–3 nm) sits at the shorter end of the spectrum (next to the wavelength for violet in the visible spectrum) and infrared (IR) light (300 μm–0.4 μm) at the longer end of the spectrum (next to the wavelength for red in the visible spectrum). Microwaves occur at the far end of the infrared spectrum. Radio waves (with wavelengths from 1 mm to 100 km), comprising the longest wavelengths in the electromagnetic spectrum, are at the furthest end of the spectrum. X-rays (3 nm–0.03 nm) occur at the end of the extreme UV band and beyond this band sit gamma rays (0.03 nm–0.003 nm) that provide the highest energy wavelengths in the electromagnetic spectrum.

Visible Light Visible light is used to enhance the examination of an object by the naked eye, with both the brightness of the light and its hue (colour temperature, measured as Kelvin or K) being important. If the light source is producing light at 6500 K then some colours will take on a blue or ‘cool’ cast, whereas at 3000 K the cast will tend to orange or ‘warm’. As this may make some parts of a painting more difficult to see, it is important to use a light source that simulates the spectra for daylight, thus providing illumination over the entire visible spectrum. The angle of light is also important. A light source located at 90 degrees to the surface is useful in overall examination. Raking light, with the light source placed to the side of the object (at 45 degree or less), will throw the morphology of the work into sharp relief. This is useful when looking for the characteristics of brush strokes, for damage that has occurred or has been restored or for anomalies across the surface. Transmitted light, shone through from the back the work, may provide information on the thickness or structure of the support or paint and may help identify inconsistencies within the painting, such as identifying heavier reworked areas or determining whether the work has been relined.

Infrared Light Infrared (IR) light produces heat. It is used in a range of instrumentation, but for macro-examination, it is most commonly used to examine underdrawing

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or changes that sit below the paint surface or enhance inscriptions on works. IR light passes through some materials rather than being scattered or reflected at the surface, heating up reactive materials such as carbon that are lying beneath the surface. These materials absorb and then reflect IR light and the resultant image can then be captured on imaging software or viewed on a screen to investigate these areas lying below the surface.

Ultraviolet Light Ultraviolet (UV) light, having a shorter wavelength than visible light, is invisible to the human eye. Some materials respond to UV light by fluorescing, while others appear darker in contrast to the surrounding surfaces. Pigments with distinctive UV fluorescence include madder, with a characteristic bright orange fluorescence, and zinc white with a distinctive yellow fluorescence. Different varnishes also have different responses to UV light, with many synthetic varnishes appearing milky and lighter and aged natural varnishes such as dammar having a green hue. As more recent paint is less transparent to UV light than older paint, more recent additions, such as signatures that have been applied to ‘strengthen’ the attribution of a painting, will appear darker under UV.  Characteristic UV fluorescence is also useful in identifying other types of materials, for example, distinguishing between ivory and a synthetic substitute or an aged and recently manufactured marble. The evidence of mould on paper, or areas where bleaching has been used to remove mould, may be invisible to the naked eye, but is clearly evident under UV light.

X-Radiography X-ray images work through absorption. Denser materials absorb more X-rays than less dense material, which is why X-rays are used to examine damages in bone structure. As X-radiography is a comparative method it will only be effective where there is a difference in the density of the materials. X-rays are passed through the object to a photographic plate beneath which it produces an image of the layers. Dense materials resist the transmission of the X-ray and register as lighter areas on the image. Less dense materials allow more penetration of the X-ray to the photographic plate, resulting in darker areas in the image. In the examination of artwork X-radiography is particularly useful in determining the internal structure and condition of objects.

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Spot Tests Spot tests are another form of macro-investigation for materials characterisation that are relatively quick, easy, cheap and provide indicative results that can, if necessary, be tested further with more complex instrumentation. Some spot tests, such as using a magnet to test whether an object is made of iron, are readily available. Others require chemical reagents that give specific results for particular materials. Spot tests for metals may involve delivering low voltage to the object against which a small piece of blotting paper dipped in an acid is held. This is then introduced to the relevant reagent and indicative colour change is recorded. Testing lead, for example, involves soaking filter paper in nitric acid and then adding potassium iodide to the paper, with a yellow colour change indicating lead. Metallic cations and anions associated with corrosion products can be tested in this way (Organ 1969; Odegaard et al. 2000). Commercial Merck test strips are available for cations and anions for copper, iron, nickel, zinc and silver cations and for chloride or chromium oxide anions and others. Other materials such as starch can similarly be identified using specific reagents. There are drawbacks associated with some spot tests. Reagents can stain materials, and the introduction of additional chemicals to a surface may affect later analysis. Results may be affected by interference from other ions on the test surface. Sometimes the change is not clear enough and the results are not well-enough delineated to use as evidence.

Micro-investigation Cross Sections A useful technique for scientific analysis is cross-sectioning, where a small section, usually the size of a full stop in standard print, is taken from an artwork. These small sections can be examined without further preparation, or they may be embedded in polyester resin and polished to give a smooth surface, or microtomed to produce thin sections suitable for transmitted light examination. Cross sections provide information on the stratigraphy of the layers that comprise the object. Cross sections are also useful in differentiating natural ageing or ‘tricked up’ layers that simulate ageing. In the analysis of metals, sectioning may indicate the depth of corrosion. In a silver alloy, evidence of copper precipitation running in line with grain boundaries is characteristi-

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cally evidence of a long process of chemical interaction in a burial environment and is not easily reproduced with modern alloys (Bennett 1990, p. 180).

Basic Microscopy Basic microscopy is an essential tool with which to undertake a detailed examination of artworks. Microscopic examination provides information about the physical nature or structure of the work, useful when assessing brush strokes, tool marks, inclusion, grain size, patination, varnish and so on. It is critical in the initial examination of cross sections and samples. There is an extensive range of microscopes, each having a particular function in the investigation of artwork. Stereomicroscopes give good depth of field and enable the topography of a surface to be carefully examined. This is useful when analysing a brush stroke or examining layers of dirt or dust on a surface. Compound microscopes provide high levels of magnification and are useful in examining a particular part of the layer of a cross section. Polarised light microscopy (PLM) uses light that has been polarised, so that the vibration of light occurs in a single direction, to investigate materials that exhibit particular polarising characteristics. This is the case with a range of anisotropic pigments, viewed as cross sections or simply as powdered fragments, where morphology, colour and refractive index are enhanced under polarised light. UV fluorescence microscopy utilises the characteristics of some materials to emit fluorescence under UV light. It is used to examine paint layers and is useful in determining a range of materials including pigments with specific fluorescence characteristics such as rose madder or zinc white or varnish layers that may occur as a top coating, as a glaze or as an isolating layer between pigment layers.

Nano and Instrumental Techniques When enough contextual information has been collected by non-invasive and low-tech methods an investigation will often move to more specific analytical equipment, using instrumental analysis that may provide nanotechnology capability, to identify the materials used in the artwork. Such analysis may provide evidence of trace elements or contaminants or answer a particular question, such as what form of titanium white, anatase or rutile, is indicated in the artwork. This in turn may help with questions of dating, manufacture or authorship. For example the anatase form of titanium dioxide pigment

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came into production in its pure form in the 1920s; however, rutile was not produced commercially until late 1938. Both these compounds have the same chemical composition, but different crystal structures. Different techniques have different capabilities, and it is important that the research question is clearly formulated before specific instrumental analysis is employed in an art fraud investigation.

Scanning Electron Microscopy (SEM) SEM or frequently SEM/EDX (energy dispersive X-ray) scans a beam of electrons over the sample sitting in a vacuum chamber to provide both high-­ resolution micro-images and qualitative and quantitative data. SEM provides high photomicrograph magnification so it is a favoured instrument for ­high-­level visual examination. For example, SEM provides information on morphology, and assessing the size and shape of pigments to determine whether a particular pigment has been ground by hand or by machine may help determine the level of technology involved and indicate whether the pigment was naturally occurring or manufactured (Haswell et al. 2008, p. 368). SEM can be used to identify pigments, binders, fillers, grounds and other materials (Keune et al. 2011), useful when clarifying the sequence of materials within a cross section in order to describe the various components in composite layers. SEM analysis can be constrained by the inability to detect light elements such as hydrogen (H), lithium (Li) or others below sodium (Na) on the periodic table.

X-Ray Diffraction X-RD X-ray diffraction employs incident X-ray waves to elicit characteristic patterns based on the diffraction caused by particular crystalline atomic and molecular structures. It is particularly useful for determining differences in crystalline structures for minerals and metals and thus for differentiating various forms of a pigment. For example, it is useful in identifying the rutile or anatase forms of titanium dioxide or differentiating between the two European forms of lead tin yellow produced between the thirteenth and eighteenth centuries: the later type I (Pb2SnO4) and the earlier type II (PbSnO3). X-ray diffraction is also useful in identifying changes in the colour of pigments, such as the red lead (minium Pb3O4), which, when it alters its state to litharge (PbO), takes on a pale cream colour.

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Particle-Induced X-Ray Emission (PIXE) PIXE is a highly specialised form of analysis. With high levels of sensitivity to parts per million and very short data acquisition times (generally 1–2 minutes) and excellent multi-elemental and quantitative characteristics, it is useful for evaluating relatively low concentrations of trace elements or contaminants. It is generally non-destructive so the sample is available for further testing. PIXE uses a focused beam of protons to excite atoms near the surface to emit X-rays. The graph of the resultant peaks indicates specific chemical bond energies and from this it is possible to determine the chemical structure of the sample. It is limited in use because it is very expensive to operate (Andaló et al. 2001, p. 280). PIXE lacks portability and does not identify elements lighter than sodium, so it is not sensitive to organic compounds (Andaló et al. 2001, p. 281).

Raman Spectroscopy Raman spectroscopy uses near-infrared spectra to provide a non-invasive and through air technique using the conventional microscope to focus the Raman beam on the area to be analysed. This means an artwork or sample can be placed on the microscope stage and focused visually and then analysed using the Raman infrared capability. Raman provides high chemical selectivity, high spatial resolution to one micron (1 μm) and high spectral (1 cm−1) resolution (Best et al. 1992, Mathieson and Nugent 1992, p. 4). It provides results for both organic and inorganic compounds and can assess crystalline structures, thus being able to differentiate between pigments with the same formula, but different crystalline structures, such as rutile and anatase (Best et al. 1992, p. 69). Raman provides rapid spectrum collection time, but unless the appropriate filters are in place Raman may burn out certain pigments such as vermillion, albeit at micron level. Fluorescence of some pigments under Raman may also impede effective data collection (Mathieson and Nugent 1992, p. 7).

Fourier Transform Infrared Spectroscopy (FTIR) FTIR is a useful instrument capable of identifying organic, polymeric and some inorganic materials from relatively small sample sizes. It can therefore provide data on inorganic, organic, natural and synthetic pigments, binders

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and fillers and polymers. As FTIR can operate in situ and non-destructively, it is useful for tasks such as analysing plastics, gums and varnishes (Burgio and Clark 2001 p. 1499; Spring et al. 2008) or for characterising patina on bronze (Burgio and Clark 2001, p. 1519). Some disadvantages associated with FTIR include the fact that mixtures may be difficult to analyse and, as water is a strong absorber of infrared, it may be hard to get spatial resolution lower than ten micron in samples with high water content, resulting in poorly defined spectre.

X-Ray Fluorescence (XRF) In X-ray fluorescence, X-rays are used to displace electrons from the innermost shells of atoms, which are replaced by electrons from secondary shells, releasing fluorescent X-rays that provide indicative spectra of the elemental atomic weights of the material. Portable XRF provides elemental analysis without the need to remove a sample from the object. Although a useful tool there are some limitations to the conclusions that can be drawn from XRF; X-rays only penetrate the surface to a depth of approximately 50 micrometres so any surface leaching or surface enrichment may be misread as being representative of the object (Bennett 1990, p. 181), and it is difficult to measure light elements with atomic numbers below sodium (Na) (Schreiner et  al. 2004, p. 8).

 as Chromatography-Mass Spectrometry (GC-MS) G and Pyrolysis-Gas Chromatography-Mass Spectrometry (Py-GC-MS) GC-MS is used to identify organic materials. It involves vaporising a sample in gas or liquid form, which is analysed while being conveyed along a chromatographic column. The detectors within the column are specific for different classes of materials. Solvent extraction, outgassing (desorption) or pyrolysis is used for the analysis of solids. Pyrolysis (Py-GC-MS) uses heat to break down the sample for GC-MS analysis. Py-GC-MS is a relatively quick technique, it does not require pre-treatment of the sample losses, contamination is minimised and the process overcomes some of the issues with materials that are difficult to run through GC-MS directly (Bonaduce and Andreotti 2009, p. 298). The appendix to this paper describes some case studies where

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GC-MS and Py-GC-MS have been used in attribution and authentication studies.

Dating Techniques Radiocarbon Dating Radiocarbon dating is used for ascertaining the age of organic material. Its effectiveness as a dating technique is based on the fact that a living organism takes up carbon 12 and carbon 14 during its lifetime. The half-life of carbon 14 is 5730  years and when the organism dies the carbon 14  in its system begins to break down, while the more robust carbon 12 is retained. The ratio of these two can be determined and on the basis of this predictions of age are possible. While radiocarbon has a range of uses in archaeological enquiry, radiocarbon dates are dependent on the amount of background of carbon 12 to which the sample may have been subjected, such as bushfires or volcanic activity, and the results of radiocarbon need to take account of potential errors which may be in the order of several hundred years (Bennett 1990, p. 181).

Thermoluminescence Thermoluminescence (TL) is useful in dating ceramics and glass and is based on the process that occurs when materials with crystalline structures release electrons when heated. Materials that behave in this manner include feldspar and quartz, which absorb radioactivity from a naturally occurring source such as uranium. Heated beyond a certain temperature, the sample from the object releases electrons as light and an equation using the total TL emission and the annual radiation dose is employed to determine the likely age of the artefact. Thermoluminescence is not always reliable; refiring an object may reset radioactive take-up by the material and an original low-firing temperature may not have been enough to alter the original radiation levels. In wet environments the isotopic level may be lower than in drier environments for objects of the same age (Bennett 1990, p. 181). There are many more techniques that could be discussed here, with new ones constantly coming into use. Reviewing literature in peer-reviewed journals is, therefore, a necessary part of the scientific approach to art attribution and forgery investigation.

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Conclusion Scientific approaches to art forgery employ sets of verifiable evidence that are relevant in proving, or disproving, the hypothesis that an artwork is a forgery. While different types of scientific instrumentation may be used for analysis, adhering to scientific principles and protocols is critical. Examining the colours used in constructing the image in order to determine the palette, measuring the width of brush strokes to identify brushes that were used and comparisons with characteristic techniques found in authentic works by the artist in question, such as scumbling (dragging the brush over the surface), graffito (scratching the surface) or the particular use of glazes or methods of varnishing, all constitute a scientific approach to the examination of the artwork. On the other hand, scientific approaches to art fraud may include complex analytical instrumentation and a team of scientists working to determine a particular trace element, to parts per million, in a paint sample. In all cases, what is necessary for an enquiry to claim scientific validity is that strict protocols are in place when data are collected, processes are documented, evidence is analysed and the finding recorded, to ensure reproducibility, verifiability and testability of the approach. Identifying art forgery requires a complex and carefully constructed chain of evidence. Attribution, which attempts to locate a work within an artist’s oeuvre, must similarly ensure that works can be verifiably linked to the purported source. When this evidential chain has been in place from the time the work was created, through diligent record keeping by the artist, their family or dealers and subsequent owners, this provides a secure provenance, and questions are unlikely to be raised about the work. Scientific investigation is useful in analysing these securely provenanced works in order to provide data sets for comparative purposes, and against which to assess questionable works. In the majority of cases, however, provenance is rarely complete and evidence must be collected after the work has been called into question. In both cases the answer to the question of what constitutes an authentic artwork relies on the findings of sets of data that are collected according to scientific methods, thus ensuring that the conclusion is sound and based on the evidence. If new evidence is uncovered then the conclusion is reviewed and may need to be revised. It is the legal context, not the scientific analysis, that will determine whether the issue is one of art fraud or not. Scientific analysis cannot operate independently of art historical and provenance studies in approaches to unmasking art forgery. Scientific approaches, however, provide the methodology that builds a context in which claims made

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about a work can be tested. Developing a hypothesis, then testing this by a rigorous process of contestation, is as important in the investigation of art forgery, as in any other form of scientific research. Standardised and rigorous documentation, agreed methods of verification, assessing competing hypotheses and ensuring that all findings and analyses are reproducible are all important protocols in the investigation of art forgery. In helping to build knowledge of what characteristics constitute authentic works, in providing effective protocols and rigorous procedures and in bringing together multi-disciplinary intelligence to bear on questions of art forgery, scientific approaches to art forgery have become an essential part of good curatorial practice, effective conservation procedure and art market diligence. As attested to by the outcomes of a number of recent major art fraud scandals, there would be many more highly problematic works masquerading as originals if it were not for the effective use of science in unmasking art forgery.

 ppendix: Selected Case Studies of the Use A of Scientific Equipment in Pigment Analysis for Attribution Studies Raman spectroscopy is a useful technique for art authentication studies as it can provide analysis of both organic and inorganic compounds, as well as elemental analysis and can be completely non-invasive. Raman’s high spatial resolution and high spectral resolution makes it suitable for extremely small samples and when trying to determine the difference between pigments with the same formula but different crystalline structures (Best et al. 1992, p. 69), such as the two forms of titanium white with anatase (first produced in the early 1920s) and rutile (from the late 1930s) (MFA 2016). Researchers at the Harvard Art Museums used Raman spectroscopy, SEM-­ EDX and LDI-MS (laser desorption ionisation time-of-flight mass spectrometry) to analyse pigments in three paintings from a group of 32 that were attributed to Jackson Pollock (1912–1956). The analysis indicated a number of pigments that are expected to be found in paintings from the nineteenth and twentieth centuries, such as synthetic ultramarine, cadmium red and rutile titanium white, but also a number of pigments that were produced in the second half of the twentieth century, including a benzimidazolone pigment only available since 1971 (Khandekar et al. 2010, p. 207) and ‘a diketopyrrolopyrrole (DPP) pigment that was first reported by Farnum in 1974 and was subsequently developed by Ciba-Geigy in the early 1980s, coming onto

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the market in 1986’ (Ibid., pp.  207–208). As the works were subjected to conservation in 2002 (Ibid., p.  204) it was important to determine the sequence of the pigments but the conclusion of the study was that: ‘Some of the pigments identified in this study raised questions about the proposed date of creation, 1946–1949, of the three works analyzed’ (Ibid., pp. 210). These included a red paint ‘containing PR 112, which as of 1992 had only been marketed ‘for a few decades’. Dark orange paint on MBJPl4 and red paint on MBJP29 were found to contain PO 43, which was not industrially produced before 1953. MBJPl4 contained a pigment, PY 151, in the orange paint that was not available until 1971. The red pigment, PR 254, included in the brown paint from MBJP29 was discovered in 1974 and came onto the market in 1986. Some media raised similar questions. MBJP09 and MBJPl4 contained media that were most likely not available until the mid-1960s or 1963, respectively. (Khandekar et al. 2010, 210)

GC-MS and in particular Py-GC-MS, which can both provide good results for organic materials, are particularly useful instruments for investigating materials that cannot be readily identified by other techniques, or that require complimentary techniques. In the case of a work in the National Gallery, London, purported to be by Albrecht Dürer (1471–1528), now known as Workshop of Dürer Virgin and Child (NG 5592). GC-MS coupled with FTIR was used to identify two different types of varnish on the work. Analysis revealed that the earliest varnish on the painting contained sandarac, a material that was common in the sixteenth century and that the layer under the signature contained what was probably ‘Kauri copal from New Zealand, produced by Agathis australis’ (Ackroyd et al. 2000, p. 40) and available from the end of the eighteenth century. An earlier form of copal, manila copal, has not been identified by the National Gallery in paintings before the eighteenth century (Ibid., p. 42), indicating a later date for the addition of the monogram and supporting the hypothesis that the claims of the work being by Dürer were not correct. The GC-MS results, combined with other forensic investigation, indicated that the panel is likely to be by a number of hands, perhaps from the Dürer workshop and later strengthened with a Dürer monogram after the late eighteenth century. Another series of works produced in the Netherlands are the van Meegeren fakes, sold as Vermeers, in the middle of the twentieth century. In 1975, results were published on the use of pyrolysis-gas chromatography to verify van Meegeren’s account of how the hard paint layer, which simulated centuries old oil paint, was produced. The analysis of material from the van

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Meegeren studio, and from works purported to have been faked by van Meegeren, ‘confirmed irrevocably that the binding medium in these samples is identical to the synthetic resin Van Meegeren stated he had used’ and demonstrated that this material was a polymerised phenol formaldehyde synthetic resin (Breek and Froentjes 1975, p. 188). Some of the most difficult art materials to analyse are the large number of contemporary paints that are manufactured using organic dyes and pigments that are bound in organic media. Many of these colourants are strong tinting agents, but have small particle sizes and are often found in low concentrations. They are therefore difficult to identify with many standard techniques including optical microscopy. In addition, new technology is continually producing new colourants and media (Russell et al. 2011, p. 1473). These issues make GC-MS a useful instrument for analysis of contemporary artworks and Py-GC-MS particularly useful. In a 2011 study Russell et al. used the technique to examine paints used by Francis Bacon (1900–1920). The researchers were able to simultaneously identify synthetic organic pigments and synthetic binding media in five securely provenanced samples and one from a work attributed to Bacon. In order to have a set of reference samples they collected over 70 synthetic organic pigments from a range of sources, including the Tate. These included azo pigments, the first of which was in production in the late nineteenth century; diketopyrrolopyrrole pigments from the 1980s; the commonly used phthalocyanine pigments, first introduced in 1935; isoindolinone pigments, dating from the 1960s; and perylene pigments, produced as artists’ pigments in the 1950s. Samples of around 0.5 mm in diameter were analysed using Py-GC-MS, with SEM-EDX, FTIR and polarised light microscopy also used to identify the pigments. Paint flakes collected from works by Francis Bacon (at around 0.2 mm in diameter) were also analysed. What this study demonstrated is that for a range of otherwise difficult to analyse organic materials found in contemporary works ‘pigments found on works of art can be matched with pigments in paints from the artist’s studio, or other known works by the artist, using … Py-GC–MS’ (Ibid., p. 1490).

Bibliography Ackroyd, P., Foister, S., Spring, M., White, R., & Billinge, R. (2000). A virgin and child from the workshop of Albrecht Dürer? National Gallery Technical Bulletin, 21, 28–42. Andaló, A., Biccieri, M., Bocchini, P., Casu, G., Galletti, G.  C., Mandó, P.  A., Nardone, M., Sodo, A., & Plossi Zappalà, M. (2001). The beautiful “Trionfo

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d’Amore” attributed to Botticelli a chemical characterisation by proton-induced X-ray emission and micro-Raman spectroscopy. Analytica Chimica Acta, 429, 279–286. Anderson, J. (n.d.). Morelli, Giovanni. Grove Art Online. Oxford Art Online. Oxford: Oxford University Press. Retrieved January 17, 16, from http://www.oxfordartonline.com.ezp.lib.unimelb.edu.au/subscriber/article/grove/art/T059567. Bennett, A. (1990). Simple science in the service of authentication and attribution. Apollo, 337, 179–181. Best, S. P., Clark, R. J. H., & Withnall, R. (1992). Non-destructive pigment analysis of artefacts by Raman microscopy. Endeavour, 16(2), 66–73. Bonaduce, I., & Andreotti, A. (2009). Py-GC/MS of Organic Paint Binders’. In Colombini, I.P., & Mordugno, F., (Eds.), Organic Mass Spectrometry in Art and Archaeology (pp. 304–326). United Kingdom: Wiley and Sons. Breek, R., & Froentjes, W. (1975). Application of pyrolysis gas chromatography on some of Van Meegeren’s Faked Vermeers and Pieter de Hooghs. Studies in Conservation, 20(4), 183–189. Burgio, L., & Clark, R.  J. H. (2001). Library of FT-Raman spectra of pigments, minerals, pigment media and varnishes, and supplement to existing library of Raman spectra of pigments with visible excitation. Spectrochimica Acta Part A, 57, 1491–1521. Cohen, R. (2012, October 8). Priceless. How art became commerce. The New Yorker. Retrieved April 15, 2017, from http://www.newyorker.com/magazine/2012/10/ 08/priceless-2. Coremans, P.  B. (1949). Van Meegeren’s faked Vermeers and De Hooghs: a scientific examination. Amsterdam: J.M. Meulenhoff. Craddock, P. (2009). Scientific investigation of copies, fakes and forgeries. Oxford: Butterworth-Heinemann. Fleming, S. J. (1976). Authenticity in art: The scientific detection of forgery. New York: Crane Russak & Co. Inc. Gilberg, M. (1987). Friedrich rathgen: The father of modern archaeological conservation. Journal of the American Institute for Conservation, 26(2), 105–120. Hahn, H. H., & Benton, T. H. (1946). The rape of La Belle. Kansas City, Kansas: Frank Glenn Publishing Co. Haswell, R., Zeile, U., & Mensch, K. (2008). Van Gogh’s painting grounds: An examination of barium sulphate extender using analytical electron microscopy— SEM/FIB/TEM/EDX. Microchimica Acta, 161(3), 363–369. Heinrich, E. O. (1932). Review, “Traité de Criminalistique; Les Empreintes et Les Traces dans l’Enquete Criminelle” [Treatise on Criminalistics, Prints and Traces in Crime Investigation] by Dr. Edmond Locard. 2  Vol. Lyon: J  Desvigne 1931. Journal of Criminal Law and Criminology, 22(6), 939–940. Heinrich, E. O. (1934). Traité de Criminalistique (Treatise on Criminalistics). Vols. III and IV; Les Preuves de L’identité (Proof of Personal Identity) by Dr. Edmond

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Locard (1932-1933). Lyon: J Desvigne. Journal of Criminal Law and Criminology, 2495, 993–994. Keune, K., van Loon, A., & Boon, J. J. (2011). SEM backscattered-electron images of paint cross sections as information source for the presence of the lead white pigment and lead-related degradation and migration phenomena in oil paintings. Microscopy and Microanalysis, 17(5), 696–701. Khandekar, N., Mancusi-Ungaro, C., Cooper, H., Rosenberger, C., Eremin, K., Smith, K., Stenger, J., & Kirby, D. (2010). A technical analysis of three paintings attributed to Jackson Pollock. Studies in Conservation, 55, 204–215. Lambert, S. (2014). The early history of preventive conservation in great Britain and the United States (1850–1950). CeROArt [En ligne] 9. Retrieved January 17, 17, from http://ceroart.revues.org/3765. Locard, E. (1937). La Criminalistique. Lyon: J Desvigne. Mathieson, L., & Nugent, K. (1992). Raman laser microprobe spectroscopy and the analysis of materials from oil paint. AICCM Bulletin, 21(2), 3–11. Museum of Fine Arts (MFA). (2016). CAMEO materials database, titanium dioxide. Retrieved February 23, 2017, from http://cameo.mfa.org/wiki/Titanium_dioxide. Odegaard, N., Scott, C., & Zimmt, W. S. (2000). Material characterisation tests for objects of art and archeology. London: Archetype Publications. Organ, R. M. (1969). Spot-Tests for Application Directly to Metals. Bulletin of the American Group. International Institute for Conservation of Historic and Artistic Works, 10(1), 17–19. Roy, A. (Ed.). National gallery technical bulletin. National Gallery of London. Retrieved April 15, 2017., from https://www.nationalgallery.org.uk/technical-bulletin. Russell, J., Singer, B. W., Perry, J. J., & Bacon, A. (2011). The identification of synthetic organic pigments in modern paints and modern paintings using pyrolysis-­ gas chromatography–mass spectrometry. Analytical and Bioanalytical Chemistry, 400, 1473–1491. Schreiner, M., Frühmann, B., Jembrih-Simbürger, D., & Linke, R. (2004). X-rays in art and archaeology: An overview. Advances in X-Ray Analysis, 47, 1–17. Spencer, R. (2004). The expert versus the object: Judging fakes and false attributions in the visual arts. Oxford: Oxford University Press. Spring, M., Ricci, C., Peggie, D., & Kazarian, S. (2008). ATR-FTIR imaging for the analysis of organic materials in paint cross sections: Case studies on paint samples from the National Gallery, London. Analytical and Bioanalytical Chemistry, 392(1–2), 37–45. Tocchini-Valentini, G. P., & Tocchini-Valentini, M. A. (2012). Comparative anatomy: Giorgione’s venus, connoisseur morelli, and the reverend bayes. The FASEB Journal, 26, 1–8. Torres, R. L. (2013). A short history of a pigment collection (and art conservation in the United States). Cambridge, MA: Harvard Art Museums. Retrieved January 17, 16,

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Part IV Art Plunder

20 Plunder and Looting: Some Historical Reminders Valerie Higgins

Surrounded as we are by violent images in our daily lives—news reports, movies and video games—still, the image of a terrorist organization wantonly destroying cultural heritage or looting archaeological sites can cause outrage. Yet, most of our ancestors would have regarded such behaviour as a normal consequence of war, perhaps even a good excuse for waging the war in the first place, which begs the question of when and why the change in attitude towards cultural property came about? This chapter will chart the changing perceptions of heritage that have led us to believe today that our artistic and cultural patrimony is something so fundamental to human existence that its deliberate destruction can be deemed to be a war crime and a contravention of human rights, and its illegal trafficking is considered a major crime, possibly even a part of organized crime. The picture is incomplete. Evidence is patchy and the backstory is no easy narrative of incremental progress towards a greater moral and ethical sensitivity. But an understanding of attitudes towards the looting and trafficking of art and antiquities can tell us a great deal more than the history of criminal behaviour; it tells us how we relate to our past and reveals to us why cultural heritage can be regarded as something so fundamental to our human identity that it can be even worth risking human life.

V. Higgins (*) The American University of Rome, Rome, Italy e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_20

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Seen in a historical perspective, twenty-first-century Western society is exceptionally tied to the past for its identity. It places an unusually high value on historic remains, and not just for symbolic, aesthetic or monetary reasons, but often just because of their antiquity.1 This chapter will argue that, while Western society has a long history of collecting and valuing historical art and artefacts, current attitudes to the past were forged in the early nineteenth century. They are a legacy of Enlightenment thinking that developed in certain directions due to the value system of a society that was increasingly focused on a collective identity through nationality. This trend began in the Western world, but has now spread far beyond. The most challenging cultural heritage problems that confront us today stem from the huge symbolic importance of heritage as an expression of collective values of particular communities. When the community is attacked, the heritage is attacked.

The Ancient World A stele from the area that is modern-day Iran demonstrates both attitudes towards human opponents and towards the cultural artefacts of the vanquished enemy in early urban societies. In the third millennium, the Akkadian ruler, Naram-Sin, defeated the Lullubi, a group of mountain dwellers, in a battle that took place sometime between 2254 BC and 2218 BC. He celebrated his victory with a stele that portrays the brutal reality of warfare in graphic detail (Fig. 20.1). From the spear through the neck to the trampling underfoot of the defeated enemy, this is no idealized symbolic representation of heroic deeds, it is war in its naked fury, bloody and brutal. More than a thousand years later, in 1157, the Elamites overran the area, stole the Akkadian victory stele and added their own inscription vaunting their victory. The Elamites engaged in no special pleading for their actions; they stole as a demonstration of their power. They did it because they could, and they were happy to tell the world. Similar sentiments can be seen in the actions of the Romans who could be brutal when faced with an opponent who refused to knuckle under. Carthage was razed to the ground, Syracuse was destroyed and the Temple of Solomon in Jerusalem was flattened. The treasures from these places—and many others—were paraded through the streets of Rome in a Triumph—the ultimate boast of the victorious imperialist. The Romans were acutely aware of the 1  Paul Connerton (1989, 2009), in his twin publications, How Society Remembers and How Modernity Forgets, explores why the past has come to be of such significance to postmodern society.

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Fig. 20.1  Naram-Sin Stele. Source: DEA/G. DAGLI ORTI/Contributor/Getty Images

importance of heritage to the collective identity, but they also believed that depriving communities of their works of art was a punishment that should not be used indiscriminately. Polybius (Histories Book IX.  III. 10: 12–14) says that anything that does not have a military use should be left, and Cicero famously prosecuted Verres, Governor of Sicily, on behalf of the people whose precious items he has plundered (In Caecilium div. 3.11). Once Christianity became the dominant religion in Europe, looting and destruction of heritage became inextricably intertwined with religion. From the Moslem Saracens of the Mediterranean to the pagan Vikings of the North Sea, Christian churches and monasteries were considered fair game for marauders. Christians played their part too, most notably during the Crusades, which ensured that much treasure from the Eastern Mediterranean found its

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way to Western Europe. The 1204 sack of Constantinople by the Christians on the Fourth Crusade saw the city’s most prized possessions transported wholesale to the West, including the famous bronze horses that now adorn St Mark’s in Venice. Just as much looting took place within religious groups as between them. No items were more revered by medieval Christians than relics. A piece of the body of a saint or a religious item used by a saint was regarded as something sacred that would allow a Christian who touched it to communicate with the holy person and ask him or her to intercede in order to lessen the time in purgatory for their sins. Their importance justified magnificent casings made of gold and silver and encrusted with precious stones. Even if it was what was inside that was the valued item to the believer, rather than the external trappings, the relics and the richly decorated reliquary became, for all practical purposes, indivisible. Ownership of relics was fiercely contested, and the situation was further complicated by the fact that they were believed to have agency. A relic could not be stolen—or ‘translated’—unless the saint desired it. Therefore, a successful theft was, by definition, not a theft. Many of the most famous cathedrals in Europe have a history based on translation of relics, for example, St Mark’s in Venice, whose foundation is linked to the removal of the remains of St Mark from Alexandria by Venetian merchants. In the medieval world, concepts of legal ownership were always subservient to religious imperatives. The will of God would always trump the rights of man.

Renaissance Humanism, the intellectual foundation of the Renaissance, was a movement that initially focused on the writings of ancient philosophers and authors, but rapidly moved beyond the purely cerebral to incorporate tangible elements of classical culture, such as artwork. Renaissance art often emits a serenity, which belies the turbulent environment in which it was created. The heartland of the Renaissance, the city states of central and northern Italy, were intensely competitive places—think Shakespeare’s Verona, rather than Monet’s Giverny. Each city state vied with the next one for land and wealth, and things were no less tense within the city walls: rivalry between citizens was equally as fraught. Art and architecture were the visible symbols of your success and everyone competed to possess the largest and most magnificent patrimony. In this context, whether art was purchased legitimately or stolen in battle made very little difference. The old adage that possession is nine-tenths of the law never applied anywhere so well as early modern Europe.

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The constant movement of art, through purchase, war, dowries, coercion and theft, meant that ideas of legitimate ownership were not strongly embedded. Even the most scandalous examples of theft went unpunished if the perpetrator had the power to enforce his will. When Cardinal Scipio Borghese was determined to add a piece to his collection, he had no compunction about using his high status in the Vatican to get his own way. The Entombment by Raphael was an audacious act of theft in 1608 from the Church of San Francesco al Prato in Perugia. It had been commissioned a hundred years before by a grief-stricken Atalanta Baglioni in commemoration of her young son who had been killed in a fight for control of Perugia. Scipione Borghese, using his authority as cardinal, had it secretly removed from Perugia and transported to Rome. He ignored all pleas for its return and today it still hangs in Rome in the Galleria Borghese, which was his personal villa. Possession of art was a marker of power and status. In the sixteenth and seventeenth centuries, it signified a certain type of culture—a Renaissance man, or woman. It suggested someone with a rounded modern education that drew on the wisdom of classical Greece and Rome. Of course, it took a lot of effort to master the classical languages and not all Renaissance princes had the time or inclination for this, but there was a handy shortcut. Portrait busts of Greek philosophers or Roman emperors marked their owner as someone of learning and wealth, regardless of whether he could read a word of Greek or Latin. To own art and antiquities becomes the symbol of the elite.

Enlightenment The intellectual movement known as the Enlightenment prized freedom and liberty and promoted democracy. Thus, the ancient Greeks were seen as a role model, and the art associated with city state or polis was particularly admired. Although in its later stages the Enlightenment spawned nationalism and paved the way for the modern nation states, in its early phases, it was characterized by an internationalism, which sought fraternity through education and culture. To this end, museums—and particularly encyclopaedic museums—were founded. The British Museum, which, despite its name, has never been a national museum in the sense of promoting ‘Britishness’, was founded in 1753 ‘for the use of learned and studious men both native and foreign’. After the French Revolution, the Louvre was turned from a royal palace into a public museum in 1793 because art, culture and education should belong to the people and should not be the preserve of royalty and the aristocracy.

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Once established, these museums and similar ones that followed proved to have an insatiable appetite for acquiring objects. In order to feed this hunger, a new breed of treasure hunters developed, who scoured the Mediterranean and Middle East for precious objects to sell to museum directors who entered into a bidding war, thereby fuelling the trade further. These adventurers were seen as exciting, romantic characters, engaged in saving antiquities for the benefit of mankind. We would probably call them traffickers today. Visiting museums was one way that an Enlightenment education could be acquired, but even better was to take part in the Grand Tour, a practice which began in the mid-seventeenth century. It carried on until the nineteenth century when Mr. Thomas Cook opened up foreign travel to the masses. For two centuries, the Grand Tour defined the educated classes in Europe and America and determined the nature and ownership of much of the art that survives today. Grand Tourists bought up art and antiquities en route and had them shipped back to furbish their stately homes in Northern Europe and North America. The legality of these transactions is hard to trace for all but the most famous pieces. As any visit to a stately home today will confirm, the provenance is usually very vague, and documentary evidence for the purchase is often incomplete or absent. Antiquities, in particular, were almost impossible to verify. The Italian countryside is littered with ancient settlements, well known to local communities. These are notoriously difficult to police even today, and would have been quite impossible to safeguard in the eighteenth and nineteenth centuries. Concepts of the modern nation state date to this period, and many countries today still have borders that date back to this time. A nation state is an example of what Benedict Anderson (1983) has termed an ‘imagined community’, that is, the members (nationals) of the community (state) may not know each other, but they believe that they have something in common, which unites them. Culture in general (language, art, literature, customs) is the glue binding the nation and is the expression of its unique zeitgeist. But such a community also needs a foundation, preferably heroic, and for this antiquities are key. Archaeological sites and their finds came to be seen as the physical manifestation of national origins and, as such, they could not belong to individuals, especially foreigners. They belonged to the contemporary community collectively and not to the persons who had bought/acquired/stolen them. The development of nationalism resulted in a different attitude towards art and antiquities. Material culture was seen as evidence of a nation’s ‘roots’, no longer was it the common property of all educated men. The encyclopaedic approach, which encouraged the collection of material from all over the

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world, in order to spread knowledge and benefit mankind, began to be questioned. It started to be seen less as philanthropy and more as an instrument of imperial colonialism. The story of Greek independence serves as an example of changing perceptions of the role of heritage. During the Greek Wars of Independence from 1821 to 1832, the so-called Philhellenes signed up to help Greece throw off Ottoman rule. They were generally wealthy young men who came from all over Europe and America, but especially Germany. This was the class who visited museums, collected antiquities and did the Grand Tour. Epitomized by the romantic poet Lord Byron, they were the intelligentsia who believed that Western culture owed its very existence to the ancient Greeks and that to see this once great civilization impoverished and reduced to servitude under the Turks was an affront to all Europeans who shared this heritage. When the call to arms came, they responded enthusiastically. Ironically, one of the first laws passed by the newly formed Greek state was to claim the rights to all antiquities found on Greek soil, thereby outlawing the collecting of antiquities, which had been the hallmark of the committed Philhellene. Far from seeing Greek culture as universal to all Europeans, it was declared to be exclusively the heritage of those who lived within the borders and claimed direct descent from the classical Greeks. It was not to be owned by private individuals, sold to foreigners or stolen by them to be transferred abroad: […] all antiquities within Greece, as works of the ancestors of the Greek people, shall be regarded as the national property of the Greeks in general. (Law of 10/22 May 1834, Article 77, quoted in Voudori, 2008, p. 126)

Shortly after, another law was passed, which prohibited all archaeological excavations except those authorized by a permit. The message could not have been clearer. The Greeks were what we would call today early adopters of the idea that culture, and above all antiquities, were the preserve of the state, but they were not a lone voice. In 1815, after the defeat of Napoleon at Waterloo, the Treaty of Paris was signed. One of the provisions of the treaty was for the return of the art works that Napoleon had transferred to Paris, as a result of his conquests. In a letter to Lord Castlereagh, dated 23 September 1815, the Duke of Wellington wrote: The Allies, then having the contents of the museum [Louvre] justly in their power could not do otherwise than return them to the countries from which,

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contrary to the practice of civilized warfare, they had been torn during the disastrous period of the French revolution and the tyranny of Bonaparte. (Quoted in Miles 2008, p. 332)

In retrospect, we can see that the Treaty of Paris marks a turning point. It encapsulates the idea that heritage belongs to a community and should not be traded as war booty or sold off. It contrasts markedly with the Capitulation of Alexandria (see below) signed some 14 years previously. However, the concept of the victors rewarding themselves with the art of the vanquished party was far from dead. In 1919, the Treaty of Versailles required Germany to surrender, as part of war reparations, panels from the fifteenth-century Ghent altarpiece held in the Kaiser Freidrich Museum in Berlin, despite the fact that the panels in question had been legally bought from an English art dealer called Solly in 1821 (Charney 2010, pp. 110–111). Art as part of reparations was even proposed at the Potsdam Conference at the end of World War II (see below). Despite these reverses, the overall trend is clear. Between 1870 and 1914, legislation to protect heritage was passed in almost all European states, North America and parts of North Africa and Asia. This meant that in these areas, the long-established trade in antiquities and historical art became legally restricted or even banned altogether. There is little sign that this resulted in an immediate cessation, especially as effective implementation of the legislation varied widely, but it marks the beginning of the path that has led to increasing restrictions and a growing sense that it is ethically wrong to trade items that symbolically represent the heritage of a particular nation or culture.

Imperialism Beyond the borders of Europe, attitudes to heritage were more complicated. In much the same way as modern diplomacy has been played out on sports fields, so nineteenth- and early twentieth-century museum collections became a proxy battlefield for the imperial ambitions of France, Germany and Great Britain. One could also include the United States in this category, though their ‘imperialism’ was of an altogether different kind. The growing restrictions on the import of European antiquities, especially from Greece and Italy, served to increase the interest in antiquities from other areas. Egypt provides our clearest example. It had long been a land of opportunity for individual treasure hunters, such as Henry Salt, Giovanni Battista Belzoni and Bernadino Drovetti, who searched out Egyptian antiquities to sell to

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museums, playing off one museum against another to get a better price. Government representatives of the European powers did not hesitate to get involved by supporting and protecting one treasure hunter against another, depending on the museum that would be the ultimate beneficiary of his finds. The expedition of Napoleon to Egypt, from 1798 to 1801, raised the stakes even higher. The Rosetta Stone currently resides in the British Museum not because the museum bought it from a treasure hunter, but because it was part of war booty from the defeated French. The stone and a number of other items were incorporated into the Capitulation of Alexandria, signed after the French surrender at Alexandria. The British authorities at this time clearly shared none of the sensitivities expressed by the Duke of Wellington 14 years later, when negotiating the Treaty of Paris. Excavations in Egypt were carried out by foreign teams. As the express purpose of these excavations was to obtain antiquities, it is clear that to put a complete stop to the export of finds would lead to an immediate drying up of revenue. The black market in antiquities ensured that any site left unguarded would be robbed, and without the money from foreigners for excavations, there would be no money to pay for custodians. The compromise introduced by the Egyptian authorities at the beginning of the 1890s was to pass an act, which claimed everything as belonging officially to the state of Egypt, but, at the discretion of the authorities, excavators might receive a part of the finds as an acknowledgement of their contribution. This system became known as partage, and it was common practice throughout Egypt and the Middle East during the late nineteenth and twentieth centuries. As the imperial powers of Germany, Great Britain and France extended their control over the area that is today called the Middle East, so the territory was divided up between the archaeologists of their respective nations, and the finds from archaeological excavations ultimately ended up in the museums of those countries. Until the end of World War I, the whole area was under the control of the Ottoman Emperor, but he was quite willing to sell the rights to antiquities. The antiquities from these areas were considered to be particularly valuable by Western museums. In what is present-day Iran and Iraq lay the sites of the first cities dating from the fourth millennium. In addition, this area contains many biblical sites, so, in addition to excavating for artefacts, there was also a strong religious motivation to demonstrate that the stories of the Old Testament had a scientific validation. The scale of the archaeological excavations and the size and quantity of the finds were staggering. The British Assyriologist Henry Austen Layard excavated Nineveh, Nimrud and Babylon in the middle of the nineteenth century, and during that time, he uncovered

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kilometres of sculpted wall relief, a colossal statue of a winged lion and the Black Obelisk. He was in competition with French teams led by Paul-Emile Botta, who carried out equally extensive excavations at Kish, Babylon and Korsabad. Towards the end of the century, a team from the University of Pennsylvania began excavations at Nippur, and between 1899 and 1917, the German Oriental Society dug at Babylon, uncovering the Procession Street, the palaces of Nebuchadnezzar and the Ishtar Gate. The appropriation of this area by the Western powers was so complete that they even had their own nomenclature for it. The area was designated Mesopotamia or Sumeria, terms that continue in use today.2 With the defeat of Germany and its ally, the Ottoman Empire, in World War I, a new political map of the Middle East was drawn up by the victorious allies. A new state, Iraq, was created which drew together Sunnis, Shiites and Kurds. A key figure in the negotiations was Gertrude Bell, a long-time resident of Baghdad, an archaeologist and military intelligence officer. As almost the only Western person with in-depth knowledge of all the languages and cultures of the area, she was uniquely placed to negotiate. She proposed that these formerly adversarial groups could be encouraged to find national unity through a shared culture and the vehicle for this would be the newly created National Museum of Iraq and the National Library. In order to fill the National Museum, antiquities laws were passed, which required foreign excavators to agree to partage. Although the foreign excavators were far from happy at the new arrangement, the incomparable richness of the sites still made excavation worthwhile, and, in the short term, it was a practical solution to founding a new national museum. One of the reasons that foreign museums continued to invest in Iraq is that the situation in Egypt was even more difficult for them. Egypt was declared independent in 1922, and in 1923 a new constitution was passed. The Egyptians wanted complete control of their antiquities and the old custom of partage was abolished; all finds would automatically remain in Egypt, unless the authorities decided to make an exception. Many established Egyptologists, such as Finders Petrie, moved to work in other countries. Howard Carter did not decamp. He had been working in the Valley of the Kings since 1917, and was on the verge of leaving empty handed when, in November 1922, he discovered the Tomb of Tutankhamen. Thus, the greatest discovery in Egyptian archaeology was made at precisely the moment that the  Bahrani (1998) has examined how the West has appropriated and continues to claim control over the heritage of this area through its use of terminology, which links its heritage to development of Western culture and denies its links with the contemporary population of the area.

2

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newly founded Egyptian state claimed full authority over all antiquities. By the time the final agreement was drawn up in January 1925, it had been determined that the Egyptian government would retain all the antiquities and pay a sum of money into Lord Carnaevon’s estate to defray the costs of the excavation (Tyldesley 2005, p. 206). Had the tomb been discovered when Carter first began work in the Valley of the Kings, the outcome would surely have been very different.

National Socialism The use of archaeology, art and culture to define a national identity was taken to new and very disturbing levels by the rise of National Socialism in Germany in the aftermath of World War I. There was barely an aspect of the arts and culture that was not touched. Visual art, music, history, literature, archaeology and intangible culture were all pressed into service to bolster the myth of a master race. It is an irony of history that one of the most egregious examples of plunder and looting ever recorded came about as a result not of a desire to destroy cultural heritage, but rather to claim it, own it, possess it, ‘purify’ it and, ultimately, glorify it. Any artistic style that ran counter to the classical tradition, such as Impressionism, German Expressionism, Cubism or abstract art, was ­condemned as ‘degenerate’ and the works seized and either sold to make money for the party or destroyed. Artists deemed degenerate were removed from any teaching or official posts, forbidden to exhibit, produce new art or eventually even to buy art supplies. But the persecution of individual artists was small scale compared to the total destruction of cultural heritage unleashed on Poland and other countries to the east which were occupied by the Germans after the outbreak of war in 1939. Polish, Slavic, Russian and Jewish cultures were defined as ‘Kulturkisch’ and were to be eliminated completely. The most devastating result of this policy would be the complete destruction of the historic centre of Warsaw in 1944. The greatest single impact on the cultural heritage of Western Europe came from Hitler’s project for a massive new art museum, the Führermuseum in Linz, the town of his childhood. He appointed Alfred Rosenberg to head a task force, the Einsatzstab Reichleiter Rosenberg (ERR), to collect the finest masterpieces from European collections to fill the museum. Rosenberg was given carte blanche: a directive from Hitler ‘entitled [him] to transport to Germany cultural goods which appear valuable to him and to safeguard them there’ (quoted in Nicholas 1995, p. 140). As Germany progressively occupied

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Europe, so museum and private collections were raided for works of art to be added to the Linz museum project. Any that were surplus to requirements for Linz were offered to other German museums or high-ranking Nazi officials. The scale of the expropriation was unprecedented. The destruction of Europe’s cultural heritage provoked a response in America, where scholars pressurized the government to react militarily. In 1943, the US Army formed a detachment known as the Monuments, Fine Arts and Archives (MFAA) or, as they became more popularly known, the Monuments Men. Originally, there were some 60 officers, all of whom had a background in fine art, art history, architecture, conservation, archaeology or museums. The majority of them would have been deemed too old or unfit for regular military service. They never formed a unit as such; instead, they were attached individually or in small groups to regular units. Their task was to accompany them and advise on how to minimize damage to cultural heritage; in addition, they were to track down art works taken away by the Nazis. Despite their small numbers, Monuments Officers were remarkably successful in tracking down Hitler’s looted art. Their biggest challenge came after the end of the war as the huge store of art from more than a thousand repositories had to be returned to the rightful owners. Eventually, more than five million objects were returned and the collecting centres were not finally closed until 1951. The remaining objects (which still numbered more than a million) were handed over to a Trustee Agency, which divided up unclaimed items among museums and institutions (Nicholas 1995, pp. 450–451). Hundreds of thousands of objects disappeared and have never been found. The Allies condemned Hitler’s cultural appropriation, but archives have revealed that some members of the US government wanted German art sent to America as part of post-war reparations. At the Potsdam Conference held in 1945, at which the victorious Allies decided the future of post-war Germany, the principle American negotiators, Edwin Pauley, General Clay and Colonel Bernstein, proposed that German art should be sent to America for ‘safekeeping’, until such time as Germany was sufficiently recovered to look after it. Pauley expressed disdain for German industry and labour and felt that German art and culture was one of the few aspects that would be useful to America (Nicholas 1995, pp. 385–387). The other Western Allies and many American parties, including the Monuments Officers, were appalled at this. They saw it as, in essence, no different to the kind of looting that the Nazis were accused of and that they had risked their lives to stop. The general public agreed. When the story was leaked through the New  Yorker, there was an uproar and the idea was dropped, though not before a cargo of 202 masterpieces had been selected to be shipped to the National Gallery in Washington. The paintings were finally returned to Germany in 1949.

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The Establishment of UNESCO The United Nations Educational, Scientific and Cultural Organization (UNESCO) was launched on 16 November 1945. The idea of such an organization had been postulated even before World War II, but the events of the war gave a new sense of urgency. In 1942, the Conference of Allied Ministers of Education (CAME) from European countries met in London and agreed to establish a new organization that would promote peace through respect for all cultures. Culture and heritage would be used in future to promote human understanding and economic well-being, not to justify destruction and racial hatred. When peace in Europe was declared, the CAME group moved quickly to convene a second conference in London, which 37 countries attended, and UNESCO was born. It remains the single most important international agency dealing with cultural heritage. Inevitably, the early agenda of UNESCO was a direct response to the events of World War II. It was seen as crucial to bolster international protection for cultural heritage in times of conflict. This led to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, the first international agreement specifically devoted to this issue. The convention required all signatory State Parties to make provision in peacetime for protecting cultural property by drawing up inventories, labelling buildings of cultural importance with a distinctive Blue Shield marking and training the military in heritage protection. Once conflict has begun, State Parties undertook to respect their own and enemy forces’ cultural property by not using it for military purposes and sparing it wherever possible, though the concept of military necessity was accepted as taking priority. Occupying forces were to take all reasonable steps to prevent theft, looting and vandalism of important heritage sites. The 1st Protocol to the Convention (adopted at the same time as the Convention itself ) was concerned with movable cultural property and addressed the issue of reparations directly: ‘Each High Contracting Party undertakes to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory […]. Such property shall never be retained as war reparations’ (Article 1, paragraph 3). These provisions were opposed by influential forces in the art market and for this reason were contained in a separate protocol, which allowed States Parties to sign up to the main convention, but opt out of a commitment to stopping trafficking in movable cultural property (Gerstenblith 2010, p. 10). As well as promoting heritage protection through international conventions, UNESCO also sought to encourage international co-operation through

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collaboration in high-profile rescue projects. The ideal opportunity presented itself when, in 1954, a decision was taken to build the Aswan Dam on the Nile. The dam would provide much-needed hydroelectric power for the region, but would necessitate flooding many ancient monuments in upper Egypt and Sudan, including the Temple of Ramesses II at Abu Simbel and the temple complex on the island of Philae in the middle of the Nile. The task was one of the most challenging ever undertaken in terms of engineering complexity and scale, and it could not have been achieved without international co-operation. In 1960, the rescue operation began: 23 temples were documented and dismantled. Some were rebuilt nearby, others were transported to museums and reconstructed (Hassan 2007, p. 84). Egypt gifted temples to museums in New York, The Netherlands, Italy and Spain in gratitude for the assistance received. Other international projects followed, such as saving Venice from floods in 1966, emergency conservation on the heritage damaged in the floods in Florence in the same year and major conservation work at the ninth-century Buddhist temple complex of Borobudur in Indonesia. Increased international collaboration on heritage projects was an important factor in gaining agreement for the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, passed in 1970 and active from 1972. It called on all States Parties to introduce legislation to protect cultural heritage from illegal trafficking. A further step forward in international co-operation was the creation of the World Heritage List (WHL) adopted in 1972 and active from 1975. The list has proved to be popular beyond all original expectations. There are currently over a thousand sites on the list, and many more are in the process of applying. The success of the WHL has not been trouble free, as will be discussed more fully below.

The Repatriation Movement The end of World War II saw the final elimination of European overseas empires. The process of independence presented new challenges for former colonies, many of which had to create their own national identity for the first time. The sociologist Stuart Hall (1994, p. 393) summed up the difficulties when he said that decolonized nations had to find ‘one true self ’ hiding inside other selves. Many new states turned to cultural heritage to promote a new collective identity, but found that their most valuable objects were in museums thousands of miles away. The repatriation of objects taken to foreign museums in

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colonial times became an important issue. These objects were usually the most exquisite examples of the achievements of precolonial times, and without them, the national identity was much impoverished. At a UNESCO Forum on Memory and Universality in February 2007, Alain Goudonou, at that time director of a school of conservation in Benin, claimed that 90–95% of sub-Saharan cultural heritage was in museums outside Africa (quoted in Prott 2009, p.  61). The Nigerian parliament called on the British to return the Benin bronzes, which had been removed by the British in 1897 as a punishment: These objects of art are the relics of our history—why must we lose them to Europe? If you go to the British Museum, half the things there are from Africa. It should be called the Museum of Africa. Omotoso Eluyemi, head of Nigeria’s National Commission for Museums and Monuments. (BBC 2002, Nigeria)

Throughout the twentieth century and into the twenty-first century, repatriation claims have become stronger. Ex-colonies have joined forces with Greece, Italy, Egypt and Turkey to insist that objects taken abroad in previous eras be returned, whatever the legal status of the original acquisition.3 Often the official legal position is at variance with feelings of natural justice and new cultural identities. The most insistent demand has come from Greece for the return of the Parthenon (Elgin) Marbles, housed in the British Museum. In order to counter demands for repatriation, which it was feared would strip museums of their collections, in December 2001, 18 of the most important museums (informally known as the Bizot group) signed the ‘Declaration on the Importance and Value of Universal Museums’: objects acquired in earlier times must be viewed in the light of different sensitivities and values, reflective of that earlier era […]. Calls to repatriate objects that have belonged to museum collections for many years have become an important issue for museums […]. Although each case has to be judged individually, we should acknowledge that museums serve not just the citizens of one nation, but the people of every nation […]. To narrow the focus of museums, whose collections are diverse and multifaceted, would therefore be a disservice to all visitors. (reproduced in Prott 2009, pp. 116–117)

 A similar movement developed in the Americas with regard to material taken from Meso-American and South American sites to, predominantly, US museums. 3

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The call for repatriation continues to grow, but has been less vocal since the Arab Spring uprisings began in December 2010, as many of the countries which requested the return of objects are now in conflict zones and the immediate problem of protecting heritage in these areas is of overwhelming importance. However, the issues raised by the repatriation debate have not gone away and, over time, have become more convoluted. It seems inevitable that this topic will reemerge and will ultimately require a broader solution than can be accommodated within the current status quo.

Clamping Down on Trafficking For some countries, the more pressing issue is not items that were historically looted, but material that is still being illegally excavated to supply the illicit art market. Italy has suffered more than most countries in this regard: in the second half of the twentieth century, antiquities were haemorrhaging out of the country at an alarming rate. Until the passing of a new antiquities act in 1939, excavations by so-called tombaroli or grave looters were often carried out on behalf of wealthy landowners and were not only tolerated but could even be authorized by official permits. Post-World War II, the authorities began to clamp down on such excavations, but the trafficking networks that had been developed over centuries continued to operate, just in a more clandestine manner. In 1969, in anticipation of the 1972 UNESCO Convention, a special unit of the Carabinieri (military police), called the Tutela del Patrimonio Culturale (TPC), was set up to deal with stolen art and antiquities. Of particular concern to the Italians was the role of major museums in the trafficking of stolen goods. The UNESCO Convention appeared to make very little impact on their acquisitions policy. The huge prices that institutions, such as the New  York Metropolitan Museum and, in particular, the Getty Museum, were prepared to pay was fuelling the entire trade, and the veneer of respectability that they gave to trafficking was equally as damaging. The museum world was slow to apprehend the winds of change that the 1972 UNESCO Convention signalled. They carried on with business as usual. When Thomas Hoving, Director of the New  York Metropolitan Museum, bought the Euphronius Vase for a million dollars in 1971, it was clear that he was aware that the provenance document was suspect, and therefore the vase was potentially stolen (Silver 2009, pp. 65–67). Despite increasingly open criticism from academics and scholars, major museums continued to behave in this way for the next thirty years until finally the Italian state decided they had to be brought to heel and the way to do it was to threaten individual

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art curators and hold them personally accountable for their actions. Negotiations at institutional level with museums had achieved very little, so Italian prosecutors decided on a change of tactic. In 2004, Marion True, a curator from the Getty, was arrested and the following year she was put on trial in Italy charged with handling stolen goods. Marion True, whilst certainly not blameless in the matter of acquiring stolen antiquities, was also not an isolated bad apple. She could demonstrate— and she made it quite clear that she was prepared to demonstrate in the witness box—that she was part of a museum culture. Her transactions, however unethical or illegal, were standard practice in the Getty and elsewhere and were all known of and approved by her institutional superiors. If she could be indicted, so could many others. It was this unspoken threat that finally brought about a resolution, which rippled through the museum world far beyond California and New York. Agreements were signed, which brought back items with dubious provenance not only to Italy but also to Greece and Turkey. In some cases, these were in exchange for generous loan agreements in order to fill the empty American display cases. Some museums, such as the Boston Museum of Fine Arts, offered back items without waiting to be formally asked. It has been estimated that the total monetary value of goods returned exceeds half a billion dollars, and most of these were offered spontaneously, after the indictment of Marion True (Felch and Frammolino 2011, p.  1). In the end, Marion True did not go to prison and, privately, Italian prosecutors admitted that this had never been their aim. They had wanted to change the way American museums conducted business and in this they succeeded. Some of the charges against True were dropped and others allowed to expire with the statute of limitations. However, her arrest changed for ever the way museums operated.

Cultural Genocide: The Break Up of Yugoslavia Although by no means the first historical instance of cultural genocide, the Balkan Wars of the 1990s brought the concept to world attention and, for UNESCO, it was a new—and unexpected—challenge, outside their previous experience. Yugoslavia came into existence at the end of World War I and was originally called the Kingdom of Slovenes, Croats and Serbs. It was renamed the Kingdom of Yugoslavia in 1929. At the end of World War II, the monarchy was abolished and it became the Federal People’s Republic of Yugoslavia with a Communist government. Seen by the West as the acceptable face of

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Communism, Yugoslavia, through its official policy of ‘brotherhood and unity’, appeared to have papered over the regional, ethnic and religious differences of its constituent parts and gave the impression of being a successful multicultural state. In reality, historical ethnic tensions were never far below the surface. The demise of Communism led to a wave of ethnic violence, which took the rest of the world by surprise, as did the level of brutality. Mass executions, torture and internment in concentration camps bear witness to the fact that it was annihilation of opposing groups that was intended by some of the protagonists, not mere domination. It was all horrifyingly reminiscent of World War II, and it revealed all too clearly the limitations of the 1954 Hague Convention. A further parallel to World War II was the intentional destruction of cultural heritage, not in order to achieve a military objective or for strategic advantage, but carried out to obliterate the cultural memory of a rival group. The first act that brought world attention to the impact on heritage of the Balkan Wars was the siege and bombardment of the World Heritage Site of Dubrovnik, on the Croatian coast, in 1991–1992. Regarded as one of the most beautiful, as well as historically important cities in the Mediterranean, it was a tourist town of no possible military significance. It signalled what was to be one of the characteristics of Balkan conflicts in the 1990s: historical monuments, art, literature or any kind of heritage that represented the cultural achievement of one ethnic group were targeted for destruction. The intention was to change forever the cultural landscape of the region by ensuring that it would reflect just one group, not the collective memories of the diverse communities that had formerly inhabited it. The most intense period of cultural destruction came during the Bosnian War of 1992–1995. Two images in particular came to symbolize the wanton destruction of cultural heritage for ideological reasons. Firstly, the attack on the Bosnian National Library (Vijećnica) in Sarajevo on the night of 25–26 August 1992. The Library had contained more than a million and a half books and over 150,000 rare books and manuscripts. The second image, which came to sum up the war, was the destruction of the Mostar Bridge on 9 November 1993. Apart from the elegant beauty of its structure and its historical value, it had formed a link between different communities on either side of the river: its destruction seemed to encapsulate the fate of the nation. Religious buildings suffered disproportionately—mosques, Catholic churches and Orthodox churches—but Muslim cultural heritage, in particular, would bear the brunt of the damage (Walasek 2015b, pp.  25–37). Throughout the region, towns and cities that had previously been culturally pluralistic became monocultural, as heritage was selectively destroyed. The

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city of Banja Luka serves as an example, but its story was repeated in other places many times over. There were no hostilities at Banja Luka, at no time was it on the front line. This did not prevent the destruction of all fifteen of its mosques, including the sixteenth-century Ferhadija Mosque, plus a number of other Muslim and Ottoman buildings. Structures were blown up with explosives, bulldozed over and the rubble removed to the municipal dump (Walasek 2015b, pp. 25–29). The war was finally brought to an end with the signing of the Dayton Peace Agreement on 14 December 1995. Annex 8 made specific reference to cultural heritage, with an agreement to establish an Independent Commission to Preserve National Monuments. The reason that the Hague Convention fell short in its goal of protecting heritage in ex-Yugoslavia was perceived to be because its terms of reference were conditioned by World War II, whereby the attacker was an enemy state who, in theory at least, conformed to international agreements. The Convention made little provision for conflict between rival groups, who had originally all formed part of the same state and whose goal was specifically to eradicate the culture of their rivals. Under these circumstances, inclusion on an official list of important heritage sites and demarcation by a Blue Shield, far from protecting a monument, was more likely to make it a target. In the wake of the Bosnian War, there were a number of initiatives that aimed to incorporate the lessons learned from this experience into more effective protection for cultural heritage, including the formation of the International Committee of the Blue Shield (ICBS) in 1996, to raise awareness at a national level of the Hague Convention. Whilst in general terms this was a good move, it did nothing to address the specific issues raised by the Balkan Wars. In a UNESCO report of 1989, the Yugoslav military had been praised for its adherence to the procedures of the 1954 Hague Convention, in particular, its thorough listing of cultural heritage and the designation of Blue Shield sites (Walasek 2015b, p.  53), a tribute which now seems sinister in light of the fact that the Yugoslav Army became the greatest perpetrator of cultural destruction. In fact, many of the well-intentioned projects planned in this period fell short of producing lasting results (Kila 2012, pp. xix–xxiv, 46–50; Walasek 2015a, pp. 15–16). The single most important response to the Balkan Wars was the drawing up of a 2nd Protocol to the Hague Convention in 1999 (effective in 2004). This included a designation of enhanced protection for certain sites, individual criminal responsibility for the wanton destruction of cultural heritage and restrictions on the defence of military necessity as an excuse for destroying heritage.

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Iraq Even before the 2nd Protocol became effective, UNESCO faced a new challenge. In March 2003, the United States and its allies, most notably the United Kingdom, invaded Iraq with the intention of deposing the Iraqi leader, Saddam Hussein. Subsequent analysis has demonstrated that practically every aspect of the campaign was based on faulty intelligence and was ill-prepared and badly managed (Chilcot 2016), so it comes as no surprise to learn that it was a disaster also in terms of cultural heritage protection. The failure of the coalition forces to undertake even the most basic steps to protect the local heritage was seen as a terrible indictment and, for the United States in particular, it was a public relations disaster that took a great deal of time and effort to rectify. Criticism of the US military focused on three aspects: first, the coalition forces did nothing to stop the looting of the priceless treasures of the Baghdad Museum; second, after the invasion, the United States placed its military posts on top of important archaeological sites; third, the coalition forces failed to stop widespread looting of archaeological sites throughout the territory. The photograph of the Baghdad Museum with a big hole in its façade and a US tank by its front door (Fig. 20.2) seems to sum up the Allies’ approach in Iraq: an ineffectual use of military superiority, which often did more harm

Fig. 20.2  Tank outside Baghdad Museum. Image taken by United States Department of State employee. The image is in the public domain

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than good, compounded by a lack of even the most elementary knowledge of the region. The image became Iraq’s Mostar Bridge. It was not only the Baghdad Museum that was looted, though this was the building that attracted the headlines. Archives, libraries and at least eleven regional museums were sacked by thieves, who often arrived in buses, well equipped and well prepared, forming an interesting contrast to the state of preparedness of the invading army. Journalists, who witnessed events, believed that the looters were organized and acting on behalf of art collectors rather than being ‘desperate peasants’ (Fisk 2008, p. xii). This is borne out by the very swift arrival of looted objects for sale in the West and on the Internet, though it is clear that opportunist looting also took place. Estimates of the number of items looted and the number subsequently returned vary wildly and are almost impossible to verify because of the lack of complete inventories, but what is not in doubt is that the possibility of looting should have been factored into planning and should have been handled better. The second criticism was even more serious because it could not be excused as carelessness in the heat of the battle. Military bases were positioned on top of important archaeological sites. Camp Alpha, complete with helipad, was built on top of the ancient site of Babylon and occupied from April 2003 until December 2004. During this time, important structures, such as the Ishtar Gate were damaged, pavements were crushed, archaeological deposits were used to fill Hesco containers and the site was levelled with heavy machinery, thereby permanently compromising future archaeological work. The siting of an air base near Ur caused fissures and cracks in the walls of the ziggurat and the temples. In the words of one Iraqi scholar: The USA did nothing to guard any heritage site, museum or monument in the country in April of 2003. In fact, while the air strikes left historical monuments undamaged, the occupation has resulted in a tremendous destruction of history, well beyond the museums and libraries looted and destroyed at the fall of Baghdad. (Bahrani 2008, p. 169)

It is easy to understand why, from a military standpoint, the archaeological sites were the obvious place to position a military base. In a landscape that is essentially a very large flat plain, the remains of ancient cities constitute often the only raised ground for miles. The ancient cities, some of which date back to the fourth millennium BC, were built mostly of mud brick. When the structures became unstable, they were filled in and another city built on top. Thus, over the course of time, as city was built on top of city, a substantial artificial hill, known as a tell, was created. To US military commanders, they

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must have seemed the ideal spot, but, as the entire hill was composed of archaeological material, it was impossible to use the area without causing massive and permanent damage. Looting in other parts of Iraq, particularly on archaeological sites in rural areas, was widespread. Local looters—who in this case often were ‘desperate peasants’—were linked in to well-established trafficking networks. Complaints about the failure of occupation forces to prevent looting were often dismissed with claims that looting had always happened and was part of the local culture. In fact, the Iraqi government had controlled the area very well and had virtually eliminated illegal digging until 1990. As a result of the first Gulf War, a no-fly zone was declared by the United States, which prevented surveillance, and sanctions were imposed, which reduced many ordinary Iraqis to penury. At this point, the illegal excavations began again, and the 2003 invasion led to a sharp rise in the practice, as was all too evident from satellite images. Therefore, shrugging off responsibility on the grounds that local people had always looted their own heritage, was seen as an insensitive and ill-­ informed comment. When media shots of the Baghdad Museum were beamed around the world, public reaction was immediate (e.g. ABC 2003, ‘Who’s to blame’; Aziz 2003, ‘US occupiers’; Labott and Clancey 2003, ‘We didn’t anticipate’), and the strongest criticism of all came from within the United States. How could a country that had been one of the first to codify a law of warfare in order to protect art, science and property (Lieber Code 1863) have allowed this destruction? The United States had signed the Hague Convention in 1954, but had not ratified it by the time of the Iraq War. However, the United States claimed that its military forces followed customary international law—that is rules that are accepted amongst nations (Gerstenblith 2010, p.  11). It was clear that one of the important points incorporated in the Hague Convention, training for the military in dealing with sensitive cultural heritage, had been overlooked. Training programmes were hastily initiated in conjunction with the Archaeological Institute of America (Rush (2010) details the training programmes that were adopted). International NGOs, such as the World Monuments Fund, moved in to work with Iraq’s State Board of Antiquities and Heritage to conserve the damaged heritage. The only military unit that won admiration for its approach to heritage in Iraq was the TPC of the Italian Carabinieri, though their involvement was through UNESCO rather than as part of the military offensive. In July 2003, they set up Operation Ancient Babylon to bring the looting under control. By the time they completed the operation in December 2006, they had carried out ninety missions, inventoried sixty sites, completed 24 helicopter missions,

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recovered 302 objects, identified 94 looters and arrested 46 of them (Rush and Benedettini Millington 2015, p. 165). Iraq demonstrated that effective international cultural heritage protection has to involve the military in a structured way though the idea has not been universally embraced by all parties. The 6th World Archaeology Congress, held in Dublin in 2008, saw very vocal protests against the involvement of archaeologists and anthropologists with the military in Iraq.

Islam and Non-state Actors From its inception, UNESCO has been an organization rooted in Western culture. Its early history was conditioned by the events of World War II, its definitions and charters reflect the values of Western heritage4 and the ­overwhelming majority of sites on the World Heritage List are in the Western world: currently (summer 2016), Italy has 51 cultural sites inscribed, whereas the whole of Africa has only 48 UNESCO website (n.d.). UNESCO has struggled to become genuinely inclusive. The perception in many parts of the world is that it is an organization that caters to a narrow elitist view of culture, rather than one that embraces diversity, and that it is overwhelmingly preoccupied with privileged Western cultures. From the beginning of the twentyfirst century onwards, it became increasingly clear that the flashpoint for this perceived conflict of values would be with Islam. The Bamiyan Valley in Afghanistan is a historically important Buddhist complex of caves, monasteries, chapels and sanctuaries. Until 2001, the complex was dominated by two colossal statues (35 m and 53 m tall) carved out of the rock face, but in March of that year, the statues were destroyed by the Taliban government of Afghanistan. The threat to destroy the statues had been voiced ever since the Taliban came to power in Afghanistan in 1996, because, as figurative statues and as cult statues of Buddhism, they offended some factions of the Taliban government. International pressure, headed by UNESCO and mediated through other Islamic countries, had managed to stave off their destruction for four years, but ultimately could not prevent it. In an interview with the New York Times, a Taliban spokesman, Sayed Rahmatullah Hashemi, stated that the final decision to blow up the statues had been a reaction to an offer of funding for cultural heritage in Afghanistan  The 1964 Venice Charter laid down the principles guiding the preservation and restoration of historic buildings. It was not until 1994 that UNESCO tried to accommodate other traditions through the ‘Nara Document on Authenticity’. 4

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from a UNESCO team visiting Kabul in order to assess the damage caused by the sacking of the museum: The scholars told them [museum officials] that instead of spending money on statues, why didn’t they help our children who are dying of malnutrition? They rejected that, saying, “This money is only for statues”. The scholars were so angry. […] They said, “If you are destroying our future with economic sanctions you can’t care about our heritage.” And so they decided that these statues must be destroyed. (Crossette 2001, ‘Taliban explains’)

Others, including some political commentators, also believed that the West was more concerned about fate of the statues than the state of the people and claimed that the destruction of the Buddhas in March was the trigger for the US-led invasion of Afghanistan seven months later (Harrison 2010, p. 161). How far this is true is a judgement that future generations will make, when the government documents are released, but the perception that it might be is, in itself, damaging. As this work is being written (summer 2016), the latest group to use the destruction of cultural heritage as part of a campaign against the West is the so-called Islamic State of Iraq and the Levant (ISIL) also known as Islamic State of Iraq and Syria (ISIS) or Daesh. They have targeted museums, historical and archaeological sites of all types (including Islamic monuments) and, in a new and chilling development, the people associated with cultural heritage. In August 2015, ISIS beheaded Khaled al-Asaad, the keeper of the archaeological site of Palmyra, charging him with being ‘the director of idolatry’ (Hassan 2015, ‘Khaled al-Asaad’). Smith et al. (2015) have analysed how ISIL are looting and destroying heritage and suggest that they are not acting in a random fashion, but have three specific goals in mind: to create a perception of absolute power, to shock the West and to finance their activities through the illegal selling of antiquities (though there are widely differing views on how much money they actually make from looting). In March 2016, UNESCO launched the ‘Unite4heritage’ initiative, which proposes a military response to the threat to heritage. Drawing on the expertise of the TPC of the Italian Carabinieri, supported by heritage professionals, conservators and academics, it proposes, for the first time, a direct response to the threat to heritage from groups such as ISIS.  The active group of Unite4heritage is small (thirty Carabinieri and about sixty support staff) and the precise brief is, at present, unclear. There are conflicting opinions as to the advisability or likely effectiveness of such a group. Public opinion will also play a role. The TPC were hit by a suicide bomber driving a truck full of

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explosives whilst carrying out Operation Ancient Babylon in November 2003 and 21 Italians were killed (Rush and Benedettini Millington 2015, p. 167). There was an immediate public reaction, questioning Italian involvement in support of heritage in Iraq. It remains to be seen if public opinion would ultimately support the reality of lives being lost to protect a heritage site.

Conclusions The challenges that we face today in protecting our heritage bear the scars of its legacy. Art has always had the power to evoke deep emotions and through these to express not just individual feelings, but group identities. With the development of nation states, heritage became the visible outward symbol of national patrimony: it gained legal and institutional protection but, at the same time, was rendered more vulnerable to attacks from those who opposed what it represented. Works of art and antiquities are more highly valued than ever before, but this means that they are more desired as an item to be illegally trafficked. The elevated status of heritage within our own society is simultaneously its strength and its weakness. Ever since the Renaissance, possession of art and antiquities has been an indicator of an elite status. In the sixteenth and seventeenth centuries, it was a marker primarily of wealth and power; later, it symbolized education and intellect, whilst never entirely losing its association with the moneyed classes. Today, in the academic and professional sense, we interpret ‘culture’ to include all types of tangible and intangible heritage, but somehow the vestiges of luxury and privilege still cling to the concept. In everyday usage, the word ‘culture’ is usually a synonym for ‘high culture’ rather than ‘all culture’—classical music rather than rap, ballet rather than hip-hop, art galleries rather than graffiti. The association is hard to shake off, especially for institutions seeking funding from wealthy donors. Stanley-Price (2007) has noted how detrimental this image is when seeking to restore heritage in post-conflict or post-­ disaster contexts. Whilst international efforts tend to focus on symbols of national identity, for most people, the ability to regain the thread of their daily lives in familiar surroundings and find emotional equilibrium through their traditions and intangible culture is more significant. We have not yet managed to convince the world that cultural heritage is about this as well. If this chapter had been written at the end of the 1970s, its assessment of UNESCO would be more rosy. The thirty years after the end of World War II saw many notable developments—the Hague Convention, the 1970 Convention against illicit trafficking, international co-operation on major

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rescue projects and the initiation of the World Heritage List. Opinions on UNESCO tend to be more ambivalent today. Meskell (2015) has analysed how heritage has become increasingly politicized and confrontational within UNESCO and how decisions are dominated by vote exchanges and informal corridor meetings. She suggests that it is becoming a generator of conflict rather than a resolution to it. The World Heritage List has proved popular beyond all expectations, but its principle benefit is perceived to be in terms of marketing the site for tourism rather than protecting it for future generations. Failure to be included can have a significant impact on tourism (Frey and Steiner 2011, p. 558). The concept of deriving economic benefit from heritage is not at all inimicable to UNESCO’s aims, but the reality of heritage tourism can all too often be that the site is developed insensitively without regard to local traditions or conservation needs and with the economic benefits being scooped up by outsiders. The impact of gentrification in historic centres has been particularly damaging to the social fabric (Herzfeld 2009; Higgins 2014, pp. 195–199). The emphasis on nations as the natural steward of cultural heritage has been at the expense of local communities; yet, it is at the local level that many solutions lie. Local engagement with heritage is by far the best way to protect it from looting, damage, neglect or deliberate destruction. For this to happen, the local community has to be both engaged emotionally and able to reap the economic benefits. Yet, often they are the last ones to be consulted or involved in the decision-making process. We need to make good on the theoretical commitment to preserve all types of heritage. In 2005, the Council of Europe passed the Faro Convention that introduced the concept of a ‘heritage community’ as the focus of cultural heritage protection, thereby switching the emphasis from the objects to the people. At present, there are only a few examples of it being put into practice,5 but, as history shows us, conventions are not laws. It is not the case that the date of a convention means that it immediately changes established practice. Heritage conventions are beacons to light the way. They show us the path we should be taking, and different parties will follow it in their own way at their own speed. Working with cultural heritage is messy. Anyone who wants a nice, ordered life is advised to find another job. To protect our heritage for future generations, we need to engage with the fundamental reason people feel strongly about it. It evokes emotions, it expresses our feelings, it symbolizes our values and it is the repository of our collective memory. Too often, we are blindsided by the monetary value or antiquity of individual pieces and feel that all we  One such project is ‘Heritage and Homelessness’ (Kiddey (n.d.), Heritage and Homelessness).

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have to do to protect heritage is to wrap it in the cotton wool of increasing legislation. Whilst legal sanctions will always play a role, running after transgressors is the least effective way of protecting our heritage. The true guardians of heritage are communities. Unleashing their potential and learning to work with them in new types of partnerships will be our best hope for a future that does not repeat the mistakes of the past.

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Rush, L., & Benedettini Millington, L. (2015). The Carabinieri command for the protection of cultural property: Saving the world’s heritage. Woodbridge: The Boydell Press. Silver, V. (2009). The lost chalice the epic hunt for a priceless masterpiece. New York: William Morrow. Smith, C., Burke, H., de Leiuen, C., & Jackson, G. (2015). The Islamic state’s symbolic war: Da’esh’s socially mediated terrorism as a threat to cultural heritage. Journal of Social Archaeology, 16(2), 164–188. Stanley-Price, N. (2007). The thread of continuity: Cultural heritage in postwar recovery. In N.  Stanley-Price (Ed.), Cultural heritage in postwar recovery: Papers from ICCROM forum held 4–6 October 2005 (pp. 1–16). ICCROM: Rome. Tyldesley, J.  (2005). Egypt: How a lost civilization was rediscovered. London: BBC Books. UNESCO website. (n.d.). Retrieved August 3, 2016, from http://whc.unesco. org/en/list/. Voudori, D. (2008). Greek legislation concerning the international movement of antiquities and its ideological and political dimensions. In D.  Damaskos & D.  Plantzos (Eds.), A singular antiquity: Archaeology and hellenic identity in twentieth-­century Greece, 3rd supplement. Mouseio Benaki: Athens. Walasek, H. (2015a). Introduction. In H. Walasek (Ed.), Bosnia and the destruction of cultural heritage (pp. 1–22). Farnham: Ashgate. Walasek, H. (2015b). Destruction of the cultural heritage. In H.  Walasek (Ed.), Bosnia and the destruction of cultural heritage (pp. 23–142). Farnham: Ashgate.

21 The Criminal Organization of the Transnational Trade in Cultural Objects: Two Case Studies Neil Brodie

Increasingly, the international illicit trade in antiquities and other cultural objects is being characterized as an example of transnational organized crime (Bowman 2008; Campbell 2013; Chappell and Polk 2011; Dietzler 2013; Mackenzie 2011; Mackenzie and Davis 2014; Polk 2000). But what does that mean exactly? Problems of definition and evidence mean that it is easy to talk about organized crime in a general sense, but harder to operationalize the concept in such a way as to design and implement more effective countermeasures. Part of the problem is that ‘organized crime’ means different things to different people. Paoli (2014, p. 2) argues for two distinct understandings. The first is that ‘organized crime’ denotes the existence of persistent and often territorial criminal organizations, or gangs, with a command and control hierarchy emanating downwards from a boss or ‘kingpin’ figure. The Italian mafia and the Chinese triads are exemplary. The second understanding is that ‘organized crime’ describes a type of criminal activity, an opportunistic collaboration of several individuals aimed at committing serious crime for monetary gain. Neither one of these understandings is wrong nor are they mutually exclusive of one another. For the illicit trade in antiquities and other cultural objects, Simon Mackenzie has tried to retain this distinction between control and opportunity while reasoning recursively about organization, first, by asking whether the trade is controlled or significantly penetrated by broad-spectrum criminal gangs, such as the mafia (‘criminals in the market’), or is instead a more isoN. Brodie (*) University of Oxford, Oxford, UK © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_21

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lated enterprise of specialist criminals (a ‘criminal market’) (Mackenzie 2011) and, second, by asking how the trade itself is criminally organized, whether through the long-term centralized control and direction of command figures, or more opportunistically through short-term criminal collaborations (Mackenzie and Davis 2014). The trade is conventionally schematized as linking together three markets: source, transit and destination (Polk 2000). Mackenzie (2011, p. 74) believes there is little evidence of mafia-like gangs operating in the destination market, though the situation is not clear for the source and transit markets.1 Looking at the trade as a whole, Peter Campbell (2013) and Jessica Dietzler (2013) reject the existence of centralized control and favor instead the idea of opportunistic collaborations between loosely connected and interchangeable members of a broad-ranging and flexible criminal network. But the possibility should not be excluded that different sections of the trade might be differently organized. Thus, from their fieldwork in Cambodia, Mackenzie and Davis (2014) and Davis and Mackenzie (2015) conclude that the supply chains of the source market were subject to the long-term and even territorial control of individual figures or gangs, while further up the trading chain in the destination market relations became more flexible and opportunistic. The problem of describing the criminal organization of the trade is empirical as much as it is conceptual because of the difficulty of obtaining good quality, comprehensive and unbiased information. Most evidence about trading is made available second hand through court documents, media reporting, official press releases and, increasingly, blog commentary. Systematic, firsthand ethnographic research, such as that of Mackenzie and Davis in Cambodia, is rare. Court documents and associated media reports will inevitably influence the perspective of the researcher, as the information they contain clouds around the person or people under investigation, creating a possibly mistaken perception that the suspected offender is a central or controlling figure. These sources also present only a partial view of the trading network as it exists in time and space. A single criminal prosecution or customs recovery may or may not instantiate a more persistent and wider-­ranging criminal operation. It is not warranted to derive a general pattern from a single case without substantiating and preferably independent evidence. Two case studies are presented here with the aim of further characterizing how the illegal trade in antiquities and other cultural objects might function and be criminally organized. Critical attention is paid to the limitations and  The Italian Carabinieri state they have no evidence of involvement by the mafia or their regional equivalents in the Italian source market (Nistri 2011, p. 185). 1

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possible distorting effects of the information at hand, which again is derived from media reporting and commentary on criminal prosecutions and customs seizures. Both case studies concern only a small number of episodes in what must be longer-term and wider-ranging configurations of illegal enterprise. The first case study reports upon the activities of New York-based dealer Subhash Kapoor. Unusually, here, it is possible to reconstruct the full trading histories of some objects from their theft in India to their final acquisition by museums in the US, Australia and Singapore, and so to look at the organization of the trade along its entire reach. The second case study examines the trade of material from two dealers in the free port of Dubai on to the destination markets of London and New York, and thus is partial as it excludes any consideration of the organization of the supply chains from source countries to the transit market of Dubai.

Subhash Kapoor In October 2011, the Asian art dealer Subhash Kapoor was arrested in Germany and in July 2012 extradited to India (Selvaraj 2012a), where, in May 2016, he was still awaiting trial on charges relating to trafficking cultural objects. He denies all charges (Burke 2015). Kapoor was proprietor of the sales gallery Art of the Past, in New York City. He had established his business in the 1970s and dealt in cultural objects from a range of South and Southeast Asian countries, including India, Pakistan, Afghanistan, Bangladesh, Indonesia, Cambodia and Thailand. He had trading contacts in Hong Kong, London and Dubai. He claimed to have sold objects to museums around the world, including New York’s Metropolitan Museum of Art, the Smithsonian’s Arthur M. Sackler Gallery, the Los Angeles County Museum of Art, Boston’s Museum of Fine Arts, the Asian Art Museum of San Francisco, Chicago’s Art Institute, the Virginia Museum of Fine Arts, Richmond, the Guimet Museum in Paris, the Museum of Asian Art in Berlin, the National Gallery of Australia in Canberra, the Royal Ontario Museum in Toronto, and the Asian Civilisations Museum in Singapore (Artfix 2011). The case against Kapoor in India hinges upon the theft of eleventh- to twelfth-century Chola period bronze idols from temples in the towns of Suthamalli and Sripuranthan in the Indian state of Tamil Nadu. In their report (Tamil Nadu n.d.), Tamil Nadu police allege that in September 2005, Kapoor visited the port city of Chennai for a meeting with one Sanjivi Asokan. Kapoor arranged with Asokan for the theft and transport to New York of idols from the Sivan temple in Sripuranthan and the Varadharaja Perumal temple

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in Suthamalli. Tamil Nadu police go on to claim that, through the mediation of local art dealer Siva Kumar, Asokan hired two thieves for the Sripuranthan thefts. They broke into the Sripuranthan temple three times, removing three idols in January 2006, three more in May 2006 and a final two later in 2006. For the latter theft, the gang was increased in size to about four or five members to cope with the removal of a large, heavy Shiva Nataraja. After each theft, Asokan mixed stolen idols in with modern reproductions, obtaining export documentation for ‘artistic handicrafts’. The material was shipped from Chennai by Ever Star International (owned by Packia Kumar) directly to Kapoor’s New  York handling company Nimbus Import Export. The Sripuranthan temple was used only periodically for religious observance, and the theft was not discovered until August 2008. The police report that there were further meetings between Kapoor and Asokan. Kapoor is believed to have visited Chennai four times from 2005 onwards (Selvaraj 2012b). After these meetings, with the help of a local art dealer named Marisamy, Asokan assembled a gang of four thieves to burgle the Suthamalli temple. Over two days, in February 2008, the gang allegedly stole perhaps 18 or 20 idols from the temple. Marisamy sold ten idols to Asokan and retained possession of the remainder, subsequently selling them to an unnamed ‘foreigner’. Again, Asokan arranged for the stolen pieces to be commingled with replicas and exported as ‘handicrafts’. They were shipped first from Chennai to Union Link International Movers in Hong Kong, and then via London to Kapoor in New York (Selvaraj 2012b, c). The Suthamalli theft was not discovered until April 2008. Asokan, Packia Kumar, Marisamy, Siva Kumar and some of the thieves were arrested by Tamil Nadu police in 2009, and charged with theft-­ related offences (Tamil Nadu n.d.). The French Institute of Pondicherry maintains a photographic archive of Chola period temple idols, which includes images of all eight pieces stolen from Sripuranthan and eight of the pieces stolen from Suthamalli. From these images, it was possible for journalists, private individuals and law enforcement agencies to identify several idols that had been acquired by museums, and now to reconstruct their illicit biographies from theft to collection. By May 2016, the following idols had been recovered from the Sivan temple in Sripuranthan: Shiva as Lord of the Dance (Nataraja) (Crennan 2016; Felch 2013). This is the large Shiva Nataraja stolen in the final theft from the Sripuranthan temple in 2006. Kapoor sold it to the National Gallery of Australia (NGA) in February 2008 for US$5  million. He provided three false documents of provenance. The first was a receipt dated 14 May 1970, recording its pur-

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chase in India by Abdulla Mehgoub, who subsequently emigrated to the US.  The second was a letter from Raj Mehgoub (then wife of Abdulla) dated 15 January 2003 confirming that the Nataraja had been in her husband’s possession and that he had purchased it in India before 1971. The third was a receipt dated 18 October 2004, confirming Kapoor’s purchase of the piece from Raj Mehgoub. The Nataraja was returned to India in September 2014. Manickavasagar (ICE 2015c; Mashberg and Bearak 2015). Kapoor sold the Manickavasagar to a New  York private collector in March 2006 for US$650,000. He provided a false letter of provenance, backdated to 5 May 2005 and signed by a Singapore-based associate of Kapoor, claiming the piece had been out of India for more than 30 years. On 1 July 2015, the collector voluntarily surrendered the piece to US Immigration and Customs Enforcement (ICE). Uma Parameshvari (Felch 2014b; Kumar 2014; Shetty 2015). Kapoor sold the Uma Parameshvari to Singapore’s Asian Civilisations Museum in 2007 for US$650,000. In October 2015, the museum agreed to return the piece to India. Ganesha (Felch 2014a; Kumar 2013c; Mullen 2014). Kapoor sold the Ganesha to the Toledo Museum of Art in May 2006 for US$245,000. He provided a false provenance, claiming that Selina Mohamed (Kapoor’s then girlfriend) had inherited the piece from her mother Rajpati Singh who had in turn purchased it in India in 1971 and exported it. In October 2014, the museum agreed to return the piece to India. The Indian investigation of Kapoor revealed something of the financial structure of the trade. The gang of thieves that committed the final theft of the Nataraja and one other piece from the Sripuranthan temple, numbering perhaps four people, were reportedly paid together ₹300,000 (US$6696) to be split between them—US$1674 each. The Nataraja alone was sold by Kapoor for US$5 million, a price increase of nearly 800 percent. For his part in the Sripuranthan thefts, Asokan received ₹11,637,694 (US$257,077) in addition to a previously paid advance. Kapoor and Asokan would both have needed to cover their ‘operating expenses’, including for Kapoor his New York business establishment, but the sums involved do demonstrate once again the large differentials between the prices secured by looters and thieves and those achieved on the international market that are such a common feature of the trade (Brodie 1998). In the US, ICE had been alerted to the activities of Kapoor in 2007 when the Indian consulate notified them of the arrival of several crates of stolen

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Indian objects described as ‘Marble Garden Table Sets’ (ICE 2012a). The shipment, weighing 1400 kg, was dispatched from Jawaharlal Nehru by the shipping company Palae Knit Exports, arriving at New York on 10 February 2007 (St. Hilaire 2012d; Lakshman 2012). Following Kapoor’s arrest in Germany, ICE set in motion Operation Hidden Idol to investigate his activities and recover stolen material. Starting in January 2012, ICE Homeland Security Investigation (HSI) agents launched a series of raids on Kapoor’s gallery and associated storage facilities in New  York City, seizing business records and material stock. Kapoor’s manager of Art of the Past, Aaron Freedman, was arrested and in December 2013 pled guilty to charges of criminal possession (ICE 2013; Mashberg 2015). Kapoor’s sister Sushma Sareen and his girlfriend Selina Mohamed were also arrested and charged. Mohamed pled guilty in December 2013 to a misdemeanor charge of conspiracy and was conditionally discharged (St. Hilaire 2015). Sareen pled guilty in November 2014 to obstructing justice (Mashberg 2015). By April 2015, ICE had recovered 2622 objects with a total appraised value of US$107.6 million (Mashberg 2015). The material included objects from many South and Southeast Asian countries, but the overwhelming majority were from India and the Afghanistan/Pakistan area. Included in their number were a Thani Amman (Kumar 2013a) and a Sivagami Amman (Kumar 2013b) from the Sripuranthan temple theft, and a Sivagami Amman (Kumar 2013a) and an Astra Devar (Kumar 2013a) from the Suthamalli temple theft (ICE 2012b). The continuing investigation of Kapoor also precipitated returns from museums of material sourced to Kapoor but not related to the Sripuranthan and Suthamalli temple thefts (Angeleti 2015). By May 2016, they included: Ball State University’s Owsley Museum, Indiana (Felch 2015; ICE 2015d). Purchased a Chola period Festival Bronze of Shiva and Parvati from Kapoor in April 2005 for US$100,000. Kapoor had acquired it in 2004, but produced as provenance a letter written and signed by Leo S. Figiel dated 13 April 2005 claiming to have purchased the object from a European ­collection in 1969. In November 2015, the museum surrendered the object to ICE for return to India. Linden Museum, Stuttgart (Nair 2015). Purchased a tenth-century limestone statue of Durga from Kapoor in 2000 for US$250,000. It is thought to have been stolen from a temple in Kashmir sometime during the 1990s. The museum returned it to India in October 2015. Honolulu Museum of Art (Griffith 2015). Acquired seven objects from Kapoor between 1991 and 2003, including a second-century BC terracotta rattle

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donated in 2003. In April 2015, the museum surrendered all material to ICE for return to India. Peabody Essex Museum, Massachusetts (Gay 2015). Purchased a nineteenth-­ century Tanjore portrait from Kapoor in 2006. In April 2015, the museum surrendered the object to ICE for return to India. Toledo Museum of Art, Ohio (TMA 2015). Besides the Sripuranthan Ganesha, between 2001 and 2010, the museum purchased eight objects from Kapoor. In 2015, it agreed to return four of them to India. Additionally, between 2006 and 2007 Kapoor donated 54 small ceramic objects and Freedman donated 64 works on paper. The museum also agreed to return all these materials to India. Art Gallery of New South Wales (Crennan 2016, p. 22; Taylor 2013; Narayanan 2016). Acquired six objects from Kapoor between 1994 and 2004, including a Chola period stone statue of Ardhanarishvara purchased in 2004 for US$300,000. The provenance provided was that it had been purchased in India by Abdulla and Raj Mehgoub in 1971 from Uttam Singh, exported from India the same year and sold to Kapoor in 2003. Tamil Nadu police believe it was stolen from Virudhageeswarar Temple in Vriddhachalam in 2002 by a gang affiliated to an art dealer named Deenadayalan and exported illegally from Mumbai by an unnamed trader for delivery to Kapoor. The museum returned the object to India in 2014. The accumulating evidence of Kapoor’s activities also gave grounds for HSI agents to seize several objects intended for sale during the 10–19 March 2016 Asia Week in New York (Mashberg 2016c). On 11 March, they seized lots 61 and 62 of the scheduled Christie’s New York 15 March sale of ‘The Lahiri Collection: Indian and Himalayan Art, Ancient and Modern’, belonging to Avijit and Bratati Lahiri (ICE 2016): Lot 61. Tenth-century sandstone stele of Rishabhanata, from Rajasthan or Madhya Pradesh, India (Felch 2016b). The provenance supplied in the Christie’s catalogue was ‘Acquired in London by 1999’. In 2006, the stele had been offered for sale on consignment by Brendan Lynch and Oliver Forge in London, but had failed to sell. A photograph of the stele found in Kapoor’s possession appears to show it soon after having been stolen. It is believed that Kapoor received it from Indian trader Ranjeet Kanwat, nicknamed Shantoo. Lot 62. Eighth-century sandstone relief of Revanta and his Entourage (Felch 2016b). The provenance supplied in the Christie’s catalogue was ‘Acquired from Spink & Son, Ltd., London by 1999’. A photograph found in

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Kapoor’s possession appears to show part of the relief, comprising only the left and central part of the object as depicted in the Christie’s catalogue, soon after looting. Again, Kapoor is believed to have acquired the piece from Kanwat in the 1990s. Other Asia Week seizures included a second-century Gandharan Bodhisattva head, probably from Pakistan, as it was entering New York destined for an ‘East Coast auction house’ (ICE 2016; Mashberg 2016a); an eighth-century marble statue of Shiva and Parvati, probably from Afghanistan, on display in New York from the Milan-based Leonardo Vigorelli (Mashberg 2016b); and objects and business records from the Nancy Wiener Gallery in Manhattan, including a first-century sandstone Kushan relief, an eighth-century limestone sculpture of Shiva and Parvati and a tenth-century bronze Buddha from Thailand or Cambodia (Felch 2016a; Mashberg 2016d).2 Although these seizures were all made as part of Operation Hidden Idol, the part played by Kapoor in their previous trading histories has not been made public.

The Dubai Network The second network to be considered is termed here the Dubai network, as it is centered on two trading companies based in Dubai, United Arab Emirates (UAE). This network has been channeling material from countries throughout the Middle East-North Africa region to dealers in the US and UK. The companies concerned are the Nafertiti Eastern Sculptures Trading, owned by Ayman Ramadan, and the Hassan Fazeli Trading Company, owned by Hassan Fazeli. Both companies have dispatched material seized by customs in the US and UK, and material supplied by Ramadan was central to the criminal prosecution and conviction of two dealers in the US. This investigation in the US of the two dealers Mousa ‘Morris’ Khouli and Salem Alshdaifat provides a first point of entry into this network. Khouli, the proprietor of New York-based Windsor Antiquities, pled guilty in April 2012 to charges of smuggling Egyptian cultural property into the US and making false customs declarations (USA 2012). He was sentenced to 6 months home confinement, 1 year probation and up to 200 hours of community service (St. Hilaire 2012e). Alshdaifat, a Canadian and Jordanian citizen based in  Weiner herself was arrested in December 2016 on charges relating to antiquities trafficking (Mashberg 2016e). The arrest complaint alleged that some of her stock objects had been acquired from Kapoor, though it was clear that Kapoor was not her only source. 2

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Michigan since 2009 and proprietor of Holyland Numismatics, pled guilty to the misdemeanor of aiding Khouli and was fined US$1000 (St. Hilaire 2012f ). These convictions concluded an investigation by ICE (code-named Operation Mummy’s Curse) into Egyptian artifacts imported illegally into the US between October 2008 and November 2009. Khouli obtained the objects with the assistance of Alshdaifat from Ramadan in Dubai to sell to Joseph A. Lewis II, a Virginia-based collector of Egyptian antiquities. Lewis claimed to have approached Khouli in 2009, following the recommendations of friends and fellow collectors (Bowes 2014). Lewis believed Khouli to be ‘legitimate’ and denied any knowledge of Alshdaifat or Ramadan. He stated that Khouli had assured him the antiquities were from his (Khouli’s) father’s collection, assembled during the 1960s in Israel and had not been obtained illegally (St. Hilaire 2012a). Charges were also brought against Lewis for conspiracy and buying stolen property, but in January 2013, the prosecution was suspended for a period of time subject to his good behavior (St. Hilaire 2013a). The true character of the artifacts being imported into the US was disguised by false declarations on labels and customs documentation regarding origin and value. The material was returned to Egypt in April 2015 (ICE 2015a). It comprised: A Greco-Roman period sarcophagus, which arrived at New  York’s John F.  Kennedy (JFK) Airport in November 2008, was recovered from the Lewis residence in July 2011. The associated customs documentation described it as ‘painted wooden panels’ with a declared value of US$3400 and the UAE listed as country of origin. Lewis purchased the coffin in 2009 for US$32,500 (USA 2011; St. Hilaire 2011a, 2012c). An assemblage of Egyptian funerary boats and limestone figurines, which arrived through international mail in May 2009, labeled as ‘antiques’ (St. Hilaire 2011c). They were recovered from the Lewis residence in July 2011 (USA 2011; St. Hilaire 2011a, 2012c). A set of three nesting sarcophagi, dating to the Saite period, which had been broken into pieces for transport and import into the US. The inner coffin was shipped in pieces through international mail and arrived during April– May 2009. It was recovered from Khouli’s residence in September 2009. Part of the outer lid was sent by air freight and arrived at JFK Airport in May 2009. The middle coffin and part of the outer lid were sent by sea cargo, arriving at Newark in September 2009 and seized there in November 2009. ICE claims they were shipped by Amal Star Antiques (owned by Noor Sham). The pieces were included in the shipment mixed in with wooden furniture, described as ‘artistic handmade furniture’, with a

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declared value for the total shipment of US$13,700 and India listed as country of origin (USA 2011; St Hilaire 2011a, b, 2012c; Mueller 2016). Khouli had been under investigation in the US since 2003 (St. Hilaire 2011b). Between 2006 and 2011, he imported 20 shipments of cultural objects from Dubai, including material from Iraq, Egypt, Yemen and possibly Iran. Out of those 20 shipments, 15 listed the UAE as country of origin. One shipment not from the UAE comprised four FedEx packages which arrived from the UK in May 2003, containing glass artifacts from Iraq dated from 300 BC to AD 800. The associated documentation described the material as ‘English glass bottles circa 1860 AD’ and listed the country of origin as England. In February 2008, Khouli received 89 stone relief heads from Yemen and sent them by air cargo to JFK Airport from a Dubai company named Palace Arts. Two different invoices were produced, one describing the material as decorative stone-carved heads made in India with a declared value of US$75 each. The second invoice also described them as decorative stone-carved heads, but listed the country of origin as Yemen with a declared value of US$145 each. Khouli attempted to sell one of the heads for US$700, and it is believed he did sell one in September 2008 for US$2000. During the six-month period, from December 2007 through to May 2008, Khouli sent US$527,620 abroad, while during the same period the total declared value of his imported material was only US$32,360, leading investigators to suspect he had been receiving undeclared imports. The Iraqi material including the glass artifacts was returned to Iraq in March 2015 (ICE 2015b). The Egyptian material was returned to Egypt in April 2015 (ICE 2015a). During the investigation, conducted as part of Operation Mummy’s Curse, HSI agents searched the home of Alshdaifat and in March 2010 accessed his e-mail account, where they discovered he had used e-mail to communicate with potential buyers and sellers of stolen ancient coins (St. Hilaire 2011c). They claim, for example, that in January 2009, Alshdaifat offered for sale over e-mail a hoard of Roman coins found in Egypt but located in Dubai with Ramadan and that the e-mails also showed him offering coins from Libya and Jordan. In December 2010, US customs stopped Alshdaifat at Detroit Metropolitan Airport on his way home from Jordan, seizing the Byzantine coins he was carrying because of inconsistent paperwork. An invoice supplied by Ramadan declared the coins to be from Syria. Alshdaifat also figured in another US customs case. In August 2010, US customs stopped a package containing five ancient Egyptian artifacts entering Newark International Airport that had been sent through FedEx from Dubai by Fazeli. The material was seized because of false statements made at import

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(Scott 2013). Although the objects were accurately described as Ancient Egyptian, the country of manufacture was stated on the FedEx label as Turkey and on the associated documentation as ‘multi’ (St. Hilaire 2013b). Alshdaifat had paid US$17,500 for the material, which had an appraised value of US$57,000. He produced documentation from Fazeli claiming that he (Fazeli) had bought the material in 2008 from a Turkish private collection (St. Hilaire 2013b). US customs alleged that Fazeli had admitted to using Turkey as a country of origin because he had Turkish papers (Scott 2013). The artifacts in question were an Amarna Period sunken limestone relief of offering bearers; a Late Period fragment block statue made of gray schist; a New Kingdom limestone relief displaying the arms of offering bearers; a New Kingdom limestone relief depicting a man; and a Middle Kingdom funerary boat (St. Hilaire 2013b). That was not the first time material from Fazeli had been stopped entering the US. In August 2008, ICE had seized a limestone head of Assyrian King Sargon II from a Lamassu, or winged bull, guarding the palace of Sargon II in Iraq. It had been shipped to New York from Dubai by Fazeli (ICE 2015a). Fazeli was accused of falsely declaring the value of head as US$6500 when its appraised value was US$1.2 million, and of listing Turkey as the country of origin. (St. Hilaire 2013c). He was also accused on ‘at least two prior occasions’ of incorrectly listing Turkey as the county of origin for Egyptian antiquities (St. Hilaire 2013c), one of which was probably the one described in the preceding paragraph. The head was returned to Iraq in March 2015. The ICE press release announcing the return stated the seizure was part of an investigation (code-named Operation Lost Treasure) that had […] identified a broad transnational criminal organization dealing in illicit cultural property. Some of the network’s shipments were directly linked to major museums, galleries and art houses in New York. The investigation has resulted in one arrest, multiple seizures of antiquities ranging from Libya, Egypt, and Afghanistan, and the return of many of artifacts. A repatriation ceremony with Afghanistan was held two years ago and future repatriations are anticipated. (ICE 2015a)

A further statement talked of an ‘organization out of Dubai’ selling artifacts stolen from ‘Iraq, Egypt, Libya, Turkey and elsewhere in the region’, and also ‘dealing in artifacts stolen from museums in western Europe’ (Bruer and Rosen 2016). Nothing more was revealed about the material seized, the identities of any traders involved or whether Fazeli was the central focus of Operation Lost Treasure. ICE did claim that Fazeli was ‘selling looted Iraqi antiquities to dealers all around the world’ (Northam 2015).

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Through 2012 and 2013, HM Revenue and Customs conducted an investigation into material arriving into the UK from Fazeli (HMRC 2015). The investigation seems to have started with the seizure in March 2012 of a kudurru (boundary stone) suspected of having been taken illegally from Iraq. Customs documents declared a value of US$330 with Turkey listed as country of origin. The stone’s appraised value was in the range £100,000 to £200,000 (US$150,000–300,000). In June 2013, customs officers searched the premises of Connoisseur International Fine Art, a specialist shipping company with storage facilities at London’s Heathrow Airport. They seized seven packages dispatched by Fazeli, together with a Libyan statue, also sent by Fazeli. Five of the packages contained genuine objects, while the contents of the remaining two packages were judged to be fake. A full description of the material in the packages has not been made public. The Libyan statue had been imported in December 2011. The associated customs documentation described the statue as a ‘marble stone piece for home decoration’, with a declared value of US$110,000 and Turkey listed as country of origin. Expert opinion identified the statue as dating to the fourth or fifth century BC from a tomb in the necropolis of the ancient Greek colony of Cyrene in present-day Libya and appraised its true market value as £1.5–2 million (US$2.25–3 million). Fazeli claimed the statue had been in his family collection since 1977. The statue seems to have been received in London by Jordanian national Riad Issa Mohamad al Qassas, who then passed it on, perhaps as a commission arrangement, to London-based dealer Farhan Yaghi. Yaghi denied any knowledge of Fazeli. The statue was forfeited in September 2015 for return to Libya.

Discussion Turning first to Kapoor. If the allegations made about him are true, he was in business in New York for more than 30 years and was seemingly located at the center of a large trafficking operation that gathered cultural objects from South and Southeast Asia for sale to the world. At first glance, Kapoor looks to have operated from that position as a ‘kingpin’ figure, organizing and controlling over the long term an international network of thieves and smugglers. The hierarchy this would imply seems clearly evident in the planning and execution of the Tamil Nadu temple thefts, and reaffirmed by the apportionment of the proceeds. But centrality need not imply control. Looking more closely at the police allegations, there are several aspects of the case that call the interpretation of centralized control into question. In the first place, noth-

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ing has been revealed about Kapoor’s prior relationship with Asokan. Were the reported temple thefts the latest crimes of a long-running series, or were they instead the outcome of an unprecedented collaboration? Similarly, nothing has been revealed of Asokan’s career before the temple thefts, or of any earlier criminal collaborations not involving Kapoor. All that is known from police allegations is that Kapoor met with Asokan on several occasions during 2005 and 2006 and that Asokan then arranged with local art dealers to identify and hire suitable thieves. Asokan seems to have trusted or relied upon the art dealers to perform this task, presumably because of their (and not Asokan’s) knowledge of the local criminal community. Asokan himself appears not to have been involved at that level, though did arrange for the transport of the stolen material out of India. Thus, the temple thefts might be viewed as an opportunistic collaboration, albeit one instigated by Kapoor. Seen from that perspective, the planning meetings held in Chennai between Kapoor and Asokan comprised a conspiracy to commission the theft in Tamil Nadu of material that Kapoor would be able to market internationally (though it remains to be proven in court). Kapoor’s relationship with Kanwat, as revealed by the 2016 New York Asia Week raids, might have been similar to the one with Asokan and also short term and opportunistic. It is not possible to tell. There is not enough information. Nor can the criminal organization of the supply chain be determined from the evidence presently available. Although the police reporting is not clear, it appears that the art dealer Marisamy, commissioned by Asokan for the Suthamalli theft, handed only ten of the stolen idols over to Asokan, while retaining possession of the remainder for sale to an unnamed ‘foreigner’. This division would be unexpected if Kapoor really was controlling the trafficking operation down to its lowest level. In fact, the ‘art dealers’, Marisamy, Siva Kumar and also Deenadayalan, emerge from the reporting as important organizing figures in their own right, responsible for planning and executing the temple thefts. Deenadayalan was arrested in June 2016 (Felch 2016c). He is known to have supplied Kapoor with at least one and probably more objects. The full extent of his trading activities remain to be elucidated, though he does not seem to have been working under the direction of Kapoor. It might be no coincidence that after his arrest, Tamil Nadu police described Deenadayalan as a ‘kingpin’ (Narayanan 2016). Kapoor might not have been a controlling organizer, but he was clearly a Janus figure as described by Mackenzie and Davis (2014, p. 2), looking backwards toward source and aware of the illicit nature of the material he was buying and the criminality of the people he was buying from, while at the same time facing forwards and interacting with the unwary customers of the

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destination market. He might be characterized as a broker, positioned between the illicit source market and the licit destination market, possessing the necessary cultural competencies and expert knowledge of legal and financial systems in the countries involved that enabled him to arrange and manage transnational transactions (Bouchard and Morselli 2014, pp.  297–298; Tijhuis 2011, pp. 89–90). But his activities were not confined to brokerage, as he was actively involved in planning the temple thefts. He is better considered as a criminal entrepreneur (Dean et  al. 2010, pp.  6–8), developing a wide-ranging network of contacts, extending upwards into the ‘licit’ destination market of collectors and museums and downwards at least as far as the edges of the illicit source market, as personified by figures such as Asokan, Kanwat and Deenadayalan. He was then able to exploit this network for identifying or creating opportunities and mobilizing the financial, material and human resources to exploit and profit from them. The idea of a criminal entrepreneur is a useful one, as it suggests a stronger personal commitment to maintaining an operational network with more stability and continuity of purpose than would be likely through outright opportunistic collaborations, while at the same time eschewing any idea of centralized and top-down control. Turning now to the Dubai case study. Three things distinguish it from the Kapoor one. First, the information is assembled from the reporting of different and diverse customs and criminal offences, involving several distinct individuals. There is no central focus on a single person as there was in the Kapoor study. Thus, if there is no immediate suggestion of a central, controlling ‘kingpin’ figure, it might be because the available information is fragmented and does not aggregate around a single person, as it does with Kapoor. Second, and provisionally, the monetary values of the trafficked objects seem to be an order of magnitude lower, with prices and appraisals in the range of tens of thousands of dollars, in contrast to the range of hundreds of thousands of dollars seen with the Kapoor material. (The Libyan statue, with its appraised value of US$2.25–3 million, does urge some caution, that the apparent value difference might be an artifact of reporting and not an accurate reflection of reality.) Finally, there is the visible extent of the trading chain. Whereas for Kapoor it is possible to reconstruct the illicit biographies of some objects, as they traveled from temple to museum through the agency of several traders, that is not the case for Dubai. The organization of procurement in the source markets that supplied Fazeli and Ramadan remains opaque,3 and much of the  In the early 1980s, the looting and trade inside Syria is believed to have been orchestrated by Rifaat al-­ Assad (uncle of Bashar al-Assad) (Brodie 2015, p. 325). Similarly, during the 1990s, the looting and trade in southern Iraq is thought to have been organized and controlled by Arshad Yashin, Saddam Hussein’s brother-in-law, until Hussein put a stop to it (Brodie 2011, pp. 16–17). 3

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material discussed was stopped at customs before infiltrating the destination market. Nevertheless, and with those caveats in mind, it is possible to draw some conclusions. The first, as already hinted, is that no single person stands out as a persistent, controlling ‘kingpin’ figure. But equally, the evidence does not particularly support the commission of discrete, opportunistic crimes. The relations between the Dubai dealers and their counterparts in the US and UK look more like straightforward commercial ones, with ‘retail’ traders (Alshdaifat/Khouli and al Qassas/Yaghi) looking to ‘wholesale’ suppliers (Ramadan and Fazeli) for material to meet customer demand. Thus, Khouli’s import of Egyptian material seems to have been prompted by Lewis’ enquiry to Khouli asking about the availability of such material. Did Ramadan then arrange for the theft and transport of suitable material out of Egypt, or did he offer what he had already in stock? From the available information, it is not possible to decide one way or another. Both the Kapoor and the Dubai case studies illuminate the importance of brokerage, both for moving material between jurisdictions by hiding its true nature from the prying eyes of customs agents and for fooling the principled or self-concerned due diligence of collectors and museums. Brokerage appears more as a partnership or process than as the enterprise of an individual person. Although Kapoor has been identified here as a possible broker, he was working in concert with Asokan. Asokan was responsible for disguising material to facilitate its movement through Indian and US customs, while Kapoor performed the task of convincing customers of the material’s legitimacy. Working together, they allegedly transported the stolen temple idols from the overtly illicit source market in India to the seemingly licit destination market of the US.  Similar partnerships were at work in the Dubai case study. Ramadan, Alshdaifat and Khouli finessed the movement of stolen Egyptian material from Dubai into the hands of Lewis. There are also glimpses in the Dubai study of more complex brokering arrangements. The roles of Alshdaifat interceding between Ramadan and Khouli, and of al Qassas interceding between Fazeli and Yaghi appear similar, in that they seemed to be acting as destination agents or representatives for transit market traders. Given that Yaghi denied any knowledge of Fazeli, perhaps the function of ‘agents’ in such transactions is to introduce another confounding dissociation between illicit source markets and licit destination markets, another layer of deniability. It would offer some insulation for the destination market dealers themselves, protecting them from demonstrable knowledge of any customs violations or other illegal acts associated with import. On the other hand, Alshdaifat’s defense lawyers argued that Alshdaifat had acted only as a ‘middleman’ who

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had not actively participated in the import of stolen material (St. Hilaire 2012b). So it is possible to hypothesize a prophylactic arrangement whereby an ‘agent’ does not handle stolen or illegally traded material and a ‘receiver’ has no knowledge of the material’s illegal origin. A final reflection is in order on the schematic ordering that has been used here of the source, transit and destination markets that constitute the trade. Transit markets have been viewed as essential for the laundering process, constituting ‘portals’ through which objects can acquire customs or other types of export documentation which seemingly legitimizes their trade and subsequent sale on the destination market (Polk 2000, pp. 84–86). Objects pass from being ‘illicit’ to ‘licit’. This is one function of the brokerage described in the previous paragraph. These transit portals are situated in jurisdictions outside the source market, often in a free port, such as Dubai or Hong Kong. Such ‘laundering’ practices include Fazeli incorrectly describing Turkey as the country of origin for Egyptian material and Asokan disguising the stolen idols as handicrafts. In view of this object ‘laundering’, it is often argued that it is not useful or even possible to distinguish between a ‘licit’ and an ‘illicit’ trade because stolen or illegally traded objects can be disguised in such a way as to enter into what would otherwise be considered legitimate commerce (Polk 2000, p. 83; Brodie and Doole 2001, p. 2). Criminologists have introduced the idea of the ‘gray market’ to describe this mixing of licit (white) with illicit (black) material (Bowman 2008, pp. 226–228; Mackenzie 2011, pp. 71–72). These characterizations of object laundering and the gray market draw upon property law, with the legality or otherwise of an object dependent upon the validity of the erstwhile owner’s claim to good title. Yet the seizures and recoveries discussed in these case studies show quite definitively that the appearance of legality is not an assurance of good title. Material that is stolen at source might still be open to recovery from a destination country, depending upon the laws of the country in question. A different approach to distinguishing between licit and illicit is possible, drawing upon the criminal law concept of mens rea, and it is the approach that has been used in this discussion. By the procurement or preparation of false provenance documents, Kapoor and Khouli were also actively engaged in separating a ‘licit’ market of ‘innocent’ consumers from an ‘illicit’ market of criminals, thereby acting as an interface between the two markets (Tijhuis 2006, pp. 36–55). In this sense, the real laundering that occurs during transit is that of cognizance—eliminating demonstrable knowledge of wrongdoing. Kapoor was enabling customers—honestly or not—to claim and demonstrate belief in the legitimacy of their purchase. A fraudulent account of good provenance offered them at worst plausible deniability of wrongdoing and at best

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an honest if naïve belief of legitimate purchase. It would be enough to protect a customer from criminal prosecution. No prosecutions have been made against acquirers of Kapoor-sourced objects. The criminal case against Lewis failed because of the absence of demonstrable criminal knowledge (Bowes 2014). Thus, the destination market can be termed ‘licit’ in the sense that traders (such as the large auction houses) and consumers (including wealthy collectors and major museums) are largely immune from any threat of criminal prosecution or charge of unlawful activity. Edgar Tijhuis (2006) contends that interfaces between licit and illicit markets are the fundamental articulations of transnational illicit trading networks and that a better understanding of their nature is crucial for the formulation of more effective countermeasures. It is no surprise then that the discussion of the case studies presented here is largely about interfaces—about brokerage, laundering and entrepreneurship—across jurisdictions and between markets. It goes to support Tijhuis’ contention of the importance of interfaces, and thus his attendant observation that interfaces are in general under-researched and poorly understood should be a matter of some concern (Tijhuis 2006, pp. 2–3).

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St. Hilaire, R. (2013c, July 24). Seized Assyrian head named in forfeiture complaint-­ smuggling allegations raised. Cultural Heritage Lawyer Blog. Retrieved May 25, 2016, from http://culturalheritagelawyer.blogspot.co.uk/2013/07/seized-assyrian-head-named-in.html. St. Hilaire, R. (2015, March 15). Kapoor idol trafficking conspirator sentenced. Cultural Heritage Lawyer Blog. Retrieved June 1, 2016, from http://culturalheritagelawyer.blogspot.co.uk/2015/03/kapoor-idol-trafficking-conspirator.html. Tamil Nadu. (n.d.). Busting of international racket. Government of Tamil Nadu, Police Department, Economic Offences Wing. Retrieved June 1, 2016, from http://www.tneow.gov.in/IDOL/status_info.html. Taylor, A. (2013, October 17). Stolen statue: Art gallery of NSW checks its collection. Sydney Morning Herald. Tijhuis, A. J. G. (2006). Transnational crime and the interface between legal and illegal actors. Nijmegen: Wolf Legal. Tijhuis, A. J. G. (2011). The trafficking problem: A criminological perspective. In S.  Manacorda & D.  Chappell (Eds.), Crime in the art and antiquities world (pp. 87–98). New York: Springer. TMA. (2015). Toledo museum of art to return four works of art with falsified or inadequate provenance documentation to republic of India. Toledo Museum of Art. Retrieved June 1, 2016, from http://www.toledomuseum.org/provenance/kapooracquisitions/. USA. (2011). United States of America Against Mousa Khouli, also known as “Morris Khouli”, Salem Alshdaifat, Joseph A. Lewis II, and Ayman Ramadan. Indictment, United States District Court, Eastern District of New York. USA. (2012, 18 April). Antiquities dealer pleads guilty to smuggling Egyptian cultural property. United States District Court, Eastern District of New  York, News Release. Retrieved March 18, 2015, from http://www.justice.gov/usao/nye/ pr/2012/2012apr18c.html.

22 The Kapoor Case Including the Stolen Shiva Michaela Boland

Introduction When Subhash Chandra Kapoor lost his liberty while endeavouring to board a flight at Frankfurt International Airport on 30 October 2011, it was the beginning of an ignominious end to the inglorious career of one of the world’s most prolific smugglers (see Chasing Aphrodite 2012). For four decades, from his slick shopfront on Manhattan’s Maddison Avenue, Kapoor had built up an antiquity dealership which placed pieces in some of the world’s most important collections. His private client list was a guarded secret, but his museum clients included some of the world’s most prestigious, such as New  York’s Metropolitan Museum of Art, Singapore’s Asian Civilisations Museum and the National Gallery of Australia in Canberra. Kapoor’s downfall has revealed a sorry tale of fraud and deception which spans continents and continues to throw into doubt the provenance of countless objects connected to him. As national arts reporter with Australia’s national newspaper, The Australian, for five years I helped unravel the tentacles of this case as they were entangled with some of Australia’s most i­ mportant art museums. The information gathered in this chapter is based largely on my personal sources and interviews.

M. Boland (*) Australian Broadcasting Corporation, Sydney, NSW, Australia © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_22

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On 30 October 2011, late in the European Autumn, when the Indian-born Manhattan antiques trader presented his US passport at immigration in Frankfurt International Airport, an alert flashed across the inspector’s screen. The alert was triggered by an Interpol Red Notice lodged five days earlier and resulted in Kapoor being taken into custody in Germany. Eventually, after nine months of diplomatic wrangling, he was extradited to India on suspicion of trading in illegal antiquities. When he arrived in Chennai, capital of the southern state of Tamil Nadu, on 14 July 2012, Kapoor was greeted by officers from the state’s Economic Offences Department’s so-called Idol Wing, who charged him with ordering and funding thefts in 2006 and 2008, where at least 18 Hindu religious figures were taken from temples in the Tamil Nadu villages of Sripuranthan and Suthamalli (see Government of Tamil Nadu Police Department 2017). By December 2012, US investigators had seized from properties in the United States linked to Kapoor more than 2000 antiquities which Immigrations and Customs Enforcement (ICE) estimated to be worth US$100 million. It was when this seizure was revealed that James T. Hayes Jr., special agent in charge of Homeland Security Investigations (HSI), New York, took the occasion to damningly describe the Indian native as “one of the most prolific commodities smugglers in the world”. Five and a half years after his extradition, the 69-year-old remained on remand in Puzhal Prison, Chennai, untried and in full denial of the allegations against him. Despite a dizzying sequence of court dates, some of which resulted in appearances by the accused, India’s justice system failed to prosecute Kapoor. Police had physical evidence, several further arrests and a confession from at least one of seven alleged accomplices, but it had not yet wrangled them into a live case (see GC India 2013). While the wheels of justice turned slowly in India, Kapoor’s exploits in the United States were exposed by HSI, a division of ICE.  The initial raid on Kapoor’s Madison Avenue, New York, business Art of the Past in 2012 netted what detectives at the time estimated was US$20 million in Asian antiquities. Subsequent raids on properties associated with him netted some 2600 items from all corners of Asia. The raids also captured Kapoor’s business files, which implicated his associates worldwide and furnished HSI with details of what they allege was his expansive smuggling operation. If he is ever released from prison in India, he faces far more extensive prosecution in the United States where several of his relatives and associates have faced justice. When Art of the Past manager Aaron Freedman in late 2013 pleaded guilty in New York to trafficking in stolen art, including in falsifying documents, Kapoor’s prospects appeared dimmed further.

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What of the Antiquities? Kapoor’s arrest created a quandary for the collections which had acquired antiquities from him because, even though he was not convicted, his name became an immediate red flag in the collecting world. Any item associated with him should have, in an ideal scenario, become difficult to loan, display or sell. Insecure items are also at risk of forfeiture to the country of origin, if the owner cannot establish secure chain of title with the onus being on whoever is in possession of the item to prove chain of title after, in the case of India, it signed the 1970 United Nations Education, Scientific and Cultural Organization (UNESCO) Movable Cultural Heritage Convention in 1972. Many museums worldwide have not been in the habit of revealing publicly the ownership history of items in their collection; in fact, research triggered by Kapoor’s arrest revealed some dealers have, over the years, insisted their names never be publicly revealed. As Subhash Kapoor’s alleged smuggling antics became an international intrigue, investigators sought to unravel the second-generation dealer’s network built up over almost 40 years in business. During the first blush of publicity regarding the case, public institutions, rather than private collectors, were the most straightforward to investigate. Their collections are often catalogued online, and they are obliged to be accountable. Art of the Past’s website at the time of Kapoor’s arrest listed 18 institutions as its clients, including the Metropolitan Museum of Art in New York; the Museum of Fine Arts, Boston; the Smithsonian’s Freer and Sackler Galleries in Washington DC and the Art Institute of Chicago. Kapoor’s publicising of those dealings appears to have been a way to bolster his credibility with other clients. Further digging as to his relationship with those clients revealed he tended to gift items to the most prestigious institutions so he could sell at a premium to less prestigious institutions, and possibly also to private collectors. For example, items from him at the Metropolitan Museum in New York were minor works donated, whereas he sold items for extraordinarily high prices to newer museums in Asia, such as the National Gallery of Australia in Canberra. Kapoor’s arrest led to the unravelling of his networks and became the catalyst for a reduction in the trade of illicit Asian antiquities. Singapore-based antiquities sleuth Vijay Kumar, who pays forensic attention to the international trade in Asian artefacts, especially Hindu items from India, said after Kapoor was arrested, “we see much lower numbers of Asian antiquities in the open auctions. There has been greater emphasis by auction houses to deal in antiquities with proper provenance”.

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Kapoor’s arrest also led eventually to the return of several major items to India by heads of state including Australian Prime Minister Tony Abbott in September 2014 and Germany’s Chancellor Angel Merkel in October 2015 (see Boland and Maher 2014 and The Hindu 2015). In Australia, relentless media reporting was integral to the demise of unfettered collecting and eventually to it becoming unacceptable to display artworks for which an institution couldn’t establish secure title. Asian antiquities had been particularly targeted by Australian galleries during the first decade of the twentyfirst century, but by 2014, stringent new collecting guidelines were drawn up for collections to adhere to, and the four public art museums with new collections of Asian antiquities instigated provenance research projects into them. In the United States, the Getty Museum scandal during the 2000s, wherein curator Marion True was charged but never convicted of fraud relating to antiquity acquisitions, ushered in an enlightenment which led to improved collecting standards and greater transparency. The case is forensically detailed in the book Chasing Aphrodite: the hunt for looted antiquities at the world’s richest museum (Felch and Frammolino 2011). The Getty was vulnerable because it was cashed up and new, it opened in 1997 and its leadership sought to quickly fill obvious gaps in its collection. So too, when it came to the Asian antiquities scandal, Australia’s National Gallery (NGA; see, in general, NGA 2006) in Canberra was vulnerable. The nation’s richest and youngest public art gallery was established as the institution supposed to set the gold standard by which others measured themselves. It opened in 1982 and was cashed up on account of being the only public art gallery in Australia with a government-funded acquisitions budget for growing its collection. It also had generous benefactors who were flush during the 2000s, thanks to Australia’s booming resources economy. The NGA’s forefathers had also decided representing the art of its region should be a priority and, amid the thirst for prestige, sloppy due diligence practices flourished. Internally, the race to collect was on, with curators of different genres vying for status. He or she with the sexiest collection enjoyed the greatest prestige. Meanwhile, beyond the gallery’s walls, there was growing concern about the groaning cabinet of curiosities revealed when the Asian Art Gallery was launched by then NGA director Ron Radford. In addition to a 900-year-old Bronze Dancing Shiva, or Shiva Nataraja, thought to have been forged during the later years of the Chola dynasty, 1010–1153, within what is the contemporary state of Tamil Nadu, there were dozens of remarkable antiquities representing numerous Asian religions and regions. There was a 1000-year-old seated stone Buddha from India, a seated Jina beneath a shrine carved from marble for veneration by followers of the

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Jain faith. There was an exceptionally large ivory Christ on the crucifix thought to have come from the former Portuguese colony of Goa, India, in the eighteenth century. All these pieces were displayed with acquisition dates within the previous decade or so, accompanied by some vague scholarship about where they might have come from and what contemporary viewers could assume they meant but without information about where and who they’d been bought from and who used to own them. Heritage experts, scholars and some visiting Indians told of their dismay about the ever more expensive-looking items being added to the collection during the 2000s, and they privately expressed concern about how the gallery might have acquired so many excellent examples of art which has been protected since 1972. Then, in 2012, Kapoor’s extradition to India thrust the NGA into international notoriety because the strongest link Indian police had between their alleged criminal mastermind and his trade was the 900-year-old Dancing Shiva at the NGA. Newspapers in New York and in India published an archival image of the statue in a temple, which Kapoor was alleged to have stolen, and said it bore an uncanny resemblance to one that was acquired by the Canberra gallery around the same time the original went missing (see Schram 2012). Tamil Nadu Idol Wing detectives prepared a case which detailed how they understood the statue was stolen from its temple before it was trafficked to New York, via Hong Kong and London, before it was sold to the Canberra gallery (see Government of Tamil Nadu Police Department, Economic Offences Wing 2017). According to documents prepared by the economic offences division of Tamil Nadu’s police force for Kapoor’s trial, on one of many trips Kapoor made to Tamil Nadu during his decades as an antiquity dealer, in September 2005, he stayed at the five-star Taj Connemara in the state’s capital Chennai and, while there, met art dealer Sanjivi Asokan. Kapoor’s request to Asokan was specific. He wanted the dealer to source metal idols from the Chola period of the ninth to the thirteenth centuries when the Tamil region was the centre of power in South Asia. Despite the illegality of moving cultural heritage across international borders, Kapoor is alleged to have fostered many contacts like Asokan. In India, Afghanistan, Pakistan, Bangladesh, Bangkok, Cambodia, Dubai and Hong Kong, these contacts could rely on Kapoor to pay well and be wily enough to overcome legal impediments to doing business. Asokan accepted a down payment and, having studied maps and archaeological books on the riches of South Indian temples, went to Sripuranthan

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village in the remote Ariyalur District—five hours’ drive southwest of the capital. Asokan preferred to target poor farming areas where temples were neglected and crumbling because villagers in these areas were less likely to immediately discover pieces missing. Sripuranthan village elder Ramayan Ulaganathan, district secretary of the Communist Party of India in 2014, told The Weekend Australian that daily pujas (worships) at the Shiva temple stopped when rumours spread that a plague of scorpions had colonised it. “There were a few instances that the poisonous insects bit people and even a priest was bitten, which scared a lot of people”, he said. Asokan found the temple locked and unused. A local art merchant introduced him to two thieves who, one night in January 2006, broke the temple’s lock and removed three of the eight idols inside. As they left the building, they glued the lock back together so it looked like it hadn’t been tampered with. The following day Asokan collected the three pieces in exchange for ₹200,000, then worth US$6000. Asokan then purchased new statues that looked similar to the stolen three. He mingled the lot together and obtained an export certificate for what he claimed was a collection of handicrafts, which then were shipped from Chennai harbour via Hong Kong and London to Kapoor in New York. Four months later, the thieves returned to the temple and collected another three pieces, which were exported in the same way. From the original collection of eight idols in the temple, by August, only Vishnu and Shiva remained. The temple was dedicated to worship of Shiva, so the big bronze alloy dancing Shiva as Nataraja, surrounded by a ring of fire, which eventually found its way to Canberra, was the grandest and most important piece in the holy place. Sripuranthan’s Shiva was forged from bronze by craftsmen between 800 and 1200 years ago, a remarkable feat, given the time, but less remarkable in the context of the artistry proliferating in Tamil Nadu, where so many temples are adorned with myriad stone carvings. Bronze idols are rarer than stone idols and each temple tended to house a stylistically connected set made by the same craftspeople. For this reason, Indians who are passionate about their heritage become upset by the dispersal of these pieces to sterile museum collections, worlds away from the context of their temple and others in their set. Due to Shiva’s generous dimensions of a little over 1 m in diameter, the thieves needed two additional pairs of hands and a small truck to transport it to Asokan in Chennai. According to Tamil Nadu police’s idol wing, “Lord Nataraja and Vishnu were sent off to USA on 25.11.2006 from Chennai harbour by Sanjivi (Asokan). For this illicit export of cultural heritages of

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Tamil Nadu, Sanjivi was paid dollars equal to more than one million rupee ($30,000) from Kapoor’s account in HSBC Bank, New  York”, the documents reveal. Long after the pieces had arrived in New York and been readied for sale, the thefts remained unnoticed in Sripuranthan. Two years later, in June 2008, heritage officials arrived at the town, having been directed by the central government to collect the antiques for safeguarding. Upset at the thought of their property being removed, villagers asked the officials to give them a chance to safeguard the temple themselves; they built a grille, and in August, the group gathered to install it. Only then did they find the lock had been broken and all the idols were missing. Within six days of this discovery, the two idol thieves were arrested in Chennai; Asokan was detained the following March. From these arrests came the Interpol warrant for Kapoor. When Kapoor eventually received the Shiva in early 2007, he priced it at US$5  million and created a sales document claiming: “This is the largest, most significant Chola Period sculpture of this subject to appear on the market in a generation”. Years later, NGA director Ron Radford was still echoing that sentiment; in 2014, he described “Shiva Nataraja, of course, is the ultimate Indian icon for an Indian collection”. Within months of the beauty arriving in New  York, Radford and the NGA’s then chairman Rupert Myer viewed Shiva with Kapoor at one of his warehouses. The piece was shipped to Australia later that year, and the sale was finalised in March 2008 before the villagers back in Sripuranthan had even discovered it missing. Radford has never revealed if he’d asked Kapoor to find the NGA a Shiva or if the wily salesman had instead anticipated that a figure of such grandeur would sit well near the entry to the NGA’s Asian Art gallery which he had visited. By December 2013, Kapoor’s office manager Aaron Freedman had pleaded guilty in New York to creating documents to give the piece a bogus collecting history which facilitated its sale to Australia. The NGA then filed a suit against Kapoor in the same court to recover its US$5 million-plus costs. The strength of the case was the photographic evidence which linked Shiva to the temple. It can be considered sacrilegious to photograph deities but also cataloguing India’s abundant riches is an unfinished task. However the long-­ established antiquities research body French Institute Pondicherry, in Tamil Nadu, has taken on the task of attempting to record much of the state’s cultural riches. It produced a grainy picture of the Shiva, and later, another picture taken about 30 years earlier during a local religious festival was discovered.

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The discovery of the second image removed any lingering doubts held by some that the NGA’s statue was in fact the missing Shiva. Idol Wing chief, Ponn Manickavel, the officer in charge of the investigation, told The Weekend Australian that a photograph of the missing Shiva was also found on Kapoor’s phone, while another copy of it was found in the home of one of Kapoor’s co-accused (see Boland and Hodge 2014). After the Dancing Shiva was first splashed across newspapers in India and New  York, but before police had revealed how they thought the theft had taken place, the NGA refused to discuss the origins of its collection. In this manner, Shiva became the wedge with which the doors of transparency could be pried open. The NGA refused to reveal how much it had paid for the statue, what its provenance was, what due diligence it had undertaken, what its acquisition policy was or even if it had one. Radford did reveal another 18 items in the NGA’s collection had been acquired from Kapoor but declined to say which ones. With just 60 pieces on display in the Asian Art Gallery, the Kapoor purchases must therefore have accounted for a third of them. Records from Kapoor’s shop, Art of the Past, established the Dancing Shiva had been sold to the gallery for US$2 million in 2008. The figure was later discovered to have been a down payment and the total was actually US$5 million (AU$5.6 million), making Shiva Nataraja one of the most expensive artworks known at the time to have been acquired by an Australian public art gallery. It is the highest known price paid for any Asian antiquity by an Australian art museum. NGA management reacted to the international imbroglio by shutting down. Shiva was not allowed to be photographed in what was alleged to be his new Canberra resting place, which meant fresh images could not be juxtaposed with the pictures coming from India. It was at this point that Melbourne University criminology professor Ken Polk became integral to telling the story. In 2012, Polk was a member of The Australian Government’s National Cultural Heritage Committee (NCHC), which convened to assess significant objects and advise the arts minister on heritage matters. NCHC members are discouraged from public advocacy so it was at some personal cost that the art fraud expert revealed the unease he had harboured about the NGA’s Asian antiquity collection since even before Kapoor’s arrest. What had been until the 1990s a sparse collection of antiquities—little more than an artistic nod in the direction of Australia’s near neighbour— became a focus of the NGA’s collecting under the directorship of Ron Radford from 2004.

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The first floor gallery became generously endowed with rare and captivating artefacts, every item a well-preserved example of fine workmanship from the past 2000 years. Recent acquisitions included a 1000-year-old stone lotus pattern ceiling relief thought to be from eastern Rajasthan and a pair of 600-year-old stone Hindu door guardians from Tamil Nadu. Polk said he had become particularly bothered by how the NGA came to acquire, in the decade leading to 2012, so many of those pieces—and hundreds of others, not only from India but also from Afghanistan, Pakistan and Indonesia. Polk’s unease turned into alarm when the Shiva and almost 20 other antiquities were revealed as having been acquired from the alleged criminal mastermind. “Nothing is coming out of these countries legally”, Polk told The Australian. “So when you see the acquisition dates, the questions must be raised” (see Boland 2012). The stone door guardians, or Dwarpulas, from Tamil Nadu were bought in 2005. How were they still a pair and in such great condition? If they had been legitimately removed from India before the 1972 movable cultural protection legislation was introduced, then what fine collection had preserved them? Why not list on the gallery’s website that they’d come from this esteemed place so researchers could know more fully their story? In 2006, the NGA acquired a fine Gandharan head of Bodhisattva dated to the third or fourth century AD and listed on the gallery’s website without any provenance. In 2008, a South Indian Monumental Alam from the Shia Muslim tradition forged from bronze in about 1850 was acquired and also listed without provenance. These acquisition dates are almost 40 years after the 1970 UNESCO convention, prohibiting trade in cultural property, which Australia ratified in tandem with enactment of its 1986 Protection of Movable Cultural Heritage Act. The NGA is additionally bound to collect ethically due to its membership of the International Council of Museums. Australia’s collecting institutions never had a culture of celebrating provenance, and as late as 2010, public art museums still adhered to the maxim that aesthetics were paramount and provenance was the preserve of social history museums. This is evidenced by Art Gallery of New South Wales (AGNSW) director Edmund Capson’s decision to sell a socially important painting by modernist Australian artist Ian Fairweather to fund a work considered to be artistically superior (see Boland 2010). “Collections have to be edited some-

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times”, Capon said. “The (former) ownership of Patrick White is irrelevant. We’re not a social history museum, we’re a museum of art.” Then Subhash Kapoor was arrested and collectors realised anything acquired from him was instantly vulnerable to claim. Potentially more serious than the monetary losses the institutions faced was the smear that having acquired looted relics would have on Australia’s reputation in the museum world, and in India in particular, where relations with Australia were already fraught. In the years before the Kapoor discovery, there was tension between India and Australia due to a series of perceived hate crimes against Indian students studying in Australia. The inflammatory issue spurred rallies in Australia and a significant amount of inflammatory media coverage in India. It was a disastrous look for Australia’s cashed-up peak art museum to have been found to have been buying black market Indian antiquities. Polk regarded the Kapoor smuggling scandal as a timely trigger for the NGA to introduce transparency on the collecting history of its pieces. He argued for a lot more information to be published. The gallery had been aggressively obtaining antiquities, and it was not clear what the due diligence policies were. International Council of Museums (ICOM’s) code of ethics states: “museums have a particular responsibility for making collections and all relevant information available as freely as possible, having regard to restraints arising for reasons of confidentiality and security”. Polk said one way for the NGA to grapple with the Kapoor crisis would be to begin publishing the collecting histories of its items. The NGA website at the time offered browsers the opportunity for “more detail” about specific new Asian artefacts, but clicking that icon revealed only a larger picture of the item, with size and material notes, rather than information about how the item came to be in the national collection. Polk argued the absence of information undermined public confidence in items not having been looted. He argued for transparent provenance and due diligence procedures. The NGA’s 2011 annual report indicated 170 new items were added to the Indian collection. In 2010, 88 were added. Numbers for earlier years are not available, but in the NGA’s 2009 annual report, the museum director Ron Radford boasted that his gallery has amassed the sixth finest collection of Indian art outside India. Other institutions with notable collections of Indian art began collecting before the twentieth century, among them the British Museum, the Metropolitan Museum of Art and the Louvre. The NGA was not founded until 1967 and opened in 1982. Polk used his seat on the NCHC to agitate internally.

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He said he had flagged his concerns about the national collection with the NCHC chairman Patrick Greene, who at the time was director of Museum Victoria. Now he said questions relating to the Dancing Shiva meant the matter could move forward more aggressively. Some Indian artefacts were acquired for the Canberra collection before Radford was appointed in 2004, but under his leadership, their numbers swelled. University of Queensland law professor and former UNESCO staff member Patrick O’Keefe warned Australia’s collecting guidelines were inadequate and he counselled institutions to check with governments of origin before making significant purchases to ensure items were not restricted (see Boland 2012). O’Keefe said “if you’ve got a thing worth much more than AU$2 million, you’ve got to go beyond the certificates and check (it can be traded) with the government”. Where a dollar figure denotes a piece’s market desirability, the higher valued works are likely to be the ones sought back by original nations. For this reason, acquisitive institutions may have been disinclined to bring their potential acquisitions to the attention of supply nations. Where Shiva became the catalyst with which to chip away at the NGA’s tightly closed door of secrecy, the Art Gallery of NSW (AGNSW) in Sydney became a point of simple comparison. AGNSW had acquired six items from Kapoor. Two pictures were unlikely to be problematic because of the looser restrictions on trading in pictures, three ancient stone sculptures completely lacked paperwork and one became a story in its own right. After Kapoor’s extradition, AGNSW director Michael Brand revealed the identity of the six antiquities and some basic provenance information about them. Brand also pledged to review and tighten AGNSW’s acquisition policy and he offered to co-operate with any requests made by Indian authorities about them. At the same time, Bernice Murphy, then director of Australia’s peak museum body, Museums Australia, warned her members they had no choice but to adopt more ethical collecting procedures. “At a time when the Australian government is pressing ahead with the drafting of Immunity From Seizure Legislation—to enable continued soliciting of loans for major international exhibitions coming to this country—the issue of closer provenancing of collection items, and pursuit of reliable information before making new acquisitions will become an ever more potent issue”, she said (see Boland 2012). Federal Arts Minister at the time, Simon Crean, refused to comment on the growing imbroglio despite having oversight of the NGA. “Acquisition policies

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and guidelines are the responsibility of each institution and its board”, he said via a spokeswoman (see Boland 2012). Polk and his colleague on the NCHC, Kylie Winkworth, prepared a paper addressing collecting standards which they hoped would force Australia’s big art museums to be more upfront about the collecting history of items in their collections (Ibid.). Winkworth argued that Australians had not yet had their eyes opened to the black market behind cultural artefacts. “People look at beautiful objects in museums and don’t see what a dirty criminal business it is”, she said. “It’s ironic museums that theoretically uphold the importance of art and culture might be found to have collaborated in the destruction of cultural sites through their dodgy acquisitions. The trade impoverishes vulnerable communities whose sites are pillaged by destroying their most valued places, diminishing opportunities for research, and depriving communities of future economic benefits through tourism.” At sites where the sculpture has been looted, the looters take the crown jewels, the sculptural focal points in temples, the faces and hands-off bas reliefs, the heads off Buddhas; it’s brutal. Like blood diamonds, this trade fuels insurgencies and permanently impoverishes cultures. (Ibid.)

In the Hindu belief system, the dancing Shiva is depicted trampling a small figure, said to be the “demon of ignorance”. Australian museums were discovering ignorance could no longer be bliss. Whereas Kapoor’s extradition from Germany in 2012 brought the scandal to international attention, his clients would not have heard from him since the previous October of 2011. At about this time, a small and delicate ivory carving of the Madonna and child, thought to come from the former Portuguese territory of Timor, arrived at the NGA in Canberra. Australia’s temple of high art had paid US$35,000 for the 250-year-old Catholic icon with the expectation it would round out its collection of religious relics from Australia’s near-neighbours. Within weeks of the piece emerging from its packing crate, Kapoor was netted and so, even though Madonna was catalogued, she never went on display. During the months after Kapoor’s detention, the NGA made no public statement about the Madonna or her seller, nor did gallery staff appear to begin investigating items acquired from him. You could argue this stasis validates the importance of journalism. Only after The Australian began running stories about the issue, following his extra-

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dition in July 2012, was the NGA forced to explain how it intended to deal with it. Initially, it downplayed the problem and its role in the growing scandal by positioning itself among so many prestigious international museums. Eventually, Radford pledged to conduct an internal investigation with a panel, including the Asian art curator who had bought all the pieces, Robyn Maxwell, her assistant Melanie Eastburn, the gallery’s external lawyer, Shane Simpson, board members and with Radford himself in charge. Almost a year after announcing that review, the panel had not met and new gallery chairman Allan Myers had formed another, separate panel to review the issue (see Boland 2013). It was the chairman’s review which obtained files of the due diligence carried out prior to the purchase of each piece from Kapoor. In short, very little research was ever undertaken by curators who appeared to trust the dealer. Except in the case of the Dancing Shiva, possibly due to its immense asking price, Maxwell and Radford requested a report from the gallery’s lawyer, the cultural heritage advisor Shane Simpson. Simpson was asked to scrutinise the acquisition after it had arrived in Australia, and by January 2008, he advised the gallery to only acquire the Shiva after undertaking further research because on the information supplied, he said, the gallery could not be sure it had firm chain of title. A month later, the purchase was finalised with no further research apparent. Simpson recommended ten steps of further due diligence, including immediate enquiry of the Art Loss Register. The for-profit Art Loss Register has lost credibility in recent years and come to be seen to be of limited use. For a fee, a collector can have their proposed acquisition run through the Register’s database and, if it is not recorded there, the collector is reassured, despite the significant limitations of the Register, to be a complete information bank on every looted item. Simpson said that enquiry should be made of any Indian or Tamil Nadu art loss organisation; the French Institute Pondicherry is one such and it did hold a pictorial record of the Shiva. Written enquiry should be made of the Archaeological Survey of India (Delhi) Central Bureau of Investigation where there is an export and import enforcement wing. Gallery staff should have asked for details about the actual date Shiva left India and documentary proof of that and a conservation inspection should have been undertaken to see if there was any soil on the statue indicating it had been buried.

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Simpson advised the gallery to contact Sachindra Sekhar Biswas, author of Protecting the Cultural Heritage (Biswas 1999). He also said professional grapevines should be tapped, “even the most obscure sources”, and “all of this research should be documented so there is a record of the efforts made to establish the lawfulness of the desired acquisition”, Simpson wrote in his acquisition report for the Dancing Shiva commissioned and supplied to the NGA prior to its purchase in 2007. The dealer should clarify the identity of the vendor, it being unclear whether he was acting on behalf of Reg Meghoub’s family or had bought the Shiva from them. Finally, the gallery should through diplomatic channels see if India has an attitude to the acquisition. “The Indian Government may well endorse the NGA acquiring an important Indian work. Thereby reinforcing the relationship of the two countries. If this could be achieved, many of the issues would simply go away”, Simpson wrote in the 2007 report. Simpson’s checks were designed to establish blamelessness for his client in the event Shiva was revealed to have been stolen. We can only guess why the gallery’s leaders ignored his advice. Galleries often complain about limited resources and professional competition can be a disincentive to alerting colleagues at other art galleries about magnificent acquisitions. NGA staff might have been in awe of the vendor and so disinclined to press for more information and documentation. Or maybe they were fearful Simpson’s suggested investigations would reveal that the Dancing Shiva’s collecting history was not what Kapoor purported it to be and that discovery would force them to abort their purchase. The NGA’s relationship with Art of the Past predated Ron Radford and began with Brian Kennedy, director from 1997 to 2004. In 2013, Kennedy, by then the director of Toledo Museum of Art which had also acquired items from Kapoor, predicted Kapoor would merely be the first antiquity dealer found to allegedly have been sourcing fresh items from Asian nations such as Thailand, Laos, Cambodia and Indonesia. “It’s a wave that’s surely sweeping through this region” (see Boland 2013a). To help fund Shiva’s acquisition, the NGA sold another Shiva bought for AUD 1 million in 1990 while Betty Churcher was NGA director. Churcher’s bronze did not have a ring of fire around the dancing figure, but the former director considered it superior to the new one. The original NGA Shiva was bought from a New  York collector who had owned it since the 1950s. In 2009, it was deaccessioned with the permission of Arts Minister Peter Garrett and sold to the Abu Dhabi Louvre (see Taylor 2013). Correspondence between Radford and Kapoor reveals they had a genial relationship. The pair met at least once in New York when Kapoor showed

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Dancing Shiva to Radford and Australian retail scion Rupert Myer, who was chairman of the NGA at the time. Kapoor also visited Australia and some who met him recall noticing part of his ear was missing. In another intriguing twist, the year after Shiva was bought, Kapoor’s daughter, Mamta Sager, gave the NGA a generous donation. The gallery refused to reveal whether it was cash or art, or of what value, but in its 2009 annual report Sager (using the name Kapoor) tops a list of American donors whose gifts would have been eligible for a tax deduction. Radford’s passion for Asian antiquities had not begun when he arrived in Canberra in 2004. Australia’s most experienced art gallery director ran a regional gallery in Ballarat, Victoria, before he took over Adelaide’s Art Gallery of South Australia (AGSA). In Adelaide, for 13 years, he oversaw Asian artefact collecting there, too, but Kapoor was not his preferred supplier at that time. In 2002 and 2003, the NGA bought from Kapoor an 800-year-old stone Durga Mahisasuramardini (the goddess Durga slaying the buffalo demon), a 900-year-old marble arch from the Jain faith and a Buddha from Rajasthan. By 2015, Kennedy said he could not recall acquiring the items. His explanation is conceivable, given the hundreds of acquisitions the institution makes each year, combined with the tumult of the Irishman’s final years in Canberra. Art of the Past’s correspondence regarding the purchase of those items is addressed not to the director but to chief Asian art curator Maxwell. Kennedy does recall meeting Kapoor. He said, as director of Toledo he backed out of buying something from him after Kapoor did not display the item at Art of the Past on Maddison Avenue and then could not tell him its provenance. “I remember going to see him and he took me to an apartment to show me a work of art and I thought it was rather strange, so I didn’t buy it”, Kennedy said. “I wanted to know where it came from.” Former Art Gallery of NSW director Edmund Capon told a similar story. His gallery bought four items from Kapoor in the years to 2004. “We ceased dealing with him from, I believe, late 2004 or 2005 [when] we learned of Mr Kapoor’s activities and dubious reputation”, Capon said to me in an interview. Capon stopped dealing with Kapoor, but he did not ask his staff to investigate what it had already bought, which might have been judicious, because just a few months earlier it had paid US$300,000 for a stone carving of Shiva with the bull Nandi without doing any due diligence or asking for a money-­ back guarantee. In 2013 The Australian published a picture of the statue and Singapore-­ based antiquities sleuth Vijay Kumar recognised it as the same one in a famous book of South Indian antiquities.

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It takes just seven minutes to walk from the Art Gallery of NSW across the Domain in Sydney to the gallery’s sister institution, the State Library of NSW. Had curators at the gallery made that walk before they finalised acquisition of the magnificent 1000-year-old rock carving of Ardhanarishvara, an androgynous form of the Hindu god Shiva and his consort Parvati, with the bull Nandi, they might have become suspicious that the carving had been stolen. In the library’s reference section, there is a copy of Douglas E.  Barrett’s book Early Cola Architecture and Sculpture, 866-1014 AD. The library’s copy is one of 21 copies of the revered archaeologist’s landmark publication that can be found in public institutions across Australia. Among a limited number of pictures in the book of Chola-era carvings photographed at Indian temples is No 54, a stone Ardhanarishvara with Nandi in Vriddhachalam in the southern Indian state of Tamil Nadu, which bears an uncanny resemblance to the AGNSW’s Ardhanarishvara. Based on this photograph and the publication of Barrett’s book in 1974, the Ardhanarishvara was removed illegally from India, unless it was accompanied by a valid export certificate. In addition to the image in Barrett, a picture of the Ardhanarishvara also can be found in the catalogue website of the American Institute of Indian Studies at the University of Chicago. Kumar asked associates in India to visit Vriddhachalam where they located the nook the carving was removed from. He then emailed The Australian photographs matching the temple wall in Vriddhachalam where worshippers have installed an inferior modern statue in place of the original one. A scarred, chiselled-out wall, such as those left behind when sculptures have been stolen from Cambodia’s Angkor Wat, would have provided a powerful image of how looting can chip away at the history of developing nations. However, the Vriddhachalam Temple is an active place of worship in what Kumar described as “a decent-sized town”, so a modern-looking sculpture was commissioned to replace the old one. In addition to the pictorial evidence, The Australian has spoken to a reporter at India’s The Hindu newspaper who checked the veracity of a receipt supplied to the gallery as proof the statue was in private ownership before 1972. That note on letterhead from the Uttam Singh and Sons Copper and Brass Palace in Delhi appeared to be forged. The business is legitimate, but The Hindu spoke with its owner who said his now-deceased father, who used to run the company, did not sell stone carvings and always signed his receipts in Urdu. The gallery’s receipt is typed in English, not signed at all and dated April 1970, four years before Barrett’s book was published.

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Within weeks of Kumar identifying the Ardhanarishvara, local police reported it stolen. From this report, a claim for its return was made through diplomatic channels and without any chance of refuting the claim, AGNSW surrendered it. The same happened to the Dancing Shiva. The NGA made no objection to its return and eventually, in accordance with protocol, both pieces were shipped to India under escort. In fact, Australia’s Prime Minister Tony Abbott decided a top-level handover to India’s then newly elected Hindu Prime Minister Narendra Modi could bolster his first state visit, and the items were earmarked at short notice to travel with him. At the last minute, it was discovered Shiva was too heavy for the Prime Minister’s Boeing aircraft, and the figures needed to be sent at great cost via a commercial carrier. That handover was the first of its kind and warmly received in India, a major trading partner for Australia, a nation eager to repair relations after a difficult few years wherein Indian students in Australia had complained of racism. The AGNSW bought another three potentially problematic artefacts from Kapoor, for which it does not have any papers at all; they eventually became part of a transparent provenance research project launched by the gallery in 2016. No other Australian public art gallery had acquired antiquities from Art of the Past, but that does not necessarily mean their collections are sound. Our research into the collections of all major Australian art museums has revealed undertaking thorough due diligence before purchasing antiquities seems to have been the exception rather than the norm. The Kapoor scandal led to the introduction in 2014 of new collecting guidelines for Australia’s public institutions, which provided guidelines for museums to re-examine their collections and take much greater care when acquiring and borrowing works. Asian art provenance research programmes were introduced at the Art Gallery of South Australia and Queensland Art Gallery (QAG), and the NGA awaited the outcome of a comprehensive review by former High Court Judge Susan Crennan. Published in 2016, Crennan found that the NGA was a victim of a well-­ planned fraud and suggested future due-diligence policies should encompass direct contact with any living seller of an artwork (National Gallery of Australia 2016). She endorsed the gallery’s decision to post all the provenance information it acquired on a website for external researchers and found from the first tranche of 36 items at least 22 had questionable ownership history.

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Despite the problems with provenance, Ms. Crennan stated in her report that all of the items examined, which were bought between 1968 and 2013, were “purchased in good faith”. Professor Polk said the review failed to address what really went wrong at the gallery (Ibid.). “(Ms Crennan) carefully avoids assessing responsibility for actions but that’s really an issue that has to be addressed because we’ve now got tens of millions of dollars at stake and years of wasted resources. By ignoring who did what you are unable to put in place steps to ensure it doesn’t happen again”, Prof Polk said in an interview. The review does not scrutinise the high prices and unorthodox buying habits that became commonplace at the Canberra gallery under then director Ron Radford. For example, in 2007, Mr. Radford and the gallery’s Asian Art head curator Robyn Maxwell bought a crucifix from Kapoor for eight times what it had sold for at Christie’s auction house just eight months earlier. In 2003, a 900-year-old Jina and Shrine from Rajasthan was bought from Kapoor for 18 times what the Jina had sold for a year earlier through Christie’s. Ms. Crennan examined the records of 36 Asian antiquities deemed by the gallery to be of greatest concern. They were the first of the NGA’s exhaustive review of its entire 5000-work Asian collection. The NGA loaded information onto its website in anticipation of countries of origin, foreign authorities and researchers using the information to mount claims that work is theirs. Professor Polk said this approach put the onus on nations ill-equipped to monitor and make claims on the many antiquities that have been lost offshore. With significantly smaller collections, AGSA, AGNSW and QAG published their provenance concerns, but then the information sat there with no breakthroughs occurring during the first year in either repatriations or authentications. All the pieces remained in a legal limbo, a likely by-product of the limited resources allocated to investigating their origins. By way of example, when Radford was director of AGSA, the gallery bought items from London dealers Oliver Forge and Brendan Lynch. In 2001, Radford negotiated the acquisition of a 500-year-old bronze Shiva Nataraja for AUD 435,747 from Forge and Lynch. Then, in 2006, new AGSA director Christopher Menz signed off on a 1000-year-old sandstone relief depicting two architectural female figures costing AUD$260,000 from them. For both acquisitions, the gallery undertook a huge leap of faith in the dealers, who have given them no documented proof of ownership history, despite repeated requests.

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In 2016, AGSA Asian Art curator James Bennett again asked Lynch who used to own the items. Lynch emailed back: “We were acting on behalf of two private collectors, one European and the other British. As you know we have always been very rigorous about details of provenance and where there are documents that are in any way relevant we would normally pass them, or their contents, on to the new purchaser. In the absence of such documents our sellers sign a vendor’s statement confirming the details of the provenance they have given”. This response does not satisfy AGSA’s new policies, but the gallery did not build a guarantee into its purchase. Now Adelaide’s Shiva and female figures exist in a legal limbo, like so many other Asian antiquities which landed in Australia in recent decades. All of them legacies of a cavalier collecting culture which outstayed its welcome.

Bibliography Biswas, S. (1999). Protecting the cultural heritage: National legislations and international conventions. New Delhi: Aryan Books International. Boland, M. (2010, November 20). AGNSW sells painting donated by Patrick White. The Australian. Retrieved May 15, 2018, from https://www.theaustralian.com.au/ news/nation/agnsw-sells-painting-donated-by-patrick-white/news-story/d77e70e 3b37cbbde01d96d9f1f1dd27f?sv=f 5543c870eb39c665477d9d925dfe3c1. Boland, M. (2012). Song and dance of Shiva. The Australian. Boland, M. (2013, August 27). Panel formed to investigate works bought from Subhash Kapoor has never met. The Australian. Retrieved May 15, 2018, from https://www.theaustralian.com.au/arts/panel-formed-to-investigate-worksbought-from-subhash-kapoor-has-never-met/news-story/b1b17ed509b5789361 2690c5bf29ba8d?sv=4b2b461337d1de7e057b3348280e617d. Boland, M. (2013a). Trade secrets: Unravelling Australia’s Asian art scandal. The Australian. Boland, M., & Hodge, A. (2014, March 8). Town prays for its stolen god Shiva to return. The Australian. Retrieved May 15, 2018, from https://www.theaustralian. com.au/arts/town-prays-for-its-stolen-god-shiva-to-return/news-story/c378f032b 7dc3e69e044ab25dc51551e?sv=4a44cb093b900cd 8679e14723861233. Boland, M., & Maher, S. (2014, September 5). Home at last, looted Shivas to be handed over in a meeting of PMs. The Australian. Retrieved May 15, 2018, from https://www.theaustralian.com.au/arts/visual-arts/home-at-last-looted-shivas-tobe-handed-over-in-meeting-of-pms/news-story/e8addaa1534733388700e358b3b40e3b. Chasing Aphrodite. (2012, December 6). Kapoor one of the most prolific commodities smugglers in the world. Chasing Aphrodite Blog. Retrieved May 15, 2018,

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from https://chasingaphrodite.com/2012/12/06/feds-subhash-kapoor-one-ofthe-most-prolific-commodities-smugglers-in-the-world/. Felch, J., & Frammolino, R. (2011). Chasing Aphrodite: The hunt for looted antiquities at the world’s richest museum. Boston: Houghton Mifflin Harcourt. GC India. (2013). The man who sold the world. GC India. Government of Tamil Nadu Police Department, Economic Offences Wing. (2017). Status of cases. Idols belong (sic) to the period of 11th century. Retrieved July 20, 2017, from http://www.tneow.gov.in/IDOL/status_info.html. National Gallery of Australia. (2006). Acquisitions policy. Retrieved July 20, 2017, from https://nga.gov.au/Collection/AquPolicy.pdf. National Gallery of Australia. (2016, September 19). National gallery of Australia returns two sculptures to India. Press Release. Retrieved May 15, 2018, from https://nga.gov.au/AboutUs/press/pdf/ MRIndianArt.pdf. Schram, J. (2012, July 28). Accused “Indian Jones” crook made $11m selling looted antiquities. New York Post. Retrieved May 15, 2018, from https://nypost. com/2012/07/28/accused-indian-jones-crook-made-11m-selling-lootedantiques/. Taylor, A. (2013, July 20). NGA’s offloaded Shiva statue takes pride of place in Abu Dhabi. Sydney Morning Herald. Retrieved May 15, 2018, from https://www.smh. com.au/entertainment/art-and-design/ngas-offloaded-shiva-statue-takes-prideof-place-in-abu-dhabi-20130719-2q9sj.html. The Hindu. (2015, October 4). German chancellor Angela Merkel arrives for three day India visit. The Hindu. Retrieved May 15, 2018, from http://www.thehindu. com/news/national/german-chancellor-angela-merkel-arrives-for-3day-indiavisit/article7723310.ece.

23 Cultural Heritage Offences in Latin America: Textile Traffickers, Mummy Mailers, Silver Smugglers, and Virgin Vandals Donna Yates

Introduction Latin America has a deep and intricate history: a pre-Conquest past characterised by the brilliant florescence of numerous complex civilisations and a post-­ Conquest past filled with the gradual and often conflicted blending of cultures. The material remains of these pasts represent the shared cultural heritage of humanity. They are an irreplaceable record of human achievement. Because of their beauty and significance, these artefacts of Latin America’s past, these antiquities, are highly desirable on the international market. As such, they are looted, stolen, trafficked, and illicitly sold. The illicit trade in Latin American cultural objects threatens our collective understanding of cultural development and significantly undermines movements towards social justice for Latin American Indigenous communities. It threatens cultural tourism for this poor region which depends on growth in that sector. It also reinforces the power imbalance between the global North (antiquities market) and the global South (antiquities source). Although it is not the only threat to cultural heritage in the region (others include development, deforestation, people movement and cultural loss, vandalism, natural disaster, and conflict), the theft and trafficking of cultural property in the region has been a major issue for decades and has not yet been effectively arrested. D. Yates (*) University of Glasgow, Glasgow, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_23

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In this chapter, I will discuss cultural heritage offences related to the theft and trafficking of archaeological and historic objects defined by relevant legislation as being the cultural patrimony of a Latin American state and, thus, not private property. The exact perimeters of category of object differ from country to country and are outside the scope of this discussion, but generally speaking, in most Latin American jurisdictions, objects of cultural patrimony include: • all undiscovered ancient/pre-Conquest cultural objects and any discovered after the relevant state claim legislation was promulgated (e.g. any artefact uncovered after 1906 in Bolivia); • certain categories of protected post-Conquest ethnographic material, including community-held textiles and masks; • historic documents that are deemed significant under state-specific guidelines; • the elements and contents of publicly held historic buildings; and • all of the art, architectural elements, and related sacred items of the region’s historic churches. Ancient and historic heritage represents a clearly defined category in the legislative and regulatory regimes of Latin America, allowing this discussion not to linger on legal grey areas and different definitions of crime or criminality and focus on the forces and forms of cultural heritage crime in the region.

 ontextualising Cultural Heritage Offences C in Latin America Discussing the functioning of heritage-related crime in such a vast area as Latin America requires a certain degree of abstraction. The countries of the region have differing legislative regimes, although most are built around the same general model. Each state has different internal pressures and concerns, any of which greatly effect heritage protection. There are vast development and financial differences in Latin America, ranging from stable states with high public confidence in public institutions (e.g. Chile) to troubled post-­ conflict zones navigating a difficult pathway through extreme poverty and systematic exclusion of the poor and Indigenous from public life (e.g. Guatemala). Furthermore, when speaking of cultural heritage, each Latin American state has a unique past with differing preserved physical remains. Remote jungle-covered temples present different crime and security issues

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than mummies in the desert, paintings on the walls of an early Conquest church, or documents in a poorly guarded regional archive. In this section I will discuss some of the general issues that concern the region with regard to heritage and crime. Although individual cases and context may present different patterns of threat and protection, taken as a whole, these represent the systematic issues that impede effective prevention of cultural heritage offenses in Latin America.

Market Forces There is a strong internal and external demand for the cultural heritage of Latin America in all of its forms. The global demand for physical cultural objects from Latin America underpins the general popularity of Latin American culture. Starting in the 1940s and 1950s and significantly increasing in the 1960s and afterwards, there has been a strong market for ancient Latin American objects, particularly objects crafted by the ancient cultures of Meso-America and the Andes. This market, although seemingly concentrated outside of America, particularly in the United States and parts of Europe, was mirrored by a strong internal Latin American market for these pieces which is both understudied and poorly understood. The primary concern about the market for Latin American antiquities is that, with few exceptions, the private ownership of pre-Conquest objects was banned and the unauthorised digging for an export of these pieces was criminalised before the art market became interested. In other words, by the time that collectors wanted to buy Latin American antiquities, it was illegal to do so. However, demand causes supply, and in this case, it was illicit supply. The strong market demand for ancient Latin American objects has directly resulted in the systematic devastation of Latin American archaeological sites from artefact looting and cultural loss from international antiquities trafficking over the last 60 years (Bator 1981; Chase et al. 1988; Coggins 1969, 1976, 1998; Gilgan 2000, 2001; Gutchen 1983; Robertson 1972; Sheets 1973; Yates 2006, 2015a, b). Furthermore, there is an often neglected but significant and long-standing art market demand for Colonial Latin American Art, particularly the sacred art contained within Colonial and Republican period churches. There are hundreds of thousands of historic churches throughout Latin America, each filled with a local selection of devotional art from nearly 500 years of cultural contact between hispanicising Catholics and existing Indigenous belief systems. Paintings, silverwork, icons, and furniture all display regional

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characteristics that are desirable on the market; they have been for decades but may have increased in popularity in the early 2000s due to global stylistic trends (Yates 2014b). Yet within the art market, these Latin American sacred art objects have rarely been approached as either ‘antiquities’ or as ‘historical objects’; in other words, the market construes them as purely objects of art (and sometimes objects of decoration) rather than as protected cultural patrimony. Again, as with ancient objects, in most Latin American states, it is unlawful to sell or export items from historic churches in all circumstances and has been since before there was a thriving market for such pieces. They are largely excluded from academic discussion of looted and trafficked cultural heritage from Latin America and, due to the complete separation of this market from the Latin American antiquities market, it is likely that buyers are unaware of the possible crime pathways that bring these objects to the market. In other words, there is a strong global demand for but no legal supply of ancient and historic Latin American cultural objects.

Insecurity and Theft Because of this market demand for Latin American cultural objects for which there is no legitimate supply, theft is of primary concern. It seems obvious then to say that increased security on the ground would reduce incidence of theft, but this ignores the funding and logistical realities of the places where much of Latin America’s cultural objects are located. Many of these areas are fundamentally insecure, and governments and authorities are unable to meet the basic needs of much of the population. Locations that lack health care, education, electricity, sanitation, and roads are also locations that house heritage sites. Poorly protected heritage is only one element of the region’s more systematic issues (Yates 2014b, 2015a). The people living in these situations engage in a number of subsistence economies, both licit and illicit, to get by. This may include at times the looting of archaeological sites or the theft of heritage items (Matsuda 1998; Paredes Maury 1999); however, poverty does not lead directly to heritage theft. Rather, poverty sustains the insecurity at heritage sites, even when communities are motivated to protect. When national-level authorities are unable or unwilling to protect heritage locations, leaving ground-level security up to individual communities, a poor community is least prepared to secure the site. They are unable to pay guards, cannot afford to install security devices (alarms, locks, fences), and do not have sufficient members with leisure time to serve as security volunteers.

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And not all of Latin America’s sensitive heritage sites are located near communities. The vast and varied terrain of the land mass and the varied human use of this terrain ensure that heritage sites are located literally beyond protection. Consider, for example, the Inka mummy known as the Cerro el Plomo Child, found by looters on a Chilean mountain top at an altitude of 5400 metres, along with marketable gold and silver offerings (Fuenzalida 1957), or ‘Site Q’, a previously unknown Maya site located so deep in the Guatemalan jungle that for decades archaeologists only knew about it from the steady stream of looted carved stone monuments that appeared on the international market (Martin 1993; Matthews 1979). It is impossible to secure an unknown site and nearly impossible to secure a known but remote site. Heritage locations, both those located near communities and those that are remote, suffer from a lack of police reach. In the latter case, this is understandable, but, in the former, funding shortfalls for effective policing have a major influence on the effectiveness of protection efforts as well as the perception of insecurity experienced by communities. In reporting related to the theft of heritage items from Churches in the Bolivian Andes, it is common for communities to report how long it took police or the Ministry of Cultures to respond to their report of a crime and, at times, the wait is several days (Yates 2014b). Externally, this slow response can be ascribed to limited expert staff and the difficulty inherent in reaching some of the more remote communities that experience these thefts; however, internally, for communities coming to terms with the loss of sacred communally held items, slow response is experienced as the authorities not caring for the people, not protecting them. This deepens mistrust of the authorities and increases the likelihood that heritage theft will go unreported, which is a serious concern in the region.

Regulation and Law What much of Latin America may lack in practical heritage security capabilities, it makes up for in clear heritage legislation. Most Latin American countries with marketable and desirable ancient remains enacted comparatively early legislation criminalising unauthorised digging at heritage sites, the transfer or sale of heritage items, and the unauthorised export of cultural objects. This relates as much to outside interest in the antiquities of the region as it does both to the growth of national archaeology and to highlevel efforts to define, claim, and control national assets. In some Latin American countries (including the archaeology-rich countries of Mexico, Guatemala, Peru, and Bolivia), there is no legitimate pathway to privately

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own and/or export any object that is considered to be patrimonio cultural; those pieces are always property of the nation or state in all circumstances. Thus, heritage objects found on private land are property of the state, historic pieces in churches are property of the state, and even family heirlooms pass into having their export and sale restricted under the law. In some jurisdictions (e.g. Bolivia), crimes involving the theft or destruction of heritage items are considered aggravated, carrying harsher sentences under the countries’ penal codes. In all jurisdictions in Latin America, cultural heritage offenses carry both significant fines and significant jail time (Sipse 2014; RPP 2014). Yet, in light of the previously discussed funding shortfalls not only for policing but for the whole judicial and penal systems, these laws can be characterised as aspirational. They are strict and clear, but, in many Latin American locations, they are unenforceable. In other words, they necessarily assume the availability and funding of police, public prosecutors, judges, and prisons; a justice machine that is well oiled. As it stands, in many locations in Latin America, funding for investigation is lacking. Heritage criminals are rarely caught. Those who are face long waits for trials, which, at times, lead to automatic case dismissals. And, finally, the cases themselves are perceived of as less pressing than what are seen as ‘serious’ crimes such as rape or murder, limited available funding, and time tends to be focused on those cases. In response to this discrepancy between the law and the practicality of effective enforcement, some Latin American countries have experimented with alternative schemes for varying degrees of heritage crime prevention or recovery of looted or stolen heritage objects. Many countries have semi-­ official amnesty programmes in place where individuals who are holding illicit cultural objects can turn them over to the authorities, no questions asked. Some have even experimented with small payments for the handover of particular antiquities in an effort to keep the pieces in the country (e.g. Ecuador historically, see Howell 1992), a controversial system that many believe may encourage violation of the law in the form of continued statesanctioned theft. Still others have developed caretaker systems where individuals can keep heritage objects in their homes, provided they accept that they are not the legal owners of the pieces, that they register them with the state, that they neither sell nor transfer them, and that they refrain from modifying them in any way (e.g. Belize; see Yates 2015a). Indeed, this excuses the past crimes involved in the acquisition of these pieces, but encourages reporting of chance finds and previous purchases and open dialogue with heritage authorities.

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Transnational Issues The theft of heritage objects in Latin America can be characterised as the first phase of transnational crime. In many, although not all, cases, the final market destination of the looted object is in another country. Furthermore, the piece is likely to pass through a third or even a fourth country on its way to a market. Like most transnational crimes, differences in policing, legislation, and regulation across jurisdictions serve as barriers to effective investigation of crimes and prosecution of criminals. While we may desire cross-jurisdictional cooperation, the reality is that such international investigations rely on good will, partnerships, and enduring positive relationships which may not always exist between states. Even in the best of situations, differences in language impede cultural property smuggling investigations, and differences in priorities result in lesser emphasis being placed on this sort of case at various points along the smuggling chain. The inadequacy of current international regulation to address the middle stages of antiquities smuggling and the trafficking phases between initial theft and final market have been addressed by numerous scholars. Latin America is no exception.

Four Cases from the Andes The following case studies represent a snapshot of cultural heritage offences related to artefact theft in one particular region of Latin America: the Andes, in this case Peru and Bolivia. The nature of antiquities region theft and trafficking in the Andes is comparable to other areas within Latin America, but due to the nature of the cultural property available, takes on its own form. For discussion of cultural property crime in Meso-America, see Yates (2014a, 2015a).

Textile Traffickers It is by no means hyperbolic to state that cultures of the ancient Andes produced some of the most masterful and beautiful textiles ever crafted. Woven, embroidered, painted, and dyed, these pieces represent thousands of years of cultural refinement. They were the clothing of the living and the vestments of the dead. Extensive, layered clothing for the dead is a hallmark of many Andean cultures. Mummies, bound into sitting positions, were dressed with layers of blankets, ponchos, shirts, shawls, and hats, forming so-called mummy bundles. One mummy bundle might contain dozens of textiles. As many

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Andean cultures selected hot, arid locations to bury their dead, both the textiles and the mummies within them can be spectacularly preserved. Because of their beauty and their superior preservation, Andean textiles have been desirable on the international art market for over a century. The only way that this demand is met is the literal robbing of graves and the removal of the textiles from the dead human bodies that they encase. All Andean textiles in international collections came off bodies. The surface of looted ancient Andean cemeteries is usually shattered with mutilated human remains: mummies destroyed in the looting process. The looting of the Paracas Necropolis sites in the 1930s, although distant, illustrates how shifts in politics and the loss of key motivated site protectors can have a devastating effect on heritage preservation in Latin America. The recent political manufacturings regarding the eventual repatriation of key Paracas textiles which were looted at this time show how salient an issue cultural property crime is to the Peruvian public, even if those crimes occurred over 80 years ago. The Paracas culture was first identified and described by Peruvian archaeologist Julio Tello who excavated in Peru’s Paracas region (Tello 1959); however, it is clear that looters located many Paracas sites long before Tello appeared on the scene (Tello 1959, p. 85; Dwyer 1979). Tello, himself a critic of the destruction caused by archaeological looting, had been monitoring the antiquities market for some time in hopes of discovering the source of a number of elaborate textiles being offered for sale (Dwyer 1979). Tello (1959, p. 85) records that the Ica valley was the site of the most obvious devastation caused by looting. He describes a pock-marked landscape scattered with huaquero discards. He says that at the time of his writing, the looting of tombs in the Ica region had been intensively conducted for 40 years and had caused ‘irreparable damage’ to the heritage of Peru. In 1925, Tello and archaeologist S.K.  Lothrap heard that the site of Cabeza Larga on the Paracas Peninsula was being looted. With the help of a huaquero named Juan Quintana, the archaeologists located the fragmentary remains of textiles which matched the style of those on the market. Tello and fellow archaeologist Toribio Mejía Xesspe returned to Paracas several months later to conduct archaeological excavations which produced over 70 mummy bundles. In 1927, they located what is commonly known as the Paracas Necropolis (also known as the Necrópolis de Wari Kayan) on the north side of Cerro Colorado (Proulx 2008, p.  569). Within this context, Tello recovered 429 mummy bundles, some of which contained several hundred textiles (Tello 1959, p. 90; Dwyer 1979, p. 106). Due to their expert craftsmanship and other-worldly iconographic themes, the textiles immediately garnered international attention.

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On 26 September 1930, Tello was forced to resign the directorship of the Museum of Peruvian Archaeology for political reasons. Without an archaeological presence at the site, the Paracas Necropolis was almost immediately hit by looters. In the leadership vacuum that resulted at Paracas, Tello reports that huaqueros had taken over areas that were still marked with archaeological stakes, particularly in parts of the Wari Kayan area that had not yet been excavated (Tello 1959, p. 97). From 1931 to 1933, the cemeteries were massively looted and, based on the number of human bodies found on the surface by Tello and other archaeologists, the amount of archaeological material removed from the sites must have been great (Tello 1959, p. 97). Paracas Necropolis textiles began to appear on the international market within a year, and it is thought that the majority of the Paracas textiles in international collections were smuggled out of Peru at this time (Tello 1959, p. 97; Dwyer 1979, p. 106). Paracas textiles appear in the collections of most major international museums and have increasingly become the focus of Peruvian repatriation requests. One particular case of note is the Paracas textile collection housed in the Museum of World Culture in Götenborg, Sweden. The collection consists of 100 textiles (eighty-nine formerly owned by the city of Götenborg and 11 formerly owned by the Swedish state) which were illegally exported’ (to use the term on the Museum’s own website) to Sweden between 1931 and 1933 by Sven Karell, the Swedish Consul in Peru (Trulsson 2012; Varldskultur Museet n.d.). The textiles were featured in an exhibit entitled ‘A Stolen World: The Paracas Collection’, which focused on the textiles’ status as illicit antiquities. The government of Peru requested the return of this collection in December 2009. The city of Götenborg acknowledged the illegal nature of the export of the textiles, and in April 2010, they informally agreed to a slow, successive return of the Paracas material (Karlzén 2010). Over a year later, no formal decision had been made about the textiles. Some museum administrators believed that the return would never take place due to a Swedish perception that Peru is not financially prepared to care for the fragile pieces (Karlzén 2010). In July 2011, then-president of Peru Alan Garcia announced that legal action would be taken against the city of Götenborg for the return of the textiles, claiming that the city government was ‘complicit in the deprecation and looting of a country and civilization’ (The Peruvian Times 2011). This was seen as a rather surprising move on the part of Garcia, given the city’s continued interest in the return of the Paracas material. Critics denounced his threat as being overtly political and related to Garcia’s success with the repatriation of Machu Picchu artefacts from Yale. Four of the textiles were returned to Peru on 18 June 2014 with the others expected to follow as their

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conservation schedule permits. The last is expected to be returned in 2021 (Blumenthal 2014). The more recent looting of ancient Andean cemeteries for textiles shows that both the issue and the market for such cultural objects were not confined to the 1930s. Take, for example, the site of Huaca Malena, which is located approximately 100 km south of Lima in Peru’s Asia Valley. It is associated with the Wari civilisation and from about AD 700 to 1100 Huaca Malena was a major Wari provincial cemetery (Meyers Breeze 2008). The site consists of a four-acre-wide manmade platform, which is augmented by six smaller terraces formed from adobe brick. It was discovered by Peruvian archaeologists Julio Tello and Toriba Mejía Xesspe in 1925, and their excavations resulted in the discovery of over 300 mummy bundles (Angeles Falcon and Pozzi Escot 2005). The dry desert climate of the region has allowed for the exceptional preservation of textiles at Huaca Malena. According to Angeles and Pozzi (2005): Textiles recovered from Huaca Malena range from tunics of cotton and camelid threads, woven bands, bags, belts, miniature looms, and other fragments. At least 32 techniques have been identified, including very fine tapestry, double cloth, brocade, gauze, warp-faced weaves, tubular weaves, and others.

Because of their superior craftsmanship, the Huaca Malena textiles are very desirable on the international antiquities market. As a result, the site has been extensively looted. It is unclear exactly when most of the looting occurred at Huaca Malena. Archaeologist Rommel Angeles Falcon recounts that when he started his archaeological studies in the early 1980s, Huaca Malena was largely intact. By the time he was appointed director of an archaeological project at Huaca Malena in 1997, the site was 65 per cent looted and the entire top terrace had been destroyed (Meyers Breeze 2008). Angeles’ project has recovered about 4000 textile fragments, many of which had been discarded by looters on the surface of the mound (Angeles Falcon and Pozzi Escot 2005). Angeles and his colleagues have embarked on a number of initiatives to both preserve the remaining Huaca Malena textiles and educate the public about the information loss associated with the looting at the site. They founded an ‘Adopt-a-Textile’ programme, which encourages locals, students, and scholars to become involved in the preservation of the recovered Huaca Malena pieces (Meyers Breeze 2008). In 2001, they opened a local museum, and in 2007, the museum organised a protest against looting in honour of the International Museums Day (Universa 2007). They have also worked

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extensively with local school children to promote the value of Huaca Malena as a site of learning and local history. According to most accounts, looting at Huaca Malena has been slowed down significantly because of their efforts. This evidences that alternative security measures and participative community education may be effective in countering theft at some Latin American sites. However, this depends on the continued presence of motivated professionals and long-term funding for such projects—both seem unlikely in the majority of cases.

Mummy Mailers In late October of 2010, officials at the main post office of the Bolivian city of El Alto searched a parcel that was in the possession of an ethnically Aymara woman. Inside the cardboard box, which was addressed to an ‘Annette Huc’ in Compiegne, France, postal officials discovered the preserved remains of a toddler (Solar 2010). The mummy, in the form of a small bundle and complete with textiles, was in good but rapidly deteriorating condition. Under questioning, the Aymara woman claimed that she had no idea that there was a mummy in the parcel. Rather, she had received the box in the village of Desaguadero on the Peru/Bolivia border, presumably after it had been smuggled across the frontier. Her instructions were simply to send the box via Parcel Post to the address on the preprinted label. The woman was arrested, but it is unclear what has happened to her. It is also unclear what happened to the person supposedly involved in this matter, Annette Huc, whose name is also associated with some documents on African antiquities sales. In November 2012, after two years of research and repatriation negotiations, the toddler mummy was returned to Peru (Nuevo Herald 2012). Bolivian archaeologists inspecting the tiny mummy discovered some evidence that the bundle had been modified so as to be more appealing for the market. The mummy had lost its leg at some point, and the missing limb was replaced with a mummified leg from a younger child. There is also indication that three of the five textiles in the bundle had been added to the mummy. In other words, the mummy represented a composite of various artefacts and body parts—enhancements meant to raise the body’s market value and appeal. In May 2011, a postal worker with customs in Buenos Aires, Argentina, performed a routine X-ray on a parcel which was addressed to a local resident (Camps 2011). The scan revealed the likely presence of human remains in the parcel, and when the box was opened, three ancient modified human skulls and a complete adult mummy were found within. The skulls and the mummy

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had been wrapped in newspaper and tape, and the skulls had then been coated in plaster and painted to look like a cheap imitation of an ancient Nazca-style pot. In other words, the looted and smuggled skulls had been altered to look like cheap knock-off fake antiquities. The parcel had originated in Bolivia, but it was clear that the mummy and skulls had come from Southern Peru, probably from the same region where Nazca-style pottery can be found. These two cases offer a glimpse into both the internal trafficking networks that operate in Latin America and the somewhat surprising international market for looted and trafficked ancient human remains. In both instances, we can document human remains being looted in Peru, being moved overland into Bolivia, and then being posted from Bolivia. This evidences a perception among smugglers that the Bolivia post is laxer than the Peruvian post. While both of these cases were detected, one must question the number of cases which were not detected. The disguising of the skulls seized in Argentina as tourist-style ceramics indicates organisation and experience. Very little is known about the contemporary trade in ancient Latin American human remains. Past research into Peruvian antiquities has almost entirely focused on non-human objects, for example, the previously discussed textiles that would have covered mummies. Yet the mummies themselves have been desirable for decades (e.g. there is indication that both Munch and Gaugin were inspired by Peruvian mummies they saw on display in France, including their form in some of their best-known paintings). Contemporary desirability, though, is only noticeable in mummy seizures or the remains of unsuccessful looting attempts. One such attempt occurred in May 2015 at the archaeological site of San Antonia near Locumba, Peru (Correo 2015). Managers of the area’s archaeological project witnessed two men fleeing the site and, upon investigation, found that these unknown men had left behind three large sacs. One sac contained looted archaeological objects (textiles, pots); the other two ­contained human remains: one a whole mummy and the other a various mummified child remains. Following this theft, allegations were made that around 250 tombs had been ransacked in the region in the past seven years (Chavez León 2015), both for artefacts and, seemingly, for marketable human remains.

Virgin Vandals: The Virgin of Copacabana The Virgin of Copacabana is the patron Saint of Bolivia. Her origin story is planted in the earliest days of Christianity in South America, representing contact and conflict between cultures. She is strongly associated with Lake

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Titicaca, the pre-Conquest birthplace of the Sun, and with miracles granted from prayer to her in the form of an icon carved in the late sixteenth century by the Indigenous sculptor Francisco Tito Yupanqui. A chapel and then a basilica were built around her image at Copacabana, Bolivia, and the statue has not left the church in the centuries since it was made. She is the most holy item in the country. It is difficult to overstate her significance to Bolivians. In the early hours of Monday 22 April 2013, an unknown number of individuals entered the Basilica of the Virgin of Copacabana, and proceeded to steal the silver and gold devotional items off the sacred image (Linared 2013). These items included a crown, a resplenador, a crescent moon base, the crown of the baby Jesus in her arms, and other devotional pieces. The theft was noticed when the Basilica was opened for morning prayer. Notably, the thieves only removed the silver; they did not move the image of the Virgin from her holy spot. As she had for hundreds of year, the Virgin of Copacabana remained inside her Basilica. Bolivia was devastated by the news. The President of the country, Evo Morales, vowed on numerous occasions to bring the thieves to justice. Under extreme pressure, the president pushed for intense police investigation, raids, and arrests (BBC 2013). As of the time of writing (2016), these arrests have led to no convictions, all suspects have been freed, and none of the jewels of the Virgin have been recovered (Charca 2015). Replacement silver has since been placed on the Virgin, but insecurity which led to a theft at Bolivia’s most important heritage site and the inability of the government to bring the investigation of the case to a satisfying close have tarnished the reputation of the authorities. While a theft at Copacabana was shocking, it was part of a string of major heritage thefts at Colonial- and Republican-era Bolivian churches recorded at the time (AP 2013). In the first four months of 2013 alone, there were five other widely reported incidents of the theft of sacred art from Bolivian churches (Yates 2014b). In August 2012, 110 silver sacred items were stolen from the historic church at Guaqui (La Razón 2012). In December 2012, five historic paintings were stolen from the church at Tomavi. In 2011, 12 silver items were stolen from the Conquest-era church within the UNESCO World Heritage Site of Tiwanaku (Iglesia Viva 2011). Based on media reports alone, I was able to record 34 major thefts from historic Bolivian churches in the five years leading up to the Virgin of Copacabana robbery (Yates 2014b). Many speculate that the silver items are melted down and sold as scrap; however, statements made by Bolivian heritage officials and former police officers during interviews I conducted in 2013 in the months following the Copacabana theft showed professionals doubt that scenario. It doesn’t explain the theft of colonial paintings and icons from churches, they noted, and most

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importantly, as one interviewee put it, ‘the thieves can get much more money for a complete artefact’. Yet it remains unclear where the market for looted Andean church art is located. Our final case study may shed some light on that question.

Silver Smugglers: The Challapampa Altarpiece The village of Challapampa is a small indigenous village located in the district of Juli, in the Puno region of Peru. Challapampa is situated around the Capilla de San Pedro de Challapampa, a sixteenth-century Spanish Colonial church which was declared to be the cultural patrimony of the nation of Peru in 1972. The church houses a mannerist-style altarpiece, carved by Pedro de Vargas and painted by the Jesuit Priest Alonso Bernardo Joan Democrito Bitti sometime between 1575 and 1591 which was originally constructed for the Picchu hacienda in Cuzco before being transferred to Challapampa in 1700. The altarpiece is made out of gilt cedar and maugay wood, and it fills the church wall being approximately 4 meters long and 3 meters high; and it weighs 450 kilograms. In January 2002, the altarpiece was disassembled and stored in a nearby medical post as part of an ongoing restoration project within the church. The altarpiece was stolen shortly after it was transported to the medical post, and initial speculation was that thieves had moved the piece into Bolivia. In previous years, the church at Challapampa had been robbed of 14 paintings of archangels which some sources allege are now in Brazil (Frasier 2006). In April 2003, the Embassy of Peru in the United States was notified that the altarpiece had been trafficked to the United States and was being offered for sale on the Internet. In May 2003, United States Immigration and Customs Enforcement (ICE) traced the piece to Ron Messick Fine Arts and Antiquities, a dealer operating out of Santa Fe, New Mexico (Washington Times 2005). ICE seized the altarpiece under suspicion that its import violated the 1997 Memorandum of Understanding between the United States and Peru, concerning the import of certain classes of cultural property. When the piece was seized, the statue of the Virgin which once stood in the central niche of the altarpiece was found to be missing. It has not been recovered. The ICE, Interpol, and the US attorney’s office in New York sought a criminal complaint against Ron Messick for his alleged hand in the trafficking and attempted illegal sale of the stolen altarpiece (Washington Times 2005). The charges were dropped when Ron Messick died, and his estate voluntarily surrendered the altarpiece to the US Department of Homeland Security

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(Washington Times 2005). On 20 January 2006, the altarpiece was returned to Peru, and on 27 June 2006, it was restored to the Capilla de San Pedro de Challapampa. Thus, in this case, we see demand for South American church art coming from the United States (and perhaps Brazil) and, apparently, existing trafficking pathways that allow the movement of very large stolen cultural pieces across several borders.

Moving Forward While some Latin American states such as Mexico (Sipse 2014) and Peru (RPP 2014) are choosing to respond to their ongoing heritage crime issues with increasing fines and jail time within the relevant local legislation, there is little evidence that this will act as a deterrent, prevent looting, or break up smuggling networks. The law, of course, is only as strong as law enforcement, and due to the limitations discussed previously, I do not believe that these strong laws can be effectively enforced in most Latin American contexts; increased sanctions will not decrease looting and trafficking. The question remains, what will? What would be an effective response to the ongoing problem of Latin American cultural property crime? Targeted interventions at specific sites might be locally effective. These could range from community education to minor changes in police or community security procedures. The continued or modernised documentation of known cultural heritage objects, for example, those within historic churches, would certainly aid in the recovery of stolen property and might, if combined with community education, reduce incidents of theft under the banner of ‘a documented antiquity is unsellable’. Ultimately, though, any of these small fixes would necessarily be context-­ specific. They do not represent an effective disruption to the system that supports the illicit trade in Latin American cultural objects. At the moment, I can identify only two measures which would significantly disrupt Latin American antiquities-related crime and neither of them are particularly feasible. The first is the reduction of demand for antiquities on the international market. Demand causes supply. Cultural property will not be stolen and smuggled if there is no market for it. Criminalising and sanctioning at source is ineffective everywhere, and that ineffectiveness is particularly clear for Latin America where strong laws are thwarted by poverty, corruption, ineffectual authorities, and the impossibility to secure heritage sites. Furthermore, a focus on the sources does not address transnational factors such as organised

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criminal involvement in the trade, nor criminality at the market end. It certainly places the investigative, judicial, and even legislative burden unsustainably on the developing world with no clear evidence that focusing on antiquities sources prevents global antiquities crime. To shift our focus to the market and away from source would mean that traditional power holders would have to admit some degree of fault and the expense of regulating and enforcing would fall on countries that have not experienced a loss. Why would they do so? There is very little in the way of motivation to criminalise, sanction, or effectively dissuade the market from dealing in illicit Latin American cultural property on anything but a limited scale. Second, the single most effective way to reduce cultural heritage offences in Latin America, in particular theft and trafficking, is to improve quality of life across the board: improved education, improved sanitation, increased economic opportunities, improved security, the integration of Indigenous groups into public life in a meaningful way, reduction of corruption; in other words, real, sustained development. Indeed, this would relieve many of Latin America’s most pressing problems and, of course, it is beyond the scope of a well-meaning group of archaeologists or a dedicated Ministry of Culture. Very little in the way of intervention of any kind will be effective in the poorest parts of Latin America; it is a sad reality that is difficult to accept during cultural heritage policy formulation, especially at an international level. While that pronouncement is dire, all is not lost. The inclusion of cultural heritage education, protection, and preservation into wider, long-term development initiatives should be our goal and that goal is perfectly reasonable. This means not siloing our discussion of cultural heritage protection amongst targeted NGOs and stakeholders that have already identified themselves and not discussing the destruction and protection of heritage as an issue separate from the rest of Latin Americas issues. Rather, it means reaching out to government bodies, international organisations, and influential individuals who are not traditionally included within heritage policy discussions and pushing to make the protection of heritage part of a greater whole.

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Robertson, M. G. (1972). Monument thievery in Mesoamerica. American Antiquity, 37(2), 147–155. RPP. (2014, April 9). Piden hasta 15 años de prisión por atentar contra patrimonio cultural. RPP Noticias. Retrieved March 22, 2016, from http://web.archive.org/ web/20160322143149/http://rpp.pe/politica/actualidad/piden-hasta-15-anosde-prision-por-atentar-contra-patrimonio-cultural-noticia-683345. Sheets, P. D. (1973). The pillage of prehistory. American Antiquity, 38(8), 317–320. Sipse. (2014, June 14). Hasta 10 años de cárcel a quien dañe monumentos históricos. Sispe. Retrieved March 22, 2016, from http://web.archive.org/web/ 20160322142747/http://sipse.com/mexico/preven-fuertes-sanciones-a-quiendane-monumentos-artisticos-o-arqueologicos-de-mexico-96384.html. Solar, I. I. (2010, October 27). Woman arrested while attempting to mail a mummy by parcel post. Digital Journal. Retrieved April 14, 2017, from https://web.archive. org/web/20170414125709/http://www.digitaljournal.com/article/299467. Tello, J. (1959). Paracas: Primera Parte. Publicación del Proyecto del Programa 19411942 de The Institute of Andean Research de New York. Lima: Empresa Gráfica T. Scheuch, S.A. Trulsson, N. (2012). Stulet Kulturarv? Master’s Dissertation, Lunds Universitet. Universa. (2007, May 18). Por el Dia de los Museos se buscara rescatar la Huaca Malena. Universa. Varldskultur Museet. (n.d.). A stolen world: The Paracas collection. Retrieved March 21, 2016, from http://web.archive.org/web/20160321164554/http://noticias. universia.edu.pe/tiempo-libre/noticia/2007/05/18/748446/dia-museos-buscararescatar-huaca-malena.html. Washington Times. (2005, July 26). Colonial artwork stolen in 2002 returned to Peru. The Washington Times. Retrieved March 21, 2016, from http://web.archive. org/web/20160321165203/http://www.washingtontimes.com/news/2005/ jul/26/20050726-113114-5091r/. Yates, D. (2006). South America on the block: The changing face of pre-Columbian antiquities auctions in response to international law. Master’s dissertation, University of Cambridge Department of Archaeology. Yates, D. (2014a). Displacement, deforestation, and drugs: Antiquities trafficking and the narcotics support economies of Guatemala. In J. Kila & M. Balcells (Eds.), Cultural property crimes: An overview and analysis on contemporary perspectives and trends (pp. 21–36). Leiden: Brill. Yates, D. (2014b). Church theft, insecurity, and community justice: The reality of source-end regulation of the market for illicit Bolivian cultural objects. European Journal on Criminal Policy and Research, 20(4), 445–457. Yates, D. (2015a). Reality and practicality: Challenges to effective cultural property policy on the ground in Latin America. International Journal of Cultural Property, 22(2–3), 337–356. Yates, D. (2015b). Looting, trafficking, and sale of illicit cultural property from Latin America. In F. Demaris (Ed.), Countering illicit traffic in cultural goods: The global challenge of protecting the world’s heritage (pp. 33–46). Paris: ICOM.

24 Cultural Heritage Offences: A View from Asia Stefan Gruber

Introduction This chapter provides an overview of a wide range of cultural heritage offences in Asia. Cultural heritage can be of many tangible and intangible manifestations and, in many cases, it is very difficult to distinguish tangible from ­intangible heritage, as tangible cultural heritage receives its significance from its intangible features and environment (see further Boer and Gruber 2012, pp. 379–383). For the purposes of this chapter, the focus is placed predominantly on tangible heritage items, including cultural heritage sites and movable objects. Whether a site or an object represents cultural heritage can be subject to dispute in many cases. Even when it is agreed upon that an item forms part of the cultural heritage of a community, views on its significance and whether it is worthy of protection may differ significantly as results of varying perspectives and competing interests, each of which may be of a cultural, political, religious or monetary nature (see also Boer and Wiffen 2006, pp.  7, 8). Such conflicting views and interests can even be the cause of related offenses. Associate Professor, Kyoto University, Hakubi Center for Advanced Research & Graduate School of Human and Environmental Studies. The author would like to thank Anaïs Mattez for her invaluable research assistance and Soung Takayama for her generous support with the preparation of the final draft of this paper.

S. Gruber (*) Kyoto University, Kyoto, Japan © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_24

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Focus is particularly placed on cultural heritage offences which are most relevant to the Asian context, including the pillaging of archaeological sites, art theft, illicit art trafficking and trade, art forgery and fraud. This chapter also highlights corresponding countermeasures, ranging from policing and prosecution to soft strategies and prevention, to international cooperation and the restitution of illegally exported cultural artefacts. The Asian region is enormously rich in cultural heritage, with countless sites and movable items giving testimony to its many civilisations that are either still existing or have vanished over the course of history. The region has been the birthplace of several of the world’s major religions and philosophies, featured many busy trade routes on land and sea and served as the stage for constant cultural exchange, competition and conquest between civilisations. The material evidence of those events can be found across Asia’s vast plains, deserts, river deltas, mountain ranges, seas and settlements. Nowadays, many are located in heavily populated areas, and formerly remote regions have become increasingly accessible. Cultural artefacts linked to such features have always been highly sought-after items and continue to generate significant revenue on the international art market, often after having been illegally acquired and exported. Looting and art theft are still regular occurrences in the region, while the art market constantly scours for ‘new’ items to meet the persistent demands of buyers. Prices fetched by particularly valuable items at art auctions also attract a different kind of art crime: forgery. When single items fetch millions of dollars, the temptation to offer convincing replicas is foreseeable enough. As will be discussed later, the desire of many collectors to believe in the authenticity of such objects where the price is right has proven to be strong enough to encourage the market to be flooded with fakes.

Looting and Art Theft Looting and art theft are not new phenomena in Asia, but rather have long wreaked havoc on the region’s cultural heritage, particularly since the arrival of the European colonial powers. The extent of looting undertaken by the colonial powers in Asia becomes clearer upon considering the case of the Koh i Noor diamond. Once the largest known diamond in the world, it was seized from India by the East India Company in 1849 and presented to Queen Victoria and has since become part of the British Crown Jewels. Many Indians are calling for the return of this diamond, as its loss symbolises the brutal oppression, injustice and economic exploitation of the native population during the centuries of British colonial rule (‘India Wants’ 2016). As Tushar

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Gandhi stated, ‘[t]his was our heritage which was stolen, which was taken away forcefully. Every country, every culture has aspirations to regain what they have lost in history. I don’t see any reason why we shouldn’t have these kinds of emotions’ (Gowen 2016). Strikingly, when pressed about this matter by an Indian audience, the then British Prime Minister David Cameron replied ‘[i]f you say yes to one you suddenly find the British Museum would be empty’ (Prince 2010). This statement is very telling and its surrounding context could certainly be akin to the circumstances surrounding other cultural artefacts in several other museums across Europe. Unfortunately, looting and art theft continue to destroy cultural heritage in Asia to a significant degree and contribute to the cultural impoverishment of the region. For example, Cambodia has suffered from large-scale looting for several decades (see further Davis and Mackenzie 2014). This is reflected by the fact that the Angkor Archaeological Park was simultaneously inscribed on the World Heritage and List of World Heritage in Danger List (see further Gruber 2017a) in 1992 because the temples had not only endured significant damage during the civil war and from landmine destruction, but they were also seriously threatened by illegal excavation and looting (World Heritage Committee 1992). Similarly, the looting and art theft of Asian cultural heritage has become so widespread that in the instance of the United States alone, approximately 80 per cent of antiquities from Southeast Asia sold in the United States were illegally smuggled into the country. It is also estimated that over ten million cultural artefacts have been shipped out of the country over the years (Bazley 2010, pp. 103–109). The high number of cultural artefacts illegally smuggled out of Asia comes from the very high margin that is generated when the items are sold on the international art market. Suppliers treat items that have been illegally e­ xcavated or stolen from small temples or regional museums and delivered with inadequate records as a ‘free resource’ because once they are pillaged or stolen, the smugglers only have to organise transportation and falsify export documents in addition to customarily pay for the looters’ labour and bribe local authorities, guards, police and customs officers in order to export the items without having to fear the items being identified and seized (Gruber 2013, p. 345). The ceaseless demands of the international art market for more heritage items, coupled with increasingly rising prices and revenue, have proven to be a highly destructive combination in this context. The damage caused by looting goes far beyond the material value of the cultural artefacts sold off. It not only leads to a continuous loss of highly valuable items and material evidence of the history and culture of the respective region, but it also destroys archaeological material and potential scientific knowledge, as the vast majority of

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items and clues are destroyed during illegal excavations (Gruber 2014, p. 223). Looters are usually untrained in archaeological excavations and salvage as many sellable items as possible before they risk detection by the authorities. Further, any knowledge regarding the location, the relation of the item to other items found at the location or kind of site is lost when an object is removed without proper archaeological procedure. Unlike in the case of a theft from a collection, the return of an archaeological object, if discovered and later identified, cannot undo the damage caused by the looters (O’Keefe 1997, p. 18). Looting operations usually damage or even destroy the sites from which cultural artefacts are looted. In one recent example from October 2016, four men were arrested in Karaikudi, India, where they had operated antique shops and made a business of retrieving ornamental pillars and stone idols from old and dilapidated temples. All were associates of the idol smuggler Deenadayalan and had been supplying him with stone idols over the course of three decades. Typically, after Deenadayalan provided the men with information about old temples worth looting, they then paid thieves to pillage them. Those looting operations were so destructive, that, according to a confession to the police, an old Shiva temple at Mel Manalkudi village had been ruined so extensively that only rubble was left behind (‘Arrested Men’ 2016). Many sites in Asia are looted before excavations or protection measures can even take place. Other sites are detected by looters or their informants before the authorities learn of their existence. For example, one study revealed that in Vietnam, 70–80 per cent of looting occurs in archaeologically unknown sites (Huffer and Chappell 2014, p. 272).

Trafficking and Illicit Trade in Cultural Artefacts Art trafficking in Asia is in many cases a highly organised business involving a range of players. Smuggling networks usually consist of several conspirators who work closely together and are responsible for different stages and services during their operations. Their contributions complement each other and frequently include all the essential steps, from the looting of a cultural artefact through to the final sale of the object. For example, when Vijay Nanda, head of an international art smuggling syndicate, was arrested in early 2017, the arrest of one of his main associates, Udit Jain, followed shortly after (‘Mumbai Antique’ 2017). A well-known sculptor, Jain was responsible for procuring items stolen from several temples across India through his contacts who were often ordered directly through the smuggling network. He also assisted in

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obtaining fake documents for the shipping and export of stolen items, which were concealed amongst his own sculptures to avoid detection and identification by authorities, and facilitated the registration of such items for other smugglers (Yadav 2017). In another incident, several members of an Indian smuggling network were arrested in one of the first US-based cultural property investigations in which US Immigration and Customs Enforcement’s Homeland Security Investigations collaborated with foreign law enforcement (U.S. Immigration and Customs Enforcement 2016). Those arrested included thieves, brokers, smugglers, dealers and those in charge of providing false provenances for the pieces.

Smuggling Via Transit Countries Smuggling routes can be quite complex, as items are often shipped via transit countries to avoid detection and create false provenance. Additionally, customs officers have little or no experience in identifying items looted from other countries and are not familiar with foreign export certificates and the necessary paperwork for antiquities. Cultural artefacts pillaged in Cambodia, for example, are often smuggled to Thailand and then sold by local art dealers. In many cases, looting operations are even commissioned by art dealers outside of the country. One such instance involved the infamous pillaging of the twelfth-century temple of Banteay Chhmar by a Cambodian Army unit, which, under the commission of a Bangkok-based art dealer, cut off over 500 square feet of reliefs, dismantled 12-metre-long walls and stole a large number of statues over a period of four weeks (Mydans 1999). Many of those items ended up in antique shops in Bangkok before the police managed to intercept new deliveries from Cambodia by truck. The smuggling of looted Cambodian cultural artefacts via Thailand is clearly not an isolated case. Stolen Indian cultural artefacts are often smuggled across several land borders of the country. In April 2017, a smuggler was arrested in a joint operation by the Sashastra Seema Bal and Customs Department whilst on his way from India to Nepal with a looted 500-year-­ old statue, where it was to be sold to a Nepal-based antique dealer. The smuggler’s arrest led to the dismantling of a criminal gang, which, according to the authorities, ‘steal antique idols from temples in Bihar and sell them to Nepal from where they are sent to other foreign countries’ (‘SSB Seizes Antique Idol’ 2017). Other important transit locations, including Hong Kong for looted Chinese cultural artefacts, will be highlighted in depth below.

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The Role of the Art Market Looting and illicit art trafficking would not occur at such scale without the complicity of the international art market. While international auctioneers and glossy antique shops do their best to display a high level of legitimacy, trustworthiness and lawfulness, many also knowingly trade in items that were illegally acquired. It is common practice on the international art market to provide insufficient details regarding the provenance of antiquities and to make the assessment of their legitimacy deliberately difficult to determine (see further Mackenzie 2005, pp. 32–62). Further, auctioneers and art dealers in many cases are diligent in protecting the anonymity of their sellers (Olsburgh 2005, pp. 48–50) in order to not risk their commission or future business by similar customers. Customers who insist on remaining unidentified would rather seek the services of a competing art dealer or auctioneer who would oblige their wishes, should their usual contact refuse to comply with such requests. Hence, art dealers and auction houses prefer to adhere to the well-­ known standards of the trade. Due diligence amongst art dealers in hubs such as Hong Kong is rather low (Bull 2009, p. 26). As deliberately loose rules and the custom of secrecy are in the interest of the whole market, improvements of the situation through self-regulation of the art market will remain a pipe dream. Occasionally, related approaches by the industry are usually only meant to delay or avoid regulative attempts by the authorities. Approving voices would claim that this adds to the romantic and mysterious image of the art market. With regard to the Asian region and its cultural heritage, this ­custom and the indecisiveness of most jurisdictions to crack down on the rampant criminality are just devastating. Unfortunately, the secrecy and anonymity which pervade the art market provide dealers and their associates with an ideal environment for turning illegally excavated or stolen cultural artefacts into ‘legitimate’ collector items by selling them on to collectors who are willing to avoid asking too many questions about the item’s past, even to those in the know. The problem has become so rife that many art dealers in Bangkok and Hong Kong blatantly inform their customers that their items have been recently taken from tombs across the borders to assure them of the items’ genuineness. Several collectors seem to be wholly undeterred by the fact that items were illegally obtained and are instead only interested in procuring a genuine object at a reasonable price. Indeed, Mackenzie found that, overall, very little information on provenance is provided in the market and that the players do not express much intention to change this circumstance (Mackenzie 2005, p. 61). Many appear rather ignorant to the damage caused by looting and illicit art trafficking or

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deny that it is a major problem at all. Art dealers, auctioneers and collectors seem to get away far too often with illicit transactions. As Davis (2017) reports, ‘[r]egulation remains next to nonexistent in this multi-million dollar industry, which has been content to look the other way and ask few questions about how so many masterpieces ended up in international auction houses’. While some auctioneers and art dealers are in many cases unsuspecting vessels for criminals, others work closely together. Such collaborations do not only involve fake antiquities but may also involve other fraudulent activities to deceive purchasers of the true value or nature of the looted items. In 2017, for example, 53 employees of the art auction company Jintang were arrested after allegedly defrauding approximately 9000 collectors of 46 million RMB over the course of three years (Chen 2017). The collectors were charged for promoting auction events and advertisements in an unregistered art magazine after being criticised for listing the items at unreasonably high prices. Additionally, it was found that ‘bidders’ were paid to attend the events so as to maintain the appearance of real auctions.

Art Fraud and Forgery Given the immense sums that many Asian antiquities fetch on the art market, forgery and art fraud are highly tempting means by which criminals profit from this lucrative business. The China Association of Auctioneers reported that profits for antique and art auctions in China increased by 13.3 per cent and reached 31.7 billion RMB in 2016, making it the world’s largest market ahead of the United States (‘China’s antique’ 2017). As the market circulates more rapidly, it becomes more vulnerable to counterfeits. In fact, a recent Chinese survey found that one-third of paintings sampled in 2013 were fakes (‘Chinese Art Market’ 2017), which traditional Chinese pieces seem to be particularly vulnerable to. It has been a long-standing custom that artists in China are trained to imitate and reproduce high-quality copies of calligraphy, porcelain, sculptures and master paintings. Another ongoing tradition in Chinese and other Asian cultures is to conserve cultural heritage by copying and rebuilding stolen items (Gruber 2007, p. 262). Unfortunately, some artists’ abilities to copy at ease are used to deceive in certain cases (Bull and Gruber 2014, pp. 68–70). While cultural heritage items are not necessarily directly threatened by forgery, the damage to society can still be immense, such as through the creation of wrong historical narratives, deceit of public museums and the misleading of archaeological specialists.

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One of the main targets of looting and trafficking are antiquities from source countries where illegal excavations or acquisitions still take place at large scale and poor documentation of items is the norm rather than the exception. If buyers believe that they are purchasing a bargain due to its dubious or even openly illicit background, they will usually be more willing to believe in the uniqueness of the item and take a risk to purchase. Forgers have become more sophisticated over the years and are even able to fool experts in several cases. For example, forgeries of Khmer antiquities from the pre-­Angkor and Angkor periods are being manufactured in Cambodia by expert carvers and afterwards artificially aged. They are often buried for an extended amount of time or even broken apart to create the illusion of a looted artefact before they are shipped to Thailand for sale in antique shops. In some cases, such pieces are sold with fake provenance, documenting that they have been part of an old Thai collection (Hauser-Schäublin and Kim 2016). In a recent high-profile case of forgery substitution, the defendant admitted at trial that he stole and replaced 143 paintings from artists, including Qi Baishi, Zhang Daqian and Zhu Da during his tenure as the chief librarian of a gallery within the library of the Guangzhou Academy of Fine Arts. Between 2004 and 2011, 125 of those paintings were sold at auction for more than 34 million RMB, while the 18 other paintings remaining in his possession were estimated to be worth more than 70 million RMB. During the trial, he claimed that such practice was rampant and that he was inspired to act as he did after he realised that several fakes already hung undetected in the gallery when he took up his position. Not without pride, he pointed out that many of his copies had since been stolen and replaced by other inferior copies (‘Man Admits’ 2015).

International Cooperation Between Market States and Asian Source Countries International cooperation between market states and source countries is necessary to prevent looting, art theft and trade in antiquities illegally exported from Asia as well as to make the sale and purchase of such items as unappealing as possible. Ideally, this should also affect the resale value of items without proper provenance. The two most important international treaties in this context are the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (hereafter 1970 UNESCO Convention) and the

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UNIDROIT Convention on Illicit Import, Export, and Transfer of Cultural Objects of 1995, both of which focus primarily on the restitution of illegally exported cultural artefacts. Of particular importance in relation to cultural heritage offenses are bilateral agreements under the 1970 UNESCO Convention that allow States Parties to focus particularly on the most pressing issues and cooperate as effectively as possible. Excellent examples in this context are the agreements between the United States and China of 2009, amended and extended in 2014 (hereafter US–China Agreement), and Cambodia in 2003, respectively, amended and extended in 2008 and 2013 (hereafter US–Cambodia Agreement). In addition to facilitating further cooperation and information sharing, the agreements ban the import of any Chinese and Cambodian cultural artefacts of certain eras and kinds into the United States without proper provenance and government certification. Introducing comprehensive and strict import bans on specific categories of items makes the enforcement of import and export regulations much more effective and raises additional awareness to the problem. Further, ‘[i]ncreased efforts by customs officers to track down undocumented relics undoubtedly decrease the market value of and demand for stolen and looted artefacts, when owners of cultural items of ‘dubious’ origin are made to fear having them seized when shipping them across borders’ (Gruber 2013, p. 351). Whereas bilateral cooperation and restrictions are powerful tools in combatting illicit trade in Asian cultural artefacts, such endeavours naturally face strong opposition by certain lobbyists. Many collectors act with hostility towards further restrictions and tighter regulations. Their arguments that such efforts will prevent them and the next generation of collectors, patrons and donors from donating pieces to museums and playing a role in promoting ancient art (Blumenthal and Mashberg 2012) seem short sighted and self-­ fixated. While it is certainly unfortunate for collectors who bought items without provenance years ago when there was less awareness and respect for the cultural heritage of other nations and much more undiscerning and unrestricted trade in foreign cultural goods, as it is now challenging for them to sell these items again for profit, this should by no means prevent the implementation and enforcement of new approaches to stop this destructive business. Whenever items are looted from an archaeological site and set to be sold on the art market, permanent damage is done, as discussed above. To stop further looting and destruction of archaeological sites and cultural wealth, priority must be placed upon dissuading collectors from purchasing unprovenanced artefacts.

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Recent Cases of Repatriated Asian Cultural Artefacts There have been several recent high-profile cases which concern the repatriation of illegally exported Asian cultural artefacts. Each of those cases warrants a close examination to illustrate the scale of the illicit art trade, enhanced cooperation between countries and the response of collectors. The following cases concern items looted from India, Cambodia and China. One of the most infamous cases in recent history is that of Subhash Kapoor, who ran the Art of the Past gallery in Manhattan and is, at the time of writing, on trial in Chennai, India, for his role as the mastermind behind a large-scale art smuggling enterprise. Once a prominent and celebrated art dealer, his loot was bought by high-profile museums, such as the Metropolitan Museum of Art in New York, the National Gallery of Australia, the Art Gallery of New South Wales, the Toledo Museum of Art in Ohio and the Asian Art Museum of San Francisco. The National Gallery of Australia alone spent around AUD 11 million on 22 items from Kapoor between 2002 and 2011, with the most recent transaction made just a few weeks before his arrest on an Interpol warrant in October 2011 (Taylor 2014). Through Homeland Security Investigations’ ‘Operation Hidden Idol’, over 20 warrants were executed and over 2500 artefacts worth over US$100 million were seized (U.S. Immigration and Customs Enforcement 2016). The pieces identified and repatriated included a stone idol of Ardhanari, which had been stolen from the Sri Vriddhachalesvara Temple in Tamil Nadu around 2002 and replaced with a modern forgery. The smugglers, who owned the Indo-Nepal Art Centre in Mumbai, sold the piece to Kapoor in 2002 and smuggled it to the United States. It was then sold with false provenance and paperwork to the Art Gallery of New South Wales in 2004 (U.S.  Immigration and Customs Enforcement 2016). The investigations were quite complex, and evidence had to be pieced together from countless sources. For example, one twelfth-century granite statue of Goddess Pratyangira, which was returned to India by Australia from the collection of the National Gallery of Australia in 2016, was identified by photographs taken by researchers from the French Institute of Pondicherry at the Sri Vriddhachalesvara temple in Tamil Nadu in 1974. Kapoor, however, furnished papers documenting that the piece had been bought originally from a Delhi gallery in 1971 (Gupta 2016). That piece was only one of three returned to India from the collection of the National Gallery of Australia. Five more items in its possession were reported as stolen by the Idol Wing of the Tamil Nadu Police in 2017, and several more were identified as having insufficient or questionable documents in a report by Susan Maree Crennan, a

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former Justice of the High Court of Australia (Mohapatra 2017). Many other items have yet to be tracked down while investigations against those who supplied and aided Kapoor have, in many cases, been frustratingly slow. For example, no case has yet been filed against Kapoor’s associates in Hong Kong, who received smuggled items from him (‘Big Cases’ 2017). Others involved in his criminal enterprise do not have to fear prosecution at all. Another recent case concerns the attempted sale of a tenth-century Cambodian sandstone statue by Sotheby’s in New York before it was seized by the United States Department of Homeland Security upon request by the Cambodian government. The statue had been sawn off from its pedestal at the Prasat Chen Temple in Koh Ker in northern Cambodia during the civil war and sold via an art dealer in Bangkok to a collector who was fully aware of the looting. The following court proceedings offered valuable and frankly sobering insights into the dealings of and mindset regarding looted cultural artefacts by the employees and specialists involved with Sotheby’s, one of the world’s most prominent auctioneers. The representatives of Sotheby’s had denied any wrongdoing and knowledge of the fact that the statue might have been looted. In the judgement, however, it was found that they were not only fully aware of the identity of the collector and the fact that the statue was looted, with its severed feet still on its original pedestal at the temple, they were also advised that the Cambodian government had clear evidence of the true origin of the statue and might interfere in the case of a public auction (United States of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby’s in New York 2013, pp. 5–7). However, they chose to ignore all that and go ahead with the sale, as the prospective margin seemed to be worth the risk. Internal emails show that they relied on the incompetence and passiveness of Cambodian officials as they were advised to ‘[j]ust let sleeping dogs lie’, expecting bad press only ‘from the US  – from academics and “temple huggers” not from Cambodians’ (see United States Attorney for the Southern District of New York 2012, para 29). This turned out to be a rather unfortunate misstep on their end. During trial, the US government alleged that Sotheby’s provided inaccurate information and omitted compromising material in their communications with potential buyers, the Cambodian government and US law enforcement (see United States of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby’s in New  York 2013, pp.  16–17). In a letter from 11 September 2013, the US government wrote to the presiding judge in that case that ‘[i]n short, Sotheby’s chief compliance officer provided false and misleading provenance information to the Government while discouraging the Government from obtaining the documents that ultimately showed that

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asserted provenance to be false’ (see United States Attorney for the Southern District of New York 2013). The statue was returned to the Cambodian government in 2014, together with its counterpart, which had been on display at the Norton Simon Museum in California. That case and the publicised internal communications highlight not only the ease with which some auctioneers and art dealers knowingly lie and attempt to circumvent the law to make a sale but also their contempt for cultural heritage conservationists. A case that highlights a different set of issues concerns a 1000-year-old mummified monk, that was stolen from Yangchun in China’s Fujian province in 1995. The mummy was encased in a golden statue and worshipped as the Zhanggong Patriarch. Locals recognised the mummy in a catalogue for a mummy exhibition in Budapest in 2015. Once they started investigating the mummy, the Dutch owner pulled it from the exhibition and shipped it back to the Netherlands. Once the pressure from the Chinese side increased, he offered to return the mummy to its homeland to be worshipped in a Buddhist environment (Qin 2015). Unfortunately, negotiations about its return broke down when he found that the monetary compensation offered by the Chinese side for an allegedly stolen item did not match his generous altruistic gesture. He figured that he could demand much more for the mummy despite its dubious origin. At the time of writing, the collector claims that it is indeed a different mummy to the one identified by the villagers and asserts that he bought it from a collector in 1996, who himself claimed to have bought it in Hong Kong shortly before the date on which the mummy was stolen. He is, however, unable to produce a receipt or other documents (Hooper and Plafker 2017). Two local village committees have since taken the collector to court in Amsterdam to demand the return of the mummy. Additionally, in yet another bizarre twist to the case, the collector informed the court that he had recently swapped the mummy for other items with an anonymous collector and is therefore unable to meet any demand for its return. Seeking to remove the mummy from the reach of the court and the claimants, the lawyers of the villagers unsurprisingly regard this to be a presumption of a fraudulent act (‘Chinese Villagers’ 2017). The response by the court to the collector’s actions and the outcome of the case will be fascinating to follow.

Regional Agreements As discussed above, transit destinations play a crucial role in the trafficking of Asian cultural artefacts, which is why cooperation between neighbouring countries is so important. Reflecting this importance are the abovementioned

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bilateral agreements between the United States, China and Cambodia, which do not place obligations solely on the United States, but rather urge the contracting parties to increase their efforts in protecting their respective cultural heritage, regulating their domestic art markets and providing effective law enforcement. In particular, China is expected ‘to increase joint efforts with the Hong Kong Special Administrative Region and the Macao Special Administrative Region to stop archaeological material looted or stolen from the Chinese mainland from being trafficked into and out of these regions’ (US–China Agreement 2014, art. 10). In similar manner, ‘Cambodia shall endeavor to enhance its collaborative efforts with the governments of other Southeast Asian countries, namely Thailand, Vietnam, and Laos, to control the illicit movement of Cambodian archaeological materials across their shared borders’ (US–Cambodia Agreement 2013, art. K). While it makes sense to oblige Cambodia and China to increase their respective endeavours mentioned above, it should be noted that there are no means by which the United States may enforce them other than to review the extension of those agreements every five years. Such collaborative efforts in the fight against cross-border illicit art trafficking are crucial, as source countries from the Asian region can neither rely on market countries to fix the situation nor trust them with efficiently tackling the criminal side of their own domestic art markets. It is imperative that illicit art dealers are denied safe havens across neighbouring borders by taking advantage of differing legal systems, incompatible enforcement mechanisms and art registers, and the common circumstance where intelligence is not shared between law enforcement agencies (Gruber 2013, pp. 353–356). The focus of the agreement relating to Hong Kong and Macao may at first seem surprising as both are Special Administrative Regions of China, but once their different legal systems, customs regulations and market mechanisms are considered, it becomes clearer why it is less difficult for illicit trade to thrive in such areas (see further Gallagher 2017). Hong Kong has particularly been a major gateway for goods in and out of China since its establishment as a British colony, a fact of which has not changed since the establishment of the People’s Republic of China and handover in 1997. With its enormous port, airport and trade-friendly approach to business, it is still one of the main trading and shipping hubs in the region. The Agreement Between the Government of Cambodia and the Government of the Kingdom of Thailand to Combat Against Illicit Trafficking and Cross-border Smuggling of Movable Cultural Property and to Restitute It to the Country of Origin from 14 June 2000 is an example of cross-border cooperation, with regard to Cambodia in this instance. Article 2 inter alia obliges the States

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Parties to ‘prohibit the import and export of movable cultural property which has been stolen in or illicitly exported from the other State Party’ as well as the acquisition of and dealing with such items. It further obliges States’ Parties to provide and share information, introduce a system of export certificate and ‘use all the means at its disposal, including the fostering of public awareness, to combat the illicit import and export, theft, illicit excavation and illicit dealing in movable cultural property’. The importance of such cooperation has also been acknowledged by ASEAN, which produced the Vientiane Declaration on Reinforcing Cultural Heritage Cooperation in ASEAN on 6 September 2016. Article 1.1 listed inter alia the following actions as necessary for the protection of cultural heritage in the territory of its member states: • continue to ensure the effectiveness of laws and policies protecting cultural heritage from illicit trade and trafficking; • strengthen efforts to exchange information on stolen or trafficked cultural artefacts; • cooperate to return, seek the return or help facilitate the return, to their rightful owners of cultural property that have been stolen from a museum, site or similar repositories; and. • explore collaboration […] with law enforcement in eliminating cross-­ border trade of cultural objects […].

 ational Approaches to the Looting, Theft N and Trafficking of Cultural Artefacts Although action at the international level and the repatriation of illegally exported cultural artefacts are invaluable in the fight against looting, theft and trafficking, domestic approaches are key to preventing such crimes at the outset. This chapter offers a general overview of local approaches to those challenges that are particularly relevant to the Asian region. Once looting occurs, the damage is often severe and usually cannot be undone. Hence, early prevention is key in this context. Most Asian jurisdictions regard undiscovered and buried items to be the property of the state and enact legal provisions, which prohibit illegal excavations and related activities (see, e.g., 1961 Act on Ancient Monuments, Antiques, Objects of Art and Natural Museums (Thailand); Law on Cultural Heritage (Socialist Republic of Vietnam); 2007 Law of the People’s Republic of China on Protection of Cultural Relics). While penalties differ significantly between

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jurisdictions (or in the case of India even within the same jurisdiction, see Antiquities and Art Treasures Act (1972), s. 25 and Ancient Monuments and Archaeological Sites and Remains Act (1958), s. 30), deterrence is of great importance (see, e.g., 1997 Criminal Law of the People’s Republic of China, arts 151, 264, 324–9; Cambodia’s Kram dated 25 January 1996 on the Protection of Cultural Heritage, Art. 63). Unfortunately, however, offenders who are caught and tried are in most cases only local looters and smugglers who often work under direction, while the string pullers, illicit art dealers and collectors who gain the most profit from such activities are rarely punished as they are more difficult to link to those offenses. This applies particularly to cases where evidence has already been transported out of the jurisdiction and the string pullers operate from outside the territory. Additionally, in cases where items were directly taken out of the soil and looted before being recorded, it is extremely difficult for authorities to link those items to specific sites and crimes even after they are recovered (Gruber 2014, p.  225). This immensely complicates matters for investigators and prosecutors. As tracking down looters and illegally excavated cultural artefacts is difficult and does not undo the damage caused, the focus needs to be placed particularly on prevention. A number of related issues must be considered. Because many of Asia’s lesser known or yet undetected heritage sites are situated in remote areas where local authorities often lack the resources for their protection or choose to focus on other issues that they consider to be more urgent (Gruber 2012), it is crucial to invest in capacity building, strengthen heritage protection agencies and provide adequate training to staff concerned with heritage protection. It is also essential that officials, law enforcement, customs officers and the judiciary are educated on the significance of relevant provisions and policies (Gruber 2014, p. 232). Additionally, the general population must be educated on the matter as many local looters or farmers who lease their properties for illegal excavations are frequently unaware of the criminal nature of their actions, unlike the smugglers and illicit art dealers operating in the background. Such education should not only focus on relevant legislation and penalties, but it should also foster amongst the people a sense of pride in their local heritage and help them to understand that such heritage is part of their own cultural identity and wealth, while any looting of such leads to their cultural impoverishment. Support from the local population and fostering a societal mindset of intolerance towards looting can be crucial assets. The same applies to civil society movements and related non-­ government organisations that support heritage protection (in relation to China, see, e.g., Wang and He 2013).

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While education is a highly promising long-term strategy, it is also essential to understand that many heritage-rich parts of Asia are impoverished and that locals may resolve to looting and trafficking cultural artefacts simply to feed their families. As such, promoting social programmes and poverty alleviation will directly benefit the protection of cultural heritage. When people do not have to act out of economic despair, they are more likely to align with heritage protection campaigns and to resist approaches by professional looters and illicit art dealers. For example, in Hangzhou in China’s Zhejiang province, an art dealer was arrested in January 2018, along with 12 looters he had hired after police were tipped off by local villagers who had witnessed the looting operation (Wong 2018). As countless local temples, museums and collections in Asia also lack adequate protection and are easy targets for thieves, implementing enhanced protection measures is also essential in this context. In one recent example, following an attempted theft of idols from a temple in Tainan, several Taiwanese temples considered enhancing their security measures and placing GPS tracking devices on particularly valuable items (DeAeth 2017). In addition to enhanced protection, there is a strong need to maintain comprehensive standardised records of valuable heritage items so that they may be identified once they are recovered or found at auctions to prove ownership in court and diminish their resale value. When there are no such records, stolen items usually disappear forever into private collections, never to be seen again. When, for example, pre-Angkorian artefacts made of gold and bronze were stolen from the Rajabo Pagoda in Cambodia’s Siem Reap province in 2013, only the pagoda committee had knowledge about the artefacts that formed the collection (Heritage Watch 2013). No other records existed, which makes recovery nearly impossible. In some cases, thefts may only be discovered at much later stages (‘Idols worth’ 2017). In still other cases, stolen artefacts even end up undetected in domestic museums and are only identified by chance years after the theft occurred, if at all (Woo 2013). In order to avoid similar disasters, the Indian government has begun preparations for the establishment of centres in Perambalur and Ariyalur to house cultural artefacts from temples in the region that do not have adequate security measures to protect their artefacts from theft (Rajaram 2017). The centres will be equipped with closed circuit television units, burglar alarms and guards. Several hundred items have been identified for storage. They will be taken to their respective temples during festivals and returned to the centres once events end. Despite this well-intentioned initiative, one is led to question whether items which are taken from their respective temples lose their cultural meaning or whether they can continue to fulfil their integrity as heritage objects, as their

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significance is tied to their local community. Further, the local population does not necessarily trust the authorities with protecting their cultural heritage, as corruption, greed and lack of responsibility are not unheard of in areas across Asia where officials are not always held accountable for their actions. In some cases, officials do not only turn a blind eye on art thieves and traffickers, but they also engage in such criminal activities themselves. For instance, in 2017, several police officers of the Idol Wing in Tamil Nadu were on the run after it was found that they had seized cultural artefacts to sell them to art dealers (Sivaraman 2017). A rightfully upset judge of the Madras High Court confronted the inspector-general of the Idol Wing about the whereabouts of the police officers and questioned why no arrest had been made (Subramani 2017). In another recent case in February 2018, villagers in Cambodia’s Kampong Chhnang province unearthed an eleventh-century statue and brought it to their local pagoda for worshipping. When the authorities arrived to take the statue away to store it in a central location, the villagers resisted and the officials had to retreat after being physically barred. The villagers had developed a strong distrust of the authorities after cultural artefacts disappeared, following such confiscations in previous instances. While the officials waited for the situation to settle and assessed further steps to be taken, one local began posting regular updates on social media about the statue and the community’s efforts to retain it. He stated that ‘he was convinced the government will one day take it by force, and that by documenting it, people will know if it is ever swapped out with a fake’ (Soth and Reddick 2018).

Conclusion Although several Asian countries include the duty to protect their heritage in their constitutions (see, e.g., Constitution of the People’s Republic of China (1982), art. 22; Constitution of the Republic of Korea (1948), art. 9; Constitution of the Republic of the Philippines (1987), art. 14) and specialised heritage protection laws are established throughout the region, cultural heritage offenses continue to be a highly common problem. It would be an illusion to think that administrative regulations and prohibitions alone can deter criminal intention, as regulations are generally ineffective without the implementation of serious sanctions for non-compliance. To achieve the best long-term results, harsh punishments should be applied to corrupt officials, professional traffickers and art dealers who are mostly immune to soft strategies, while educational and social programmes and poverty alleviation initiatives should be focused on the poorest members of society.

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The growing number of fakes circulating in the art market is another phenomenon that needs to be addressed more comprehensively, such as by the current legislative effort by the South Korean government (‘Gov’t seeks’ 2017). It is crucial to enhance both domestic and international regulative measures and increase pressure on the art market and collectors in order for compliance to improve (Mackenzie 2011). The secrecy of the art market enables illicit transactions to proceed undetected in many cases and creates an ideal environment for money laundering (see further Unger 2007) and particularly the laundering of profits from organised crime. Wang Shouzhi from Shantou University reported ‘[t]he [Chinese] art market has become more and more abnormal […] [i]t is saturated with business tricks, fake works and fake prices. […] It has become a tool for corruption and money laundering (cited in Reguly 2015)’. The secrecy and lack of regulation over the international art market further significantly complicates any investigation into art crime. The importance of international, regional and bilateral cooperation also cannot be stressed enough, as no source country can battle the illegal export of its cultural treasures alone. Besides the repatriation of illegally exported items, focus must also be placed on cooperative heritage protection efforts and the prevention of looting and theft of cultural artefacts. When items are illegally excavated or stolen from temples, museums and collections, and trafficked abroad, they often disappear forever, particularly when they are stolen from less known places or are not well documented and recorded. Once cultural artefacts have been illegally exported, the damage caused is usually permanent. While this chapter focuses on offenses against movable cultural heritage and the destruction of heritage sites to obtain such objects, a different kind of offense must be highlighted in this context as it is even more destructive to Asia’s cultural heritage. This is the deliberate destruction of cultural heritage caused by development projects, political motives or religious extremism. The ongoing development and redevelopment of vast areas of Asia, currently the world’s most dynamic region, clashes in many cases with the conservation of heritage sites and existing settlements which must vanish to make space for development projects and new investments (Gruber 2007). In many instances, even heritage listings and interventions by the relevant governments and communities cannot stop the destruction of heritage sites as development projects create significant revenue, revitalise municipalities and generate (potentially unethical) high earnings for developers, who often bend the rules or revert to illegal means to maximise their profits. Such destruction of tangible and intangible heritage frequently occurs in stark violation of the rights of stakeholders (Gruber 2017b). In a region with such diversity of cultures, religions, ethnicities and political systems, heritage becomes a highly political matter

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that is regularly challenged or destroyed to harm competing communities or factions and reinforce the offending parties’ dominance and sense of superiority. As many such offenses are backed by local authorities (in many cases, in violation of national regulations), they are not investigated as illegal actions. Without significant change, the large-scale destruction of heritage will remain permanent and most devastating to the local communities involved.

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Davis, T., & Mackenzie, S. (2014). Crime and conflict: Temple looting in Cambodia. In M. Balcells & J. Kila (Eds.), Cultural property crimes: An overview and analysis on contemporary perspectives and trends (pp. 292–306). Brill: Leiden. DeAeth, D. (2017, December 27). Temples in Taiwan upgrading security after thieves steal deities, try to mail them to China. Taiwan News. Retrieved March 14, 2018, from www.taiwannews.com.tw. Gallagher, S. (2017). “Purchased in Hong Kong”: Is Hong Kong the best place to buy stolen or looted antiquities? International Journal of Cultural Property, 24(4), 479–496. Gov’t Seeks to Toughen Up Laws to Address Art Forgery. (2017, December 26). Yonhap News. Retrieved March 14, 2018, from english.yonhapnews.co.kr. Gowen, A. (2016, April 18). India to Britain: Sorry, but we actually do want our diamond back. The Washington Post. Retrieved March 14, 2018, from www.washingtonpost.com. Gruber, S. (2007). Protecting China’s cultural heritage sites in times of rapid change: Current developments, practice and law. Asia Pacific Journal of Environmental Law, 10(3&4), 253–301. Gruber, S. (2012). Poverty and the loss of cultural heritage sites. In Y. Le Bouthillier, M. A. Cohen, J. J. G. Marquez, A. Mumma, & S. Smith (Eds.), Poverty alleviation and environmental law (pp. 284–303). Cheltenham: Edward Elgar. Gruber, S. (2013). The fight against the illicit trade in Asian cultural artefacts: Connecting international agreements, regional cooperation and domestic strategies. Asian Journal of International Law, 3(2), 341–363. Gruber, S. (2014). Perspectives on the investigation, prosecution and prevention of art crime in Asia. In S. Hufnagel & D. Chappell (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime: Australasian, European and north American perspectives (pp. 221–235). Farnham: Ashgate. Gruber, S. (2017a). Convention concerning the protection of the world cultural and natural heritage 1972. In M.  Fitzmaurice, A.  Tanzi, & A.  Papantoniou (Eds.), Elgar encyclopedia of environmental law: Multilateral environmental treaties (pp. 60–66). Cheltenham: Edward Elgar. Gruber, S. (2017b). The tension between rights and cultural heritage protection in China. In A. Durbach & L. Lixinski (Eds.), Heritage, culture and rights: Challenging legal discourses (pp. 149–163). Oxford: Hart. Gupta, G. (2016, September 24). Australia returns three ancients artifacts to India. DNA. Retrieved March 13, 2018, from http://www.dnaindia.com. Hauser-Schäublin, B., & Kim, S. (2016). Faked biographies: The remake of antiquities and their sale on the art market. In B. Hauser-Schäublin & L. V. Prott (Eds.), Cultural property and contested ownership: The trafficking of artefacts and the quest for return (pp. 108–129). London: Routledge. Heritage Watch. (2013). Artifacts stolen from reach Bo pagoda. Retrieved March 13, 2018, from http://www.heritagewatch international.org.

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Hooper, J., & Plafker, T. (2017, June 2). Millions at stake as Chinese villagers take collector to court over “Man in the Buddha”. Financial Review. Retrieved March 13, 2018, from http://www.afr.com. Huffer, D., & Chappell, D. (2014). Local and international illicit traffic in Vietnamese cultural property: A preliminary investigation. In M.  Balcells & J.  Kila (Eds.), Cultural property crimes: An overview and analysis on contemporary perspectives and trends (pp. 263–291). Brill: Leiden. Idols worth lakhs found missing from temple (2017, March 21). Times of India. Retrieved March 14, 2018, from timesofindia.indiatimes.com. India Wants Its Crown Jewel Back from Britain. (2016, April 20). CBS News. Retrieved March 14, 2018, from www.cbsnews.com. Mackenzie, S. (2005). Going, going, gone: Regulating the market in illicit antiquities. Builth Wells: Institute of Art and Law. Mackenzie, S. (2011). The market as criminal and criminals in the market: Reducing opportunities for organised crime in the international antiquities market. In S.  Manacorda & D.  Chappell (Eds.), Crime in the art and antiquities world (pp. 69–85). New York: Springer. Man Admits Swapping Classic Chinese Artworks for Fakes He Painted Himself. (2015, July 21). The Guardian. Retrieved March 14, 2018, from http://www.theguardian.com. US–Cambodia Agreement. (2013). Memorandum of understanding between the government of the United States of America and the government of the kingdom of Cambodia concerning the imposition of import restrictions on archaeological material from Cambodia from the Bronze age through the Khmer era. Entered into force 6 August 2013. US–China Agreement. (2014). Memorandum of understanding between the government of the United States of America and the government of the people’s Republic of China concerning the imposition of import restrictions on categories of archaeological material from the paleolithic period through the tang dynasty and monumental sculpture and wall art at least 250 years old. Entered into force 8 January 2014. Mohapatra, S. (2017, April 23). 5 more idols stolen from Tamil Nadu in Australia gallery’s possession. Times of India. Retrieved March 13, 2018, from timesofindia. indiatimes.com. Mumbai antique smuggling racket: DRI arrests sculptor from Delhi (2017, March 5). The Indian Express. Retrieved March 14, 2018, from indianexpress.com. Mydans, S. (1999, April 1). Raiders of lost art loot temples in Cambodia. New York Times. Retrieved March 13, 2018, from www.nytimes.com. O’Keefe, P. J. (1997). Trade in antiquities—Reducing destruction and theft. London: Archetype Publications. Olsburgh, C. (2005). Authenticity in the art market: A comparative study of Swiss, French and English contract law. Builth Wells: Institute of Art and Law. Prince, R. (2010, July 29). David Cameron refuses to return Koh I Noor diamond to India. The Telegraph. Retrieved March 13, 2018, from www.telegraph.co.uk.

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25 Bones of Contention: The Online Trade in Archaeological, Ethnographic and Anatomical Human Remains on Social Media Platforms Damien Huffer, Duncan Chappell, Nathan Charlton, and Brian F. Spatola

Introduction Academic attention is beginning to focus on documenting the existence and scale of a poorly regulated international marketplace for human remains which are being traded as objects of curiosity. Recent research (Carter et al. and see below) makes it increasingly clear that the continuation of this market in its current state poses a substantial risk to key areas of scientific inquiry and cultural preservation. Valuable skeletal specimens that were once preserved in museums or used in medical education or scientific research are finding their way into commercial and “underground” markets accessible through the Internet, markets that readily make use of social media and e-commerce platforms such as Instagram, Facebook, the Dutch e-commerce platform Marktplaats and others. Institutional neglect of specimens has contributed to a growth of the market for human remains by allowing deaccession of speci-

D. Huffer (*) • N. Charlton Stockholm University, Stockholm, Sweden D. Chappell University of Sydney, Sydney, NSW, Australia B. F. Spatola National Museum of Health and Medicine, Silver Spring, MD, USA e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_25

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mens to unqualified individuals instead of transferring them to other institutions for preservation. The contemporary trade in human remains as currently understood from exploratory research (e.g. Huxley and Finnegan 2004; Kubiczek and Mellen 2004; Huffer and Chappell 2014) also represents an as-yet unassessed risk to what archaeology can understand about life in past times using osteological and mortuary data (e.g. Kinkopf and Beck 2016; O’Reilly 2007). The majority of research attempting to quantify burial looting occurs via survey or the use of satellite imagery to access recent damage (e.g. Contreras 2010; Contreras and Brodie 2010; Lasaponara et  al. 2014). However, several contemporary examples from “hotspots” such as Egypt (Popular Archaeology 2012) clearly demonstrate the continuing threat to cemetery integrity that indiscriminate looting still poses. Most cemeteries are looted to obtain grave goods (jewellery, ceramics, etc.), though discarded and fragmentary human remains can themselves be trafficked (e.g. Choi 2011). Recent examples have garnered media attention due to the rather shocking nature of the specimen being offered and the means of attempted sale (e.g. Killgrove 2016a). Only occasionally have the e-commerce platforms displaying these specimens taken action in response to exposure and public outcry (Halling and Seidemann 2016). While a market for human remains has long existed (e.g. Spennemann 2006; Roque 2010; Carter et al. 2017), the new ability to conduct this activity via social media and online forums has transformed these remains into consumer products for a collector’s market, rather than objects of archaeological, ethnographic or anatomical value. To combat this practice some jurisdictions have introduced restrictions on the ownership and sale of human remains, including in some cases total bans (see in general Marquez-Grant and Fibiger 2011; Seidemann et al. 2009; Seidemann 2004). Internationally these restrictions represent a complex and often confusing area of the law which will be discussed in greater depth below. However, it should be emphasised here that legal prohibitions on the professional acquisition or use of human remains can adversely affect their transfer from archaeological or medical contexts to museums because it precludes the passage of ownership through standard museum practices and procedures (i.e. deeds of gift) and instead requires the drafting of new legally binding contracts to ensure compliance with relevant legislation, as was the recent US-based in-person experience of co-author Spatola. Even so, there are still relatively few domestic restrictions in the US at large (federal or state level) on the private sale or ownership of human remains by private collectors. This situation, when coupled with the ease of US interstate, and even international shipping, strengthens the conditions that favour the

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circulation of human remains among private collectors based on their monetary value as objects of curiosity. This circulation may well extend to private as well as public collectors located outside the boundaries of the US, depending on the nature of the prevailing law in foreign jurisdictions (Fig. 25.1). This chapter focuses principally on the online private commercial market in human remains. It updates the general findings of earlier research conducted by two of the authors, Damien Huffer (DH) and Duncan Chappell (DC) (see Huffer and Chappell 2014), and expands this study to the largely unexplored social media territory of Instagram, presenting the first summary data derived from manual searches (as opposed to automated data mining) of this platform. Initially, we will situate the human remains trade within the larger antiquities trade itself. We will next demonstrate the existence of a separate community of collectors on Instagram (many of whom also make use of other social media platforms such as Facebook, Etsy and [until recently] eBay). We will then review how Instagram operated at the time that the research was undertaken, what its then sales policy allegedly prohibited and the size and scope of the trade as suggested by our initial research. We conclude by discussing future research directions.

Background In 2014, DH and DC conducted a new exploratory study of what was then known about the global online trade in human remains and, in particular, specimens from archaeological or ethnographic contexts (Huffer and Chappell 2014). This 2014 study represented the first research on the global online trade in human remains since an article and associated commentary published in 2004 (Huxley and Finnegan 2004; Kubiczek and Mellen 2004) examined whether or not eBay, due to the lack of a physical anthropologist on their staff, was inadvertently selling human remains of medico-legal forensic imports. The need was felt by DH and DC to pursue investigation of the online trade in human remains into the realm of archaeological and ethnographic specimens. In other words, the research presented below continues to explore the contradiction between the dead being viewed as cultural property in the eyes of the law, cultural heritage in the eyes of archaeologists and Indigenous people and commoditised into objets d’art in the eyes of the market. While Huffer and Chappell (2014) suggested that the attempted open sale of human remains derived from freshly looted archaeological sites is a very rare occurrence, it remains impossible to know the true extent of the trade solely from a few online gallery web pages. The evidence at this stage suggests

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that the most prominent demand countries are located in North America and Europe, while the specimens and artefacts themselves can be sourced from a wide range of countries in Africa, Latin America, Southeast Asia and Oceania. This includes alleged recent historic or Medieval specimens with provenience stated as being from “old collections” assembled by citizens of market countries themselves, such as Germany or Italy. Auction houses, smaller online galleries (occasionally associated with off-­ line dealers operating store fronts) and individual dealers were all found to be participants in the online trade in human remains. Prospective buyers could be divided into three broad and potentially overlapping categories, namely collectors of ethnographic (“tribal”) art/curios; collectors of medical s­ pecimens for either legitimate educational purposes or as “macabre” novelty items and practitioners of specific religious sects or practices, such as the Chöd healing rituals of Vajrayana Buddhism or the Afro-Cuban syncretic religion Palo Mayombe (Gill et al. 2009). Marketing rhetoric and the degree of transparency provided by dealers regarding ownership history of remains and the legality of their import or export varied greatly, with most dealers providing nothing more on their websites than the suggestion that buyers “check local laws”. As discussed below, the more recent expansion of our research suggests that little has changed in the overall online marketing of human remains since our 2014 study. The US and UK, as in 2014, remain the primary “market” countries, although several European countries also contribute to supply and demand, most notably Belgium and the Netherlands. The most significant recent occurrence affecting the “public” metrics of the market has been the banning of the sale of real human remains by eBay (Halling and Seidemann 2016). In response to Halling and Seidemann’s (2016) research documenting approximately 475 examples of human remains bought and sold from 2012 to 2013 (arguably the peak of the market on eBay), as well as increasing exposure of the problem in the media, this e-commerce platform took action (Vergano 2016). The ban from eBay seemed to effect a substantial transformation of the trade on the surface. However, the effect appears to be the migration of large proportions of active trade to new online forums like Instagram.

Instagram and the Circulation of Goods Instagram is an online photo/video sharing and social media networking service, currently a wholly owned subsidiary of Facebook. Like other forms of social media, trends and topics can be shared between users through the use of hashtags (#), enabling users to search for topics of interest. Instagram users

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can link their profiles to other social media platforms, including, but not limited to, Tumblr, Facebook, Twitter, Flickr and eBay, thereby reaching much wider audiences. As of January 2017, it had 150 million active account users per month. Under its Terms of Use (2018), users may utilise the platform to promote brands, companies and products and advertise to other users. Effective engagement of users to purchase wares is centred on the use of “quality” photographs, promotional sales and events and, where possible, collaboration with other parties on and off Instagram. Users are also capable of messaging account owners directly to arrange sales. The Instagram “Help Centre” contains (2019) a “Privacy and Safety Centre”, in which users can find a wide variety of information and advice. The “Instagram Team” begins its presentation of platform rules and regulations under the tab “Community Guidelines” thusly: We want Instagram to continue to be an authentic and safe place for inspiration and expression. Help us foster this community. Post only your own photos and videos and always follow the law. Respect everyone on Instagram, don’t spam people or post nudity.

Instagram has numerous rules and regulations that all users are supposed to comply with. Examples of rules relevant to this research include, under “Basic Terms”, Section 7: “… You may not use the Service for any illegal or unauthorised purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service …”. Under “General Conditions”, Section 8 “… Your correspondence and business dealings with third parties through the service are solely between you and the third party …”. Under “Regulated Goods and Services”, it is stated: “… If your photos or videos are promoting the sale of regulated goods or services, including firearms, alcohol, tobacco, prescription drugs, and adult products, please ensure that you know and are following the law that applies to you”. Though the trade, advertisement and sale of questionable materials are clearly prohibited by the rules and regulations put forth, many instances have been made public of the involvement of Instagram users in a range of activities which breach these platform rules. As reported by Bright et al. (2011) in their research into online drug trafficking, “social network analysis” has also been increasingly used to broaden the understanding of law enforcement agencies with regard to the general misuse of social media platforms in criminal activities and, indeed, whether such analyses may be of use for the detection of online crime. Although the investigations undertaken by Bright et al.

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specifically targeted known drug trafficking syndicates, there is evidence of social media platforms being exploited for a wide variety of questionable trading including that of human remains. Previous studies into the relationships between criminal activities and the misuse of social media, including Instagram, have shown that the sale of hard and soft drugs is particularly prevalent. An article published online by Smith IV (2014) cites an infographic prepared by the Coalition Against Drug Abuse, which details the prevalence and extent of drug commerce on Instagram. In this investigation, the sale of cannabis was most frequently encountered, followed by opiates (codeine), 3,4-methylenedioxymethylamphetamine (MDMA) and prescription painkillers. Other suspect activities visible on social media platforms have also been widely reported on. These range from the recent crackdown on private gun sales by Facebook and Instagram (Goel and Isaac 2016) to evidence of human trafficking (Lillie 2013; Mangione 2016) and animal trafficking specifically via Instagram (Haslett 2015). Haslett (2015) provides repeated instances of users seemingly deliberately breaching the proffered guidelines. Aside from the activities referred to above, potentially less-substantiated reports also exist of the exploitation of social media platforms like Instagram by drug cartels and terrorist organisations, such as Daesh (e.g. Joffe 2016; Ruiz 2016). With regard to the former, use of new social media appears to involve the ostentatious display of wealth by high-ranking cartel members and associates (Fetcher 2016; Thomas 2016), grandiose acts that have been of use for law enforcement agencies targeting cartel activity. It is our opinion that these examples suggest that social media platforms are now viewed as favourable places on which to conduct (or market the proceeds of ) various categories of commerce of questionable legality, despite their stated policies to the contrary. As the remainder of this chapter now illustrates, this includes trade in human remains.

The Human Remains Trade on Social Media We suggest from our research that like the sale of drugs, guns and other commodities, the trafficking of human remains, although smaller in scope and more “esoteric”, is at present well established and poorly controlled. Of note are the various means of display of human remains with some users proudly boasting of their collections while others admiring such collections from afar, and amateur collectors and professional storefronts participating in the active sale, auction and free trade of human remains.

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Significant portions of what is traded are leftovers from c. 1940 to 1980, when human remains could be sourced legally and were widely available for sale to educational institutions (i.e. anatomical preparations). Educational supply companies like Carolina Biological Supply, Clay-Adams and many others sourced skeletal material from India, prior to the country’s ban on exporting human remains in 1985 (Banerjie 2014). Often, this material is labelled and articulated with hardware and has the appearance of a typical classroom teaching skeleton. The prominence of this type of material online and its generally legal status lends a superficial impression of legitimacy to the market at large. Specialists who are trained in physical and forensic anthropology are able to identify potentially illicit material hiding in plain sight. For example, one of the authors (BFS) recognised three separate questionable sales of human skulls on eBay in 2012, which ultimately led to their return to two museums and a state medical examiner’s office. In two of the cases the sellers themselves purportedly came into possession of the remains from estate sales, with the possibility to find out about the original criminal or negligent act being lost. Information on how the skull was procured by the seller or a middleman from one of the museum cases is unknown. Those involved with the trade often represent themselves to prospective buyers or other collectors in diverse ways, from one-time sellers who are seemingly ignorant of the history or value of specimens, or else they appear as “expert” collectors flouting their wares and knowledge as inspiration to others. Given the sometimes shocking nature of items offered for sale, the proffered story behind their acquisition or the sparse provenience and ownership history presented to potential buyers, a fundamental understanding of the dynamics of this trade is needed.

Methodology The overall goal of the research presented below is to begin to map the human remains trade on Instagram, a first step leading to more in-depth research. In selecting Instagram for this purpose the authors in no way suggest that this particular social media platform engages deliberately or as a matter of routine in any questionable conduct. It is apparent that considerable attention has been given by the platform to the development of clear, relevant and ethical rules of engagement by Instagram service users. However, not all users conform with these rules and some misuse them for other less honourable purposes. Enforcement of the rules and identifying at-risk behaviour is a major challenge requiring constant vigilance by all in the contemporary “online world” in which we now most typically operate. Instagram is no exception.

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We were most interested in the beginning to understand the geographic extent of the collecting community, their potential connection to other categories of licit or illicit trade, other online subcultures as well as the diversity of the categories of human remains obtained or sought. To collect preliminary data on the human remains trade on Instagram, we gathered data primarily via manually searching out and following hashtags such as #trophyskulls, #realbone, #humanbone and so on. The use of hashtags guides users and dedicated researchers towards items and users of interest and allows like-minded individuals and collectors to network, collaborate and share their collections with followers. Searches were conducted primarily by two of us (DH and NC) from approximately late 2015 to early 2016 during three distinct search periods. Altogether, data mining comprised at least two months of total investigation, with searches conducted every few days. All images and associated comments and metadata (i.e. number of likes, geolocational information, etc.) were manually captured using screenshots and stored on Power Point slides according to the “handle” (user-created identification) of each individual’s profile. During each data mining period, the publicly available profiles of each previously noted individual collector, dealer or human remains trade “enthusiast” were re-visited to record updates, changes or whether the account had become “private”. Following this re-examination, the search for additional participants continued. From the data obtained, tables were created that present the total number of collectors/dealers active within a given location, or collecting specific categories of human remains and so on. It becomes apparent which locations have the most active supply and demand for each type or category of human remains and what the general demographic structure of the community is.

Results Initial insight into the general size and scope of the human remains trading community on Instagram by means of preliminary, manual, data mining is summed up in Tables 25.1, 25.2 and 25.3. These tables show correlations between general dealer location, the demographic profile of the community (Table 25.1) and general categories of human remains collected, whether skeletal element (Table 25.2) or “cultural” category of human remains (Table 25.3). These tables were created using individual dealer counts per category and were calculated during three distinct periods of manual data mining with the goal of highlighting the number and diversity of observed active accounts over time and from which locations dealers originate.

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Eight countries from which dealer accounts originate were identified in our data to date, with a category for unknown locations and an additional category to account for those whose profile pages never reveal their sex/gender (Table 25.1). The category of “multiple indv” is for those profiles run by more than one individual or displaying/selling a brick-and-mortar store’s overall collection. We chose gender as the most useful demographic axis because age was considered non-variant (and often unindicated in text or photographs beyond the obvious participation of adults). Slightly more than half of the profiles identified clearly belonged to individual males, a finding relatively consistent with preliminary results obtained from investigating other facets of the community, as reported by Huffer and Chappell (2014). Of those profiles operated by individuals (n = 62), the proportion of males increases to 61%. However, with the exception of the US, our data set suggested a relatively equal participation in the Instagram human remains collecting community by men and women, at least as viewed from their public profile. North America had the bulk of collectors seeking to import new material, but the UK was not far behind and from this initial data set it seems likely that those profiles in the “unknown” categories would also belong to men. The under-representation of collectors or dealers based in Europe, the Asia-Pacific region or elsewhere could be due to a variety of factors including expense, perceived legal risks, the stated preference of many US-based dealers to only ship within the US and so on. In Table 25.2, “whole skeleton” indicates a complete articulated or disarticulated skeleton either assembled on a stand or stored in a box. “Torso” indicates any combination of articulated or disarticulated vertebrae, ribs or pelvis, with or without the skull. “Extremity” refers to articulated or disarticulated hands, feet, legs or arms. “Teeth” refers to both loose teeth (i.e. dental Table 25.1  Preliminary demographic assessment of the Instagram human remains trading community Country

Male

Female

Unknown

Multiple Indv.

Total

Australia Belgium Canada Denmark Finland Indonesia United Kingdom USA Unknown Total

1 2 3 0 0 1 4 23 6 40

1 0 1 0 1 0 3 13 0 19

0 0 2 0 0 0 0 3 2 7

0 0 1 1 0 0 1 4 0 7

2 2 7 1 1 1 8 43 8 73

Skull

10 8 3 33 1 1 2 58

Location

Unknown United Kingdom Canada United States Australia Denmark Belgium Total

3 2 1 12

1 19

1 8

Torso

3 1 3

Whole Skeleton

24

3 2 3 14 1 1

Extremity

8

9

7

13

1

3

Tissue

1

Teeth

Table 25.2  Correlations between collector/dealer location and skeletal elements represented

3

3

Replicas

12

1 2 1 8

Juvenile

17 21 9 89 2 3 4 145

Total

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Table 25.3  Correlations between collector/dealer location and category of human remains collected Location

Trophy Anatomical Skulls

Tibetan/ Archaeological Historic Buddhist

Othera Total

Australia Belgium Canada Denmark Finland Indonesia UK USA Unknown Total

2 1 4 1 1 0 6 29 7 51

0 1 0 0 0 0 0 7 0 8

1 2 2 1 0 0 3 18 2 29

0 2 4 0 0 1 3 13 2 25

1 2 7 1 1 0 7 34 7 60

0 2 3 0 1 0 3 8 1 18

4 10 20 3 3 1 22 109 19 191

Category not otherwise listed

a

cast-offs) and teeth repurposed for jewellery. “Tissue” here refers to any element that still retains a substantial amount of preserved tissue such as tendon, muscle fibre, skin or hair. “Juvenile” here refers to skulls or whole skeletons from all young subadult age classes from foetus to approximately five years old. As expected, the majority of specimens displayed or discussed were skulls, accounting for 40% of the total. The remaining categories are relatively equally represented numerically in our current data but indicate that specimens such as disarticulated feet or hands can more readily reach collectors. A surprising number of uncleaned or unprepared specimens, including allegedly authentic “shrunken heads” and mummified remains, were encountered. The total number of whole skeletons was also more than expected. Several collectors in the primary “demand” countries also sought juvenile skeletons, usually complete, but sometimes just skulls or mandibles, and pathological specimens were enthusiastically discussed. Only three dealers were noted to be using obvious replicas in their artwork or (in one case) their self-proclaimed Haitian Vodou practice. In Table 25.3, “anatomical” includes medically dissected actual or alleged teaching specimens, whole or partial articulated skeletons (adult or subadult), dental off-casts and so on. “Trophy skull” includes real or claimed genuine specimens of “headhunting” from various Southeast Asian, Papuan, Melanesian or South Asian cultures such as the Dayak, Asmat and Naga. This category also included tsantsa (“shrunken heads”). “Archaeological” primarily includes fleshed mummy skulls or body parts, as well as any specimen claimed to be “ancient” or from an archaeological culture (i.e. Paracas “elongated” skulls from Peru). “Historic” is a grey area including specimens that are not medically prepared and, in many cases, show taphonomic (burial environ-

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ment) damage but are either claimed to be from historic battlefield contexts (i.e. Civil War) or show pathologies more common to historic populations. Finally, “other” includes miscellaneous isolated elements of an unknown age, jewellery made from teeth and so on. The results indicate that the majority of identified items for sale, auction or on display were real or claimed to be anatomical or historic specimens, with those falling into the “trophy skull” or “other” categories being nearly equal. Very few real or alleged ancient archaeological specimens were encountered. Collectors/dealers based in the US once again comprised the majority of the sample but notable was at least one individual from Denmark, Finland and Indonesia (in this preliminary data set). It is likely that ongoing and future research on other social media and e-commerce platforms, especially non-­ English language ones such as Marktplaats, would reveal an even-greater geographic range.

Interrelationships and Attitudes Within the Human Remains Trade Community The attitudes of collectors and sellers are apparent through scrutiny of comments on collector’s posts. The reason for posting of comments varies, though typically a degree of awe, covetousness and admiration are expressed. This is especially the case when items are deemed especially unique due to their age, condition or how frequently human remains from the culture in question surface on the market. In addition, this ability to follow hashtags and comment on others’ photos with additional hashtags or personal contact details provides an avenue by which individuals may be directed to items of interest by other known buyers and sellers. An example of this is seen in Fig. 25.1. The item in question is a single adult skull with a woven fibre covering, inlayed with cowrie shells. The adorned skull appears to be suspended from the ceiling by cordage attached to the headdress. The mandible and most teeth are missing, likely post-mortem, as is common for ethnographic human remains from the Asia-Pacific region. The anonymised comments show the amount and nature of communication often affiliated with unusual or unique archaeological or ethnographic human remains. Three commenters express their amazement over the nature and quality of the piece and inquire as to its origins, to which the displayer gives a vague response. One commenter inquires about whether the item is available, to which the current owner suggests it is not. Another commenter adds that they too have many such items available for trade.

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Fig. 25.1  An example of common dialog between collectors and enthusiasts

Although no price was given, vague mention was made of its ownership history and its moves between international collections, as well as on and off country-specific e-commerce sites before being displayed more widely on Instagram by its current owner. Most human remains observed for sale or trade did not have this level of dialogue associated with them, however. Perceptions of trade in human remains in the media vary significantly. In an article by Davis (2015), the considerably large and rare collection of one individual was highlighted, with the collector commenting on his personal “human bone museum”. Rarely, a collector, or rarer still, a self-identified practising archaeologist or anthropologist, would question the presence of specific objects for sale, especially with regard to state, national and international law, as seen in the paraphrased dialogue below. • Commenter 1: I’m an archaeologist and wonder where you get all your skulls? • Commenter 2: What a nice job! I buy and trade skulls with others, sometimes via the internet. In a thread from a separate post: • Commenter 1: Is the keeping of skulls illegal? Any paperwork involved? I am asking out of curiosity. • Commenter 2: Most places, it is completely legal to own or sell human remains, no paperwork needed. Animal remains are a different story. • Commenter 1: I thought it was illegal these days? I read that somewhere. • Commenter 2: Buying Native American remains is illegal. Otherwise it is completely legal depending on your state laws.

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Responses to these questions (if they were asked at all) varied, with the sellers typically stating their opinion that given specific circumstances, the trade of human remains was both valid and legal, though caveat emptor (Latin for “buyer beware”) was often quoted to the prospective buyers of specific pieces. An additional aspect of the human remains trade on Instagram was the prevalence of auctions and give-aways of specimens, perhaps as a means for more prolific collectors to thin out “stock” by discarding small, isolated, skeletal elements, while also attracting more attention and perhaps enticing new collectors otherwise put off by sometimes prohibitive price tags. Skeletal elements ranging from mandibles to femora to carpal phalanges (finger bones) were among the items offered, with only very occasional public awareness of this somewhat common phenomenon, at least as seen on Instagram (Augenstein 2014). One such example encountered stated (paraphrased): “One hell of a give away. A human mandible as a prize + two other winners”. A commentator below the image advertising the give-away mentioned how “rad” (incredible or excellent) the offered prize would be in their collections, and another attested to previous dealings with the company in question and identified the city. Numerous examples, typically organised through “sharing” links to the sellers’ posts, were encountered, with contact emails and prices given in dollars, pounds or euros, although many stressed that they only shipped within the US. As mentioned above, caveat emptor is highlighted, although most sellers were noted to preface their posts to limit participants to the seller’s country of origin. It is unclear if the proceeds obtained from any for-profit auction would be used for anything except the purchase of new specimens. A few other recent examples of online auctions of human remains have been encountered. One UK auction house was actively selling allegedly historic period specimens as recently as October 2016. While the auctioneer made ready use of a website and Twitter, no connection to Instagram was observed. Thus, at present, most examples of auctions on Instagram have been run by and for the Instagram community itself. As with many other categories of the antiquities and art trade, especially as conducted online (e.g. Fay 2011; Brodie 2014), issues of forgery and authenticity also affect trade in human remains, whether anatomical, ethnographic or archaeological specimens. When considering the weight and role of forgeries, it is important to separate forgeries from replicas. Resin replicas are commonly created and frequently used as teaching models, whether sold to medical schools or university departments of anthropology and only occasionally acquired by private collectors for use in art.

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True forgeries can be made from real human remains of indeterminate provenience which are modified through faking of patina and/or adorning with cultural decorations such as beadwork or decorative carving, as can be seen with the recent glut of inauthentic skulls advertised as originating with Asmat, Dayak and other cultures from the Indo-Pacific region known historically to ceremonially retain and decorate ancestor or enemy trophy skulls. Anthropologists can at times, and when observing specimens in person, differentiate among archaic, historic and recently deceased remains using visual evidence of post-mortem changes to bone in contrast with the age and effect or lack thereof of associated materials. Additional scientific methods for discerning between Colonial-era specimens and cultural “forgeries” made from real human remains are still being developed (e.g. Hefner et al. 2016; Willey and Leach 2003). Further work in this area will be of utmost assistance to any law enforcement agencies tasked with investigating and prosecuting illicit dealers (see, e.g. McNab 2015; ICE 2011), though determinations are best left to trained forensic anthropologists. As far as the collecting community is concerned, the question remains as to the degree of importance collectors place on “cultural” authenticity and how many individuals amassing collections acquire items such as trophy skulls or anatomical specimens that are in fact forgeries. The human remains trade on Instagram has also been observed by the authors to have correlations with other categories of collecting, both licit and illicit. These range from unlawful trade in wildlife parts like ivory, skins, horns and hooves to the collection of medical implements, ethnographic objects and other categories of “tribal art” not incorporating human remains, World War II and Civil War memorabilia and other antiquities. Table 25.4 quantifies this Table 25.4  Correlations between the human remains trade and other collecting communities on Instagram Location Australia Belgium Canada Denmark Finland Indonesia United Kingdom Unknown USA Total

Medical Implements

War Memorabilia

Ethnographica Wildlife Othera Total

0 1 1 1 1 0 2

0 0 0 1 0 0 0

0 2 6 1 1 1 2

0 2 7 1 0 1 4

0 0 2 0 0 0 3

0 5 16 4 2 2 11

3 21 30

0 6 7

2 13 28

4 20 39

1 19 25

10 79 129

Item category not otherwise listed

a

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overlap by displaying the total number of individual collectors whose Instagram profiles indicate their residence in a particular country with tallied indications (from pictures or text) of their participation in or tacit appreciation of other collecting communities. Some categories contain several subcategories of otherwise separately procured or traded items. For example, our category of “war memorabilia” can include World War II, World War I or US Civil War memorabilia. “Wildlife” includes both skeletal and taxidermy specimens. This latter category was selectively sampled as the total number of individual examples from all collectors combined for a particular location number in the thousands. Table 25.4 presents data indicative of correlations between the Instagram human remains trade community and other collecting communities. Tallies for each row and column are calculated using individual dealer counts. “Medical implements” here refers to antique medical instruments, from bone saws to medicine bottles. “War memorabilia” here refers collectively to all categories of war relics, bullets, weapons, uniforms, medals and flags from past conflicts, especially World Wars I and II. “Ethnographica” refers to all categories of “tribal art”, not including human remains, but including antiquities, whether authentic or likely forgeries. “Wildlife” refers to whole or partial faunal specimens, either skeletonised or taxidermy, domestic or endangered. Finally, “other” includes artefacts outside these categories. Medical implements account for 23% of the total, with most of the tally coming from a few prolific US-based collectors. The simultaneous acquisition of faunal specimens (including such rare species as elephants and orangutans) by human remains collectors regardless of country is somewhat surprising, but these allegedly legally and ethically collected faunal specimens account for 30%. Correlations between the human remains trade and other forms of trafficking are only beginning to be investigated, but these preliminary observations illustrate the potential for meaningful research to examine these overlaps from both a sociological and a legal perspective. A significant finding in the above data, concerning human remains themselves, is the presence of relatively few collectors whose images or posted information identified their location as being France, Belgium, the Netherlands or Germany. Each of these countries is known from previous research (e.g. Huffer and Chappell 2014) to have active collectors, especially of Southeast Asian, Pacific and African “trophy skulls”, as well as to be a source of allegedly historic or Medieval European crania or complete skeletons. As shown in Table 25.3, only individuals with profiles suggesting residence in Belgium are present. This includes both those whose profiles suggested they only collected and those who claimed they collected, auctioned and sold. It is possible that

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collectors from these countries had for the most part moved from Instagram to other social media platforms, such as Facebook groups. Indeed, one such group devoted to palaeopathology (the study of health and disease in past populations using skeletal remains) routinely attracted a small number of collectors from the Netherlands who requested assistance from the bioarchaeological community to identify osseous manifestations of pathology. It is likely that future researchers, over a much longer time frame and using automated search methods that can improve the speed and scope of social media data mining (e.g. Huffer and Graham 2017, 2018), will more accurately reveal the contributions of collectors from these countries to the global online trade. The data offered here is meant to be a preliminary analysis of the evolving face of the human remains trade. It is anticipated that, as automated methods of data mining are improved, and other social media platforms are investigated, more comprehensive data will be uncovered. Bringing such techniques to bear will prove important for searching through the comment “noise” to look for patterns in the type and nature of comments associated with each image and the connections between users, as evidenced by the linked appearance of their usernames or by cross-referencing content. This is the subject of ongoing research (Huffer and Graham 2017, 2018). Importantly, the periods of data recording included here occurred before and after an interview of one of the authors (DH) for Forbes magazine (Killgrove 2016b). The dissemination of this interview appears to have “shaken up” the Instagram human remains trading community resulting in a change in online trading practices and more guarded behaviour. Although the Instagram community may have become more cautious and has, to some extent, moved to other platforms, the data already obtained is telling and presents a novel avenue to understand better both the human remains trade and other aspects of the antiquities market more generally.

Legal Issues and Current Loopholes We have referred earlier to some of the uncertainties and vagaries encountered in the legal environment regarding the trade in human remains. It is not our intent here to provide a comprehensive appraisal of this environment worldwide, which is a task already performed to a large degree by Marquez-Grant and Fibiger (2011) in their seminal international study of the laws and practice applying to the excavation and treatment of archaeological human remains. However, as the locus of much of the trade revealed in our present study is situated in the US or UK we feel it is important to say more about

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some of the legal complexities involved and describe how the law applies in practice in those jurisdictions. We also refer in brief to comparative laws in several other jurisdictions in Europe and elsewhere. In the US, legislation on the human remains trade at the federal and state level does not necessarily work in concert, and confusion remains as to what laws apply in various circumstances (see in general Ubelaker 2011). Federal legislation regulating or prohibiting the procurement and collection of human remains is to be found in a number of sources including the Native American Graves Protection and Repatriation Act 1990 (NAGPRA); the Uniform Anatomical Gift Act of 1968 (UAGA), as amended in 1987 and 2006; Anatomical Gifts Act (2006); and a range of regulatory measures administered by the US Food and Drug Administration (FDA) concerned with the acquisition of human tissue for transplant and allied medical procedures. State-specific legislation also applies in Louisiana, Georgia, Missouri and Tennessee (Marsh 2015), as is sometimes acknowledged by various collectors. The UAGA is a crucial piece of legislation regarding the legality of owning, displaying or selling human remains for private and commercial purposes in the US. A Uniform Act is a proposed state law drafted by the Uniform Law Commission and approved by its sponsor, the National Conference of Commissioners on Uniform State Laws (NCCUSL) (Uniform Law Commission n.d.). The original UAGA was drafted in 1968 and since then has been amended a number of times. The UAGA has also been enacted in every US state since 1968, yet, there is still a lack of uniformity and harmonisation in the actual version of the UAGA, adopted at different times by individual jurisdictions. For instance, Section 16 of the current (2006, revised in 2009) UAGA prohibits the buying and selling of human body parts, primarily organs, under certain circumstances. Under this section, buying and selling skeletal human remains is generally legal, but not every state or territory adheres to the same version of this legislation. For example, in Massachusetts, Section 16 states: Section 16. (a) Except as otherwise provided in subsection (b), a person who for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of such part from an individual is intended to occur after theindividual’s death shall be punished by imprisonment in the state prison for not more than 5 years or in the house of correction for not more than 21/2 years, or by a fine of not more than $50,000 or by both such fine and imprisonment.

Other states and territories in the US interpret this section, and the UAGA itself, as a total ban on the purchase or sale of human body parts within their jurisdiction for both medical purposes and personal collection. In the US, the

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American Association of Tissue Banks (AATB) has developed standards, policies and an accreditation process for Non-Transplant Anatomical Donation Organizations (NADOs) in response to numerous scandals involving unregulated trade in body parts for medical education (Waltz 2007). NADOs are non-profit and for-profit companies that supply human remains for scientific research and medical training. New York is currently the only state in the US to require a state-issued licence for any NADOs doing business within the state including outside NADOs sending remains into New York. In the UK, human remains can be kept privately, but remains less than 100 years old must not be used for display without a Human Tissue Act 2004 (HTA) licence. There is a complication in that. Under current UK legislation one cannot “own” human remains but can have custody of them. Guidelines from the Department of Culture, Media & Sport (DCMS) note in more detail that: Museums and other institutions holding human remains should ensure that any activities that they undertake in relation to human remains are lawful. The law in relation to human tissue has recently changed following the Human Tissue Act 2004, the primary purpose of which is to regulate the removal, storage and use of human tissue for listed activities, which include research and public display. The Human Tissue Act requires that regulated activities are undertaken only with the prior consent of the individual from whom the tissue is taken. Significantly, existing holdings, imported remains and human remains that are older than 100 years fall within exemptions to the requirement for consent. In practical terms, this means that the activities of museums and other institutions with collections of older human remains will fall largely outside the consent regime of the Act because of the age or origin of the majority of the remains in their collections. The Human Tissue Act also creates a Human Tissue Authority which is to administer a licensing regime and to issue codes of practice. Where museums and other collections hold the remains of individuals who died less than 100  years ago, they may in due course be required to hold a licence to continue to store and use such material, and to comply with codes of practice issued by the Human Tissue Authority as a condition of such licence (DCMS Guidelines 2005: 11)

The more recently published Human Tissue Authority’s (HTAuthority) various Codes of Practice (2017) further caution importers of human remains into the UK of the need to satisfy themselves, with due assurance from their collaborators abroad, that any material intended for import is sourced consistently with the legal and ethical review requirements in England, Wales and Northern Ireland. When an

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individual, establishment or organisation imports material into England, Wales and Northern Ireland for research, it is good practice for approval to be obtained from a research ethics authority or the local equivalent in the source country beforehand. (HTAuthority 2017 Research Code of Practice: 27)

Furthermore, the legislative requirements of the HTA do not apply to skeletal remains that are over 100 years old. The HTAuthority’s 2017 Public Display Code of Practice states that: Where the age of the material is unknown, as no documentary evidence such as archival records, receipts or scientific evidence (e.g. carbon dating) is available [a curatorial age must be attempted]. Where investigations are inconclusive and it isuncertain whether the material is over 100 years old or not, the earliest known acquisition date may be taken as an indicator of the age of the material. Where no acquisition date is available, an HTA licence should normally be applied for. (HTAuthority 2017 Public Display Code of Practice: 14)

It is possible to obtain expert advice, such as from a biological anthropologist at a “well-respected academic institution”, and get a statement from them saying that in their professional opinion the remains are more than 100 years old and hence no HTAuthority licence is required. The HTAuthority has a core principle that all human bodies and relevant material within its overall scope should be treated with respect and dignity. It actively links its own requirements and advice with that given for the curation, care and use of human remains by the DCMS. Indeed, even the storage of human remains is covered by the DCMS guidelines, with a requirement that storage needs to be actively managed and monitored and needs to meet certain security standards. The display of human remains is of prime interest, with the guidelines stating that human remains should not be displayed unless the actual skeletal material makes a real and “material contribution to a particular interpretation; and that contribution could not be made equally effectively in another way” (DCMS guidelines: 20). So, human remains may be kept, but not owned, and should not be displayed unless absolutely necessary to aid in understanding and interpretation. Many European countries, including those mentioned in the tables above, are signatories to the 1970 UNESCO Convention and have legislation in place governing how museums and archaeological excavations handle and repatriate human remains (Marquez-­ Grant and Fibiger 2011), but specific legislation prohibiting ownership, transport or purchase (outside the realm of funeral homes) is not readily available.

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In Australia, certain states have their own human tissue act (e.g. New South Wales: HTA 1983) that has proven to be enforceable in halting sales of archaeological or ethnographic human remains at auctions (Morgan 2010). New Zealand also has its own legislation (HTA 2008) that prohibits collection or importation of any human tissue without consent. Fundamentally, however, internationally cohesive legislation using the same terminology and forbidding or permitting the same activities within the private, commercial, human remains trade does not yet exist, and might never, given differences in how cultural heritage and cultural property are defined, differences in what constitutes ownership and many other discrepancies.

Interpretations and Further Research Directions The preliminary data discussed above is merely the first step in ongoing efforts to understand and map the online human remains trade on Instagram and other social media platforms. While we have presented pilot-level qualitative and quantitative results from two distinct periods combined from investigating the Instagram human remains trading community, there are other aspects of the contemporary trade noted in passing here that deserve more intensive research in future. Chief among these topics is the looting and selling of real or alleged “war dead”, primarily (in the examples seen to date) claimed to be Civil War soldiers exhumed from southern battlefields. One such example has a caption that reads (paraphrased): This is a southern Civil War soldier found in a clay bed, still with clay on it. Own a piece of history. Serious inquires only please. This back story is intended to attract only the most dedicated collector, and what appears to be soil is still attached to the skull. Interested parties can own a piece of history but only “serious inquiries” are welcome. In this example and others like it, the alleged origins and rarity of the skull in question are key selling points. Confirming the specific stated origins of such specimens is highly unlikely. Any investigations require a concerted effort to determine the extent of ongoing or recent battlefield looting events and, where possible, biogeochemical and spectrographic analysis of tooth enamel, bone, and associated soil, residue, or other inorganic or organic materials research to more accurately determine “provenience” in forensic contexts (e.g. Fraser et  al. 2006; Meier-Augenstein 2010). One might ask what has fuelled this specific aspect of the human remains trade? Television shows such as “Nazi War Diggers” (since renamed “Battlefield

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Recovery” and re-aired on British TV’s Channel 5) have attempted to display the “excitement” of finding and, allegedly, preserving World War II sites along the Eastern Front. Episodes depicted the looting of battlefields and graves, including the on-air haphazard excavation of human remains. When initially aired, this show, and two others like it, met with concerted outcry from the global archaeological community (Winston 2016; Mashberg 2014; The Local 2016). The rebirth of Nazi War Diggers stands as a reminder that outcry by cultural heritage experts is not enough to affect collector attitudes or prevent the public encouragement of new trade (e.g. Thomas 2015). The looting and selling of human remains and associated artefacts from battlefield cemeteries are not confined to Europe. One of the more well-­ documented cases occurred at Ft Craig, New Mexico, where 67 burials were excavated by Bureau of Land Management (BLM) archaeologists only after being tipped off that extensive looting had been occurring since at least the 1970s (Associated Press 2008). Other more recent instances of Civil War battlefield looting have also occurred where selling of the remains was not the primary purpose (Preuss and Gast 2016; Burnes 2012). From some collectors, the collection of war dead coincides with collection of other material expressions of “dark heritage” (e.g. Herva et al. 2016) or their participation in “dark” tourism (e.g. Biran et al. 2011). To date, published examples of the buying and selling of Civil War- or World War-era human remains are very rare, even in the popular press. Therefore, gauging the full extent of this face of the human remains trade is a fruitful avenue for future work. The trade in human remains online has not gone entirely unnoticed by the public. In addition to the recent ban by eBay, primarily in response to Halling and Seidemann (2016) (see Vergano 2016 for discussion), a few other instances of attempted “creative” sales or auctions by other platforms have been exposed (e.g. Killgrove 2016a). At the individual level, a few proprietors of “the macabre” present clear ethical statements against participation in the trade. For example, a Halloween prop store based in Los Angeles, CA, presented the following paraphrased statement on their website circa 2015. You might think it odd, but I get asked for human remains a couple times a day, and every couple of months someone asks if I’m interested in buying some human remains that they have, for some reason … The laws on who can legally buy and sell human remains are fairly complex, so the rule of thumb to go by is this  - buying, selling, or owning human remains is illegal … The sources of human remains are, at some point, living humans … The rest of the bones that are being sold are archaeological theft, contemporary grave robbing, war trophies, criminal evidence, and a mixed bag of specimens passed from hand to hand for so long the origins, legitimate or not, are long since

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lost. The burden of proof is on the owner … I urge anyone who’s interested in buying bones to buy replicas. It’s the only ethical choice. Otherwise you are supporting or encouraging a black market in endangered species, fossil and archaeological treasures, and human life. As detailed above, it is rare to see collectors or dealers taking anything more than a “caveat emptor” stance with regard to legal or ethical concerns. However, some individuals are beginning to take stances against wanton criminal activity, even if caveats are still offered so as to reassure any new customers with more concern for ethics than usual. For example, a dealer with a brick-and-mortar store and online gallery out of the UK (Pandora’s Box n.d.a) states on their website: Ethics: We believe this to be defined as a generally accepted standard of right and wrong. It may have different meanings to different individuals; however, it is actually about a generally accepted standard of what is morally right. You may think we are ‘unethical’ by your own personal standards but we are not without standards or a moral code that determines what we will and won’t do. Please respect our ethical standards and position yourself in a place of assuming we would always do the right thing rather than the wrong thing. We never harm any animals for our work. Ever.

In regard to their “ethical” interpretation of the current HTAuthority legislation in the UK (and its US equivalent), they (Pandora’s Box n.d.-b) state: ‘Sale of Body parts for other uses.’ This means skulls and bones for use when housed in a private collection. Not for public display, not as props or to be sold as Halloween decorations. These skulls are not allowed to be displayed to the public without licence, and must be treated with respect and dignity. We sell human bones and skulls for the purpose of completing an individual’s private collection. Cabinets of curiosities have contained human skulls and bones for as long as they have been in existence and that is the type of item we supply. We do not sell skulls and bones for any other reason than this. We handle remains with the utmost respect and we do not ever forget that they were once a living and breathing human being.

Regarding shipping overseas, specifically to the United States, they state: Answer: We notice that the U.S. laws seem to be evolving in regards to human bones and remains and as such we cannot offer these items to U.S. customers or refer you to a seller in the U.S. as we would not want to break or even stretch

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the law. As of July 2016 our Pandora’s Boxes to the US will not contain any human parts or bones including as components of jewellery or in the form of antique medical slides or pathological samples at all, without exception.

With more study and exposure, public awareness of the existence of the commercial trade itself will continue to grow. The combination of long-term qualitative and quantitative databases that illuminate the nature of the human remains trade, as well as its connection to other questionable trading communities, will only increase the potential for successful prosecutions and repatriations. Ideally, new research will also increase public pressure to demand more comprehensive and uniform legislation at the national and international levels.

Conclusion Overall, this chapter suggests that a complex international market for human remains exists on social media platforms like Instagram over a variety of categories readily available for appreciation, auction, sale or trade. While future work will continue to track the market on this platform, the manual approach to data mining taken here can also be applied to searching other active social media platforms that are used to arrange sales. These include Etsy, where the sale of human remains has allegedly been banned (Kim 2012), although jewellery containing human teeth, allegedly from ethically sourced dental offices, remains available. Also worthy of much more investigation is Facebook, especially given the large number of “closed” or “secret” groups through which illicit trade of all types can occur (e.g. Lapowsky 2018). Since 2012, Facebook has owned Instagram and thus the movement of the personal profiles and merchandise of prolific sellers between the two platforms is more feasible than ever. Less frequently used platforms, such as Tumblr or Pinterest, can also be used as virtual “display boards” for collectors and dealers to surreptitiously advertise what they have, while Twitter makes it very easy for collectors to link with dealers under the same or different handles used on Instagram, as well as send direct messages to each other. The next steps in understanding the demand side of the trade as facilitated by Instagram and other social media platforms will be continue to examine the functioning of the networks themselves and look in more depth at the rhetoric and “grammar” of how human remains are bought, sold and marketed, how images are staged or manipulated as a means of advertising without words,

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how the community helps or hinders those suspected of too egregiously breaking the law and how the trade continues to evolve. The results obtained from pilot-level manual searching discussed above are now known to represent the tip of the iceberg. This work is laying the foundation for planned research over the next several years. Future research will continue to explore the utility of machine learning/neural network analysis to better extract patterns in the ebb and flow of the online trade in human remains. Disclaimer  The opinions and assertions contained herein are those of the author(s) and do not necessarily represent the views of the National Museum of Health and Medicine, the US Department of Defense (DoD) or any other US government agency and do not constitute an endorsement by the DoD of any of the opinions expressed or any information contained therein.

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26 Forging Antiquities: The Case of Papyrus Fakes Malcolm Choat

Introduction In the second half of the seventeenth century, as he was drawing together material for his master work de re Diplomatica (On Diplomatics, first published in 1681), which was to become the foundation of the modern study of ancient scripts, paleography, the Benedictine monk, Jean Mabillon came across an intriguing papyrus. He promptly listed it in the section of his work on ‘Roman scripts of the earliest age’ under the title that appeared on the papyrus itself: C. Julii Caesaris Testamentum L. Pisone socero recitatum in domo. Idibu septembris, ‘The will of Gaius Julius Caesar, read out by his father-in-law Lucius Piso in his house, on the Ides of September’ (Mabillon 1681, p. 344); a facsimile of the papyrus was included on the following page. Although Mabillon realized already in the first edition that something was wrong, he did not apprehend the extent of the deceit, or the identity of its perpetrator, Pierre Hamon, a scribe of Charles IX working in the King’s Library at Fontainebleau in the mid- sixteenth century (Omont 1901; Armstrong 1963). To a (genuine) Latin papyrus from the time of Emperor Justinian in the sixth century CE, Hamon had added, in similar-looking script, the title of the will. Mabillion duly noted this in the supplement to the de re Diplomatica, published in 1704, and admonished Hamon for his deception (Mabillon 1704, pp. 55–56; see already Mabillon 1681, pp. 460–460*; see also Omont 1901, M. Choat (*) Macquarie University, Sydney, Australia e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_26

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p. 59). Hamon was of course long dead, executed in 1569 for, among other things, forging the king’s signature (on the affair, see Delisle 1910; Preisendanz 1933, p. 32; Grafton 1990, pp. 28–29). Whether or not Hamon was executed for forgery itself (religious charges loomed large), the case illustrates a number of themes, which will be addressed in this chapter: the alteration of genuine papyri to produce forgeries; the discourses of discovery and authentication which surround them; and the convictions and/or punishments that—only on rare occasions—have followed the forging of papyri.

The Discipline of Papyrology ‘Papyrology’ as a discipline embraces the study of all texts written in ink on moveable material from the ancient Mediterranean world. It thus includes not only texts written on papyrus, but those on parchment (vellum), ostraca (pottery) and wood (for an overview, see Bagnall 2009). While it was once limited to texts in Greek and Latin from Graeco-Roman Egypt (c. 332 BCE– 642 CE; see Choat 2013), it now embraces a much wider purview, taking in texts written in the Egyptian languages and scripts (especially Coptic and Demotic) and those found in other parts of the ancient world, such as the Levant, Greece (the Derveni papyrus), Italy (the Herculaneum papyri) and Britain (the Vindolanda tablets). Despite finds of papyri in Israel, Palestine and Syria (Cotton et al. 1995; Gascou 2009), and carbonized papyri found in Italy and Greece, it is Egypt which accounts for well over 90% of the known papyri, owing to the dry climatic conditions. Papyrology excludes at one end Egyptian documents from before the Late Period (c. 664–332 BCE) and at the other end medieval European and Byzantine manuscripts from the second half of the first millennium and early centuries of the second millennium CE. Between those poles (which are less absolutely applied than they once were) papyrology deals with the study of the textual inheritance of the ancient Mediterranean and its cultures, excluding inscriptions, graffiti and other ­epigraphic texts inscribed (though sometimes written in ink) on walls, stele or other non-moveable surfaces. While large numbers of papyri have been found by excavation (in some cases controlled, in other cases little more than papyrological treasure hunts), especially from the site of Oxyrhynchus, the vast majority of papyri were acquired on the antiquities market (Cuvigny 2009), and usually little is known about their precise provenience. Provenance (a term used somewhat inconsistently in the discipline to indicate the place of discovery) can, however, often

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be determined by their textual content, or investigation of their collection history. The trade in papyrus flourished in the late nineteenth and early twentieth centuries, with vast collections being formed in museums in major European powers (especially England, France, Germany and the Austro-­ Hungarian empire), as well as in a number of private collections (Hagen and Ryholt 2016). The trade in papyri has continued since then, largely unhindered by UNESCO conventions on the acquisition of cultural heritage, which were largely ignored within papyrology until they became the subject of discussion in the early twenty-first century. A resolution on the trade in papyri by the International Association of Papyrologists (Association Internationale de Papyrologues n.d.), while making many useful recommendations, did not explicitly recommend that its members should not participate in the trade in papyrus; one that did contain such a recommendation, by the American Society of Papyrologists (n.d.), has not been uniformly observed (Mazza 2015). The situation in the early days of papyrology, in which large lots of papyri were routinely purchased and a clear appetite existed among collectors and collecting institutions for them, provided fertile soil for the production and sale of fakes, which can now be found in most major collections.

Papyrus Fakes The motivations for forging artifacts are numerous. Even clumsy fakes, which fool non-specialists, can make quick money with little effort. Forgeries may also be more calculated and skillful attempts to make money, such as the ‘James Ossuary’ or ‘Jehoash Inscription’ (which remain under legal and academic debate (Kronfeld et al. 2013; Byrne and McNary-Zak 2009)), or the Sheikh Ibada sculptures, purportedly from late-antique Egypt (Török 2005, pp. 20–31; Harrell 2004). Forged antiquities may be attempts to perpetuate a grand joke on the academy or a rival, or to support a particular position: both the latter have been argued to be the case with the ‘secret gospel of Mark’ letter attributed to Clement of Alexandria, the status of which remains disputed (Burke 2013). Texts have been forged to support particular positions: these range from the ‘Donation of Constantine’ (which purported to grant the Catholic Church suzerainty over the Western Roman world (Bowersock 2007)) to the ‘Achtiname of Mohammad’ (a letter to the Monastery of St Catherine in the Sinai attributed to the prophet, which accorded various privileges to the monks (Moritz 1910, p.  91; Morrow 2013, pp.  65–98; pp. 205–222, a more sympathetic view)). Modern forgery of ancient texts and artifacts must be contextualized within multiple axes: pseudepigraphy and

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related creative authorial strategies (Ehrman 2012; Baum 2001; Burke 2017); the production of medieval and renaissance forgeries of legal charters and other texts (Mabillon’s primary target in the de re Diplomatica, see in general Grafton 1990); disputed artifacts such as the Shroud of Turin and other relics; and especially the continuing appetite for the private collection of antiquities in the twenty-first century. While the majority of forged papyri entered collections over 100 years ago, the contemporary problem of forged papyri should be contextualized within the increase in looting in Egypt that followed the 2011 revolution (Hanna 2015; Parcak et al. 2016). Papyri which have clearly recently been taken from sites in Egypt have been interdicted on the antiquities market within Egypt (Pintaudi et al. 2014) and the provenance of some recent purchases has been disputed (Mazza 2015). The pillaging of sites in Egypt must itself be set against the background of the massive upsurge of the looting and selling of illegally excavated antiquities that has taken place throughout the Middle East (including but by no means limited to areas controlled by ISIS) since the Arab spring (Rose-Greenland 2016; Brodie 2011; Brodie 2015; for background see Rothfield 2008; Almqvist and Belfrage 2016). It has been claimed that up to 70% of the antiquities seized by authorities in Syria and Lebanon are fakes, indicating that an escalation in the production of fake artifacts has accompanied the surge in looting (Cornwell 2016; Cockburn 2016; see also Stanish 2009). Alongside this must be positioned the booming antiquities trade in Israel and the occupied Palestinian territories, which has featured certainly looted artifacts, clearly or allegedly forged antiquities and a large amount of new ‘Dead Sea Scroll’ fragments that have appeared on the market since 2002. A number of the latter are suspected or have been shown to be forgeries (Davis 2016a, pp. 20–23; Davis 2017; Davis, Rabin et al. 2017; Tigchelaar 2016a, b). In this situation, forged papyri raise two issues: one concerns the contemporary antiquities market, where increasingly high prices for papyri are being generated by high-profile collectors (especially those interested in purchasing Judeo-Christian scriptures, such as the Museum of the Bible, Moss and Baden 2017). This provides an incentive for forging papyri, in particular biblical fragments. A considerable amount of forged papyri are also already in circulation, with an unknown number located in private collections, from where they can be circulated into the burgeoning trade in ancient manuscripts. In nearly every case, fakes on papyrus come through the antiquities trade, having been foisted on unsuspecting (and in many cases untrained or non-­ specialist) buyers or agents, often hidden among a larger lot of genuine papyri. Indeed, it is this lack of clear provenance that both makes accusations of forgery possible, and allows fakes to enter collections.

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At times even a papyrus found in archaeological context can be accused of being fake. The exact archaeological provenience of the Herculaneum papyri is sufficiently vague to allow the Carmen de bello Actiaco (P. Herc. 817) to be accused of being a nineteenth-century fake (Brunhölzl 1998), although it is certainly not (Radiciotti 2000). A set of elegiac poems written by Cornelius Gallus, the first Prefect of Egypt under the Roman Emperor Augustus, however, were found in secure archaeological context at the Roman fortress of Primis, modern Qasr Ibrîm, at the very edges of the Roman world in Upper Egypt (Anderson et al. 1979). Notwithstanding the excavator’s testimony, the papyrus had not long been published when it was accused of being a forgery, supposedly written on a piece of uninscribed (but genuine) papyrus from the site (Brunhölzl 1984; see also Holzberg 2001). The arguments for forgery have been shown to be wanting by several subsequent examinations (Blänsdorf 1987; Radiciotti 2000, p. 361, n. 4). Yet, that such arguments were possible is testimony to the suspicions often aroused when a papyrus appears that either does not fit expectations or seems ‘too good to be true’. Another such case, unfortunately somewhat more acrimonious, is provided by the Artemidorus papyrus (on which see below). Sometimes, accusations of a forged archaeological context appear to be correct. Excavations at the Roman site of Veleia, in northern Spain, supposedly unearthed a series of ostraca (inscribed pottery sherds) and inscribed bones in 2006. These were written in Latin, hieroglyphs and the Basque language, featuring depictions of the crucifixion along with other human and animal figures (database at ‘Ostracabase’ n.d.; excavator’s reports at Diputación Foral de Alava n.d.). A committee empaneled to assess their authenticity reported they were fakes, an opinion supported by a number of reports on various aspects of the ostraca. While scientific testing was inconclusive, a study of the text and script provided an overwhelming indication that the ostraca had been forged with materials found at the site, and were not found in the archaeological contexts specified by the excavators (Perring 2008; see the report archive at Diputación Foral de Alava n.d.). Notwithstanding these findings, there has been significant dissension about these findings from a range of sources, in particular those attracted by the apparent earliest evidence for the Basque language (see, e.g. Association Euskararen Jatorria 2012). As in other cases of what seemed to most to be obvious forgeries, engagement in peer-reviewed publications was not substantial (though see Gorrochategui 2011, 2012). This created a vacuum that was filled in part by online resources, some created by special interest groups fueled by suspicions that the accusations of forgery were motivated by ideological causes, such as discrimination against Basques, rather than proper study of the evidence.

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At the other end of the scale, sometimes fake papyri do not even exist: an article submitted for publication in Discussions in Egyptology in 1990 reported on a papyrus, which the Demoticist Mark Smith quickly realized was a version of the non-canonical Gospel of Thomas written in Demotic (a cursive form of the autochthonous Egyptian script, never used by Christians). Yet no sooner had the discovery been announced (Lane Fox 1991a), the text was revealed as a forgery (Lane Fox 1991b) and the article, which had been submitted by one ‘Batson D. Sealing’, was withdrawn from publication. In this case, an entirely fictitious publication in proceedings to a nineteenth-century conference had been produced (Walker 1875) to support the hoax (see also Depuydt 2014, pp. 177–178).

Forged Papyri: A Typology Typologically, forged papyri fall into several categories (Horak 1991, 2001; Coles and Gallazzi 1981; Schmidt 1938). It is notable that among the identifiable texts, there are remarkably few documents, with works of literature (‘literary texts’, in papyrological parlance) predominating. This is almost certainly because forgers know the latter bring more money: a small fragment of Christian scripture can bring a price in the hundreds of thousands of dollars, if not more (Mazza 2015, p. 119). However, many if not most of the texts composed of nonsensical ‘squiggles’ are ‘written’ to resemble documents in cursive script, or laid out to resemble magical texts, and were clearly intended to mimic them. As a corpus, forged papyri may be classified as follows.

Composites of Different Genuine Papyri A common variety of fakes, composites are constructed by sticking a number of smaller fragments of genuine papyri together, to create a larger piece for sale. Sometimes the pieces come from one original papyrus; in other cases, clearly separate papyri have been attached to one another (Coles and Gallazzi 1981, p. 100; Horak 2001, p. 54; 1991, p. 92). These are routinely (though not always) noticed in the course of conservation and inventorizing. At times, however, they may be disassembled and published, as the pieces may be interesting in themselves. One such example is the papyrus published by Lougovaya 2015, which was catalogued as the fragment of a letter it appears at first sight to be, but is in fact composed of four fragments from a copy of Homer’s Iliad.

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Simulated Script Perhaps the most common type of fake are nonsensical scribbles intended to mimic ancient writing. These bear a passing similarity to the untrained eye to Greek, or some other ancient script. The center of production of such papyri was traced by Schmidt to the Fayum (Schmidt 1938, pp. 373, 377), but they were sold widely in the Egyptian antiquities markets, especially in the late nineteenth and early twentieth centuries. When purchasing papyri in Egypt in early 1899, Lord Crawford, a renowned late Victorian bibliophile (Barker 1977), wrote to his librarian John Edmond: Within a hour of leaving Cairo an Arab brought me two wooden tablets with old papyrus writing fixed on them—I have seen nothing of the sort in the museum—I cannot read a word on them unknown characters to me—but I fancy they might be the Demotic. He asked £10 each & after severe struggle I got them for £4. (National Library of Scotland Acc. 9769, Crawford Muniments: Library Papers 71: 353 [4 May 1899])

This price, which might be the equivalent of several hundred pounds or more in today’s currency, is a wild overvaluation of what (as can be seen in the John Rylands Library, Manchester) is clearly nonsensical squiggles, written on papyrus pasted on a wooden board cut to resemble a stele. The style of script is a representative example of the type of ‘fake Greek’ frequently encountered in fakes produced in Egypt in the late nineteenth and early twentieth centuries, which can be readily paralleled in many other examples. Various levels of skill are evident, with pieces resembling to a greater or (more frequently) lesser degree actual ancient handwriting (Coles and Gallazzi 1981, pp. 100–102; Horak 2001, pp. 55–58; Schmidt 1938). The production of these fakes was clearly extensive: in the 1920s, Schmidt described finding an entire store full of fake papyri in Egypt, news which brought no little grief to the unfortunate merchant (Seider 1964, p. 161). Sometimes, these are on complete sheets of papyrus, but other times collages of blank (or mostly blank) papyrus have been fashioned for the purpose. Although this sort of fake seems easily recognizable, they can sometimes go unrecognized even by experts. Two papyri with incomprehensible series of letters were treated as genuine ‘magical papyri’ by the great German papyrologist Friedrich Preisigke (1912, pp.  134–136  =  P.Strasb. I 39–39a). Despite arriving in Strasbourg rolled, tied with string and sealed, they were immediately adjudged to be fakes by other scholars (see Horak 1991, p. 94; Coles and Gallazzi 1981, pp. 101–102; Preisendanz 1933, p. 199). Yet despite this, the

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papyri were described in the collections of magical texts by Preisendanz (1973–1974, II, p. 184 = PGM II 53–56) and Betz (1992, p. 284), where the suspicions that they were forgeries went unremarked upon and apparently unnoticed. The (correct) assertions that these were fakes were also overlooked by the editor of a Yale papyrus, written in the same ‘handwriting’ (Parássoglou 1974, pp. 57–59). The Oxford papyrologist A.S. Hunt, in notes in his personal copy (now in the Sackler Library Oxford), reported that it was from ‘Hafuta, of Hawara’, a site near the entrance to the Fayum (Coles and Gallazzi 1981, p. 102; Horak 1991, pp. 92–94). Parássoglou treated the Yale text as an ancient attempt to write in an ‘artificial script’, which he presumed was part of the ritual employed by the users of what he took (as did Preisigke) for magical papyri. He came, however, close to the truth in speculating that ‘it is possible, of course, that the author knew very well that he was employing a fake script in order to deceive the gullible and illiterate believers in magic’ (Parássoglou 1974, p. 58).

Papyri with Legible Text This type of forged papyrus is potentially more difficult to detect, and in some cases fakes have been published as genuine papyri. In the first category of cases discussed below, the papyrus follows a known model; in the second, new text is invented. The first category is comprised of cases in which the forger has copied a text that was already known. In many instances, the forger has an incomplete (or perhaps even non-existent) knowledge of the language being reproduced, and so makes mistakes that easily give away the papyrus as a forgery. In P. Mil. Vogl. inv. 1170, actual Greek letters (which do not, however, form any real words) intermingle with unreal letter shapes, and no coherent sense is provided (Coles and Gallazzi 1981, p. 102 with fig. 6). Other papyri have continuous text copied with varying degrees of success. A set of 20 leather sheets now in the Columbia University library incorporate the texts of previously published inscriptions from the Graeco-Roman Museum in Alexandria, as well as mummy label texts, combined with signs and characters intended to effect the appearance of a set of magical texts (Gilliam 1966). A clearly related set of forgeries, in the form of a parchment book, said by their owner to document the location of Alexander the Great’s tomb, were seen by Peter Fraser in Alexandria (Fraser 1961). The ensemble was apparently produced in Alexandria, or the environs, sometime in the mid-twentieth century and partly offered for sale to representatives of Columbia University. The other

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part fell into the hands of a Greek Alexandrian waiter and amateur excavator (in search of Alexander’s tomb), Stelios Komoutsos. These may be compared to a set of lead codices found in Jordan around 2006 (Wolchover 2011; cf. http://www.leadbookcentre.com) and a series of Syriac or Aramaic manuscripts, all written in gold ink on dark parchment or leather, which have surfaced regularly in Turkey and Iraq in recent years (Hardy 2015). One might also compare a number of forgeries of the Egyptian Book of the Dead, identifiable by their near-exact (if often unskillful) emulation of known copies of the text (Lucarelli and Müller-Roth 2014). Another forgery of the same type is presented by a fragment of the Gospel of John in the Lycopolitan dialect of Coptic, which was one  of the papyri from the collection of Walter Fritz sent to Harvard in 2012 with the so-called ‘Gospel of Jesus’ wife’ papyrus (on which, see below). While superficially convincing, several facts make the forgery clear (Askeland 2014, 2015). First, the text is identical to a version of the Gospel in the same dialect published in 1924, except in one place, where there is an odd reversion to the more standard dialectal form of a single word. More damningly, the lineation is identical to the previously published text, a practice that is almost unknown in antiquity between different copies of the same text. Based on the text as preserved, the reconstructed codex would also be unique in its dimensions (Emmel 2014). Finally, there is no other evidence that the dialect in question was still being used in the period to which the papyrus itself was carbon-dated (eighth century CE). The largest corpus of fake papyri (defined in the broad sense, see above) of one type are mummy labels on wood. These texts, which were buried with the mummy and provide the names of the deceased, sometimes accompanied by short religious texts, were recovered in massive quantities from Egypt, especially from the region of Akhmim in Upper Egypt. Being short texts written on a relatively available material, they were easily copied. Many such examples are known, in Greek and Demotic, identifiable by their exact (or near-exact, allowing for errors) reproduction of the text of an already-known mummy label (see e.g. Worp 2012, on two such fakes purchased in Thebes in 1882; or the many fakes noted in Vleeming 2011). Among literary fakes on papyrus, a Milan papyrus reproduces part of a poem of the poet Bion, with the text taken exactly from a published fragment of the poet (P.Mil.Vogl. inv. 1102, ed. Gallazzi 1979). This papyrus, whose script bears a striking resemblance to that of the ‘Gospel of Jesus’ wife’ (Jones 2015, p. 375), but is presumably entirely unrelated, displays well the practices that allow such fakes to be detected. These include the clear attempt to fit a known text onto an existing (small) piece of papyrus (with a shrinking interlinear

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space as the bottom of the papyrus approaches) and the accommodation of the letters to the already-damaged state of the papyrus (Gallazzi 1979, pp. 55–56). More competent results were achieved by the forger of a papyrus of the Odyssey in Strahov Library, Prague, copied from an almost identical papyrus in the British Museum. This mirrors not only the text and the handwriting, but interlinear corrections, paratextual features and lacunae in the original (Horak 1991, p. 97). It seems, however, not to have been copied from the original, or a full image of the papyrus, but from the reproduction of only part of the papyrus in a manual of paleography, published by Frederic Kenyon in 1899 (Kenyon 1899; see Horak 1991, p. 97). Finally, there are cases in which a forger has composed a text that does not yet exist. This is much more rare, and few such cases are known. The ostraca from Veleia (see above), which also form rare examples of documentary forgeries, may be considered in this category. If it was proved to be a forgery (an assertion which remains disputed), a short note on papyrus claiming to be the earliest mention of Jerusalem would be a comparable case (compare Israel Antiquities Association 2016 with Rollston 2016). Two further examples are provided by the so-called ‘Gospel of Jesus’ Wife’ and the papyri forged by Constantine Simonides. Both deserve to be examined at length.

The Gospel of Jesus’ Wife In a paper delivered at the International Association of Coptic Studies Congress in Rome in September 2012, Karen King, Hollis Professor of Divinity at Harvard University, presented a new fragment of Coptic papyrus. The text was a dialogue between Jesus and the disciples, a genre familiar from such ‘sayings gospels’ as the Gospel of Thomas. Along with references to Mary (presumably Magdalene), it contained the phrase ‘Jesus said to them “My wife…”’. Before making the text public, King had sought the opinion of two papyrologists and a specialist in Coptic linguistics, who declared the text ­genuine. Yet reaction from many attendees of the congress was that it was a forgery, mainly because of the unusual appearance of the handwriting, as well as mistakes in the grammar of the Coptic. The quickly observed extremely close relationship of the text to the Coptic Gospel of Thomas confirmed the inauthenticity of the fragment in the eyes of many commentators: not only did the text appear to be a ‘patchwork’ of sentences taken from the Gospel of Thomas, but it included what appeared to be the duplication of a typographical error in a widely used online text of the Gospel (Bernhard 2015). Formal publication of the text did not take place until 14 months later, after a battery

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of scientific tests had found nothing to definitively prove the text was a forgery (King 2014, published alongside the scientific reports; Goods and Swager 2014; Hodgins 2014; Yardley and Hagadorn 2014; an inconclusive paleographical report (Choat 2014) and a sharply critical argument for forgery (Depuydt 2014)). No sooner had this been published (and widely reported in the media, as had been the initial announcement of the text), other scholars showed that an associated fragment of papyrus containing the Gospel of John (discussed above), in what appeared to be the same handwriting (and about which the same scientific tests had raised no suspicions), was almost certainly forged (Askeland 2014). It followed that if the Gospel of John fragment was forged, so too must be the ‘Gospel of Jesus’ Wife’. These arguments, largely presented online, were drawn together in a special issue of New Testament Studies in 2015, which prosecuted the arguments for forgery from a range of perspectives, including the relationship with the Gospel of John (Askeland 2015); the text and papyrus of the ‘Gospel of Jesus’ Wife’ itself (Bernhard 2015; Schenke Robinson 2015); the scientific analysis of the ink and papyrus (Krutzsch and Rabin 2015); the context of its appearance (Gathercole 2015); and its place in the history of forgery (Jones 2015). Throughout the following year, debate was sporadic, consisting mainly of various blog posts further arguing the inauthenticity of the papyrus (one of which was later published as Bernhard 2017; for a bibliography including blogs and media coverage, see Brown 2017) and other scattered contributions (see e.g. Schwendner n.d.; Van Minnen 2014, p. 254). Only in June of 2016 was the issue settled, when journalist Ariel Sabar published a lengthy exposé, in which he showed that at least one of the documents provided to prove the text’s acquisition history had been forged by the owner, now identified as Florida businessman Walter Fritz (Sabar 2016a). King issued a statement the next day that this new evidence ‘tips the balance towards forgery’ (Sabar 2016b). In addition to responding—as forgeries frequently do—to contemporary cultural concerns (Goodacre 2017; Spittler 2017, pp. 349–363; Jones 2016), the ‘Gospel of Jesus’ wife’ affair marked a new stage in the academic ­discussion of forged papyri in several ways. At many points the debate was highly emotionally charged and it quickly aligned with existing fault lines, both within academia and in the wider community. The discussion spilled over from analysis of the papyrus itself into accusations of sexist language and arguments about scholarly ethics (Schroeder 2017; Mroczek 2014; Spittler 2017, pp.  363–373). The way the debate proceeded was instructive in another respect. Scientific evidence (testing of the papyrus and ink) was presented, which suggested the papyrus was not modern (although some of the studies themselves were more equivocal than the reports of them). The counter-­

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arguments, however, were based almost entirely on the traditional tools of philology, papyrology, codicology and text criticism (though see Krutzsch and Rabin 2015). The arguments for forgery were also largely prosecuted via social media, not conventional academic publications or traditional media, as the arguments against forgery were. Indeed, the primary debate took place not within journals and monographs, but across blogs and social media, in a time frame far too quick for traditional modes of publication to keep pace (McGrath 2017; Schroeder 2017). Yet, the arguments based on traditional scholarship turned out to be correct, and the decisive evidence was provided—as many had suggested since the beginning—by investigation of the collection history.

Simonides If—as should have happened—the ‘Gospel of Jesus’ wife’ had been rigorously compared with earlier examples of forged papyri, a case which prefigured key aspects would have become immediately familiar. As it happens, although various scholars had noted the relevance of the earlier affair, it took until 2015 for the name Constantine Simonides to be connected in an academic publication with the case (Jones 2015; on Simonides in general see Müller et al. 2017; Gastgeber 2001a; Schaper 2011; Elliot 1982; Farrer 1907, pp. 39–66, as well as many of the works by Canfora on the Artemidorus papyrus, see below). Simonides, who forged hundreds of manuscripts of many types between the 1840s and 1860s (and possibly beyond), was born on 11 November 1824, on the Greek island of Hydra (Stewart 1859, pp. 2, 74), or 5 November 1820, on Syme, as he later claimed (Diamantopoulou 2017b, pp. 306–307; Elliot 1982, p. 41). His early life included the study of calligraphy on Aegina, a stint working in a book printers in Athens, a period residing in the monasteries of Mt Athos in Greece (source of many ancient manuscripts) and the time spent in Russia and Istanbul (Mykoniati 2017; Diamantopoulou 2017b, pp.  307–314). Fleeing trenchant accusations of forgery in Greece (Mitsou 2017), in England in 1853, he successfully sold both authentic manuscripts (presumably stolen from Mt Athos) and those he had forged, which were refused by Frederic Madden at the British Museum but purchased by the bibliophile Sir Thomas Phillipps (Munby 1956, pp. 114–131; Pinto 2017, pp. 111–113). Leaving England in 1854, he passed through Paris, where his forgery of a biography of Nonnos of Panopolis supposedly from a work by Demetrius Magnes, On Poets and Writers of the Same Names (the manuscript of which Simonides claimed was in his possession), was swiftly uncovered by the Compte de Marcellus. This was partly because of anachronisms in Greek

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and partly because Demetrius lived five centuries earlier than Nonnos (Masson 1994; Hernández de la Fuente 2014). In 1855  in Leipzig, he presented the first witness to the (hitherto lost) Greek text of the Shepherd of Hermas, most of which (save three original leaves) was a handcopy made by himself. This confabulation was unraveled only when the actual manuscript was located some decades later (Berger 2017; Gastgeber 2017). He then perpetuated one of his most (initially) successful forgeries, convincing the great German Classicist Wilhelm Dindorf of the authenticity of a palimpsest manuscript of Uranius’ History of Kings of Egypt (Farrer 1907, pp. 45–53; Elliot 1982, pp. 123–131; Royal Society of Literature 1863). On the discovery of the fraud, when a pamphlet of Dindorf providing a sample of the work printed by Oxford University press had been placed in bookstores but not yet widely distributed, Simonides was arrested (Pinto 2017, pp. 114–115; Royal Society of Literature 1863, pp. 8–10). This was instigated by the great Egyptologist Karl Lepsius, but the biblical scholar Constantine von Tischendorf played no small role. Tischendorf had already crossed swords with Simonides over the Hermas manuscript and would do so again in the future (Berger 2017, pp.  132–134; Gastgeber 2017; Lykurgos 1856). At Simonides’ home were found all the tools necessary to fabricate the Uranius. Taken to Berlin, where he remained imprisoned for some time, he eventually escaped conviction (largely because the Berlin court disavowed jurisdiction in the matter, Royal Society of Literature 1863, pp. 8–17). After further travels and trenchant campaigns of letter writing and pamphlet publication in his own defense, he reappeared in England in 1860 (Pinto 2017; Mykoniati 2017, pp. 102–105). Having forged the Mayer papyri (see below), he spectacularly claimed to have forged no more than 20 years hence, the Codex Sinaiticus, the earliest full manuscript of the Christian bible, which had been recently revealed to great fanfare (Elliot 1982). That this had been discovered by Tischendorf himself only adds to the suspicion that the claim was made by Simonides to embarrass his enemy, but Tischendorf returned fire in the media and even more letters were sent to newspapers, mostly attacking (but not a few defending) Simonides. The latter also defended himself through a complex series of—presumably also forged—modern letters and other documents, including letters supposedly from an Alexandrian monk, Kallinikos (Elliot 1982, pp. 71–121). Simonides left England in 1864, and in 1867 it was reported that he had died of leprosy in Egypt. He was, however, reportedly seen alive after this date and 23 years later The Times published an obituary asserting he had died in the Greek monasteries of Meteroa in 1890 (Pinto 2017, pp. 123–124). Simonides was one of the most prolific forgers of ancient manuscripts yet known and certainly one of the most inventive. He presents a very different

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sort of figure to many forgers, in that his identity is fully known. Firstly, through his own scholarly works, which ran from large-format facsimile editions of his forgeries (Simonides 1861, 1864a, b) to journals, which he edited and was the sole contributor to. A list compiled in the Periplus of Hanno volume stretches to 42 works (including the Codex Sinaiticus)—there were certainly many more. Secondly, through a biography by one Charles Stewart, who has been widely suspected to be a pseudonym for Simonides himself (Stewart 1859). If so, the ruse was an elaborate one, as handwritten letters exist from an ‘H. C. Stewart’ to various parties, and John Eliot Hodgkin, an antiquarian and Simonides’ chief public defender, attempted to arrange a meeting at which both this Stewart and Simonides would be present. Finally, Simonides’ identity may be tracked through the debate over his manuscripts, prosecuted predominantly through letters to the editors of English and German newspapers in the 1850s and 1860s (for a selection, see Elliot 1982). As with the ‘Gospel of Jesus’ Wife’ debate, this dispute played out in the media, though this time the traditional media of the mid-nineteenth century. Simonides offers an almost unique chance to see a forger operating in full view of public opinion and allows a proper socio-historical contextualization of a debate over forgery. He is also one of the few people to have been prosecuted (though not convicted) for forging a manuscript. When Simonides arrived in Liverpool in the late 1850s, the jeweler and antiquities collector Joseph Mayer had recently acquired a large cache of papyri, which had been brought to England by the Rev. Henry Stobart, who was purchasing antiquities, including papyri, in Egypt in the 1850s (Simonides 1861, pp. 6, 9; Pinto 2017, pp. 117–120). So at least was the initial story: Simonides later admitted that they may have come from Joseph Sams (Simonides 1864a, p. 1). Various staff members at Mayer’s museum claimed to have seen the papyri as they were unrolled (Elliot 1982, pp. 159–160) and could thus vouch they were not forgeries. However, Simonides was allowed to take some of the papyri home, which would have allowed ample opportunity for him to wash off the existing text (or paste down the inscribed side and write on the back), which is plainly what took place. Not only do a small number of genuine Hieratic papyri survive (among them the famous Mayer A and B), but one papyrus preserves a section of Hieratic writing, which Simonides left on the papyrus. Counting separate fragments, which Simonides claimed were from the same roll or codex, 30 papyri forged by Simonides in this episode are known (for surveys, see Capponi 2008; Maraglino 2008). All are in the Liverpool Museum except for one in the British Library in London. There were certainly more: among the material kept with the papyri at Liverpool are facsimiles of papyri that do not now exist, and in his publications Simonides mentions

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papyri that are not now extant, some of which may never have existed. Apart from a small number of papyri, notably two fragments claimed to contain the ‘ethical writings from the Oracles of Zoroaster Magus’ (Simonides 1861, p. 8). Simonides’ papyri may be roughly divided into three groups, reflecting his three chief interests. The first are Biblical papyri, including fragments of the Gospel of Matthew and the epistles of Jude and James. These were published in Simonides 1861, in which he also refers to papyri bearing the gospel of John, the Letter of Aristeas, the Ecclesiastical History of Hegisippus, Genesis and rolls containing excerpts from various New Testament texts. All these, with the exception of the Aristeas (now in the British Library), are extant in Liverpool (Simonides 1861, pp.  7, 9, 72; Maraglino 2008; Elliot 1982, p.  122). Sadly ‘the Ten Commandments written in Greek and Egyptian Demotic characters’ (Simonides 1861, p. 7) have not been preserved, and probably did not exist. The second group are papyri treating of Greek history and geography, which reflect the perennial interests of the fiercely nationalistic Simonides (Diamantopoulou 2017a). Alongside a fragment from the end of Thucydides, the centerpiece of this group was the Periplus of Hanno, published in Simonides 1864b, in a volume which contained descriptions of around nine other such texts, some of which were published in Simonides 1864b (see also Simonides 1861, p. 75). The final major group were the letters, which Simonides variously counted as seven, six or eight, written by ‘Hermippus, son of Eumenides of Berytus’. There are eight which are still preserved in Liverpool. The majority of these letters relate to the interpretation of Egyptian history and especially the Egyptian language (and hence one wonders if Simonides actually had in mind Hermippus of Smyrna, who lived in Alexandria, Dorandi 2015). Simonides’ abiding interest in the ancient Egyptian language and culture can be traced through many of his publications, such as his self-published journal, Memnon, where he set forth at length his theories on Egyptian history and the decipherment of Hieroglyphs, which the letters of Hermippus naturally support (see also Simonides 1861, p. 36; Simonides 1864a, pp. 42–45; Simonides 1863). There are thus three types of forgeries on papyrus that Simonides produced: 1. Known texts of which he produced copies of, for example, the New Testament and Thucydides. 2. Texts reproducing works that partially survived, such as the Periplus of Hanno. 3. Texts entirely composed by Simonides, such as some of the other Greek historical and geographical works, and the letters of Hermippus.

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Simonides forged a wide array of texts over his long career: many of them were medieval manuscripts on parchment, vellum, such as those offered (unsuccessfully) to the British Museum, and later sold to Sir Thomas Phillips (Munby 1956, pp. 114–131). Others were texts that probably never existed, such as inscriptions or manuscripts found only in facsimiles, or in printed texts that Simonides claimed to have derived from them. While in Liverpool, Simonides forged texts on papyrus, extending his activities to those texts covered by the discipline of papyrology; others among Simonides’ creations on parchment could also be listed here. These include a Boustrophedon Homer he asserted was from the time of Peisistratus (sixth century BCE; see Munby 1956, p. 123) and a parchment roll of Aeschylus’ Persae (whose alleged date is not known), seen first in Egypt in 1871 and immediately denounced as a Simonidean forgery by Friedrich Ritschl (1872). A less well-known example is a bifolium leaf from a codex containing eight columns of Palaephatus’ De incredibilibus, as well as a biographical account of the author. This was purchased in Egypt in 1859 by the expatriate English merchant and antiquities collector A.C.  Harris and published from Harris’ handcopy by Giuseppe Botti (1905). Soon afterward, however, it was suspected of being Simonides’ handiwork (Ricci 1909, p. 347; see already Girolamo Vitelli in a footnote to the posthumously published edition of Botti 1905, pp. 155–156). Despite Simonides’ disappearance from public view in the mid-1860s, mentions of him in the media continued well into the twentieth century, helped along by various events, such as the publication of Andrew Farrar’s literary forgeries in 1907, which was a somewhat sympathetic picture of Simonides; the purchase by the British library in 1933 of Codex Sinaiticus, which reopened allegations that it was forged; and, judging from the amount of articles in newspapers in the early decades of the twentieth century, the public’s enduring appetite for reading about literary forgery. One article in the Daily News in Perth, Australia, from 1934, ends by asserting ‘And so ends the story of the man who was not only a great forger but a great scholar’. This continued respect for Simonides’ knowledge and skills recurs again and again and warns us that he should not be dismissed lightheartedly, or regarded only as a disreputable scoundrel, despite his duplicitous activities. Most recently, Simonides has been invoked repeatedly in the debate over the so-called Artemidorus papyrus. This long papyrus roll was first revealed to the world in 1998 and was finally published ten years later, after it had passed from private hands to the Egyptian Museum in Turin, having been purchased by an Italian Bank. It features a map of an unknown region, and a series of excerpts from geographical works. One of these comes from the Geographia of Artemidorus of Ephesus, another from an unknown work. Amongst the col-

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umns of text and also on the verso can be found a series of drawings of animals (real and imaginary) and human body parts (Gallazzi et al. 2008; for the correct arrangement of the fragments, see D’Alessio 2009). Since before it was published, Luciano Canfora and scholars associated with him have relentlessly maintained, in an extensive series of contributions, that the text is a nineteenth-­ century forgery by none other than Simonides (Canfora 2008a, b, 2010, 2011, 2013; these are no more than a representative sample). Canfora and his colleagues (for a review of the case for forgery, see Condello 2011) presented arguments for forgery on multiple fronts, including (allegedly) the avoidance of existing holes in the papyrus; the presence of graphite on the papyrus; the similarity to works of geography written in the nineteenth century; the highly unusual nature of some of the Greek (especially in the so-called proem); the similarity to known textual and pictorial compositions of Simonides; the contested collection history of the papyrus (including the assertion that early photographs of the papyrus were themselves digitally altered); and the seemingly perfect fit with Simonides’ known interest in geography (see above). Simonides’ papyri were consulted (Capponi 2008) and multiple archives concerned with him were combed. While this theory gained some support (e.g. Janko 2009), it is now generally accepted that the papyrus is genuine and comprehensive counter-arguments have been made (Brodersen and Elsner 2009; D’Alessio 2009; Gallazzi and Kramer 2012). The papyrus also presents a very different physical impression to Simonides’ known papyri, to the extent that it is extremely difficult to believe that the person who we know created the Mayer papyri could have produced the Artemidorus papyrus. Thus, while some of the drawings look to the untrained eye to be from a much later period and the Greek in the non-Artemidoran section is in places bizarre, the overall picture is one of a genuine—if highly unusual—ancient papyrus, which serves as a reminder that not everything which is unusual or otherwise unattested is fake.

Deauthenticating Fake Papyri As the cases of the ‘Gospel of Jesus’ Wife’ and Artemidorus papyrus show, the detection of allegedly fake papyri has proven contentious: on what grounds should determinations of authenticity be made? The ‘Gospel of Jesus’ wife’ case exposed tensions between scientific testing of papyrus and ink and the traditional expertise of paleography and philology (the study of ancient scripts and languages). As long ago as 11 February 1863, at a meeting of the Royal Society of Literature in London, in which a report on the Mayer papyri and

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Simonides’ Uranius was read, Samuel Birch, then head of the Egyptian and Assyrian branch of the British Museum, stated that […] the question of validity should not depend on the belief of a curator, but should be decided by the internal evidence of the documents themselves. There were two ways in which the genuineness could be proved or disproved—palaeographically and philologically. (“Contemporary Science” 1863, p. 180)

A series of chemists and other scientists engaged in both Germany and England to assess the authenticity of the Uranius manuscript (and in the case of one of the English scientists, Henry Deane, the papyri) either had their testimony that it was a forgery not accepted by others or affirmed its authenticity via their examinations (in the case of Deane, who later recanted). Thus, as Birch affirmed, it was the assessment of the script and language which provided the only clear proof. Expressions characteristic of modern Greek had been found in the Uranius and when the Mayer papyri were exhibited for members of the Royal Society of Literature in January 1863: It was remarked, inter alia, that there was a manifest similarity in the handwriting of the whole of the papyri, although these professed to be of various epochs differing by centuries; and that letters of very different dates and of widely distinctive character, were frequently found in juxtaposition in the same papyrus, to such an extent, that, had they been met with in any mediæval document, a manuscript containing them would undoubtedly have been rejected as spurious. Occasionally, too, the presumed ancient letters on the papyri bore a strangely suspicious resemblance to the characters of the modern Greek inscriptions placed over the head of each MS.; suggesting the idea that one and the same hand might possibly have written both. Again, it was noticed that the colour of the papyri was, with two or three exceptions, wholly different from that invariably found on genuine documents of the same professed age and character, offering the strong probability that the papyri had been purposely discoloured before the present writing was put upon them. Lastly, it was observed that portions of papyri of different textures had been joined together so as to make up one piece; while it was asserted by more than one observer, that papyri differing in date by more than a thousand years had been pasted side by side. In many places, where there were rents, natural or accidental, in the substance of the papyri, the writing on them was bent in such a manner as to fit the existing crack or hole; and occasionally, as in fragment No. 7, the writing has been written round a rent previously made. Attention was also called to the breadth of these pieces of papyrus, or, rather, to the unusual length of the lines of writing on the majority of them; a fact which would lead to much suspicion as to their genuineness on the part of those best versed in palæographic studies. (Royal Society of Literature 1863, pp. 4–5)

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It is striking that exactly the same debate took place over the ‘Gospel of Jesus’ Wife’, in which a considerable number of commentators were suspicious. This was in part because the Coptic text broke several rules of Coptic grammar, or was highly unusual in terms of how Coptic normally constructs sentences. The script, too, was unusual and did not well resemble any known ancient Coptic script (Choat 2014). While testing of the papyrus and ink was unable to decisively prove that the document was either a modern forgery or an authentic forgery, both autoptic examination of the papyrus itself and consideration of its text, and especially its relationship with the associated Gospel of John fragment, indicated it was a forgery. Just as in the 1860s, in 2014 and 2015, there was a reluctance on the part of scholars of ancient scripts and languages to accept the scientific testimony (partly based on arguments that it had been interpreted incorrectly, see Krutzsch and Rabin 2015). In the ‘Gospel of Jesus’ Wife’ case it was clear that the general public was more receptive to the scientific testing and the arguments based on philological, paleographical and textual analysis struggled to break through initially. While the case for forgery was eventually decisively proven, comment threads on media websites and similar fora displayed a clear receptivity on the part of the general public to the supposedly more ‘objective’ scientific opinion and against the subjective, emotional and possibly ‘biased’ judgment of humanities scholars. Notwithstanding the obvious fraud perpetuated by all producers of fake papyri, prosecutions for the forgery of antiquities (rather than illegal trading of presumed genuine ones) have been extremely rare. Leaving aside the unfortunate Hamon (whose execution was probably ultimately due to offenses other than his forgeries), Simonides remains the only person charged with having forged an ancient manuscript; yet, this was a medieval text, not a papyrus per se. The criminal trial in progress over the Veleia ostraca (see above), started only in 2017, after years of lengthy investigation and inconclusive debate, may yet result in a conviction, though on a broader charge than forging the ostraca themselves (SER Euscadi 2017; Carracedo 2017). Criminal charges were brought in Israel against Oded Golan, who was accused of forging a number of Hebrew inscriptions, but these were ultimately dismissed (Pappas 2012; Rosenfeld 2014). While some commentators have entertained the possibility that the owner of the ‘Gospel of Jesus’ wife’ could be prosecuted for attempting to sell a forgery, it is not clear that such a prosecution would be possible, much less successful. As Chappell and Polk note (2009, pp.  399–400), according to an influential precedent, forged written documentation is required for a successful charge of fraud. Those who could be proved to have forged provenance documents or excavation reports relating to

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fake papyri might conceivably be subject to prosecution under these interpretations, as might Simonides, whose forgeries were fortified by concentric layers of other fake texts. In the case of the vast majority of forged papyri, which came from nameless forgers who lived more than a century ago in Egypt, such prosecutions are self-evidently impossible and their handiwork is barely worth discussing in terms of criminal activity, notwithstanding nineteenth-century Egyptian laws against counterfeiting (Peters 1997, p. 73; 1990, p. 213). These, however, do not appear to have ever been applied in the case of the many fake antiquities (including papyri) that were being produced in this period (if indeed antiquities forgery was even in the minds of their promulgators). In the case of legal action involving accusations of fakery (a term problematically applied in legal and other contexts, see Chappell and Polk 2009, pp. 400–402), the dishonest intent to deceive is a critical, but in many cases difficult to prove, element of criminal prosecution (Chappell and Polk 2009, pp. 395, 400–401). Such intent is of course easy to intuit in the case of papyrus fakes, but often impossible to prove in the absence (as in most cases) of the person who actually constructed the forgery. Most dealers could simply plead ignorance when fakes are found among the lots of papyri they offer and it is clear that many are genuinely unaware that the papyri they are offering are not authentic. Charges are more likely to be brought (and convictions are notably more likely) for trading in illegally acquired antiquities than they are for forgery itself. In Roman Egypt, the crime of forgery, plastographia, was handled by the Prefect himself, the highest official in the land (Lewis 1995; Fournet 2016, pp. 72–75). This sense of the importance of the act and its potential to disrupt our understanding of the present and past has not lessened with time, and the forging of antiquities, including papyri and other ancient manuscripts, has remained a serious concern. Yet, as the very few prosecutions demonstrate, it is difficult to bring to justice those who produce such fakes—at times because the law is not adequate to deal with the case; at times because proof is wanting; but for the most part because they are anonymous creations of unknown forgers, sometimes long dead, who sit beyond the reach of the law and our knowledge.

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Jones, C.  P. (2016). A syntax of forgery. Proceedings of the American Philosophical Society, 160, 26–36. Kenyon, F. G. (1899). The palaeography of Greek papyri. Oxford: Clarendon. King, K. L. (2014). “Jesus said to them, ‘My Wife...’”. A new Coptic papyrus fragment. Harvard Theological Review, 107, 131–159. Kronfeld, J., Rosenfeld, A., & Feldman, H. R. (2013). Determining the authenticity of artefacts by oxygen isotope analysis. Open Journal of Geology, 3, 313–321. Krutzsch, M., & Rabin, I. (2015). Material criteria and their clues for dating. New Testament Studies, 61, 356–367. Lane Fox, R. (1991a, May 18). New light on the sayings of Jesus: A mysterious scrap of papyrus found in an obscure American journal may transform our knowledge of early Christianity. Financial Times. Lane Fox, R. (1991b, May 25). Batson comes out of the belfry: The history books may not have to be rewritten. Financial Times. Lewis, N. (1995). Un nouveau texte sur la juridiction du préfet d’Égypte. In On government and law in Roman Egypt. Collected papers of Naphtali Lewis (pp. 157–164). Atlanta: Scholars Press. Lougovaya, J.  (2015). A homeric collage in Columbia University’s rare book and manuscript library. Zeitschrift für Papyrologie und Epigraphik, 196, 13–16. Lucarelli, R., & Müller-Roth, M. (2014). Forgeries for the dead: Fake specimens of the ancient Egyptian book of the dead. In M.  Fitzenreiter (Ed.), Authentizität. Artefakt und Versprechen in der Archäologie. Internet-Beiträge zur Ägyptologie und Sudanarchäologie (Vol. 15, pp. 41–50). Lykurgos, A. (1856). Enthüllungen über den Simonides-Dindorfschen Uranios. Leipzig: C. L. Fritzsche. Mabillon, J. (1681). De re diplomatica (1st ed.). Luteciae Parisiorum: Billaine. Mabillon, J. (1704). De re diplomatica, Supplement. Luteciae-Parisiorum: Robustel. Maraglino, V. (2008). I papiri di Simonidis nella collezione Mayer. In L. Canfora (Ed.), Il papiro di Artemidoro (pp. 462–463). Rome and Bari: Laterza. Masson, O. (1994). Le faussaire grec C. Simonides à Paris en 1854, avec deux lettres inconnues de Sainte-Beuve et un récit du comte de Marcellus. Journal des savants, 2, 367–379. Mazza, R. (2015). Papyri, ethics, and economics: A biography of P.Oxy. 15.1780 (P39). Bulletin of the American Society of Papyrologists, 52, 113–142. McGrath, J. (2017). Slow scholarship. Do bloggers rush in where Jesus’ wife would fear to tread? In T. Burke (Ed.), Fakes, forgeries, and fictions: Writing ancient and modern Christian apocrypha (pp. 326–340). Eugene, OR: Cascade. Mitsou, M. (2017). Der entlarvte Fälscher: Konstantinos Simonides in Athen (1847–1851). In A.  E. Müller, A.  Katsiakiori-Rankl, L.  Diamantopoulou, & C.  Gastgeber (Eds.), Die getäuschte Wissenschaft: Ein Genie betrügt Europa  – Konstantinos Simonides. Vienna: Vienna University Press. Moritz, B. (1910). Sur les antiquités arabes du Sinaï. Bulletin de l’Institut d’Égypte, 5th series, 4, 87–101.

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27 The Gurlitt ‘Collection’ and Nazi-Looted Art Saskia Hufnagel and Duncan Chappell

Introduction: The Gurlitt Case After the 2017–2018 Exhibitions in Bern and Bonn The Gurlitt ‘hoard’—as it is most commonly called—was discovered in 2012 and first presented to the public in 2013. Since then, two attempts were made to find the rightful owners of the parts of the collection that could legally be determined as ‘looted’ before and during the Second World War (WWII). The first attempt was made by a team of German scholars right after the hoard was discovered. Of the 1566 artworks in total, 2 could be determined as looted and restituted to the victims. After Gurlitt died and bequeathed his collection to the Kunstmuseum Bern in 2014, the works remained mostly in Germany due to ongoing legal disputes, and a second team of experts—the Gurlitt Provenance Research Project at the Magdeburg German Lost Art Foundation—tried to trace the origins of the works of art, leading to a further four being returned to their rightful owners (Voss 2017). In July 2017 the first works were transferred to the Bern Museum (Hickley 2017). The Gurlitt collection included paintings by Pablo Picasso, Henri Matisse, Claude Monet,

S. Hufnagel (*) Queen Mary University of London, London, UK e-mail: [email protected] D. Chappell University of Sydney, Sydney, Australia © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_27

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Auguste Rodin, Gustave Courbet, Aristide Maillol, Max Liebermann, Adolph von Menzel, Camille Pissarro, Albrecht Dürer, Charles Eisen, Conrad Felixmüller, Henri Fantin-Latour, Edvard Munch, Paul Klee, Pierre-Auguste Renoir, Paul Signac, Max Beckmann, Otto Dix, George Grosz, Franz Marc, August Macke, Ernst Ludwig Kirchner and Otto Dix, and the fact that a Swiss Museum had inherited the collection clearly spurred an increase in provenance research in Switzerland while the find of the trove in Germany brought the restitution debate back into people’s conscience (Hickley 2017; Eddy 2017; Carey 2018; Gilbert 2018; Perlson 2017; Hoffmann 2017, p. 35). Today, there remain numerous cases unsolved, but the collection could basically be divided up in groups of works that are subject to different considerations. One group (1039) consists of cases that need to be further investigated to find the rightful owner. Another is the group where the provenance is too patchy to determine the original owner. A large group of works (231) is not part of investigations anymore as it could be determined that they were taken from German museums/public galleries and not looted from private persons or families (Gilbert 2018). Of these, 118 were acquired before 1933 and therefore were the first sent to the Kunstmuseum in Bern. In the remaining cases, the works of art were acquired after WWII and subsequent to the discharge of Cornelius Gurlitt’s father from allegations of war crimes or were dedicated to Gurlitt family members or painted by Gurlitt family members. The part of the collection that is still under review will hopefully find its way back to the former owners or their heirs in due course. To facilitate this endeavour, the Kunstmuseum in Bern is using the funds received from the Swiss government (SFr 200,000) to digitalise its archives from the era of the Third Reich to make them accessible to researchers and publish the provenance of its own collection so that victims or their heirs can determine whether their property has been found (Hickley 2017). In Switzerland, despite the establishment of the Bergier Commission investigating Nazi-looted art, the process has so far resulted in fewer than ten investigations and settlements (Carey 2018). In November 2017 two exhibitions were opened, one in Bonn and one in Bern, making the original paintings from the Gurlitt hoard accessible to a wider public. The exhibition in Bern focused on ‘degenerate’ art, its history and the appalling behaviour of governments even after WWII.  The Bonn exhibition centred around the family and especially the history of the father of Cornelius Gurlitt, Hildebrand Gurlitt and his reasons for acquiring the works (Dege 2017). The works exhibited in Bonn went beyond ‘degenerate’ art and included pieces that could have been bought for Hitler’s planned ‘Führermuseum’ in Linz, Austria (Vrdoljak 2016, p. 5). Hildebrand had been one of four chief dealers acquiring items for this museum, enriching himself

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in the process (Glover 2017). Both exhibitions were brought together in Berlin later in 2018 (Perlson 2017; Gilbert 2018; Die Zeit Online 2018). Considering the small number of works that have so far been returned from the Gurlitt hoard, the case has opened up questions about why both Allied forces and the Monuments, Fine Arts and Archives (MFAA), as well as German (and Swiss) authorities, have seemingly done so little, or been so ineffective, in finding artworks stolen by the Nazis. While it has been estimated that the Germans stole one-fifth of all art in Europe in the decade leading up to 1945 (650,000 artworks according to Schwartz 2018), the number of restitutions is disproportionately small (Gilbert 2018). One explanation is, of course, that most former owners have by now passed and their heirs have no knowledge that the pieces had once been in their possession (Ibid.). However, there were attempts immediately after WWII to repatriate all artworks that were misappropriated, most prominently by the MFAA (Vrdoljak 2016). Unfortunately, these efforts were largely ineffective. It has been claimed that at the time victims of Nazi crimes simply had other priorities than getting back their property. It has furthermore been alleged that most of the works hidden by the Nazi regime have simply not been found. An indicator for this was the hoard of 12,500 artworks found in a salt mine in Styria, Austria, by the MFAA at the end of WWII (Gilbert 2018). It was purely by chance that thousands of works hidden in the mine were discovered. Despite considerable efforts to retrieve his property after the war, the Jewish art dealer Paul Rosenberg, for example, was still missing 20 pieces of his collection in 1958. One reappeared at auction, another in the Gurlitt trove. This leads to a further explanation as to why many paintings are still missing: they may be by now in private hands and will never resurface for the purpose of restitution. The Gurlitt case is just one example of this latter explanation. The trove was discovered by pure chance and, some might claim, illegally even (Chappell and Hufnagel 2015). It is therefore important to explore this case further and broaden existing knowledge as to how missing pieces could be recovered and returned.

Investigating the Gurlitt Case Cornelius Gurlitt acquired his long-hidden collection from his father, Hildebrand Gurlitt, who died in a car accident in 1956 (Bohr et al. 2013b). A comprehensive article in the German magazine Der Spiegel established that Hildebrand had a Jewish grandmother, rendering him vulnerable under the so-called Nuremberg race laws to persecution (Bohr et  al. 2013b; see also

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Vrdoljak 2016, p.  7, Glover 2017). All art dealers had to register with the Reich’s Chamber of Fine Arts (Reichskammer der Bildenden Künste) and prove their Aryan descent (Hoffmann 2017, p. 45). Even though, or because of his Jewish ancestry, he forged deep Nazi ties and in particular was an associate of Karl Haberstock, Hitler’s private art collector, who for years engaged in the ruthless seizure of art treasures from occupied countries as well as Italy and Switzerland (Bohr et al. 2013a). It was made clear at the exhibition in Bonn that Hildebrand Gurlitt was one of four dealers chosen by the Hitler government to buy art either for Hitler’s planned ‘Führermuseum’ in Linz or select so-called ‘degenerate’ art that could be sold abroad for hard currency to fund the German war effort. Several thousand pieces of ‘degenerate’ art were burnt in 1939 (Gilbert 2018), a similar number is still missing (Glover 2017). Hitler furthermore enacted the ‘Führervorbehalt’, ensuring he got the first pick from all confiscated art collections (Voss 2017). While some works of art attracted the title ‘degenerate’ because of their modern style, works of art by Jewish artists were all considered ‘degenerate’ even if they were not ‘modern’ (Pound 2017). Gurlitt had been chosen as dealer for the regime for his international connections. He was to acquire artworks all over Europe. He was also deemed perfect for the position due to his knowledge of modern art, which he had demonstrated in various posts as museum director previously. Hildebrand had been an aficionado of modern art before the war and one of his life’s aims had been to generate interest for modern art in the wider population (Eddy 2017). He did this, for example, as director of the Zwickau Museum, curating exhibitions of modern art and, after the Nazis had spoiled his career in Zwickau, as director of a Hamburg museum, again costing him his post (Vrdoljak 2016, p. 3; Hoffmann 2017, p. 43). Having clearly fallen into disgrace with the Nazi regime, it seemed even more important to rekindle favourable treatment by becoming a Nazi art dealer, which subsequently led to various financial and other advantages. After losing his job twice, he had opened a private gallery selling art under the name of his wife (who did not have Jewish heritage) to generate business apart from his government dealer activities. Research into the collection showed that Gurlitt had, for example, bought paintings at the notorious 1939 Lucerne Auction in Switzerland where artworks were sold far under market value (Perlson 2017; Kreis 2017). After the conclusion of WWII, Hildebrand Gurlitt was questioned at length by MFAA officers about his association with Haberstock, and his dealings with looted art for the Hitler government. He was placed under house arrest and had to defend himself at the denazification tribunal in Bamberg, but was eventually released without any convictions and his art collection,

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which had been seized, was returned to him (all but three paintings) in 1950 (Petropoulos 2016, p.  557). Like Haberstock, he resumed work as an art dealer in postwar West Germany and became the director of the Kunstverein in Düsseldorf (Voss 2017; Gilbert 2018; Pound 2017; Schwartz 2018; Bohr et al. 2013a). Art was after the war more than once returned to former Nazis, like the Goering family, who successfully fought for their illegally obtained art to be returned (Schwartz 2018). Due to the German statute of limitations they became, rather perversely, the rightful owners of the art after 30 years. After Hildebrand’s death in a car accident, Cornelius inherited his eclectic collection and stored it in his flats in Munich and Salzburg. The reason why Cornelius had come to the attention of the German police and hence why the hoard was discovered were haphazard, leading to the conclusion that a lot of WWII-looted art is still safely in private possession and will never be returned to its rightful owners. Cornelius Gurlitt came to the attention of the authorities when he was on a journey he undertook to Switzerland where he had sold one of his paintings and deposited the money into a Swiss bank account. According to Gurlitt (Gezer 2013) he had gone over to Switzerland to take some money from his account back to Germany. The amount was €9000, even less than the legal €10,000 limit he was allowed to enter Germany with. The customs officers had been alerted to Gurlitt in 2010 on his return from Switzerland as he seemed to be hiding from them in the train toilets and was very nervous when questioned. Finding the €9000 seemed to then create reasonable suspicion for the Bavarian police/customs to request a search warrant for Gurlitt’s flat, which was granted in September 2011. His flat was searched and the paintings were confiscated in February 2012. The public only became aware of the case more than a year later (Ibid.; Bohr et al. 2013a). Following the seizure, Gurlitt initially insisted that all of the works were his and petitioned for their return. Later, in April 2014, Gurlitt entered into an agreement with the Bavarian authorities that the 1566 paintings that might potentially have been illicitly obtained could be evaluated by a specially established taskforce of 15 experts within a period of one year. He also pledged to return all works of dubious provenance to their rightful owners in return for keeping the balance of his collection. On May 6, 2014, Cornelius Gurlitt died. His will left all of his collection to the Kunstmuseum Bern in Switzerland (see in general Chase 2014; Gilbert 2018). The first taskforce established by the German government to look into the origins of the paintings was wrapped up in 2015. After two years, and a $2.5 million budget, they had traced the provenance of 11 of the works that

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had been seized in Gurlitt’s flats. The second taskforce, the Gurlitt Provenance Research Project, found in 2017 that out of 1039 works researched, 12 were proven or highly likely looted (Voss 2017; Gilbert 2018). The Kunstmuseum Bern was hesitant before accepting the works as it was aware of the legal issues as well as the burden to conduct a full review of the works’ provenance to ensure that no looted items were acquired by it. It finally accepted the inheritance, but the handover of the paintings was further delayed by a lawsuit in which a remote cousin of Gurlitt claimed Gurlitt had not been mentally fit to make his final will (which was eventually turned down) (Hickley 2017; Gilbert 2018). However, when accepting the inheritance, the Museum ensured it would, as had been the will of Cornelius, adhere to the Washington Principles. This meant the works could not be, and have at the time of writing still mostly not been, transferred to Switzerland, but had to remain in a specialised warehouse in Germany to be further examined with regard to their provenance (Dege 2017). The Washington Principles were agreed among 44 nations, including Germany, which attended a conference on Holocaust Era Assets convened in Washington, DC, in 1998 together with 13 NGOs (subsequently updated by the Terezin Declaration of 2009, see Carey 2018; Schwartz 2018). The meeting had been preceded by expressions of international concern that many of the thousands of artworks stolen by the Nazis had still not been restored to their original owners following the cessation of hostilities in 1945 (Hauser-­ Schäublin 2017, p. 329). Agreement was reached among the Washington participants on a set of 11 non-binding principles to assist in resolving disputes relating to Nazi-era art (Washington Conference on Holocaust Era Assets 1998). These principles emphasised among other things the need for nations to develop wherever possible alternative dispute resolution processes to resolve ownership issues; to provide resources and personnel to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently returned; to establish a central registry of such information; to make every effort to publicise art that was found to have been confiscated by the Nazis and not subsequently restituted in order to locate its true owners; and that, if the pre-war owners of confiscated art were found, steps should be taken expeditiously to achieve a fair and just solution of their claims (see Washington Principles and Gilbert 2018). In addition to the Washington Principles, two leading organisations of museums in the US, the American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) also developed sets of guidelines for their members, which were far more specific and directive in their

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scope and content. Both sets of guidelines emphasised the need for museums to use mediation wherever possible to resolve claims and ‘offer to resolve the matter in an equitable, appropriate, and mutually agreeable manner’ (AAMD 1998 at para D3). The AAM guidelines went further than this, acknowledging that ‘in order to achieve an equitable and appropriate resolution of claims, museums may elect to waive certain available defenses’ (AAM 1998 at para 4(f )). This latter exhortation appears to have attracted some controversy and has not been followed with any enthusiasm by some museums (Voss 2017). Courts in the US have also made it clear that these guidelines are just that—to assist museums to act ethically and legally on a case-by-case basis—and do not create any legal obligations or mandatory rules (see in general Gerstenblith 2008, pp. 586–592). The US courts’ approach towards the museum guidelines reflects, of course, the general weakness of self-regulatory and non-binding measures, both international and national, to deal with issues like this. The Washington Principles undoubtedly espouse noble ideals but critics have suggested that in reality they are ineffective ‘paper tigers’ (see, for instance, Plundered Art 2011). Indeed, there is little, if any, evidence to suggest that since 1998 and the establishment of the Washington Principles by international fiat, there has been any significant increase in the identification of stolen art dating from the Nazi era or in the settlement of claims regarding contested ownership issues by means of alternative dispute resolution. In the Gurlitt case a settlement along the lines of the Washington Principles was signed, which was taken on as a legacy by the Kunstmuseum Bern after his death, and, as a consequence, the investigation into the works of art and their provenance is not over yet and will hopefully result in further restitutions (Eddy 2017). The following part of the chapter will provide a more in-depth look into the international legal situation, before concluding with the specific German situation, had Gurlitt not settled to return paintings looted by Nazis freely.

Looting, Plunder and International Law The plunder of art has a long, if less-than-venerable, history. From Greek and Roman times, victorious conquerors enjoyed the right to seize their defeated foes, together with their goods and chattels including works of art of all sorts. However, this permissive attitude, while surviving for at least two millennia, has not proved to be ‘eternal’. At the conclusion of the Napoleonic Wars, the victorious British military leader, the Duke of Wellington, not only took the unprecedented step of ordering the return of artworks looted systematically

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by the French from the countries they had conquered but also refrained from sacking the remaining art treasures which lay in the Louvre Museum and elsewhere in France (see in general Miles 2008, pp. 319–348). This magnanimous act by Wellington near the beginning of the nineteenth century marks the general commencement of a new era of forbearance regarding the retention of their art and other cultural heritage by defeated powers, and the repatriation to their established owners of any such property acquired as a result of conflict. Unfortunately, this forbearance was not necessarily agreeable to everyone at that time, or since, and the plunder of art during periods of conflict has continued until the present day despite the best efforts of the international community to establish universal norms regarding the protection of cultural heritage. Nowhere has this been more graphically illustrated than in the era leading up to and including WWII when the Nazi regime in Germany engaged in what was without doubt the most egregious and widespread looting of art in human history (Gilbert 2018). The nature and extent of this looting have been very well documented elsewhere (see, e.g. Nicholas 1994), as have the efforts made since the defeat of Germany in 1945 to repatriate this art to its rightful owners, many of whom were Jewish and among the millions who perished in the Holocaust. This repatriation has continued into the twenty-first century as the heirs of those whose property was forcefully acquired by the Nazis have sought to establish their legal claims to specific works which have been identified in both public and private collections across the globe. Even so, the great majority of legal claims have tended to take place before European and North American courts where the most substantial and rich art collections and collectors tend to be found. Most of the more contemporary efforts at repatriation have taken place without great fanfare or publicity beyond those more intimately and immediately involved. However, three recent but quite unrelated events have placed the issue of the repatriation of Nazi-looted art on the agenda of a number of nations, as well as that of the world’s media. First and foremost, authorities in Bavaria announced in November 2013 that they had discovered and seized a collection of 1566 artworks believed to have been confiscated by the Nazis in the 1930s and 1940s (a time when more than 23,000 works of art had been confiscated from public galleries and many more from private owners, victims of the Nazi regime, see Connolly 2017). The story was only revealed to the public more than a year after the seizure in an article in the German Focus magazine (Perlson 2017). The collection was said to be valued at $1.35 billion and some of the works were thought to be among those declared ‘degenerate’ by the Nazis, or stolen from or forcibly

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sold by Jewish art collectors (Vrdoljak 2016, p. 3). The works were in possession of a reclusive and elderly man, Cornelius Gurlitt, who was suspected of tax evasion (BBC 2013). The second event was the release, early in 2014, of a new American and German film, titled The Monuments Men and directed by and starring, among others, the US actor George Clooney (Huyssen  et  al. 2017, p.  2; Gilbert 2018). The film, which was heavily publicised and screened in many countries, was based loosely on a popular book (Edsel 2009), describing the work of the men and women from 13 nations who served between 1943 and 1951 in the Monuments, MFAA section of the Allied forces in Europe. Their initial remit was to mitigate combat damage, primarily to buildings of cultural significance, but as the war progressed their focus shifted to locating and protecting art and other cultural heritage items stolen or otherwise missing. At the conclusion of the war the MFAA spearheaded the huge restitution process for the art and allied works they had discovered (see in general Nicholas 1994; Edsel 2009). The third event was the timely and opportune opening in March 2014 at the Neue Galerie in New York City of an exhibition titled Degenerate Art: The Attack on Modern Art in Nazi Germany, 1937 (Peters 2014). The Neue Galerie show, which had been in development for a quite lengthy period, was the most extensive exhibition on this subject to take place in the US in several decades (Ibid., p. 10). One might hence claim that 2013/2014 was a time of heightened attention on Nazi-looted art and that since then the focus has shifted on other parts of the world. However, the Gurlitt saga went on and the recent and future exhibitions are likely to keep the memory alive. After outlining the background of the Gurlitt case as well as the international legal situation we will now turn our attention to the German legal responses and the most recent legal developments.

 hy Was So Little WWII-Looted Art Returned?— W German Responses Despite the existence of German restitution laws in cases of Nazi injustices (and MFAA efforts immediately after WWII), very few restitution cases have been successful to date. The German restitution laws in cases of Nazi injustices are special public/administrative laws. They were developed by German courts in the 1950s because judges considered civil law claims between private parties inadequate to compensate in cases of widespread and categorical state

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injustice (van Selle and van Selle 2012). According to a 2012 decision of the Bundesgerichtshof (highest German federal court competent in civil cases), claims under these specific provisions cannot be cut off by civil law statute of limitations. Rights under German restitution law in cases of Nazi injustices would hence always persevere, even if, like in the Gurlitt case, civil claims cannot be sustained. The Bundesgerichtshof decision (BGH Urt. v. 16.03.2012, Az. V ZR 279/10), which determined the viability of special restitution rights beyond civil law, concerned claims that the extensive poster collection of the Jewish dentist Hans Sachs, which had been confiscated by the Nazis in 1938, should be returned from the German History Museum in Berlin. Hans Sachs had managed to flee Germany and immigrate to the US during the war. After his death, his heirs demanded the return of his very valuable poster collection (or at least some of the posters) before the German courts. The court decision is of importance for the assessment of the Gurlitt case as it determines the hierarchy of claims under German law. In particular, the decision rules that even though administrative claims under special provisions on restitution claims in cases of Nazi injustices are available, the heirs can resort within this to civil claims against private parties (here the museum), which will not be precluded by the statute of limitations. It follows that the heirs of previous owners in the Gurlitt case would likely have had similar rights against Gurlitt before his death. The German law is hence not ‘powerless’ in cases of restitution for Nazi injustices. However, if purely focusing on German civil law provisions, there is no right to restitution. This seems to be a lacuna in German civil law when considering art crime cases that cannot be traced back clearly to cases of Nazi injustices. In the Gurlitt case the inability of German civil law to facilitate restitution did not become a major problem as Gurlitt, under major international pressure it was claimed, was willing to return looted paintings according to the Washington Principles. In April 2014, he signed an agreement to return property under the Washington Principles with the Bavarian state and the Federal State of Germany. Considering the past and current unwillingness of German and US (state) museums to return property under the Washington Principles, this was a major achievement, in particular as the principles do not apply to individuals (Voss 2017; Gilbert 2018). It was therefore never tested in this case whether civil law would have been able to support a return of the items to their rightful owners. The following assessment is hence a hypothetical scenario, whether, under German civil law, Gurlitt would have had to return the paintings had he been sued before a German civil court. The provisions under which restitutions could have been achieved are diverse. We will hence only address the most prominent ones. First, a right to

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restitution under German civil law can generally be justified if the buyer is barred from becoming the rightful owner of the paintings. According to § 1006 I 1 BGB (German civil code) the assumption is that the actual owner of an object is also the rightful owner. In the present case, Gurlitt was in possession of the paintings (they were found in his flat). It can hence be assumed that he was also the rightful owner. However, he could have lost possession when the paintings were confiscated. Through seizure of the paintings, the Bavarian state could have assumed actual possession of the paintings and Gurlitt could have lost his possession and thereby his ownership. § 1006 I 3 BGB prescribes that in such cases ‘indirect’ possession of the paintings is retained and under § 1006 I 2 BGB it is assumed that ‘indirect’ possession still gives right to ownership and that this right has not been transferred to the state. Gurlitt had hence not lost ownership when the paintings were confiscated. Another possibility to found a claim against Gurlitt would be to assert that he never became the rightful owner of the paintings. Under § 1006 I 2 BGB, if a former owner has ‘lost’ the object, he retains ownership. In these cases, the assumption of ownership of the previous owner would have prevailed for the duration of Gurlitt’s possession and Gurlitt would never have acquired ownership through possession (Hauser-Schäublin 2017, pp. 329–331). Another exception to Gurlitt’s legal ownership could exist if the legal act under which his father acquired possession of the paintings was void. In these cases, he would have never become the legal owner—despite actual possession—and the original owner (before Gurlitt’s father acquired the paintings—§ 1922 BGB) would always have remained the rightful owner. There are various possible scenarios under which the legal act leading to ownership of Gurlitt’s father (Hildebrand Gurlitt) could have been void. First, Hildebrand Gurlitt might have acquired the paintings after the previous owners were ‘dispossessed’ through a German law on ‘degenerate’ art (e.g. see Gilbert 2018). Had the previous owners been dispossessed, they would never have lost ownership as the ‘dispossession’ laws are in conflict with legality. In this scenario, Gurlitt’s father could also not have acquired ownership in ‘good faith’ as this possibility is excluded under German civil law if the objects are ‘lost’. In cases of Nazi dispossessions (as illegal state acts), the object is legally considered to be ‘lost’ and can therefore not be acquired in ‘good faith’. Gurlitt might hence not have become the rightful owner of the paintings if his father acquired them after acts of Nazi dispossession (Nicholas 1994; Hauser-­ Schäublin 2017, pp. 329–331). However, Gurlitt could still have become the legal owner through acquisitive prescription (adverse possession) according to § 937 BGB.  Under this

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provision of the German civil code an object transfers into anybody’s ownership after ten years of possession. It does not matter whether the person has been in good faith or not. The only exception to this rule—which has been introduced into German civil law to create legal certainty and reliability—is the ‘force majeure’ argument (§ 939 II iVm § 206 BGB). Had the paintings been transferred into Gurlitt’s possession through ‘force majeure’, adverse possession would not be possible and the original owners would have preserved their rights. However, this argument is not likely to be applicable if the paintings had been sold to Gurlitt’s father. Acquisitive prescription after ten years can only be excluded if Gurlitt (the son) had not been in ‘good faith’. Despite multiple assumptions with regard to Gurlitt’s knowledge of the paintings’ provenances his bad faith remained difficult to prove. It is hence most likely that Gurlitt would have been considered the rightful owner of most paintings in his possession had the matter reached the German civil courts. Gurlitt could furthermore not have acquired ownership of the paintings if the legal act by which ownership was transferred from the original owners to his father (e.g. sale) had been void or could be challenged according to § 138 BGB. Under this provision of the German civil law, if the act by which ownership is transferred was ‘immoral’, the transfer is invalid. For example, if a Jewish family wanted to flee Germany and was forced to sell all their belongings under market value, buying such items could from today’s perspective be considered immoral and render the legal transaction void. However, the buyer at the time would have to be aware that their actions were immoral. With a view to Hildebrand Gurlitt, this is a difficult question to consider. At the time when he bought the paintings, his acts were not considered illegal or immoral. However, subjectively, he and other dealers made a profit from the desperate situation of Jewish families (Vrdoljak 2016, p.  4). Hildebrand Gurlitt was himself one-quarter Jewish and he claimed that this was the reason why he collaborated with the Nazi regime and why his business had to be registered under his wife’s name (Pound 2017). It would have been difficult for him to claim that he was not aware of the immorality of his actions, seeing that he was himself supposedly a victim of the unjust regime. Furthermore, the paintings that were bought by Hildebrand Gurlitt after 1937 were bought from fleeing families who sold their belonging far under market value (Nicholas 1994) and the act could therefore, even at the time, be considered immoral because of so-called fault of equivalence (mismatch between the price and the actual value). If the relationship between price and value is significantly out of proportion, the legal act is generally considered void under German civil law. Gurlitt would hence not have acquired ownership of the paintings.

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An example of ‘fault of equivalence’ from the Gurlitt hoard are the nine Menzel drawings that Hildebrand Gurlitt bought in 1938 from the Cohen family in Hamburg for only ℛℳ 2550. While accounts of the story behind the sale differ, the family likely needed to sell the drawings to pay the imposed ‘Jewish wealth levy’ (Bohr et al. 2013b) and finance their emigration to the US (Pound 2017).1 In such a situation, today’s German law would protect the seller both by the immorality of the transaction clause and by the ‘fault of equivalence’ clause. Another reason why there was de facto dispossession in particular of foreign owners of the paintings was the inflated exchange rate of the German Reichsmark, for example, with a view to the French Franc at the time. The exchange rate majorly distorted the prices of the art that Gurlitt bought abroad (Petropoulos 2016). This could represent another aspect of ‘immorality’ of the transactions. Also, any transfer of ownership by the original owners to Gurlitt’s father could have been void as sales were executed under ‘unlawful threat’ (§ 123 I Var 2 BGB). Had the Jewish owners sold their property to Gurlitt’s father because the situation under the unjust regime threatened them to do so or they were more directly threatened to sell their property by the German government at the time (Nicholas 1994), these legal acts would have been void. However, for these claims the statute of limitation starts when the threat ends, hence, with the end of WWII. According to § 124 I BGB, the legal act needs to be challenged within one year after the end of the threat. This was obviously impossible considering the situation of potential Jewish claimants at the end of the war. Even if the statute of limitations is precluded under §§ 124 I 2, 206 BGB (‘force majeure’), that only gives a timeframe of ten years for the legal acts to be challenged, which, under the circumstances at the time, was in most cases impossible. Due to the statute of limitations in German civil law, Gurlitt would have become the rightful owner of the paintings. It follows from the assessment so far that restitution according to §§ 985 or 1007 II BGB is most likely to be unsuccessful as Gurlitt has become the rightful owner of the objects. An exception can be considered the challenge of the statute of limitations if the loss of the paintings was related to ‘force majeure’. However, if there had been a legal (or even illegal) act to transfer ownership rights between the original owners and Gurlitt’s father, it is highly likely that German civil courts would have decided in favour of Gurlitt’s ownership. This is further supported by the fact that Gurlitt most likely acquired adverse   See also Project Gurlitt at https://www.kulturgutverluste.de/Content/06_ProjektGurlitt/_ORE/ Menzel_ORE_478264.pdf?__blob=publicationFile&v=10. 1

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possession after ten years according to § 937 BGB, which will in most cases not be challenged by the ‘force majeure’ argument. However, if the paintings had been acquired by Gurlitt’s father through an illegal act, there could be a possible right to compensation (which is the fall-­ back position in German law if restitution is impossible) under §§ 989, 990 BGB. However, claims for compensation are subject to statute of limitations of 30 years. Considering that 30 years have long passed since the illegal act, there is also no right to compensation—at least not under the German civil code alone. Another possibility, although this construction is the most far-fetched of all scenarios considered so far, could be that Gurlitt’s father never himself became the owner of the paintings as he was acting on behalf of the German state and therefore the objects could still belong to the current German state as legal successor of the German government at the time under § 667 (and § 1922) BGB. Had Gurlitt’s father been commissioned by the government to buy the paintings he or his son would never have acquired ownership and restitution under §§ 985 or 1007 II BGB could be possible. However, under §§ 199 V or 937 BGB, the statute of limitations to claim property back from Gurlitt’s father expired within ten years. Furthermore, according to the laws on prescriptive acquisition, Gurlitt would have become the owner after being in possession of the paintings for ten years. It follows that even if it is assumed that Hildebrand Gurlitt never owned the paintings, restitution is ‘legally impossible’. With regard to civil law claims it can hence be concluded that it would have been extremely difficult, if not impossible, to force the return of the paintings from Gurlitt. However, as pointed out in the beginning of this section, the return of the paintings could be claimed under special laws on restitution for Nazi injustices, taking the since 2012 newly opened civil avenue against a private party. Also, Gurlitt had manifested a willingness to return the paintings through an agreement with the Bavarian and federal German states along the lines of the Washington Principles. As the court stressed in the above-cited 2012 Bundesgerichtshof decision concerning the Sachs posters, decisions on restitutions in WWII cases need to be considered on a case-bycase basis. German courts are more likely to be on the side of the claimants in such cases. This is furthermore stressed by the fact that the Sachs family had already received compensation for the loss of the collection in a court case of 1961. Despite being compensated for the loss of the collection, their claim to return the posters was also granted. It therefore seems that claims against Gurlitt might have been equally successful, despite the dire situation under German civil law.

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Discovering the Gurlitt Trove Another major legal concern in the Gurlitt case was the way police discovered it. With regard to the German criminal and criminal procedural rules that were used to justify the search and seizure of Gurlitt’s property, it could be doubted whether the German state dealt with this matter in an appropriate manner. To search a home, like in most civil (and common) law systems, German criminal procedure requires a ‘reasonable suspicion’ that the suspect has committed a crime. Furthermore, to confiscate objects, these need to be related to the crime committed. If someone is suspected for murder and police are searching for a knife, they cannot confiscate a flower vase. The legal situation leading up to the discovery of the Gurlitt hoard is hence an interesting aspect to be addressed at the end of this chapter. Finding €9000 on Gurlitt in a train from Switzerland to Germany seemed to create reasonable suspicion for the Bavarian police to request a search warrant for Gurlitt’s flat, which was granted in September 2011. His flat was searched and the paintings were confiscated in February 2012 (Gezer 2013). The first question that arises is whether the search warrant was legal. Under German law (§ 102 Strafprozessordnung—Code of Criminal Procedure) a search warrant has to be based on a ‘reasonable suspicion’. The criminal offence underlying the search warrant was tax evasion. It seems unlikely that the fact that Gurlitt, an old fragile man, travelling alone on a train with €9000, which is not a criminal offence, would already have raised reasonable suspicion for tax evasion, let alone the level of suspicion relevant under German law to justify the granting of a search warrant for his flat by a German court. The right to privacy, in particular of the home as the most private sphere, is a high-standing civil right in Germany that can only be limited in extreme cases (Article 13 German Basic Law or Grundgesetz). It is rather surprising that a German judge saw it necessary to allow the search of a flat under the circumstances. However, even considering the search warrant was legal, the confiscation order certainly was not. According to the German Constitutional Court all items to be confiscated need to be defined in the required warrant (Beschluss vom 03.09.1991 - 2 BvR 279/90 - NStZ 1992, S. 91). Considering that in the present case police were looking for evidence for tax evasion, they would not have specified more than 1200 paintings in the warrant. Gurlitt’s lawyers had put in a complaint against the warrant that encompassed 45 pages and

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named various reasons for the illegality of the confiscation.2 For any criminal lawyer the illegality of the warrant appeared blatantly obvious—apart from the Augsburg prosecution services. Most striking is the disregard for the principle of proportionality. This principle prescribes that a state measure that infringes basic rights needs to be proportionate to the crime committed. The possible tax evasion of a train traveller with €9000 in his pocket is likely to be disproportionate to the raid of an old man’s house. In the end, even the Bavarian prosecutor might have felt a bit uneasy about this and ordered all paintings that were clearly not subject to restitution claims to be returned to Gurlitt. By that stage, it was unfortunately too late, for both Gurlitt and the German state. While Gurlitt died before the paintings had been returned to his home, he also determined in his will that all of his paintings should be given to a museum in Switzerland (Röbel and Sontheimer 2014). None of his valuable paintings became the property of the German state. In many ways, the Gurlitt case seems to be a story of tragic losses and little legal remedies.

Conclusion One lesson that could be learnt from the Gurlitt case, and from the story of Gurlitt’s father in particular, is that dealers in art seem to have no inhibition to trade in looted objects. A number of studies on the trade in WWII-looted art have clearly shown that there was a lively exchange of confiscated objects (Petropoulos 2016, p. 547). This should be kept in mind when tackling modern problems in the field, such as trade in looted objects from Syria, Iraq, Libya and Afghanistan. As a result of the Gurlitt case, legal changes have been affected. Bavaria since has tried to introduce laws on restitution into their civil code to implement better protection of WWII victims in art crime cases. Other German states are opposed to such changes of the law and consider them unconstitutional (Voss 2017, pp. 58, 66). The German Limbach Commission dealing with restitutions from museums is continuing its work and has certainly received more attention since the Gurlitt case. However, it has to be noted that the Commission needs to be approached by museums themselves in cases of doubtful provenance and has between 2003 and 2017 given its non-binding advice in only 12 cases (which, in fairness, was always followed by the museums seeking advice). As a result  See at http://www.gurlitt.info/de/pressemitteilungen/pressemitteilung-19-02-2014.html.

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of the Gurlitt case the Commission was enlarged in 2016 (Voss 2017, p. 67; Huyssen et al. 2017, p. 3). Museums in Europe have put a greater focus on looting since the Gurlitt case, either by displaying works of art that were looted from them (such as the Louvre) or by putting a greater emphasis on provenance research regarding their own collections (such as the Victoria and Albert Museum) (Gilbert 2018). Systematic reviews and returns according to the Washington Principles remain, however, rare (Huyssen et al. 2017, p. 5). It has cynically been pointed out that the German federal state and Bavaria have demanded far more from Gurlitt as a private person than they ever have from any museum under the Washington Principles (Voss 2017, p. 70). As Huyssen et al. (2017, pp. 1–2) put it in their article on Nazi-looted art and its legacies, the Gurlitt case shows the problems of ‘a largely secretive and insufficiently documented market in looted art, the complicity of art historians and business associations, the shortcomings of postwar denazification, the failure of courts and governments to adjudicate claims, and the unwillingness of museums to determine the provenance not just of Cornelius Gurlitt’s holdings, but of thousands of artworks looted by the Nazis across Europe’. While there is little legal basis under German civil law for restitution, the 2012 Bundesgerichtshof decision seems to have been a turning point. Of course, all cases have to be considered on a case-by-case basis; however, the threshold seems to be lowering. For the first time since the 1950s the courts in the Sachs case allowed for a civil restitution to be conducted under the requirements of the special provisions for Nazi injustices. This could be a major breakthrough in German restitution cases. From the Gurlitt trove only a few restitutions can be reported so far. These include Henri Matisse’s Seated Woman, Max Liebermann’s Riders on the Beach, Adolf von Menzel’s Interior of a Gothic Church and Camille Pissaro’s The Seine and the Louvre. Works by Edvard Munch, Pierre-Auguste Renoir, Auguste Rodin and Paul Signac are still under investigation. Paul Cézanne’s La Montagne Sainte Victoire is at the time of writing subject to a legal dispute with the Cézanne family who demand its return (Voss 2017; Connolly 2017; Bohr et al. 2013a). Lastly, despite public attention and improvements in provenance research in Germany and Switzerland that were spurred by the Gurlitt case, not many more restitutions have resulted from it. As time is running out for the victims and their families, these efforts might have simply come too late.

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Bibliography American Alliance of Museums (AAM). (1998). Guidelines concerning the unlawful appropriation of objects during the Nazi era. AAM. Retrieved July 31, 2018, from http://www.aam-us.org/resources/ethics-standards-and-best-practices/collectionsstewardship/objects-during-the-nazi-era. Association of Art Museum Directors (AAMD). (1998, June 4). Report of the AAMD task force on the spoliation of art during the Nazi/World War II era 1933–1945. AAMD. Retrieved July 31, 2018, from https://aamd.org/object-registry/resolution-of-claims-for-nazi-era-cultural-assets/more-info. BBC News Europe. (2013, November 3). Nazi looted art found in Munich – German media. BBC. Retrieved July 31, 2018, from http://www.bbc.com/news/worldeurope-24794970. Bohr, F., Gezer, Ö., Gorris, L., Knöfel, U., Röbel, S., Sontheimer, M., & Winter, S. (2013a, November 11). Phantom collector: The mystery of the Munich Nazi art trove. Der Spiegel Online. Retrieved June 19, 2018, from http://www.spiegel.de/ international/germany/the-mystery-of-the-gurlitt-family-and-the-munich-naziart-find-a-932899.html. Bohr, F., Gorris, L., Knöfel, U., Röbel, S., & Sontheimer, M. (2013b, December 23). Art dealer to the fuhrer. Hildebrand Gurlitt’s deep Nazi ties. Spiegel Online. Retrieved May 30, 2018, from http://www.spiegel.de/international/germany/hildebrand-gurlitt-and-his-dubious-dealings-with-nazi-looted-art-a-940625.html. Carey, J.  M. (2018, April 19). Book review: Modern masters and the Gurlitt status. Museum Bookstore. Retrieved June 19, 2018, from https://www. museumbookstore.com/blogs/book-review/book-review-modern-mastersand-the-gurlitt-status. Chappell, D., & Hufnagel, S. (2015). The Gurlitt case: German and international responses to ownership rights in looting cases. In J. D. Kila & M. Balcells (Eds.), Cultural property crime: An overview and analysis of contemporary perspectives and trends. Brill: Leiden. Chase, J. (2014, May 7). Unanswered questions abound after death of “art hermit” Gurlitt. DW. Retrieved July 31, 2018, from http://www.dw.de/unanswered-questions-abound-after-death-of-art-hermit-gurlitt/a-17615933. Connolly, K. (2017, October 27). Works hoarded by son of Nazi art dealer to go on public display. The Guardian. Retrieved June 19, 2018, from https://www.theguardian.com/world/2017/oct/27/works-hoarded-by-son-of-nazi-art-dealer-cornelius-gurlitt-to-go-on-public-display. Dege, S. (2017, June 30). Shipment to Switzerland of ‘Degenerate Art’ from Gurlitt trove delayed. Deutsche Welle. Retrieved June 19, 2018, from http://www.dw.com/ en/shipment-to-switzerland-of-degenerate-art-from-gurlitt-trove-delayed/ a-39495176.

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Eddy, M. (2017, June 27). First public showing of Monet, Rodin and Maillols from Gurlitt trove. New York Times. Retrieved June 19, 2018, from https://www. nytimes.com/2017/06/27/arts/design/first-public-showing-of-monet-rodin-andmaillols-from-gurlitt-trove.html. Edsel, R. (2009). The monuments men. Allied heroes, Nazi thieves, and the greatest treasure hunt in history. New York: Center Street, Hachette Book Group. Gerstenblith, P. (2008). Art, cultural heritage, and the law. Cases and materials. Durham, NC: Carolina Academic Press. Gezer, Ö. (2013, November 17). Interview with a Phantom: Cornelius Gurlitt shares his secrets. Spiegel Online. Retrieved July 23, 2018, from http://www.spiegel.de/ international/germany/spiegel-interview-with-cornelius-gurlitt-about-munichart-find-a-933953.html. Gilbert, S. (2018, March 11). The persistent crime of Nazi-looted art. The Atlantic. Retrieved June 19, 2018, from https://www.theatlantic.com/entertainment/ archive/2018/03/cornelius-gurlitt-nazi-looted-art/554936/. Glover, M. (2017, November 7). Nazi art theft: How Hitler’s art dealer amassed looted paintings to save his own skin. The Independent. Retrieved June 19, 2018, from https://www.independent.co.uk/arts-entertainment/art/features/hitler-hildebrand-gurlitt-cornelius-gurlitt-nazi-art-theft-a8041501.html. Hauser-Schäublin, B. (2017). Ethnologische Provenienzforschung – warum heute? In L. Förster, I. Edenheiser, S. Fründt, & H. Hartmann (Eds.), Provenienzforschung zu ethnographischen Sammlungen der Kolonialzeit  – Positionen in der aktuellen Debatte (pp.  327–333). München: Arbeitsgruppe Museum der Deutschen Gesellschaft für Sozial- und Kulturanthropologie. Hickley, C. (2017, July 23). Gurlitt bequest spurs provenance research in Switzerland. The Artnewspaper. Retrieved June 19, 2018, from https://www.theartnewspaper. com/news/gurlitt-bequest-spurs-provenance-research-in-switzerland. Hoffmann, M. (2017). Hildebrand Gurlitt and his dealings with German museums during the “Third Reich”. New German Critique, 44(1 (130)), 35–55. Huyssen, A., Rabinbach, A., & Shalem, A. (2017). Nazi-looted art and its legacies: Introduction. New German Critique, 44(1 (130)), 1–7. Kreis, G. (2017, October 26). Die diskreten Schweizer Geschäfte des Hildebrand Gurlitt. Neue Zürcher Zeitung. Retrieved June 19, 2018, from https://www.nzz. ch/feuilleton/die-diskreten-schweizer-geschaefte-des-hildebrand-gurlittld.1324331. Miles, M. (2008). Art as plunder: The ancient origins of debate about cultural property. New York: Cambridge University Press. Nicholas, L. (1994). The rape of Europa. The fate of Europe’s treasures in the Third Reich and the Second World War. London: Borzoi Books. Perlson, H. (2017, November 3). Hildebrand Gurlitt built a brilliant trove of art under the Nazis. Two new exhibitions show his taste, and his duplicity. Artnet News. Retrieved June 19, 2018, from https://news.artnet.com/exhibitions/gurlitttrove-bern-bonn-shows-1137587.

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Peters, O. (Ed.). (2014). Degenerate art. The attack on modern art in Nazi Germany 1937. New York: Prestel and Neue Galerie. Petropoulos, J. (2016). Art dealer networks in the Third Reich and in the postwar period. Journal of Contemporary History, 52(3), 546–565. Plundered Art. (2011, June 25). Revisiting the Washington conference principles on Nazi confiscated art – 13 years later. Plundered Art – A perspective from the Holocaust Art Restitution Project. Retrieved July 31, 2018, from http://plundered-art. blogspot.com.au/2011/06/revisiting-washington-conference.html. Pound, C. (2017, December 13). The Nazi art hoard that shocked the world. BBC Culture. Retrieved June 19, 2018, from http://www.bbc.com/culture/ story/20171212-the-nazi-art-hoard-that-shocked-the-world. Röbel, S., & Sontheimer, M. (2014, May 6). Kunsterbe Cornelius Gurlitt: Tod eines Phantoms. Spiegel Online. Retrieved July 23, 2018, from http://www.spiegel.de/ kultur/gesellschaft/nachruf-auf-cornelius-gurlitt-a-967943.html. Schwartz, M. (2018, January 31). Face to face with the Gurlitt hoard. Apollo Magazine. Retrieved June 19, 2018, from https://www.apollo-magazine.com/ face-to-face-with-the-gurlitt-hoard/. van Selle, D., & van Selle, C. (2012, March 19). BGH-Urteil zur Sammlung Sachs – Eigentum an NS Raubkunst kennt keine Fristen. Legal Tribune. Retrieved July 23, 2018, from http://www.lto.de/recht/hintergruende/h/bgh-urteil-zur-sammlungsachs-eigentum-an-ns-raubkunst-kennt-keine-fristen/. Voss, J. (2017). Have German restitution politics been advanced since the Gurlitt case? A journalist’s perspective. New German Critique, 44(1 (130)), 57–73. Vrdoljak, A. F. (2016). The criminalisation of the illicit trade in cultural property. In H. Geismar & J. Anderson (Eds.), Cultural property reader. London: Routledge. Washington Conference on Holocaust Era Assets. (1998, December 3). Washington Conference Principles on Nazi confiscated art. US Department of State. Retrieved July 31, 2014, from http://www.state.gov/p/eur/rt/hlcst/122038.htm. Zeit Online. (2018, April 18). NS-Kunstraub: Bern zeigt Hildebrand Gurlitt als Geschäftemacher. Die Zeit Online. Retrieved June 19, 2018, from https://www. zeit.de/news/2018-04/18/bern-zeigt-hildebrand-gurlitt-als-geschaeftemacher-180418-99-946632.

28 Blue Shield Protection of Cultural Property: A Perspective from the Field Laurie W. Rush

Introduction Those who have the misfortune to witness theft, damage, and destruction of cultural property become the most passionate advocates for its protection, especially in times of war. After the end of World War II, when so many had witnessed so much theft and destruction, there was consensus that a global initiative was needed in an attempt to be more proactive in the protection of cultural property during the course of future conflicts. The solution was the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague or the Convention) (UNESCO 1954). There were precedents and building blocks in place that provided a foundation on which to build the 1954 Hague Convention. These included the Lieber Code of 1863, the first established customary laws of war (US Government 1863); the Brussels Declaration of 1874, a code of military conduct agreed upon by 15 European nations and the Russians; the Hague Conventions of 1899 and 1907; and the Roerich Pact signed by Roosevelt with the Pan American Nations in 1935 (Strobl and Schipper 2010). This chapter is written in the author’s personal capacity. Opinions expressed here do not necessarily reflect the opinions or policies of the US Army, the US Department of Defense, or the US Federal Government.

L. W. Rush (*) Fort Drum and the U.S. Committee of the Blue Shield, Arlington, VA, USA © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_28

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The state parties who ratified the 1954 Hague Convention essentially agreed to create inventories of the properties that should be protected in the event of armed conflict and also agreed that they will train and deploy specialized military personnel for the protection of cultural property. The original 1954 Convention also specifies the Blue Shield symbol with the intention that it should be used to identify and protect cultural property in a fashion identical to the way the symbols of the Red Cross and Red Crescent are used to identify and protect medical assets and facilities. During the conflict in the Balkans, it became clear that the Convention, as designed and written, was insufficient to address destruction of cultural property as related to genocidal and ethnic conflict of the late twentieth century. As a result, it was supplemented with the Second Protocol drafted in 1999. In addition, in 1996, representatives of four non-governmental organizations representing people active in the fields of archives, libraries, monuments and sites, and museums formed the International Committee of the Blue Shield (ICBS). Later the Coordinating Council of Audiovisual Archives Associations signed on as well. In 1999, the Second Protocol established the Intergovernmental Committee for the Protection of Cultural Property in the Event of Armed Conflict and articulated an official role for the ICBS as an advisory group to the Committee. The ICBS Committee adopted a charter in 2000 and one of its key functions is to encourage the establishment of national committees of the Blue Shield. Since that time, 26 countries have established committees with another 22 countries with committees under construction (USCBS 2017).

 lue Shield Committees as a Method B for Implementing the Convention Blue Shield committees are designed to bring together representatives of the curatorial professions: libraries, archives, museums, monuments, and sites, with government representatives, emergency response providers, and the armed forces. A critical mission of the committees is to raise national awareness of threats to cultural heritage and encourage public support for protection of cultural heritage in conflict zones and during the course of recovery from national disasters. For countries that have not ratified the 1954 Convention, the Committee also serves as an advocate for ratification (ICOM 2017). The potential for Committee accomplishment and contribution depends on the personalities of the members and the geo-political circumstances where the Committee is operational. However, it is useful to sample a

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series of the most productive national committees to gain a sense of what the possibilities for potential contributions of Blue Shield committees for the protection of cultural heritage might be.

International Approaches and Committees After the international community recognized the official status and importance of the National Committees of the Blue Shield, in 2008, a group of the National Committees formed the Associated National Committees of the Blue Shield, ANCBS. This organization was designed to be a coordinated and vocal international advocate for cultural property protection in conflict zones, and its first president was Karl von Habsburg Lothringen. In 2014, ICBS and ANCBS combined to form Blue Shield International. The potential effectiveness of this organization remains to be seen (Wilkie 2014).

Norway The Norwegian Blue Shield Committee was formed in 2000 when representatives of the original ICBS participating organizations set up a working group to promote cultural heritage protection within the ICBS framework. The group later consolidated as a National Committee within Norway. This Committee has worked to protect cultural property in conflict zones like Iraq, Afghanistan, and the West Bank while also strengthening their domestic program for development of an emergency plan for protecting cultural heritage in the event of a disaster. In addition, the Norwegian Committee developed a deck of bilingual English and Norwegian archaeological awareness playing cards for military personnel based on the examples of the US decks. The president of the Norwegian Committee of the Blue Shield serves as a key board member of the new International Blue Shield organization that emerged out of the Associated National Committees of the Blue Shield (Mickleby 2015).

Switzerland Given its neutrality, Switzerland focuses on civil defense in terms of its approach to military capability. Within this context, the Swiss have established a strong committee of the Blue Shield and an associated program. Swiss Civil Defense utilizes civilian subject matter experts by providing them an opportunity to serve in these same capacities as military experts. As a result,

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the Swiss are able to benefit from preservation expertise as they implement cultural property protection in the military context. In 1966, the Swiss passed the Federal Protection of Cultural Property Act and nearly 20 years later, in 1984, an enacting decree. They produced their first ‘Inventory of Cultural Property of National and Regional Importance’ in 1988 and revised it in 1995. In 2009, they added an inventory of all museum collections to their system. Their protection system is applied at all levels of government—federal, canton, municipal, and at the very local level—and emphasizes interagency and interdisciplinary partnerships (Zellmeyer 2010; Federal Office of Civil Protection 2017). In terms of military participation, cultural property protection training is mandatory for military personnel. The Swiss offer a five-day course three times a year, they have specialized officers, and a Cultural Property Protection (CPP) manual. Given the focus on civil defense, the Swiss are beginning to shift their military focus from potential deployment and conflict to effective disaster response. In 2012, the Basel library used its disaster plan to assist in developing ‘Guidelines for the Preparation of a Disaster Plan’. In addition, the Swiss Committee of the Blue Shield has established a quarterly publication that offers excellent advice on protecting and preserving cultural property (Swiss Committee of the Blue Shield). This publication, with articles and abstracts in four languages, English, Italian, French, and German, focuses on a different cultural aspect of CPP in each issue. Examples of topics include Documentation of Cultural Property; Protection of Archaeological Sites; Protection of Natural History Objects; Response to Natural Disasters; and Protection of Cultural Property during Conflict (Buchel 2012; El Bana 2012; Engler 2012; Marchand 2012).

United Kingdom The UK has had a very active Committee of the Blue Shield for many years. As a result of their continuous efforts, in February 2017, the Parliament ratified the 1954 Convention and was committed to establishing a corps of Monuments Officers within the UK Ministry of Defence. The UK Committee has played an active role internationally, providing officers and encouragement for the creation of the ANCBS and the subsequent Blue Shield International. As of 2017, as part of fulfilling their commitments in ratification of the 1954 Hague Convention, the UK Ministry of Defence is in the process of creating a modern cadre of Monuments Officers. This initiative is being led by Lieutenant Colonel (LTC) Timothy Purbrick, who is in the process of establishing rubrics for selection, training, and deployment

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of this team (Purbrick 2017). LTC Purbrick has served as an active participant in the NATO Science for Peace and Security Advanced Research Workshops for recommending CPP Policy, Doctrine, and Best Practices for the Alliance.

United States The US Committee of the Blue Shield (USCBS) was formed by US Army Civil Affairs Major (retired) Corine Wegener. Major Wegener was one of only a handful of civil affairs officers to serve in the capacity of a monuments officer in the US Army since World War II. Major Wegener, then in her civilian life, a curator of Decorative Arts at the Minneapolis Institute of Arts, responded to the National Museum of Iraq in Baghdad to assist the museum staff in recovery after the devastating looting and vandalism that occurred there in 2003. Ms. Wegener formed the committee upon her return. After achieving support of the pillar organizations, the International Council on Archives (ICA), the International Committee on Museums and Sites (ICOMOS), the International Council of Museums (ICOM), the International Federation of Library Associations (IFLA), and the Coordinating Council of Audiovisual Archives Association (CCAAA), the US Committee was officially formed in 2006 and recognized as an official Committee by ICBS in 2007 (Wegener 2010). The first major goal of the USCBS was to lobby the US Senate for ratification of the 2009 Hague Convention that the US had signed back in 1954. In the fall of 2008 the Committee was successful when the Senate did indeed vote to ratify the Hague Convention and the US deposited their articles of ratification in 2009. Once the Convention was ratified in 1954, advocates for cultural property, including the members and Board of USCBS, finally had the power of treaty law backing their efforts to convince the US Department of Defense to establish meaningful cultural property protection policy, doctrine, and best practices. As the President of USCBS, Ms. Wegener continued to be active in the protection and rescue of cultural property in both disasters and conflict zones. Now, as the Cultural Heritage Preservation Officer for the Smithsonian, she is using her experience to establish a cultural property disaster response program there. In her current position, Ms. Wegener also offers cultural property protection courses to civil affairs officers in the Army and the US Marine Corps hosted by the Smithsonian. Her programs provide opportunities for the military personnel to visit exhibitions, collection storage areas, object conservation laboratories, and meet a wide range of museum professionals. She also

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coordinates with other major museums, like the Metropolitan and the Getty, in order to reach military personnel serving in the New York Metropolitan area and on the west coast (Wegener 2013). In the meantime, Dr. Nancy Wilkie, former President of the Archaeological Institute of America, has become the President of the USCBS. The Committee is currently partnering with academic professionals to develop inventories of cultural property, with an emphasis on cultural property at risk from conflict. The USCBS has partnership agreements with the Smithsonian Institution and the Digital Archaeological Record (tDAR). The tDAR partnership is for the purpose of storing cultural property inventory datasets for use by military organizations and others who share the goal of protecting and saving cultural property during the course of military operations. One very important use of cultural property inventory information is in the contribution to the ‘no strike’ listing process used by the US military, NATO allies, and partner countries and all military organizations that abide by international laws of armed conflict. ‘No strike’ lists are the lists of properties and locations that are ‘at all costs’ to be avoided during the course of an aerial campaign. The types of locations that one would expect to be on a ‘no strike’ list include hospitals, embassies, schools, museums, archives, monuments, and archaeological sites—the final four of course being examples of cultural property. These lists are taken into consideration during the course of all operations planning. The coordinates for the protected location are also provided to the targeteers. It is important to note that ‘no strike’ is more than just a prohibition on targeting a specific property. ‘No strike’ also means that approaches to targets in the immediate proximity to cultural property will be adjusted to minimize the probability for collateral damage in the case of a miss. In addition, in cases where cultural property is used as a form of protection for military assets, in direct violation of international laws of armed conflict, precision weapons and proportionate response may be called for so that the military asset can be destroyed and the cultural property spared (Varley 2017). An excellent example is the case of Ras Almergrib, a Roman Fortification in Libya. Ras Almergrib was on the ‘no strike’ list for Operation Unified Protector, the NATO Operation designed to protect the Libyan people. However, when NATO forces engaged in Libya, they discovered that Ghaddafi forces were deliberately attempting to use ancient sites and features as a form of protection for military hardware and weapons including placement of radar equipment on the ancient fort. Through the use of precision guided weapons, NATO was able to destroy the military equipment with negligible damage to the ancient feature. A team from the Associated National Committees of the

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Blue Shield confirmed successful implementation of the ‘no strike’ list by visiting and documenting the destruction of the radar installation and the preservation of Ras Almergrib (Walda 2011).

Intent and Use of the Symbol of the Blue Shield The Blue Shield is the symbol designated by the Convention that should be used to designate protected cultural property. The symbol is also intended to be used to designate individuals, properties, or vehicles that may be in a conflict zone for the purpose of protecting cultural property. The Blue Shield symbol is intended to be analogous to the way the Red Cross is used to designate hospitals, clinics, and medical professionals and to indicate their protected status. Individuals and property designated by blue shields or red crosses should never be targeted under the accepted international laws of armed conflict. Some countries, like Austria and the Netherlands, use blue shields to indicate all of the historic properties or collections they have included in their inventories of protected cultural property (UNESCO 1954).

 nalogues and Alternatives to Blue Shield A Committees  he Austrian Society for the Protection of Cultural T Property The Austrian Society for the Protection of Cultural Property was established by military officers as a result of their experience with an earthquake response deployment to Calabritta Italy in 1980. BG (ret) Fürstenhofer recounted the origins of this organization in 2010 at a World Archaeological Congress in Vienna. BG Fürstenhofer’s unit was assigned to a village where nearly every structure had been completely destroyed. Since all of the potential survivors had been rescued, the Austrians chose to focus on the area of the church where they successfully recovered sacred objects including nearly intact statues of three saints, hidden in the rubble. As they returned these objects to the village Priest, he was able to gather the traumatized members of the community together for the Holy Eucharist. As the Priest later described the moving ceremony, it became clear that this gesture was the first sign of hope that the survivors might also recover not just as individuals but also as a community.

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As a young officer, BG Fürstenhofer took this lesson home to Vienna and formed The Austrian Society for the Protection of Cultural Property. The membership of this organization is largely composed of military officers, and their influence over military education and planning for operations is clear. In addition, the Austrian military offers a specific military occupation specialty (MOS) for individuals to serve as cultural property officers. One of these officers also serves as a faculty member at the Austrian Defense Academy and another is the director of a recently established Cultural Property Academic Program at Danube University Krems (Fürstenhofer 2010; Kaiser 2016).

Monuments and Cultural Property Officers During the course of World War II, an Associate Justice of the US Supreme Court, Owen J. Roberts, led a commission to establish parameters for protecting cultural property in war areas. In cooperation with the Harvard Group and the American Council of Learned Societies, he developed lists of and reports on cultural property and suggested establishment of the corps of Monuments, Fine Arts and Archives Officers (MFAA). The Department of Defense established the unit by reviewing the lists of those serving, and identifying those with the required skills and background in culture and the arts. To find monuments officers for service in Italy, the Army reviewed the list of former fellows of the American Academy in Rome offering individuals like LTC Norman Newton, Landscape Architect, LTC Mason Hammond, Classicist both from Harvard and Captain Deane Keller a BFA and painter from Yale who tried to save what remained of the frescoes at Campo Santo, Pisa. The British established a similar organization led by Sir Leonard Woolley, an archaeologist with extensive experience in Mesopotamia. The work of allied monuments officers in Europe has been celebrated in books and film, and recently, the US Congress awarded them a Congressional Gold Medal. It is important to note that monuments officers also served in the Pacific Theater. The MFAA were organized as civil affairs officers, groups of military personnel trained to partner with allied members of local populations. The Germans had the ‘Kunstschutz’ ostensibly intended also to be protectors of art but who in actuality served as emissaries of high-ranking Nazi officials including Hitler and Goering who were stealing art in all forms from all across Europe for themselves and the Reich (Nicholas 1994). After World War II, these units were dismantled for the most part. However, the concept of Civil Affairs continued, and in Europe it is referred to as CIMIC, the acronym for Civil Military Cooperation. There is a CIMIC

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Center of Excellence located just outside of The Hague in the Netherlands and this organization recently published a guidance document entitled ‘Cultural Property Protection Makes Sense’. There are very few historical references to any type of monuments officer until the 2003 invasion of Iraq. One exception is the Netherlands who sent a cultural property officer to the former Yugoslavian Republic of Macedonia to assist in documentation and recovery for vandalized frescoes. This same individual, LTC Joris Kila, also served in Iraq. One of his most important accomplishments was traveling with US forces to the ancient city of Warka, or Uruk, carrying funds from the German Archaeological Institute to pay the Altubi family who protect the site. Keeping the Altubi family in place as site guards has prevented looting and kept Uruk intact in contrast to many of the other sites in the region which have been extremely badly damaged if not destroyed by looters (Kila 2008). As mentioned above, after the massive looting and vandalism of the National Museum of Iraq in Baghdad, Major Corine Wegener, a Civil Affairs Officer from the US, reported to the Museum to assist in the recovery. At the same time, another US Civil Affairs Officer, Captain William Sumner, reported to the Baghdad Zoo. There are additional cases where reserve military officers with backgrounds in archaeology or heritage preservation were able to use those skills to attempt to preserve cultural property in Iraq. Examples include Major Tommy Livoti, an archaeologist from the University of Montana, who assisted the State Department at Babylon, Captain Jesse Ballinger, an archaeologist from the University of Arizona, who proposed a fencing project to protect the ancient city of Nimrud (Rush 2015), and Captain Ben Roberts, a preservation professional, who assisted his unit in using the Commander’s Emergency Response Project (CERP) funds to rebuild the tourist amenities at the ziggurat of Aqar Quf, Iraq (Roberts and Roberts 2013). Airman Darryl Pinckney, an archaeologist, added cultural resource management activities to his work at Warrior Base Kirkuk (Pinckney 2010) and Sergeant Jim Carlson, an art historian, saved archaeological remains when he stopped backhoes at Forward Operating Base Hammer (Carlson 2010). Currently, Civil Affairs and CIMIC units in the US and Europe have identified functional specialties in cultural property protection, but mostly civil affairs personnel with other professional backgrounds perform the cultural property functions when needed. Currently there is discussion in the US and UK about encouraging the enrollment of specialists from the arts and archaeology into civil affairs units. As various countries work to implement or ratify the 1954 Hague Convention, we may see more formal efforts to enroll and designate cultural property protection officers with professional educations and experience. However, given the experiences of the effective service of US

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heritage professionals serving in Iraq, perhaps the World War II model for identifying and mobilizing the right military personnel where and when needed would make the most sense.

 he Carabinieri Command for the Protection of Cultural T Property The Italians have CIMIC officers, but they also offer alternative approaches to implementation of the monuments officer concept. In the Balkans, the Italian Army took a special interest in the Decani Monastery in Kosovo. A place of worship of enormous beauty, Decani also offers a sacred place of magical healing for people of all religions. Protection of the structure by the Italian Army has helped to keep the peace throughout the valley and offers a place where Moslems and Christians can both seek divine intervention. During the Iraq War, the Italians sent a peacekeeping mission of Carabinieri to Nasiriyah Province in the south of Iraq. Carabinieri are a form of militarized police. They primarily serve domestically in Italy and they have a series of specialized nuclei, some with regionalized offices. One specialty nucleus is the Carabinieri Tutela Patrimonio Culturale (TPC) or the Carabinieri Command for the Protection of Cultural Heritage. Carabinieri TPC officers specialize in law enforcement pertaining to protection of works of art, libraries and archives, archaeological sites, and ecclesiastical property. In 2003, the Carabinieri in Nasiriyah were a multidisciplinary group. In addition to the TPC officers, there were specialists in forensics and in food safety. The group alternated missions between the specialty areas. One day they might be inspecting milk plants, and the next day they might be mapping archaeological sites. One of the site protection missions required helicopter coordination. Military personnel used the aerial advantage to surprise a group that was looting an archaeological site. The helicopters herded the looters toward the waiting force who detained them and recovered the looted objects. The Italians also set up an Iraqi site protection force with all of the accouterments that a professional policing agency would require including vehicles with fuel, radios and communications, and uniforms and weapons. The Italians have a third approach where they work with cultural communication specialists to implement heritage projects as a component of stability operations. Even though destroyed by the Taliban, the Italians restored a portion of the ancient Citadel in Herat as a heritage center and museum. They also worked with community members to write a history of Herat in Dari so that the children of Herat could grow up with knowledge of and pride in their city (Caputo and Croci 2012).

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Operation Heritage The UK also offers an example for military alternatives to formal institutional implementation of cultural property protection. As testament to the power of personality, during the invasion of Iraq, Major General Harvey White-­ Spunner established Operation Heritage. His goal was to transform Saddam Hussein’s palace in Basra into an archaeological museum for the Iraqi people. Operation Heritage was significant on two levels. Saddam’s palaces were problematic from a preservation perspective during the recent conflict because from one perspective they could have been viewed as private property of a war criminal but the fact of the matter was they were built from wealth stolen from the people of Iraq. In addition to offering a home for collections and recognition of the importance of the heritage of ancient Mesopotamia, Operation Heritage presented an opportunity to show respect for an expensive and historic structure rightfully belonging to the people of Iraq. As of 2016, the British effort appears to have achieved success. For a first-hand account of Operation Heritage, see also Clarke (2010).

 ultural Property Protection as a Component C of the Environmental Portfolio in the US and the UK In the US and the UK, environmental management of military land is taken extremely seriously. The UK Ministry of Defence and the United States Department of Defense follow all the national laws that protect the important archaeological sites and historic structures found on their installations. In the UK, Stonehenge is adjacent to Salisbury Plain, the most archaeologically intact landscape in all of England due to the fact that the presence of military training lands has prevented any other form of construction or development. A team of full-time archaeologists has identified and protects the archaeological sites that represent all time periods of human occupation in the British Isles (Osgood 2012). In the US, military land is managed in accordance with the National Historic Preservation Act, and in the US Department of Defense bureaucracy, this requirement falls within the portfolio of compliance with all US environmental laws and regulations. Compliance means that archaeological consideration is required prior to any ground disturbing undertaking. As a result, most large acreage installations across the US complete archaeological surveys prior to most construction projects in addition to inventory in training areas where there is anticipation that military activity will impact the soil. In addition,

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installations with historic structures and districts work to insure that all maintenance, renovation, and restoration will meet US Secretary of Interior Standards. The US Archaeological Resources Protection Act (ARPA) is legislation that provides for criminal sanctions against anyone who deliberately damages or steals artifacts from a known archaeological site located on federal land. The prospect of fines and/or jail time offers another layer of protection. The American Indian Religious Freedom Act (AIRFA) applies to military land as it does to all federal land. One aspect of this law is that it insures that no one can prevent Native Americans from worshipping in ancient sacred places that may be located on federal land to include military land. When this legislation is added to a series of executive orders and policies, we find that the US Department of Defense has a very proactive approach to Native American Consultation. All installations are required to establish government-to-­ government diplomatic relations between the Command Group and the federally recognized Native American nations who have ancestral ties to the installation’s land. When Native American consultation is combined with the National Historic Preservation Act requirement, the result is a very high standard of protection for heritage and cultural property found on military land. This situation poses a series of challenges and opportunities. The challenges can be summed up by finding ways to apply domestic cultural resources protection ethics and practices to all US military operations overseas. The opportunities would offer preservation professionals already on the military payroll the option of applying their considerable expertise to providing information, education, and advice to deploying personnel with respect to the cultural property they would be likely to encounter in their theater of operations.

 he US Combatant Command Cultural Heritage Action T Group One approach to applying domestic cultural resources expertise to deployment challenges has been the evolution of the United States Combatant Command Cultural Heritage Action Group or CCHAG (as of last September, the CCHAG is now the MILCHAG, Military Cultural Heritage Action Group).  More information and resources developed by the group can be found at https:// www.cemml.colostate.edu/cultural/. During the 2003 invasion of Iraq, a unit of US Marines, in addition to members of the Polish Armed Forces, was assigned to protect the ancient ruins at Babylon. The problem was that none of the Western forces were provided with any preparation or guidance for how to responsibly occupy an ancient archaeological site, an ironic situation given the fact that the mission goal was site protection. The result was that a well-­

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intentioned mission went badly wrong when the occupying forces began to excavate defensive positions and initiated construction of a helicopter landing strip in the midst of the ancient ruins. When news of the damage hit the global media, academic and military archaeologists were equally horrified. Fortunately, members of both groups found each other (see Rush 2012a, b, for more detailed accounts of the creation and accomplishments of the CCHAG) and the CCHAG came into being. This group is designed to deliver a forum where military personnel can meet with and benefit from the knowledge and field experience offered by professional archaeologists, many of whom have years of experience in regions that are now emerging as conflict zones. One of the mottos of the group is ‘the right information to the right people at the right time’. In addition to the kind of valuable cartographic information found in information sources like the ‘no strike’ lists ideally provided by academic subject matter experts, an understanding of what sacred places and features look like and what heritage properties are valued by local populations is critical for the ‘boots on the ground’. When foreign forces have no knowledge or understanding of sacred ground in the cross-cultural environment and they inadvertently destroy or damage it, in the opinion of this author lives are lost—on all sides. The CCHAG has an impressive list of accomplishments. With funding from the US Department of Defense Legacy Resource Management Program and Air Combat Command and support from Fort Drum, New York, and Colorado State University Center for Environmental Management of Military Lands, the CCHAG produced archaeology awareness playing cards for deploying military personnel. As of 2016, there are three different types of decks focusing on Iraq, Afghanistan, and Egypt. Creation of the website means that any soldier anywhere in the world has access to what the military refers to as ‘reach back’ information. The website offers ‘dos’ and ‘don’ts’ when encountering archaeological sites, interactive archaeology maps of Iraq and Afghanistan, power point presentations that can be downloaded for educational programs, supplementary materials for reserve officer training, current events and many other resources. Members of the CCHAG wrote the ‘historical/cultural’ chapter for the US Central Command Environmental Regulation 200-2 that governs protection of archaeological sites and historic properties in situations where the US is in a position of responsibility in the Middle East and southwest Asia. They also added consideration of the potential for archaeological sites to environmental baseline studies for construction projects and requirements for historical documentation of any features encountered during the course of occupation. Military archaeologists have built replica archaeological sites on army training lands and replica archaeological sites on aerial

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gunnery ranges, so that the fighter pilots have the opportunity to practice implementation of ‘no strike’. They hardened actual archaeological sites to make them available for historic area training. Hardening means reinforcing or perhaps covering unstable features so that military personnel can use the site safely and there is minimum potential for damage (Rush 2010a). The CCHAG also provided on-site training during the Bright Star War Games in Egypt in 2009, similar to training offered by Sir Leonard Woolley to British forces in Libya during World War II. As guests of Dr. Zahi Hawass, military archaeologists took participating personnel to the pyramids at Saqqara in order to discuss the importance of heritage protection. The event was a resounding success and was followed by officer staff rides to El Alamein, the Citadel, the Military Museum of Egypt, and the Museum of Egyptian Antiquities in Cairo. In addition to establishing appreciation for the importance of cultural property protection during the course of military operations, the military archaeologists established additional educational goals including force protection aspects of operating in the vicinity of ancient sites and demonstrations of the potential importance of heritage sites for community economic stability (Rush 2010b).

 he Archaeological Institute of America and Soldier T Lectures Many of the academic archaeologists who have partnered with the CCHAG and others have also volunteered their time and expertise in many ways to support military education and operational planning. Professor Brian Rose, President of the Archaeological Institute of America (AIA), set an example and encouraged his colleagues to assist in implementation of cultural property protection programs. Dr. Rose, often on his own time and at his own expense, has traveled to Camp LeJeune, Fort Bragg, Fort Dix, and Fort Drum to offer lectures and meet with soldiers and marines. Professor Rose has also welcomed soldiers to the University of Pennsylvania Museum, providing them with an opportunity to become familiar with ancient artifacts (Di Santo 2012).

 he Realities and Challenges of Working T with the Military to Protect Cultural Property The great weakness of initiatives like the CCHAG is that they tend to be personality driven, and they do not provide institutional solutions to the challenge of establishing robust cultural property policy, doctrine, ethics, or

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best practices across a ministry or department of defense. One of the challenges is that cultural property protection crosses so many aspects of military operations. An established cultural property protection program would require participation from the intelligence community for consideration of the properties identified by both academic specialists and host nation representatives; addition of a cultural property geo-spatial data layer to military planning maps; research into the potential relationships of events like inadvertent damage to an unrecognized sacred feature and placement of improvised explosive devices on the approach road(s); development and delivery of awareness training to be applied across the force; and development and delivery of job-specific education concerning cultural property—for example, military engineers would need to learn how to identify archaeological features during the course of site survey, imagery analysts would need to learn what cultural property signatures look like on aerial images, and heavy equipment operators would need to learn how to respond to inadvertent discoveries, and so on. A critical component of education is to integrate cultural property protection into international laws of armed conflict. Competent legal advisors to combatant commanders need to be well versed in issues like using cultural property for tactical advantage and penalties for deliberately targeting heritage sites. Another aspect of cultural property protection during the course of military operations is disaster response. Quite often after earthquakes, tsunamis, violent storms, or other forms of natural disasters, military organizations are among the first responders. In these situations, optimal recovery depends on the knowledge of where historic structures, places of worship, and collections of cultural property might be located. Once rescue operations are established, it is extremely important that museums not be bulldozed into the sea or unstable historic structures demolished. Quite often, entire collections can be rescued from the rubble of a collapsed building and sacred objects recovered from a destroyed church or mosque, as experienced by the Austrians, for example, described above. Good maps with a cultural property geo-spatial data layer can inform a military organization, pointing out geographic areas where a successful recovery strategy may be far more complicated than simple route clearing and removal of damaged structures and objects (Rush 2012a). Now that we are seeing deliberate performance destruction of archaeological sites and places of worship in the genocidal conflict unfolding in the Middle East, the question of cultural property protection continues to increase in importance, especially where the military is concerned. Empowering the armies of the West to engage the issue in an effective way remains an enormous challenge and a critically important goal.

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Conclusion One of the most hopeful recent developments is the fact that the NATO Science for Peace and Security Program has funded a project to develop cultural property protection policy, doctrine, and best practices for the Alliance. All 28 member countries agreed that the issue warranted financial investment, especially after the successful implementation of the ‘no strike’ list during the course of NATO operations in Libya. As the project unfolds, support for the concept has been clear, especially from the most experienced warfighters. Should the NATO Alliance adopt cultural property protection policy, doctrine, and best practices, the precedent will serve to encourage all the member and partner countries to do the same. In a world where we have seen the UNESCO World Heritage List turn into a priority target list for terrorism, the Blue Shield, all it represents, and the people who care are more important than ever.

Bibliography Buchel, R. (2012). The second protocol, a major turning point. In C. Engler (Ed.), Forum, 50 years of CPP in Switzerland (pp.  15–21). Bern: Bundesamt fur Bevölkerungsschutz (BABS). Caputo, S., & Croci, E. (2012). Vicini a una terra lontana; sulle strade dell’Afghanistan con il contingente italiano. Firenze: P Edizione Polistampa. Carlson, J. (2010). Personal Communication with L. Rush, Meeting at the University of Kansas, April. Clarke, H. (2010). Operation heritage. In L. Rush (Ed.), Archaeology, cultural property and the military (pp. 138–144). Newcastle: Boydell and Brewer. Di Santo, J.  (2012, October 15). Mission possible: Penn’s troops lecture program works with local soldiers on archaeological conservation. Penn News. El Bana, E. M. (2012). Panorama de la Formation de la PBC en Suisse. In C. Engler (Ed.), Forum, 50 years of CPP in Switzerland (pp. 41–47). Bern: Bundesamt fur Bevölkerungsschutz (BABS). Engler, C. (2012). Editorial, 50 years of CPP in Switzerland. In C.  Engler (Ed.), Forum, 50 years of CPP in Switzerland (pp.  3–7). Bern: Bundesamt fur Bevölkerungsschutz (BABS). Federal Office of Civil Protection. (2017). Switzerland protection of cultural property. Retrieved June 22, 2017, from http://www.babs.admin.ch/en/aufgabenbabs/kgs.html. Fürstenhofer, B.  G. (2010). The first Austrian experience; Calabritto 1980. Presentation to the World Archaeological Congress Inter-Congress Vienna.

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International Council of Museums (ICOM). (2017). ICOM website. Retrieved May 17, 2017, from http://icom.museum/programmes/museums-emergencyprogramme/international-committee-of-the-blue-shield/. Kaiser, A. (2016). Presentation to NATO Advanced Research Workshop, Turin, Italy, April 13. Kila, J. (2008). Rush, Personal Communication, Hague Conference on CPP. Marchand, C. (2012). Kulturgüterschutz im Kriegsvölkerrecht. In C. Engler (Ed.), Forum, 50 years of CPP in Switzerland (pp.  74–78). Bern: Bundesamt fur Bevölkerungsschutz (BABS). Mickleby, A. (2015). Personal Communication with Laurie Rush ICBS Meeting, Newcastle, UK. Nicholas, L. (1994). The rape of Europa. New York: Vintage Books. Osgood, R. (2012). Rush Personal Communication, Tour of Salisbury Defence Estate Archaeology Program, November 7. Pinckney, D. (2010). Time not on my side; cultural resources management Kirkuk, Iraq. In L. W. Rush (Ed.), Archaeology, cultural property, and the military. Newcastle: Boydell and Brewer. Purbrick, T. (2017). Personal Communication with Laurie Rush; visit to Fort Drum, June 4–6. Roberts, B. A., & Roberts, G. B. (2013). A case study in cultural heritage protection in a time of war. In J. Kila & J. Zeidler (Eds.), Cultural property in the crosshairs. Leiden: Brill. Rush, L. W. (2010a). Dealing the heritage hand: Establishing a United States department of defense cultural property protection program for global operations. In L.  W. Rush (Ed.), Archaeology, cultural property, and the military (pp.  86–97). Newcastle: Boydell and Brewer. Rush, L. W. (2010b). Teaching cultural property protection in the middle east: The central command historical cultural advisory group and international efforts. In L.  W. Rush (Ed.), Archaeology, cultural property, and the military. Newcastle: Boydell and Brewer. Rush, L. W. (2012a). Working with the military to protect archaeological sites and other forms of cultural property. Journal of World Archaeology, 44(3), 359–377. Rush, L. (2012b). Cultural property protection as a force multiplier in military operations. Military Review, March–April. Rush, L.  W. (2015). Military protection of cultural heritage. In ICOM (Ed.), Countering illicit traffic in cultural goods the global challenge of protecting the world’s heritage (pp. 160–174). Paris: ICOM. Sahouri, S. (2011). Safeguard documentation in Palestine. In BABS (Ed.), Forum: Sicherstellungs  – Dokumentation und Kulturgüterschutz (pp.  87–98). Bern: Bundesamt fur Bevölkerungsschutz (BABS). Strobl, L., & Schipper, F. (2010). The Roerich Pact, 75 years of cultural heritage protection and peace-building exhibition catalog. Vienna: Blue Shield.

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UNESCO. (1954). Convention for the protection of cultural property in the event of armed conflict with regulations for the execution of the convention 1954. Retrieved May 17, 2017, from http://portal.unesco.org/en/ev.php-URL_ ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html. US Government. (1863). The Lieber code. Retrieved May 17, 2017, from https:// archive.org/stream/pdfy-NG4E2nsEimXkB5mU/The%20Lieber%20Code%20 Of%201863_djvu.txt. USCBS. (2017). USCBS website international affiliates. Retrieved May 17, 2017, from http://uscbs.org/international-affiliates.html. Varley, T. (2017). Presentation to the Archaeological Institute of America Annual Meeting, Toronto CA, January 9. Walda, H. (2011). Presentation at the American Academy in Rome Conference: Saving Cultural Heritage in Crisis Areas, November 4. Wegener, C. (2010). US army civil affairs; protecting cultural property past and future. In L. Rush (Ed.), Archaeology cultural property and the military (pp. 34–39). Newcastle: Boydell & Brewer. Wegener, C. (2013). Rush Personal Communication and USMC Civil Affairs Training, Washington, DC, March 18. Wilkie, N. (2014). Presidential Report on Blue Shield International Meeting to US Committee of the Blue Shield. Blue Shield International also has a website retrieved June 25, 2017, from http://www.ancbs.org/cms/en/home2. Zellmeyer, S. (2010). The role of the Swiss armed forces in the protection of cultural property. In L.  Rush (Ed.), Archaeology, cultural property and the military (pp. 158–166). Newcastle: Boydell & Brewer.

29 Iconoclasm: Religious and Political Motivations for Destroying Art Sam Hardy

Introduction Iconoclasm may be defined as ‘an attack against and often the destruction of a physical object […] that is believed to have some kind of spiritual power or sacred significance and which is worshipped in the place of the “true” God’ (Noyes 2016, pp. 3–4); the ‘motivated annihilation of any presence or power’, which is communicated by a symbol, ‘through the annihilation’ of that symbol (May 2012, p. 6); or ‘the deliberate damage or destruction of images and objects’ (O’Neil et al. 2014, p. 377). It has been practised from revolutionary France to revolutionary China to revolutionary Ukraine. The motivations for the practice have ranged from the imposition of monotheism and restoration of polytheism in ancient Egypt to the deposition of one autocratic regime and the consolidation of another in modern Egypt. Not every breaking of an image is an act of iconoclasm. Even when art is ‘iconoclastic’, it is not ‘iconoclasm’. Not every act of iconoclasm involves the breaking of an image. Power can be destroyed through transformation, subordination and humiliation. Whether iconoclasts had limited theological concerns rather than intense emotional drives, or whether iconophiles negotiated limited interventions, some images from West Asia to South Asia were merely illustratively ‘killed’ or simply used in profane ways, in order to show that they were not used in sacred ways (cf. Flood 2002, pp. 646–647).

S. Hardy (*) University of Oslo, Oslo, Norway © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_29

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While, from ancient Assyria (cf. Shaudig 2012, pp. 125–126) to medieval India (cf. Davis 1997, pp. 62–66), idols have been appropriated and venerated, embodiments of gods have also been ‘deported’ from their native lands and subjugated in the earthly domain of their conquerors, perhaps since the Uruk kingdom of the third millennium BCE (cf. Woods 2012, p.  36). Likewise, precisely orchestrated, parallel programmes of destruction and appropriation have been conducted at least since the neo-Assyrian Empire of the early first millennium BCE (cf. Richardson 2012, pp. 235–242). Sometimes, the images are not even touched. Iraq’s citizenry has been excluded from the fortified ‘Green Zone’ of state institutions and foreign embassies in Baghdad since the overthrow of the Ba’athist regime in 2003. When citizens stormed the Green Zone and protested against corrupt and ineffective governance in 2016, some hit a portrait of President Fuad Masum with their shoes (Associated Press 2016), as citizens had hit the statue of President Saddam Hussein with their shoes in 2003. Others stood opposite the presidential stand, posed like the famously toppled statue and ‘toppled’ themselves into the water pool below (Mojon 2016). Icons are not only images of ‘false’ idols, but also images of ‘true’ gods, which humans do not have the right to represent or the capacity to imagine. Hence, sometimes, within the logic of religious iconoclasm, those who try to create images implicitly claim that they have the power of their god. Not only images are broken in acts of iconoclasm. The practice encompasses not only the obliteration of idols, but the obliteration of other symbols and embodiments from books to buildings and even living persons (May 2012, p.  3). Indeed, these ideologies and practices are often so far from ‘image-breaking’ and ‘vandalism’ that there is a move towards an understanding of ‘iconoclasm’ as ‘sign transformation’ (cf. Clay 2007, p. 94). Nonetheless, here, the focus is on the mutilation and annihilation of art.

A Note on Ideology and Practicability A great deal of energy has been expended on the ‘exposure’ of the conduct of parallel programmes of destruction and trafficking by the territory-­occupying, Wahhabi Salafi ideology-imposing terrorist organisation Islamic State (Daesh), because it embodies an apparent contradiction between iconoclastic ideology and financial practicality. Yet, it is a phenomenon that can be seen in genocides under the Khmer Rouge in Cambodia, the Nazi Empire, the Ottoman Empire and many others (cf. Hardy 2015b). It is not exactly incorrect to note

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the contradiction, but it is not exactly correct either, and it is certainly not profound. Iconoclasts at least prioritise the ‘purification’ of space. They may wish to destroy all instances of objectionable symbols anywhere, but they will begin with those symbols that are within ‘their’ territory. Hence, they will accept the expedient practice of ‘purification’ by export instead of destruction, in the same way that commissioners of genocide will accept the expedient practice of ethnic cleansing instead of extermination. Regardless of certain bizarre debates in contemporary British politics, there is no ultimate contradiction between Nazis’ acceptance of Jewish emigration under duress and their ‘final solution’ of Jewish extermination (cf. Schulze 2016). Likewise, there is no ultimate contradiction between Nazis’ orchestration of the export of ‘degenerate art’ (and profit from that export) and their ultimate plan of annihilation of challenging art. And there is no ultimate contradiction between the Islamic State’s orchestration of the export of ‘idols’ and their ultimate plan of annihilation of iconography, especially since, like the Nazi Empire, the Islamic State’s profiteering from cultural property finances their destruction of cultural property and worse crimes. For instance, the Islamic State produced a propaganda video of their destruction of some of the exhibits in Mosul Museum, then ‘blew a huge hole [through] the floor’ and looted the museum vault (Wedeman 2017). So, while discussion of the religious and political motivations for destroying art necessitates discussion of other motivations for destroying art, those rationales are complementary considerations in complex strategies.

A Note on Ideology and Interpretation Similarly, it has been reported that the Islamic State has ‘unknowingly destroy[ed] fake art’ (Wedeman 2017), as if it has been thwarted in its attempt to destroy genuine art, when the distinction between genuine and fake is somewhat irrelevant. While a distinction might be made between ‘genuine’ targets of iconoclastic violence and ‘fake’ victims of iconoclastic violence, that distinction would then implicitly recognise those genuine artworks as idols, when many would never have been idolised. Moreover, within the Islamic State’s logic, whether the images are originals or replicas, they have been made, they exist and they are revered.

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 he Etymology and Genealogy of Abrahamic T Iconoclasm Iconoclasm in Islamic Theology Iconoclasm is popularly associated with current Islamic extremism. However, the word did not originate in the Islamic world. Indeed, the Islamic theology of iconoclasm is somewhat cryptic, as the Qur’an addresses the act of worship instead of the act of image-creating. It insists: ‘your God is one God. There is no deity except him’ (al-Baqarah, Surah 2, Verse 163). Depending upon the translation, it warns of divine retribution for those who ‘take others besides Allah as rivals’, ‘take for themselves objects of worship besides Allah’ or ‘set up idols to rival God, and love them as if they are God’ (al-Baqarah, Surah 2, Verse 165; cf. Abbas and Atwell 2009a). Manifested most extremely in Wahhabi Islamic practice, Islamic theology forbids shirk (associationism, polytheism or idolatry) because, when worshippers fabricate images of Allah, intermediaries or other gods, they implicitly claim divine knowledge, claim the divine power of creation and/or deny the unity of God, fabricating other divinely powerful beings (Noyes 2016, pp. 6–7; 16–17). The text of the Qur’an is understood in the context of the practice of Prophet Mohammed. When Mohammed conquered Mecca in 630 CE, he found pagan idols around the Ka’aba, gouged out their eyes and commanded their toppling and burning (Flood 2002, pp. 644–645). According to Islamic legends that record the reported sayings of the prophet, Mohammed ordered his followers to ‘demolish all idols’ and to ‘level all graves more than a palm’s width high’ (Hadith, Number 2115, cf. Philips 2005, p. 214), to ‘deface every statue or picture in houses and level all elevated graves’ (Hadith 3212, cf. Philips 2005, pp. 214–15 n45). However, the Ka’aba (also transliterated as Kaaba and Ka’bah) was believed to be the remains of a sanctuary or temple, which had been rebuilt by Abraham (and others in the lineage, before and since), after it had been destroyed by the Flood, and which had originally been built by Adam and Eve (Glassé 2002, p. 245). So, the iconoclasm was an albeit violent reclamation of space that was believed to belong to the People of the Book and their God, rather than spontaneous aggression towards idolaters.1 There is further evidence that original Islamic iconoclasm was as much politically considered as religiously compelled: the Qur’an instructs Muslims not even to ‘insult’, ‘abuse’ or ‘curse’  Sasan Aghlani, pers. comm.: 16 April 2016.

1

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idols, in case it causes idolaters to spitefully blaspheme against Allah (al-­ Anaam, Chapter 6, Verse 108; cf. Abbas and Atwell 2009b). And there is no absolute prohibition of iconographic representation within Islam. For example, anthropomorphic as well as zoomorphic images were produced and protected in the early modern Shia Muslim Safavid Empire and the early modern Sunni Muslim Ottoman Empire. At least sometimes, even those who mimicked Mohammed and gouged out the eyes of human images were punished (Dankoff 1990, pp. 294–297, cited by Flood 2002, p. 645). There was also the purely political iconoclasm of religious buildings. Again in 630 CE, a mosque in Quba (which became identified as the Mosque of Dissent or the Mosque of Opposition, Masjid al-Dirar) was established as a ‘hostile stronghold’ for rival Abu Amir, who was allegedly secretly allied with the Byzantine Empire against Mohammed, in an attempt to take control of the nascent Islamic state (Lecker 1995, p. 86). In order to erase the site and symbol of resistance, Mohammed ordered the mosque to be burned down and its ruins to be desecrated through use as a dump for animal carcasses.

Iconoclasm in Christian Theology In fact, the term ‘iconoclasm’ was established in the wake of early modern Western Christian image-breaking in the early sixteenth-century Reformation of the Church. It was adapted from ‘iconoclasts’, which had been borrowed from a rare and unrepresentative term for iconophobes during a medieval Eastern Christian struggle over images. The Reformation of the Church, through a schism between established Catholic and emergent Protestant communities, encompassed a range of ­logics and practices. For instance, Huldrych Zwingli managed iconoclastic action, in order for it not to benefit iconophilic Catholic factions in Switzerland (van Asselt 2007, pp.  303–305); Adriaan de Waal van Vronesteijn orchestrated piece-by-piece destruction of altars, images and books in certain churches in the Netherlands, in order to clear and claim those churches for the Protestant community (Staal 2007, pp. 315–316). Manifested most extremely in Calvinist Christian practice (and, post-­ Reformation, in the Puritan iconoclasm of the English parliament in its civil war with the king, cf. Spraggon 2003, by the end of which perhaps 90 per cent of religious sculpture in England had been ‘completely destroyed’, cf. O’Neil et al. 2014, p. 379), Christian theology forbids image-making, because humans cannot comprehend or convey God’s image and create idols when they try; a human image is a false representation of God’s word; veneration is

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worship by another name; and the natural imagery of God’s world is perfect, so human imagery implicitly presumes divine knowledge and power (Noyes 2016, pp. 33–35; see also van Asselt 2007, pp. 300–308). Yet Luther condemned image-breakings, as well as image-makings, as wasteful efforts that should have been invested in helping those in need (van Asselt 2007, pp. 302–303). The ‘iconomachi’ (struggle over images) constituted an official debate over iconic representation in the medieval Eastern Christian world between 726 and 842 CE, which developed out of an even longer history of disagreement, in which images had been both destroyed as idols, for example by Bishop Serenus of Marseilles, and defended as sign language for illiterate worshippers, sources of divine inspiration and/or channels for communication (though not agents of communication), for example by Pope Gregory I, between 599 and 600 CE (Noble 2009, p. 42). Yet, during that original struggle, there was ‘no wholesale destruction’; documented ‘disputes over icons were few and far between’; perhaps only 20 or 25 specific images are known to have been disguised or destroyed in the course of more than a century (Noble 2009, pp. 70, 61, 69). Some image-breakings in Palestine were so respectful and minimal that they suggest a concession by iconophiles to satisfy iconophobic communities (Brubaker 2009, p.  54). Hence, after centuries of controversy and negotiation between iconophiles and iconophobes, the century of struggle was one of eventual political ‘consolidation’ by factions who were iconophiles (or aligned with iconophiles) over those who were iconophobes (or aligned with iconophobes), rather than religious ‘crisis’ and persistent aggression by iconoclastic forces (Noble 2009, p. 48).

Iconoclasm in (Christian and) Jewish Theology Furthermore, the scriptural prohibition on iconic representation emerged in ancient Jewish theology. Jewish (and Christian) theology commands: ‘Thou shalt have no other gods before me. Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth’ (Shemot and Exodus, Chapter 20, Verse 3–5). Iconoclasm appears to be a demonstration of faith in God—and a way of precluding the possibility of betrayal. Yet, beyond the Ten Commandments, the Torah (and the Old Testament of the Bible) directs: ‘You shall surely destroy all the places where the nations whom you shall dispossess served their gods […]; you shall tear down their

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altars, and dash in pieces their pillars, and burn their Asherim2 with fire; you shall hew down the graven images of their gods, and destroy their name out of that place’ (Re’eh or Deuteronomy, Chapter 12, Verses 2–3, cited by Joyce 2007, pp. 31–32). The apparently religious motivations were evidently also political and territorial. Sometimes, not only any alternative, but the very knowledge of the possibility of an alternative needed to be destroyed. Sometimes though, the definition of ‘destruction’ shows that iconoclasm was limited to a demonstration of a lack of power and thus a lack of divinity. Specifically, Jewish theology explains: ‘How does one nullify [an idol]? [If ] he [sic] has cut off the tip of its ear, the tip of its nose, the tip of its finger, if he [has] battered it, even though he did not break off [any part of ] it—he has nullified it’ (Abodah Zarah, Chapter 4, Verse 5, cf. Goedegebuure 2012, p. 424). Furthermore, iconoclastic obligations were not accepted by all members of the religion. At least for a time, some Israelites continued to ‘burn incense to the queen of heaven [Ishtar], and pour out libations to her, as [they] used to’ (Yirmiyahu or Jeremiah, Chapter 44, Verse 17, cited by Joyce 2007, p. 34). The first Christian Roman emperor, Constantine, may have destroyed a sanctuary to the pagan sex goddess Ishtar-Aphrodite in Baalbek-Heliopolis and replaced it with the Church of the Holy Sepulchre (Hahn 2015, pp. 117–119), and a later Christian Roman emperor, Theodosius I, may have destroyed the Temple of Baal-Zeus and replaced it with a church (Emmel et al. 2008, p. 1). Yet ‘the queen of heaven’ survived as an aspect of the Virgin Mary (cf. Marcovich 1996, p. 48), and, at least in Cyprus into the twentieth century, the objects and practices of the cult of Ishtar-Aphrodite were preserved in veneration of Mary, the All-Holy Lady of Aphrodite or the All-Holy Milk-­ Giving Virgin, Panayia Aphroditissa or Panayia Galaktariotissa (cf. Hadjisavvas 1998, p. 684; Russell and Russell 1971, p. 318). So, the struggles between religious communities were evidently also struggles within religious communities.

Iconoclasm as Tradition and Strategy The story of the golden calf shows that the holy practice of iconoclasm was a formative act in the ‘Abrahamic’ tradition, which is common to Judaism, Christianity and Islam. It teaches that, while Prophet Moses was away, receiving the Covenant from God, the doubting Israelites (re)turned to the worship of the Egyptian fertility deity Apis, which was an intermediary with the ulti2

 Asherim were idols for the worship of the fertility goddess Asherah.

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mate creator god (and which was depicted as a bull or a bull-headed being). Moses ‘burn[ed]’ the calf ‘with fire, and ground it to powder’ and made the idolaters drink the ashes in water, then killed 3000 as an instructive punishment (Shemot or Exodus, Chapter 32, Verse 20; cf. Blidstein 1973, p. 1; Noyes 2016, pp. 3–8). Indeed, iconoclasm was a constituent element of the origins of Judaism (thence Christianity and Islam). Abraham is the first patriarch of Judaism and Prophet for Jews, Christians and Muslims. In Ur, according to Jewish legends that interpret the Torah, Abraham either ‘broke all the idols’ (Bereshit Rabbah or Genesis Rabbah, Chapter 38, Verse 13; cf. Katz and Schwartz 2002, p. 50) or ‘burned the house of idols […] burned everything in the house’ (Jubilees, Chapter 12, Verse 12; cf. Katsumata 2012, p.  44). According to Christian legends that interpret the Bible, Abraham either burned them or broke them or ‘broke some idols and burned others’ (e.g., those told by George the Monk, cited by Adler 1986–1987, pp. 100–102). According to the Qur’an, Abraham tricked pagans into leaving their temple; ‘struck’, ‘smit[ed]’ or ‘destroyed’ all but one of their idols (as-Saaffat, Surah 37, Verse 93; cf. Abbas and Atwell 2009d); and then told the pagans that their remaining idol had destroyed the others, in order to demonstrate both that their idols were false and that their relationship with their idols was empty. As shown by Moses’ force-feeding of idolaters with the already-destroyed idol in Jewish and Christian scripture and by Abraham’s wilful preservation of the blamed idol in Islamic legend, religious iconoclasm is not motivated by an absolute religious imperative. As will be shown in some of the following examples, even when iconoclasm is interpreted as an absolute religious imperative, it is implemented as a situational strategy.

Iconoclasm from North Africa to Southern Europe In Egypt, in the late fourteenth century BCE, Amenhotep IV (who renamed himself Akhenaten) destroyed the cult statues of other gods, in order to impose monotheism. Intriguingly, in light of later monotheistic iconoclasm, Akhenaten’s programme recognised the other gods’ powers and was directed at those gods, rather than their worshippers. The other gods needed physical embodiments to act in the world. So, by depriving those gods of their earthly bodies, Akhenaten hoped to create practically a monotheistic world (Bryan 2012, pp. 369–373). In turn, in order to restore polytheism at the end of the fourteenth century BCE, Horemheb destroyed Akhenaten’s statues, temples in Karnak and the

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city of Akhet-Aten. Akhenaten had destroyed his rivals’ statues in a calculated manner. In contrast, his own statues often had their eyes chiselled out (Bryan 2012, p. 373). Such damnation of memory (damnatio memoriae) is common practice for new or insecure ruling regimes and dominant communities. It manifests the thought that ‘who controls the past […] controls the future: who controls the present controls the past’ (Orwell 2004 [1949], p.  37). By destroying evidence of a past alternative, the dominant attempt was to destroy the capacity of the dominated to assess the present in contrast with the past, to imagine a future alternative and even to believe in the possibility of change. Symbolic targeting of bodily instruments can be seen in the treatment of dead bodies. In 43 BCE, when a dictatorial triumvirate had taken power in Rome, it killed the opponent orator and author Cicero, cut off his head and his hands and displayed them in the Forum (Kristensen 2015, p. 321). It can be seen in the treatment of statues, too. In order to impose Christian monotheism in Roman Egypt in the fourth and fifth centuries CE, pagan idols were desecrated. Simultaneously reflecting and contradicting the understanding that ‘[idols] have mouths, but they do not speak; they have eyes, but they do not see; they have ears, but they do not hear; neither is there any breath in their mouths’ (Tehillim or Psalms, Chapter 135, Verses 16–17, cf. Kristensen 2009, p. 226), iconoclasts disempowered the supposedly already powerless idols by gouging out their eyes, cutting off their earlobes, breaking their noses and so on. It might be argued that it was not theologically necessary for Christians to destroy those features, but it was theologically necessary for the pagans to understand that those idols were powerless. However, in the eighth-century Byzantine Empire, ‘brief historical notes’ on sculpture averred ‘take care when you look at old statues, especially pagan ones’ (Parastaseis Syntomoi Chronikai, cited in Kristensen 2010, p. 160). Such cautions did not always reflect a fear of idols, however. Echoing ancient Egyptian beliefs about embodiments of gods, medieval Christians feared that demons could possess figures. Hence, they were motivated to disable those demons by breaking those bodies. Sometimes, iconoclasm is motivated by a desire to very literally dismantle and reconstruct the architecture of power. In 325 CE, the temple of Cronus was converted into the Church of Theonas and the idol of Cronus was dismembered and reformed as a cross (Kristensen 2010, p. 163). Sometimes, it is simply an act of domination and humiliation. In the mid-­ fourth century CE, Christians defaced a statue of legendary pagan commander Germanicus (though they may only have known that it was a representation of a pagan). They tried to cut off his head, then broke his nose,

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cut off an earlobe and ‘baptised’ him by carving a cross into his forehead (Kristensen 2009, pp. 229–231). In ancient Egyptian myth, Osiris was overthrown by Set, then dismembered and dumped in the Nile, though he was reassembled by Isis and their child Horus then overthrew Set. In 392 CE, the temple for Serapis (Serapeum) was destroyed and the idol of Serapis was ‘overthrown’ by a church-and-state-­backed mob in Alexandria, who demonstrated their intimate understanding of their target. His identifying grain measure was cut off his head, his head was cut off his body, his body was dismembered and then his parts were dispersed and burned, so that he could not be revived (Kristensen 2009, p. 228; 2010, p. 166). Reaffirming the use of iconoclasm for ideological instruction more than ideological satisfaction, excavations revealed that much figural sculpture was not destroyed; even the head of an(other) Serapis had suffered no violence (Kristensen 2010, p.  166). In 415 CE, idolaters themselves were destroyed. Hypatia was lynched by a mob; her body was dismembered, then her parts were dispersed and violated (Kristensen 2009, p. 229). At the very end of the fourth century CE or in the early fifth century CE, Shenoute, a Coptic monk from the White Monastery, trespassed on the property of Gesios, an aristocrat. Yet again, demonstrating iconoclasts’ familiarity with, rather than ignorance of, iconophilic culture, Shenoute both identified the subjects of the iconic representations and realised Egyptian myth in his iconophobic reality. As Set had treated Osiris’ body, Shenoute dismembered the Egyptian ‘demons’ and dumped them in the river (Kristensen 2009, p. 236). Reaffirming the use of iconoclasm for ideological instruction, when a hidden group of idols was revealed in Menouthis in 489 CE, patriarch Peter held a public ‘trial’ in Alexandria, with a Christian ‘prosecutor’ and a pagan ‘co-­ defendant’, then burned the ‘guilty’ idols (Kristensen 2009, p. 237). Moreover, ‘only the worthless wooden idols’ were burned (Kristensen 2010, p.  170). However, on another occasion, an ivory-and-gold leaf-inlaid wooden statue was disarticulated and burned (Kristensen 2009, pp. 239–240). Egypt has continued to constitute a microcosm of iconoclasm. Destruction of symbols of power has played a role in both the deposition and the consolidation of autocratic regimes in the present. For example, the headquarters of the National Democratic Party government were first burned by pro-­ democracy revolutionaries in January 2011, then demolished by the police state successor to the military coup regime in June 2015 (Ateyya 2015; El-Tabei 2015).

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Cultural Revolution in China The ‘four times the Buddha was burned’ (sici huofo)—four notorious historical episodes of iconoclasm in China—stretch back from the tenth century, through the ninth and sixth centuries, to the fifth century CE. Although such episodes may have been defended as ideological Taoist acts against Buddhist power, they were only periodical and coincided with financial crises, so the politicalreligious motivation appears to have been a cover for an economic motivation. The gold, silver, iron, bronze and copper were recovered from statues and recycled to finance the state. Meanwhile, the labour-power or human capital of the priests who were disrobed and prospective priests who were not ordained was returned to or retained by the market (Reinders 2005, pp. 65–67). Such a cover might also be perceived in twentieth-century Communist iconoclasm, yet its conduct demonstrates a truly (anti-religious) political motive. During the civil war between the Communist Party and the Nationalist Party, Communist iconoclasm was piecemeal and performed to extract or redistribute assets such as raw materials and land. Between 1949 and 1966, though, the state became more systematic and more targeted in its persecution. It persecuted Christians most intensively, but also Buddhists and others. Despite the collapse in religious practice before the Great Proletarian Cultural Revolution (1966–1976), during the cultural revolution, the state methodically targeted any component of the Four Old Things (old ideology, old culture, old customs and old habits), from antiquities and other cultural commodities to entire institutions, in order to consolidate the regime and its new ideology, culture, customs and habits. Even the performance of the act of iconoclasm was controlled. Politically unacceptable persons were denied the opportunity to participate. At least on some occasions, when iconophiles pre-empted iconoclasts’ demolitions, the iconoclasts (re)built symbols in order to have a target for their performance of revolution. And, paradoxically, considering the prohibited old things, many religious objects were protected by being rhetorically identified as cultural objects (Reinders 2004, pp. 199–204). When Buddhist and other icons were broken, they were treated—‘tortured’ and ‘killed’—like living ‘counterrevolutionaries’. Red Guards bound and displayed them; the public were incited to curse them; they were ritually humiliated and paraded with objects, such as dunce caps; and then, they were ‘judged’ and ‘shot to death’ (Reinders 2004, p. 192 n1). Still, the Red Guards also plundered cultural property and sold it into the international art market, which served to cleanse the revolutionary territory while financing revolutionary activity (Hardy 2015b, p. 27).

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 liminating Markers of Mixture E and the Possibility of Difference  ar on Peace in South-Eastern Europe: The Eastern W Mediterranean While both the details of individual cases and the historical-geographical trends are contested, it is clear that destruction of cultural property has been an important component of the Cyprus Conflict (cf. Hardy 2011, pp. 152–200; 2013; 2014, pp. 82–83). Since 1955, targets have encompassed graves; religious buildings, such as churches, monasteries, mosques and tekkes; civilian properties, such as homes and shops; and social-political sites, such as statues, cafes, public services, offices of trade unions and political parties. Such destruction is different from the breaking of religious idols, insofar as it is not committed to prove the powerlessness of totemic figures. The iconoclasts have not expected Greek Cypriots or Turkish Cypriots to see that their religion or nation is ‘wrong’ and convert themselves. However, they have tried to annihilate the presence and power of others through the annihilation of the symbols of those others. They have tried to create non-existent pasts in order to create desired futures. There has been systematic destruction of symbols of the Turkish Cypriot community (cf. Hardy 2011, p. 164 n87), primarily driven by a Greek Cypriot ultranationalist paramilitary, whose ‘invisible but real leader [atheato[s] alla pragmatik[os] archig[os]]’ was Archbishop Makarios III (Christodoulou kai Mavros 2008), who became the first president of the bicommunal republic and then president of the Greek Cypriot administration. There has been ‘institutionalised obliteration’ of symbols of the Greek Cypriot community (Fielding 1976a, p. 13), primarily driven by a Turkish Cypriot ultranationalist paramilitary, which was led by Rauf Denktaş, who became first vice president of the bicommunal republic, then president of the Turkish Cypriot administration. Contradictorily, iconoclasts have even tried to teach their fabricated pasts through the very act of fabricating them. Amidst the ethno-religious cleansing of the territory, while president of the Turkish military-occupied Turkish Cypriot administration, Denktaş argued that the history of destruction taught that ‘politically these two communities are incompatible’ (Fielding 1976b, p. 13). Manifestly, historically, the communities had been compatible; otherwise, there would not have been so many mixed communities and multicultural landscapes for the ultranationalists to ethnically cleanse.

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Ideological destruction that enables iconoclasts to conquer symbolic space may also be instrumental destruction that enables iconoclasts to conquer physical space. During intercommunal violence under colonial rule in 1958, the mosque in Morphou/Güzelyurt was stoned. For at least one of the youths who conducted the attack, the motivation was to prove his masculinity, group membership and status. For the Greek Cypriot ultranationalist paramilitary that ordered the attack, the motivation was intimidation—to give ‘a threatening warning [mia apeilitiki proeidopoiisi]’ to the Turkish Cypriot community (Georgiades 2008). And the targets understood: what had been done to the symbols of the community would be done to the members of the community. Duly threatened, many evacuated (Patrick 1976, p. 98 n65). While provocation is not a typical motivation for iconoclasm, it is one. Demonstrating the shared logic of iconoclasm and the shared strategy for violence, when the island recovered peace under independent democracy, the ultranationalists committed false flag attacks on their own symbols, in order to provoke a return to violence, without bearing responsibility for it. During the period of bicommunal rule before the descent into civil war, Turkish Cypriot ultranationalists bombed Bayraktar Mosque and Ömeriye Mosque; bombed the law office of their leader, Rauf Denktaş; stoned the Embassy of Turkey; and shot the statue of the founder of the Republic of Turkey, Mustafa Kemal Atatürk (Gazioğlu ve Uludağ 2005; Levent 2008). Greek Cypriot ultranationalists burned one of their community’s primary schools, in Ayios Kassianos, and bombed the statue of one of their heroes, Markos Drakos (Charalambous 2008; Sunday Mail 2008). Iconoclasm can also constitute an act of resistance and negotiation by weak groups. At the archbishopric in Nicosia on the night of 1–2 September 2008, unknown persons threw paint over the statue of President Archbishop Makarios III and spray-painted the stones in front: ‘For sale! Down with idols’ (Leonidou 2008, p. 1). Less articulately, the following morning, three unidentified young men threw beer over the statue and ‘shouted abuse at priests’ (Pissa 2008). The paint-bombing, at least, was a striking act. It played on Christian theology to query the idolatry and exploitation of a religious and political figure who had been perceived as a ‘saint’ in life (to Greek Cypriots, while a ‘monster’ to Turkish Cypriots, cf. Time 1964) and who had loomed over society (literally, in a ten-metre-tall effigy) long after his death.

War on Peace in South-Eastern Europe: The Balkans In the Yugoslav Wars of 1991–2001, there was mass destruction. Inevitably, in often urban warfare, some strikes caused collateral damage. Nonetheless,

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many attacks constituted acts of targeted erasure. In the Croatian War of 1991–1995, for example, 2423 monuments were damaged or destroyed, of which 495 (20 per cent) were religious buildings. Indicating targeting for ethno-religious cleansing, 408 monuments were largely or completely destroyed, of which 164 (40 per cent) were religious buildings, and most of those were Roman Catholic buildings that served and symbolised the Croatian community, while many of the other destroyed monuments were civilian buildings and neighbourhoods that embodied the historical existence and presence of the Croatian community (Ukrainčik 2001, pp. 69–70). In the Bosnian War of 1992–1995, with regard to religious buildings, more than 1200 mosques, 150 Roman Catholic churches, 15 Orthodox churches and 4 synagogues were harmed (Riedlmayer 1996, pp. 87–88). In total, 3066 (52 per cent) of 5896 ‘Bosniak’ Muslim buildings were damaged or destroyed. Even more clearly demonstrating targeting, less than 10 per cent of difficult-­ to-­identify schools were attacked, yet more than 80 per cent of large mosques were attacked (Riedlmayer 2002, p. 99—Table 1). It is difficult to infer differences in behaviour between armed forces, because they varied in size, territory and technology over the course of the war (cf. Hoare 2010, p. 130), but 2556 (83 per cent) of attacked Muslim buildings were attacked by Serb ultranationalists, while 510 (17 per cent) were attacked by Croat ultranationalists (Riedlmayer 2002, p. 100—Table 2). In the Kosovo War of 1998–1999, Serb ultranationalists damaged or destroyed at least 207 (34 per cent) of its 609 mosques; 3 of its 4 historic Ottoman districts; more than 500 traditional Albanian houses; and a number of Islamic schools and libraries (Herscher and Riedlmayer 2000, p. 112). In addition, 70,000 of the territory’s 500,000 houses were destroyed (Herscher and Riedlmayer 2000, p.  112). Subsequently, in post-war conflict between 1999 and 2004, Albanian ultranationalists damaged or destroyed 156 (11 per cent) of Kosovo’s 1400 Orthodox churches (Philp 2007), as well as 730 Serb homes (United Nations Interim Administration Mission In Kosovo 2005, p. 1). The existence and significance of this ethno-religious cleansing is also visible in civilians’ coping strategies. The identities of some residents, who fear becoming accidental victims of extremists within the dominant community, are now literally expressed through their buildings. Some doors and walls now state: ‘Albanian owner (pronar Shqiptar)’; ‘this house is Albanian-owned (Shtëpia e Shqiptarit pronarit)’; ‘this house is Albanian (shtëpi është Shqiptari)’.

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Yet, the targets went beyond visual symbols of communities, to historical evidence of communities. Libraries were targeted with incendiary munitions, such as phosphorus shells, in order to ensure that the archives of their communities’ histories were burned—for example, the Library of the Inter-­ University Center in Dubrovnik, Croatia, the National and University Library in Sarajevo, Bosnia, and the Central Historical Archive of the Islamic Community of Kosovo in Prishtina (Riedlmayer 2007, pp. 109, 110, 123). In 1993, Croat forces explained that they had destroyed the Old Bridge (Stari Most), because it was ‘not enough to clean Mostar of the Muslims’; ‘the relics’ of the presence of Muslims ‘must also be removed’ (cited by Block 1993, p. 8). After an Albanian nationalist pogrom in Kosovo and a retaliatory Serb nationalist pogrom in Serbia in 2004, the mufti’s son, Iman Mustafa Jusufspahic, explained the consequence of the destruction of the archives of the Islamic community of Belgrade: ‘Our library is destroyed, all our records are destroyed, our seals are missing, our safe has been emptied, our computers are destroyed or stolen. As the Islamic community of Belgrade we no longer exist’ (cited by Mracevich 2004). The destruction of memory was the destruction of community and the destruction of the possibility of heterogeneity (cf. Coward 2009).

War on Peace in West Africa Since the French colonial occupation of Mali in 1891, there have been ethnic and religious communal clashes, Tuareg rebellions, a popular revolution and military coups. During Mali’s most recent troubles, the predominantly ­anti-­extremist, Sufi Tuareg National Movement for the Liberation of Azawad (MNLA) declared the independence of northern Mali. Rebels repeatedly raided the Ahmed Baba Institute of Higher Learning and Islamic Research (IHERIAB), because they wanted to use it as their headquarters, though its staff resisted and no historical archives were harmed (le Monde 2012; Sharpe 2012). To consolidate their position, they entered a tactical alliance with the extremist, Wahhabi Salafi Ansar Dine, as the Transitional Council of the Islamic State of Azawad (though the MNLA planned an eventual return to secular rule). Immediately after their occupation of Timbuktu, following a strict interpretation of a vague injunction against ‘idle talk’ or ‘pastime of discourse’ that distracted from the study of the Qur’an and worship of Allah (Luqman, Surah 31, Verse 6; cf. Abbas and Atwell 2009c), Ansar Dine

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destroyed the tangible records of intangible heritage; they destroyed the musical archives of Radio Buktu (Human Rights Watch 2012). They also invaded the tomb and burned the grave of Saint Sidi Mahamoud Ben Omar Mohamed Aquit in Timbuktu, because they perceived local veneration of a holy person as local worship of a dead person with divine power (cited by BBC News 2012). Subsequently, Ansar Dine broke the agreement, allied with the Movement for Oneness and Jihad in West Africa (MUJAO), which was affiliated with Al Qaeda in the Islamic Maghreb (AQIM), and then tried to conquer Mali and convert it into an Islamic state. Only then Ansar Dine began the demolition of shrines. Explicitly rejecting the authority of UNESCO to judge the proper treatment of religious sites—perhaps more importantly, albeit implicitly, rejecting the authority of the state that had asked UNESCO to add the City of Timbuktu and the Tomb of Askia to the list of World Heritage in Danger— Ansar Dine declared that they would ‘destroy every mausoleum in the city’ (cited by France 24 2012). They began with the tomb of Sidi Mahamoud Ben Omar Mohamed Aquit, which they had invaded but left standing before, as well as the tombs of Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir and Alpha Moya on 30 June 2012, then the mausoleum of Sheikh el-Kebir on 1 July 2012. At the same time, they invaded the mosque of Sidi Yahya and opened the sealed gate, in order to denigrate the local legend that the gate would only be opened at the end of the world. Ansar Dine’s leaders declared that the site was idolatrous, but at least some of its fighters told resident Haidrata that they were demolishing the building because they had been falsely accused of demolishing other sites and ‘wanted to show what they were really capable of ’ (cited by Mark 2012). On 15 September 2012, MUJAO demolished the mausoleum of Cheikh el-Kebir, north of Gao. On 29 September 2012, Ansar Dine also destroyed the mausoleum of Alfa Mobo in Goundam (Middle East Online 2012). On 18 October 2012, Ansar Dine demolished the mausoleums of Cheick Nouh, Cheick Ousmane el-Kabir and Cheick Mohamed Foulani Macina outside Timbuktu (Reuters 2012). On 23 December 2012, the mausoleums of Al Hassan and the Al Houseyni twins were destroyed (United Nations 2012). As they were being ousted in January 2013 (notably, not before then), Ansar Dine burned more than 4000 ancient manuscripts (Harding 2013). Yet the community had secretly evacuated and protected almost 400,000 other documents (English 2014).

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The head of Ansar Dine’s hesbah (‘manners brigade’), Ahmad al-Faqi al-­ Mahdi, has confessed to the destruction of 93of Timbuktu’s 164 mausoleums and damage of 15 of its 36 mosques (cf. BBC 2016; International Criminal Court 2016). In the end, 15 of the mausoleums were destroyed; only the mausoleum of Al Imam Saïd survived (Direction Nationale de Patrimoine Culturel de la République du Mali 2015, p. 3).

Protest in Iran and Afghanistan In 1979, Iran’s citizens were repressed, particularly its Islamist and Communist communities; despite significant economic as well as political enfranchisement, many were also still severely impoverished. During the revolution, Islamist militants ‘smashed […] statues’ of secularist royalist Mohammad Reza Shah Pahlavi and destroyed, or otherwise removed, ‘almost every [other] sign of the Pahlavi dynasty’ (Taheri 1986, p. 240). Ayatollah Sadegh Khalkhali specifically commanded the burning of the pre-Islamic ancient city of Persepolis and the bulldozing of a partial modern reconstruction, which the Shah had built in 1971, in order to host a feast for regime elites and international elites to celebrate the 2500th anniversary of the founding of the Persian Empire, thereby to identify himself with the founder of the Persian Empire, nationalist idol Cyrus the Great. Yet, Ayatollah Amir Mahallati organised resistance and local citizens drove the ‘band of thugs’ away from ‘the oldest, strongest symbol’ of their society (according to Ayatollah Amir Mahallati, paraphrased and quoted by Sciolino 2000, p.  168). Now, preservation of pre-Islamic as well as Islamic cultural heritage is not only implemented as a means of sustainable economic development; preservation is implemented as a demonstration of the ‘moderation and rationalism’ of the Islamic Republic (Aghlani 2016).  (1) Sidi Mahamoud Ben Omar Mohamed Aquit; (2) Sheikh Mohamed Mahmoud Al Arawani; (3) Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir; (4) Alpha Moya; (5) Sheikh Sidi Ahmed Ben Amar Arragadi; (6) Sheikh Muhammad El Mikki; (7) Sheikh Abdoul Kassim Attouaty; (8) Ahmed Fulane; and (9) Bahaber Babadié 4  (1) Sidi Mahmoud Ben Omar Mohamed Aquit; (2) Al Akib Ben Mahmoud Ben Omar Mouhamed Aquit Ben Omar Ben Ali Ben Yahia; (3) Cheick Alpha Moya; (4) Cheick Sidi Ahmed Ben Amar Arragadi; (5) Cheick Aboul Kassim Attouaty; (6) Cheick Mouhamad El Micky; (7) Cheick Mouhamed Tamba-­ Tamba; (8) Cheick Al Imam Saïd; (9) El Imam Ismaïl; (10) Sidi Mouhammad Boukkou; (11) Sidi El Wafi El Araouani; (12) Cheickh Mouhammad Sankoré le Peulh; (13) Cheickh Sidi Mokhtar Ben Sidi Mouhammad Ben Cheickh AlKabir; (14) Mouhammed Acqit; (15) El Hadj Ahmed; and (16) Aboul Abbas Ahmed Baba Ben Ahmed Ben Elhadji Ahmed Ben Omar Ben Mouhammad Aqit. 5  (1) Sidi Yahya. 6  (1) Sidi Yahya; (2) Sankoré; (3) Djingareyber. 3

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By the winter of 2000–2001, Afghanistan had already been devastated by years of wars, famines, droughts and earthquakes. The Taliban had ‘virtually eliminated’ the poppy industry, which provided a lot of the administration’s finances; yet, they were restricted by international sanctions for harbouring Osama bin Laden. And one million Afghans were at risk of starvation. Then foreign states and cultural heritage institutions—seemingly including the British Museum, the Metropolitan Museum of Art, the National Palace Museum of Taiwan, Iran, Pakistan and Sri Lanka (Rathje 2001)—‘offered to purchase’ the figures (Flood 2002, p. 651). When the Afghan religious council requested money to support malnourished children, the international diplomatic mission refused, because ‘this money is only for statues’ (Crossette 2001). The Taliban argued that, if they had wanted to destroy the Buddhas, they would have done it in 1998, when Mullah Mohammed Omar had actually prohibited the statues’ demolition. Since the statues were ‘harmless’, they were left unharmed. However, because money was offered for the statues ‘while children [were] dying of malnutrition next door’, that made them ‘harmful’ and created a religious (as well as political) need to destroy them (according to Taliban envoy Sayed Rahmatullah Hashemi, cited by Crossette 2001).

Provocation and Extermination in Iraq and Syria The Islamic State explains some of its motivations for iconoclasm in propaganda that advertises certain acts of iconoclasm and propaganda that advertises the organisation itself. For example, when it promoted its first showpiece of destruction of ancient pagan religion, its attack on Mosul Museum and the Nergal Gate Museum at Nineveh, one of its iconoclasts proclaimed: ‘Oh Muslims, these artifacts that are behind me were idols and gods worshipped […] instead of Allah […] gods for war, agriculture and rain to whom [Assyrians and Akkadians] offered sacrifices […] Our prophet ordered us to remove all these statues as his followers did when they conquered nations’ (translated by Salaheddin, 2015). ‘These statues and idols, these artifacts, if God has ordered its [sic—their] removal, they became [sic—become] worthless to us even if they are worth billions of dollars’ (translated by Shaheen 2015). In its multilingual advertising brochure for recruits and donors, Dabiq, the Islamic State has elaborated on its theology. Following the examples of Abraham in Ur and Mohammed in Mecca, the Islamic State (2015, p. 22) has ‘laid waste to the shirkī [polytheistic] legacy’ of societies that have ‘long passed from the face of the earth’, which is good in and of itself. It also ‘serve[s] to

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enrage the kuffār [unbeliever], a deed that in itself is beloved to Allah’, so even theologically unnecessary destruction is good in and of itself, as long as it offends someone who is not a Muslim (in practice, due to its interpretation, someone who is not a member of the Islamic State). Acceptance of a non-Islamic cultural heritage or a non-Islamist (specifically, ‘nationalist’) identity and/or agenda ‘dilutes’ Muslims’ ‘walā [loyalty]’ to Allah (Islamic State 2015, p. 22). Yet the act of iconoclasm is also a fearful act of self-preservation, as ‘many nations of shirk [polytheism]’ have been ‘destroyed for […] persisting upon their shirk’. In an almost archaeological turn, the Islamic State (2015, p. 23) instructs Muslims ‘to take a lesson from those disbelieving nations that came before us and avoid what led to their destruction, as opposed to unearthing and preserving their statues and putting them on display for people to admire’. So, in theory (if not in practice, because almost any act could be justified in order to ‘enrage the kuffār’), these objects would not have been destroyed, they could have been preserved, if they had been denigrated, if they had been ‘look[ed] at […] with disgust and hatred [and] […] fear’ (Islamic State 2015, p. 24). During their first occupation of Palmyra in Syria in 2015, the Islamic State beheaded its Muslim former site Director Khaled al-Asaad outside Palmyra Museum (where they also executed other civilians) and ritually displayed his body in the ancient city, because they defined the archaeologist as an ‘apostate’ who preserved ‘idols’ and consorted with ‘infidels’ (BBC News 2015; see also Shaheen and Black 2015). They destroyed the polytheistic Canaanite Temple of Baal-Shamin, the polytheistic Mesopotamian Temple of Bel and the Victory Arch of pagan Roman Emperor Septimius Severus. To celebrate the ‘liberation’ of the ancient city, when Assad regime forces and Russian armed forces temporarily dislodged the Islamic State, Russia’s Mariinsky Theatre Symphony Orchestra performed a victory concert in the Roman theatre (John 2016), which the Islamic State had previously used as a stage for mass executions of enemy soldiers (Dearden 2017). During their second occupation in 2016, the Islamic State destroyed a monumental Roman tetrapylon, which marked crossroads, as well as parts of the Roman theatre, including the façade and the stage (Shaheen 2017). The theologically grounded arguments only address some of the Islamic State’s motivations for iconoclasm though. For instance, if its primary concern had been the elimination of idolatry, it would not have waited months to attack Mosul Museum and Nergal Gate Museum. In fact, the Islamic State did not only bide its time to perform the act, it performed structurally meaningless destruction in the act for the sake of the propaganda video.

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Furthermore, although the machinations around the events are murky, the Islamic State never attacked the mausoleum of Suleyman Shah, the grandfather of the founder of the Ottoman Empire, even though it had surrounded the site for months. In fact, it released the video of its iconoclasm in Iraq immediately after Turkey had invaded Syria, passed through Islamic State territory, removed Suleyman Shah’s remains and pre-emptively destroyed the mausoleum (Hardy 2015a, 2016). The Islamic State also looted iconic antiquities from Mosul Museum before it broke the other images on camera. So, though they were not worth billions of dollars, they were worth something to the Islamic State in financial terms and the economic motive was prioritised over the religious motive. Since the economic benefit served the advancement of the movement, rather than the enrichment of the participants, it was itself ultimately a political motivation. Moreover, in the same way that trafficking complements destruction, destruction complements trafficking. Destruction advertises the existence of the commodity; increases its scarcity value; and excuses the commission of unethical and even illegal acts (on top of the immediate act of buying stolen property), by the supposedly ethical buyer, for the purpose of ‘rescuing’ the antiquities (Hardy, under review). Alongside these nuanced readings of the acts, there are also very simple motives: to displace people who might otherwise disrupt or actively resist, which also increases the financial burden and social tensions in enemy territory; to intimidate residents into acquiescence; and to provoke reactions from their enemies, whether expressions of fetishistic concern for archaeological sites by Western powers or military intervention by the sectarian allies of their victims, which then provoke service from their own sectarian supporters. Beyond any readings of acts that are also exploited for propaganda, the Islamic State has demonstrated its ideological commitment to extermination through its unadvertised genocide of the supposedly ‘polytheistic’ Yezidi community.

Conclusion Hostile destruction of significant objects has existed for thousands of years. Indeed, some individual religious logics for destruction have been debated and developed over thousands of years. Yet even political practices of destruction may reflect an intimate understanding of the history and psychology of the other. Beyond universally understandable acts such as the toppling of statues, some practices of iconoclasm involve acts that have been established within communities of understanding over hundreds of years.

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Iconoclasm may be a means of establishing power relations amongst coexisting communities, as it was in the Ancient Near East. It may be a means of demonstrating one’s faith and furthering one’s cause, as it has been in movements from Judaism, Christianity and Islam in West Asia to Communism in East Asia. It may be a means of claiming and purifying territory, as it was for zealots in medieval Western Europe and nationalists in modern South-Eastern Europe. It may be an act of resistance to local power or protest in international politics. And it may be an early warning sign for and constituent element of genocide. Particularly as some acts of iconoclasm may be peaceful, celebratory and popular, such as the breaking down of the Berlin Wall, it may indeed help to think of iconoclasm as transforming signs instead of breaking images. However it is conceived, it will persist as a fundamental component of social action.

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Russell, C., & Russell, W. M. S. (1971). A Minoan altar in present-day use? Folklore, 82(4), 317–318. Salaheddin, S. (2015, February 26). New IS video shows militants smashing ancient Iraq artifacts. Associated Press (AP). Retrieved May 2, 2016, from http://bigstory. ap.org/article/b90b9290b1f94ff5bf4348 867a8fa3a0/new-video-shows-militantssmashing-ancient-iraq-artifacts. Schulze, R. (2016, April 29). Labour antisemitism row: There was nothing Zionist about Hitler’s plans for the Jews. The Conversation. Retrieved May 2, 2016, from https://theconversation.com/labour-antisemitism-row-there-was-nothing-zionistabout-hitlers-plans-for-the-jews-58656. Sciolino, E. (2000). Persian mirrors: The elusive face of Iran. New York: Touchstone. Shaheen, K. (2015, February 26). Isis fighters destroy ancient artefacts at Mosul museum. The Guardian. Retrieved May 2, 2016, from http://www.theguardian. com/world/2015/feb/26/isis-fighters-destroy-ancient-artefacts-mosulmuseum-iraq. Shaheen, K. (2017, January 20). Isis destroys tetrapylon monument in Palmyra. The Guardian. Retrieved March 17, 2017, from https://www.theguardian.com/ world/2017/jan/20/isis-destroys-tetrapylon-monument-palmyra-syria. Shaheen, K., & Black, I. (2015, August 19). Beheaded Syrian scholar refused to lead Isis to hidden Palmyra antiquities. The Guardian. Retrieved March 17, 2017, from https://www.theguardian.com/world/2015/aug/18/isis-beheads-archaeologist-syria. Sharpe, E. (2012, June 6). Priceless heritage at risk from extremists. The Art Newspaper. Retrieved May 2, 2016, from http://old.theartnewspaper.com/articles/Pricelessheritage-at-risk-from-extremists/26505. Shaudig, H. (2012). Death of statues and rebirth of gods. In N.  N. May (Ed.), Iconoclasm and text destruction in the Ancient Near East and beyond (pp. 123–149). Chicago: The Oriental Institute of the University of Chicago. Spraggon, J. (2003). Puritan iconoclasm during the English civil war. Woodbridge: The Boydell Press. Staal, C. (2007). Aspects of iconoclasm in Utrecht – today and in the past. In W. J. van Asselt, P. van Geest, D. Müller, & T. Salemink (Eds.), Iconoclasm and iconoclash: Struggle for religious identity (pp. 313–329). Brill: Leiden. Sunday Mail. (2008, October 12). The violent road to division. Sunday Mail [Cyprus]. Retrieved September 30, 2010, from http://www.cyprus-mail.com/news/main. php?id=41868&cat_id=9. Taheri, A. (1986). The spirit of Allah: Khomeini and the Islamic revolution. London: Adler and Adler. Time. (1964, February 28). Makarios of Cyprus. Time. Retrieved May 2, 2016, from http://content.time.com/time/magazine/article/0,9171,873818,00.html. Ukrainčik, V. (2001). War damage to cultural monuments in Croatia. In S. Burke, D.  Bumbaru, & M.  Petzet (Eds.), Heritage at risk: ICOMOS world report 2001–2002 on monuments and sites in danger (pp.  67–71). Paris: International Council on Monuments and Sites (ICOMOS).

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United Nations. (2012, December 25). Mali: UNESCO chief deplores new destruction of Timbuktu mausoleums. United Nations (UN). Retrieved May 2, 2016, from http://www.un.org/apps/news/story.asp?NewsID=43844. United Nations Interim Administration Mission In Kosovo. (2005). Data on March 2004 riots and follow-up actions. Prishtina: United Nations Interim Administration Mission In Kosovo (UNMIK). Van Asselt, W. J. (2007). The prohibition of images and Protestant identity. In W. J. van Asselt, P. van Geest, D. Müller, & T. Salemink (Eds.), Iconoclasm and iconoclash: Struggle for religious identity (pp. 299–311). Leiden: Brill. Wedeman, B. (2017, March 12). Mosul Museum: ISIS unknowingly destroys fake art. CNN. Retrieved March 17, 2017, from http://edition.cnn.com/2017/03/12/ middleeast/mosul-museum-isis/. Woods, C. (2012). Mutilation of image and text in early Sumerian sources. In N. N. May (Ed.), Iconoclasm and text destruction in the Ancient Near East and beyond (pp. 33–55). Chicago: The Oriental Institute of the University of Chicago.

30 Iconoclasm and Cultural Heritage Destruction During Contemporary Armed Conflicts Joris D. Kila

Introduction In 2014, I wrote an article for Joint Forces Quarterly (JFQ), together with Colonel Christopher Herndon from the U.S. Military, with the title ‘Military Involvement in Cultural Property Protection. An Overview’(Kila and Herndon 2014). The article served to present insights and innovative approaches on concepts and mechanisms that underpin heritage destruction and protection in the context of armed conflicts as well as to stimulate more research on this topic. At the same time, new developments concerning parties involved in cultural heritage protection and destruction, sometimes in combination, with evolving understandings about legal consequences should be monitored and analyzed. In the JFQ article, we examined the situation regarding the protection of cultural heritage and the role the military could and should play in this, especially in times of turmoil and armed conflict. A major conclusion was that cultural property protection (CPP) overall can generate important force multipliers and helps to end military missions sooner while also contributing to post-conflict reconstruction by stimulating local development via tourism and strengthening national identities because of the stabilizing and binding effect this can have on a society. The term ‘force multiplier’ refers to a capability that, when added to and employed by a combat force, significantly increases the combat potential of that force and thus enhances the probability

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of successful mission accomplishment. We did not, at the time, put extra emphasis on the fact that CPP could deny the enemy financial resources to be gained by selling cultural objects, often in cooperation with organized transnational crime. Little did we know then that the situation concerning destruction and abuse of cultural property would deteriorate at great speed, resulting in the current disastrous circumstances thanks to the activities of extremist Jihadists groups like Islamic State (IS). Atrocities leading to the current deplorable cultural heritage situation triggered some advancement in the protection of cultural property through international criminal law or, to put it more generally, the criminalization of offenses against cultural heritage in times of conflict (Frulli 2011). In the context of this piece, the term ‘atrocities’ includes destruction, damage, seizure and illicit transport, but also more distinct phenomena like looting and iconoclasm. Although I am no lawyer, I do believe in a multidisciplinary approach regarding CPP; therefore, I want to provide some groundwork, including legal and cultural heritage issues in this chapter, hopefully triggering debate leading to more understanding and consequently correct legal classification for prosecution of acts against cultural property in the context of armed conflicts.

The Return of Iconoclasm Some Facts 1 . Iconoclasm literally means the ‘breaking of images’. 2. Iconoclasm refers to the destruction of images or hostility toward visual representations in general (Khanacademy 2016), usually for religious or political motives. In the context of armed conflict, this can be considered a war crime. The most effective tool for pursuing war crimes against cultural property is Protocol II to the 1954 Hague Convention (Frulli 2011). 3. Iconoclasm can be intentional cultural destruction causing or aimed at historical obliteration. This can lead to damage or eradication of identity that can be classified under crimes against humanity. Identity can stand for: national identities, local identities, individual identities, religious identities, cultural identities, racial identities and professional identities. 4. Case example: the iconoclastic fury in the Netherlands (Beeldenstorm) of 1566 in which Protestants entered Catholic monasteries and churches and damaged Catholic sculptures and murals (Kila 2015, p. 173).

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5. A benchmark of contemporary iconoclasm: The destruction of the Bamiyan Buddhas by the Taliban in 2001 (Kila 2015, p. 176). 6. Common denominators for ancient and modern cases are accusations of idolatry and profane depictions of human figures. 7. There is also non-religious-driven iconoclasm, for example, by the old Egyptians and Romans like changing of existing cartouches and damnatio memoriae (condemnation of memory). A cartouche is an oval or oblong figure, as on ancient Egyptian monuments, enclosing characters that represent the name of a sovereign. Destroying objects in museums can be a display of protest or vandalism. Destruction of paintings or other cultural objects can also happen out of anger or fear, for example, the attack with a knife on Barnett Newman’s painting Who’s Afraid of Red, Yellow and Blue III (1967) in 1986  in the Stedelijk Museum of Amsterdam (Kila 2015, p. 172). On 26 February 2015, Islamic State presented a propaganda film in which irreplaceable objects in the museum of Mosul and one of the historic city gates were destroyed with sledgehammers and drills. According to IS all objects were regarded as idolatrous. A musical background mix of battle songs and religious texts underlined the work in progress. Other IS actions were not filmed: Mosul’s public library containing, among others, 8000 rare antique books and manuscripts was blown up with improvised explosives and also Islamic heritage (historic graves in Raqqa and the Shiite Uwais al-Qarni Mosque) was destroyed while, in addition, Mosul’s university was not spared. Conveniently (for IS), there was no mention in the media of the fact that selected objects had been taken first to be sold, helping to finance the conflict (see for instance Jones 2015). Iconoclasm is back. The European iconoclastic rage of 1566 was one of its most famous expressions in which Calvinists destroyed statues in Catholic churches and monasteries. The destruction of antiquities and cultural objects, of heritage, seems to be rediscovered as a contemporary form of psychological warfare sometimes secretly combined with ‘harvesting’ more marketable objects for illegal export. But what distinguishes cultural heritage or, in legal terms, cultural property from valuables like jewelry and cash? Important is cultural property’s quite sensitive connection with identity. What is today’s concept of identity or more literally distinctiveness? When looking back in history, we see that, for instance, national identities are relatively new. Western nationalism developed, after the French and American Revolutions, as a replacement of the theological and monarchical ideologies used by states to legitimize their

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power. The invention of nationalism paved the way for the development of group identities, with cultural heritage as an important expression of their distinctiveness. In the late twentieth century, identity at the individual level became more important through the rise of movements like Black Power and Women’s Lib and the growing urge for individual distinction. Roughly, there is a division between material and non-material heritage. In the first category, one finds, for instance, sculptures and paintings, but also libraries, archives, monuments and archaeological sites. The second category, also referred to as intangible heritage, includes languages, national anthems and historic traditions. Strictly speaking, this form iconoclasm, being an older phenomenon (or tradition), can be seen as a type of intangible heritage that also has roots in Christian, Roman and Pharaonic traditions (Kila 2012, p. 37, 2013, p. 29). The Bible says, ‘You shall not make for yourself an idol, or any likeness of what is in heaven above or on the earth beneath or in the water under the earth’ (Exodus 20:4). De facto the ‘Western’ hemisphere differs not much from the caliphate where images of people and animals are regarded upon as objects of idolatry and paganism. If we, for the sake of argument and despite the recent fatwa issued by the Egyptian Islamic institute Al-Azhar forbidding the destruction of ancient artifacts after Islamic State raids on a Mosul museum and the ancient Assyrian city of Nimrud (Lesson from the Past 2015), assume that the caliphate’s actions are aimed at heresy, why are we then angry and distressed about something we did ourselves in the past? Because we claim that we no longer practice certain old traditions (such as public executions) by advancing insight (we claim to become more civilized). Sure, we look back to the glorious past, but not to literally bring it back as the religious extremists do. Following this interpretation, IS does not honor the lost glorious Islamic past by emphasizing the good things, such as the golden age of the Abbasid Caliphate (749–1258) when art, architecture and literature flourished. Rather, it aims to return to the primitive and violent habits of the middle ages and sixteenth-century iconoclasm. Modern heritage devastation became manifest with the demolition of the Bamiyan Buddhas by the Taliban in 2001, an act that can be classified as iconoclasm and, as such, is a criminal offense committed by the individuals who materially order and/or perform the acts of destruction (Francioni and Lenzerini 2003, pp.  619–621). Topical is the increasing aggression against heritage in conflicts in North Africa and the Middle East, also known as the MENA (Middle East and North Africa) region. Typical cases of iconoclasm mixed with attempts to erase identity currently take place in this region. Examples are the destruction of Sufi shrines and monuments in Mali and Libya and attacks on temples and shrines of Yezidis by Islamic State (e.g. in

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Sinjar, Iraq, 29 October 2014). On 25 August 2012, a historical mosque and library containing important manuscripts and several adjacent Sufi shrines and monuments were demolished in the town of Zlitanin. In Tripoli, on 26 August 2012, Salafists destroyed a Sufi mosque and Sufi shrines. Reports from March 2015 indicate that the Tripoli branch of IS again leveled Sufi shrines in Libya (Zargoun 2012).

Plunder and Iconoclasm There are different types of looting and iconoclasm. Also, simultaneously and overlapping, the following types of destruction can occur: • Vandalism (vandalism against cultural property also takes place in peacetime, e.g. on 19 February 2015, fans of the Dutch Rotterdam soccer team Feyenoord ran riot in Rome’s historic center, throwing bottles and flares and causing serious damage to the Barcaccia fountain in Piazza di Spagna. Built by Pietro Bernini, father of famous architect and sculptor Gian Lorenzo Bernini, between 1627 and 1629, the fountain reopened in September 2014, after an extensive ten-month restoration) (The History Blog 2016); • Iconoclasm driven by fear or religious motives; • Strategic looting, for instance, for military reasons, for example, intelligence data in archives; • Damaging the identity of opponents; • Looting for profit or criminally motivated looting and theft; • Politically driven to change the history of a nation or region; • Commissioned looting (for rich foreign collectors, museums) since the supply of cultural property for legal trade is limited; • To destroy information and evidence (archives, manuscripts, etc.). In a collection on Cultural Property Crime, (Kila 2015) I describe the phenomenon of iconoclasm as a more typical example of misconduct that can be difficult to prosecute under legislation designed for the protection of cultural property in the event of conflict. It is critical to establish what is meant by a specific act of iconoclasm and, in addition, what construct or interpretation of this term is relevant in a particular case. The literature shows different perspectives on the term and refers to a recurring historical impulse to break or destroy images for religious or political reasons (Brooks 2013). Another definition considers iconoclasm as ‘strongly opposing generally accepted beliefs

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and traditions’ (University of Cambridge Dictionary 2017). In general, the term is used for the destruction of religious iconography (also referred to as graven images), perceived as idolatrous by the iconoclasts. Nevertheless, seen from the Western perspective in today’s secularizing world, it would be recommendable to redefine, or fine-tune, the term as an act of attacking, especially material manifestations of certain ideas and beliefs and not per se restrict it to religious representations. Again, this is from a Western secular point of view, orthodox religious societies will have a different perception. Via contemporary art historical publications, this wider construct of iconoclasm entered the academic discourse by acknowledging that certain images are dangerous, or become dangerous, when the powers they possess are bigger than we, or certain groups, feel comfortable with (Boldrick 2013, p.  1). In any case, it is essential to establish what caused a particular act of iconoclasm. All findings will be relevant to determine whether respective acts of iconoclasm should be prosecuted as war crimes or crimes against humanity or even as mere military actions justified by military necessity. It should be noted that, on some occasions, the aim of erasing the historical cultural identity of a particular group or area through iconoclasm is not achieved. Instead of an intended damnation of memory (obliterating from the world’s shared cultural/historical memory) the opposite happens. This can be seen for instance in the Bamiyan Valley in Afghanistan where the destroyed giant Buddha statues left enormous anthropomorphic-shaped niches that remain as a strong statement of what has been attacked by barbarians threatening civilization. The human-molded niches serve as an imprint in what can be called a trauma scape or a place transformed by tragedy that makes a powerful statement (Tumarkin 2005). Another example of such a transformed cultural property is the Gedächtniskirche or Kaiser Wilhelm Memorial Church at the Breitscheidplatz in Berlin. This is now a symbolic epicenter in West Berlin functioning as anti-war memorial. Succeeding allied bombing in 1943, the west tower was deliberately preserved as a part ruin. It is the only structure on the square spared by the bombing.

Damages to Cultural Property During Conflict The Current Situation The world’s collective cultural heritage is presently not only threatened by time, nature, criminality (in peacetime) and development (often illegal urban encroachment), but increasingly by armed conflicts and upheavals. In this

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context, we see the return of iconoclasm driven and legitimized as an excuse of getting rid of heresy as well as the ‘recycling’ of antique monuments originally built as defense works like castles (Krak des Chevaliers) and citadels (Palmyra—today known as the Fakhr-al-Din al-Ma’ani and currently damaged after its ‘liberation’ by Syrian and Russian Forces on 26 March 2016— and Aleppo) for ‘modern’ battle. It should be noted that, in the case of Syria, all warring parties are guilty of doing this while disregarding that these monuments are ‘protected’ under national and international laws. For instance, the Syrian Antiquities Law does not contemplate the derogation or suspension of its obligations in exceptional circumstances. Therefore, this law continues to apply during the current conflict (Lamb 2015). Nevertheless, we should take into account that the military is allowed to damage cultural property under specific circumstances, for instance, if they can prove that this property is at the same time a valid military target. This ‘waiver’ for attacking cultural property is known as ‘military necessity’. This is a legal concept used in International Humanitarian Law (IHL) as part of the legal justification for attacks on legitimate military targets that may have adverse consequences for civilians and civilian objects. It means that military forces in planning military actions are permitted to take into account the practical requirements of a military situation and the imperatives (prerequisite) of winning at any given moment. Military necessity acknowledges that even under the laws of war, winning the war or battle is a legitimate consideration, though it must be put alongside other considerations of IHL (Hampson 2016). In practice, this means that military necessity must always be balanced against other humanitarian requirements of IHL. As examples, I will give three of such necessities (Taulbee 2017, pp. 93–94; Henderson 2009, p. 36): 1. Any attack must be intended and tend toward the military defeat of the enemy; attacks not so intended cannot be justified by military necessity because they would have no military purpose. 2. Even an attack aimed at the military weakening of the enemy must not cause harm to civilians or civilian objects that is excessive in relation to the concrete and direct military advantage anticipated. 3. Military necessity cannot justify violation of the other rules of IHL. Of course, throughout history (e.g. World War II), appeals were made by military commanders responsible for destructions that they were driven by military necessity. There are even examples in which military personnel were prosecuted and convicted because the appeal on military necessity was not considered just. The Pavle Strugar case concerning the shelling of the ­historical

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city center of Dubrovnik is one of them. Strugar was a former Yugoslav People’s Army (JNA) General charged with crimes committed in the Croatian city of Dubrovnik in 1991. On 31 January 2005, Strugar was found guilty and sentenced to eight years by a Trial Chamber for attacks on civilians, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science, all in relation to JNA’s attack on Dubrovnik in 1991. According to the judgment, Strugar had both legal and effective control of the JNA forces who conducted the military action at Dubrovnik, including the shelling of the Old Town of Dubrovnik (Prosecutor v. Pavle Strugar). Last but not least, there is, apart from the ‘normal’ thefts that to an extent also take place in peacetime, especially in fragile and conflict-affected states (FCAS; Taylor 2014), an increase of looting (for an excellent typology of looting, see Mac Ginty 2004) followed by illicit trafficking of cultural property of which the revenues are used to finance, thus extend, the conflicts. Important to consider is that according to many sources substantial numbers of artifacts looted and smuggled out of FCAS end up hidden in secret depots in order to enter the markets in the future. As the New York Times put it: ‘Long-established smuggling organizations are practiced in getting the goods to people willing to pay for them and patient enough to stash ancient artifacts in warehouses until scrutiny dies down’ (Myers and Kulish 2016).

Evidence Until recently, there was no direct hard evidence for claims that extremists had created mechanisms to organize the looting from monuments, museums, libraries, archives and archaeological sites in order to generate profits to pay their fighters, buy weapons and so on. This changed when, on 29 September 2015, the U.S.  Department of State declassified a selection of materials of what was called the Abu Sayyaf raid. Presented was concrete proof of IS involvement in looting and trading of antiquities originating from, among others, Syria and Iraq. Already for a while, several experts argued, antiquities had become an important source of income for IS. In fact, the profits generated from their cultural (war) crimes are used to finance and thus extend the conflict. An important and positive side effect of such criminal strategies is that military entities (in this case coalition forces) that in general do not automatically implement legal obligations to safeguard cultural property during their operations, now have a real strategic military incentive to do so while operating in conflict areas. In military

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terms, this is called a force multiplier (in practice denying the enemy financial means to extent and continue the conflict by protecting cultural property). Force multipliers help the military to reach the end state of their mission, as specified in their operational planning, sooner (Kila 2015, p. 184). The press presentation by the U.S. State Department of declassified documents and pictures/graphics found during a raid executed by special forces (U.S.  Delta) on the dwelling of IS leader Abu Sayyaf took place on 29 September 2015. One can of course wonder if and, if so, to what extent the presentation formed part of a U.S. strategic communication plan and whether all evidence was shown (for instance, the military raid was executed by the U.S. Department of Defense (DoD) and the presentation by the U.S. State Dept.). But that is basically not relevant for the significant argument that there finally is proof that can be used to demonstrate to the military that CPP pays off (Ruiz 2016). Engaging with military capabilities is just one of the instruments at hand to protect cultural heritage in conflict zones and to stop devastations and abuse of cultural property that is already happening. From this perspective, there is not much difference compared to the police and the fire brigade. Unfortunately, there are still experts and scholars that in today’s times of heritage devastations spend time on discussions whether the figures of criminally looted cultural objects are accurate, some even still argue that there is no evidence that terrorist groups like IS have established mechanisms to loot and trade in antiquities. This is not helping the prevention of cultural property abuse during conflict, because it ridicules the military reasons for protecting cultural heritage, thus denying the international community the use of an instrument to safeguard cultural property. Abu Sayyaf, who was from Tunisian descent, was killed while resisting arrest during the raid that took place in the night of 15–16 May 2015. During the operation, cultural objects were found, proving the illegal IS trade in antiquities. Also, documents were found, showing that IS had a special antiquities department that, in fact, was part of a Diwan, a sort of ministry used in the old Sultanate system. This department also issues (in fact sells) licenses to loot to individuals, who this way can generate funds to pay their religious taxes, called Khums, to, in this case, IS. It is very likely that the Americans have obtained, through these types of raids, names and data of individuals to be used in later prosecutions. If, at the same time, the buyers are tracked down (follow the money) and precedents are created, there will be at least some progression in the fight against cultural heritage abuse. A new instrument to achieve the latter is Counter Threat Finance, by the U.S. defined as ‘Activities and actions taken by the DoD and other U.S. Government organizations to Deny, Disrupt, Destroy,

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or Defeat threat finance systems and networks. This includes persons and entities that provide financial and material support to illicit networks, such as terrorists, insurgents, drug traffickers, weapons traffickers, human traffickers, and corrupt government officials’ (Barta et al. 2013). In fact, counter threat finance techniques are already used by military organizations to track down poachers and smugglers of ivory and skins of rare wild animals. Terrorist groups active in Africa, like the Lord’s Resistance Army (LRA), Boko Haram and Al-Shabaab, known to finance their activities by looting and selling especially ivory, which can de facto be considered Africa’s cultural/natural heritage. The latter indicates an overlap between cultural and natural resources. But there is also a link between cultural property protection and the environmental sphere, where the term resource is frequently used, for example, natural resources. This overlap similarly occurs in new developments in the realm of heritage studies, such as cultural landscapes (e.g. Loire Castles, Ayers Rock), cross-overs between natural and cultural heritage (the Dugong case, Dugong v. Rumsfeld, 2005 WL 522106) (N.D. Cal. 2005) and phenomena like Traumascapes (concentration camps, Ground Zero). Tumarkin describes this in her 2005 publication: In the world we inhabit, traumascapes are everywhere. They are the physical sites of terror attacks, natural and industrial catastrophes, genocide, exile, ecological degradation, and communal loss of heart. They are part of a scar tissue that stretches across the world, from Hiroshima to Auschwitz, Dresden to Srebrenica, Sarajevo to New York, Bali, London, Jerusalem, and New Orleans. Traumascapes are haunted and haunting places, where visible and invisible, past and present, physical and metaphysical, come to coexist and share a common space (Tumarkin 2005, p. 233).

For the sake of this chapter, I will use the term ‘hybrid (cultural/natural) heritage’ that is used to finance conflicts, for example, ivory artifacts and raw ivory. After this type of hybrid heritage is looted and smuggled, the revenues are used to buy weapons and ammunition by groups like the LRA headed by Joseph Kony, who is still on the loose. When addressing the topic of art crime or cultural heritage crime, it is interesting to see that roughly we speak about war crimes against cultural heritage in the context of armed conflict as committed by fighting parties, including terrorist groups as well as (for a part) transnational (organized) crime. Actually, in most cases, organized crime takes over the distribution of looted objects from terrorist organizations and maybe even from ‘official’ armed forces as is reported in the case of Syria by multiple sources (Phys. org 2015).

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 ollateral, Intentional or Damage Deriving C from Culpable Acts The type of damage inflicted to cultural property has to be assessed in situ as soon as possible after its infliction, so parties responsible can be judged in order to determine and find proof supporting whether the damage was avoidable, a consequence of justified military necessity, intentional to destroy infrastructure of the enemy or aimed at damaging the identity of a certain group. Potentially, all timely registered data can serve as evidence for the prosecution in case of a trial later. A case example that comes to mind is the just (27 March 2016) recaptured antique Syrian site of Palmyra. Syrian troops of the Assad regime, supported by Russian air power and special operations forces, managed to recapture ancient Palmyra, a UNESCO World Heritage Site, and the adjacent modern town of Tadmor from Islamic State. Footage made by a Russian drone showed, among others, fresh damage to the Fakhr-al-Din al-­ Ma’ani Castle (the Citadel), and normally one would expect that more damage due to fierce fighting to recapture the site as well as earlier (recent) collateral damage should be reported when assessments on-site take place after booby traps have been dismantled. But this cannot be taken for granted, since already the liberation of Palmyra is claimed by Russia and Syria and a planned restoration by the Syrian government of Assad is announced, as well as a Russian demining effort for the whole site of Palmyra (Aji and Mroue 2016; Newsmax 2016; Daily Mail 2016). A sort of debate is now developing accusing the U.S. of using cultural heritage for strategic communication purposes and, in the Palmyra case, Russia and Syria get blamed for manipulating cultural heritage for propaganda. One source states that ‘the Syrian regime liberated Palmyra and now seeks to present itself as a defender of global civilization’ (Jones 2016b). A group of reporters who visited Palmyra were even told by a Syrian officer that ‘The Syrian army is defending Rome and London in as much as it is defending Damascus’ (Ibid.). At the same time, it is unclear whether an assessment by an independent international body can take place before potential evidence of war crimes against cultural property, including avoidable collateral damage, can be gathered. Earlier reports say that during the occupation of Palmyra by Syrian government forces from 2012 to 2015, damage was inflicted by these forces using bulldozers to construct military positions among the ruins, which included removing and displacing ancient stone blocks in the center of the archaeological site for defensive purposes. The now destroyed tower tombs were frequently looted (Cheikhmous 2015). In short, the Palmyra case is already starting to get politicized and will fall victim to

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mechanisms that I described in heritage under siege and cultural heritage in the crosshairs (Kila 2012, 2013, pp. 9–50). In fact, the ‘recapture of ancient Palmyra’ is already considered a big propaganda success (Bolliger 2016) for Bashar Assad, whose regime heavily promoted the site in the past as symbol for Syria’s alleged stance against Western imperialism and irredentist goals of ruling ‘Greater Syria’. As indicated, Assad’s government has brought in a steady stream of journalists to photograph the ruins (Jones 2016a). Again, these developments prove that cultural heritage is always contested, claimed, politicized and manipulated, and the same can be said for protection activities concerning cultural heritage as done by several stakeholders.

 hat Is the International Community Doing W to Stop the Abuse of Its Shared Cultural Heritage? The Malfunctioning of International Public Policy to Prevent and Stop the Plundering of Heritage Sites Public policy could be viewed as a term used to describe a collection of laws (legal policy), mandates or regulations established through a political process. It has become clear that effective CPP, while legally mandatory, is still either absent or poorly implemented. Many national, as well as international, institutions tasked with CPP in the context of armed conflict lack proactive initiatives and to a certain extent display unnecessary bureaucratic and risk-avoiding behavior. A general excuse is that there is no funding to do an adequate job. There certainly is some truth in this; nevertheless, scarce financial resources are used by instrumental stakeholders for meetings and training courses with no direct result. To illustrate who the instrumental CP stakeholders are and how they relate and behave toward intrinsic parties, I will refer to a simple, yet conceptual, approach that Scott Feil introduced in Antiquities under Siege (2008). He distinguishes two main parties involved in establishing a system for CPP: 1. A community with an intrinsic interest in the subject consisting of cultural experts, academics and others that have only very few resources and networks 2. The instrumental community with considerable resources and jurisdiction to operate in theater such as the military, international organizations (IOs), NGOs, governmental institutions and so on

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The problem is that the intrinsic party has to convince the instrumentals to deal with CPP.  In order to achieve this, it has to be demonstrated to the instrumentals that CPP ‘yields benefits to their operations’ (Ibid., pp. 219–220) and is also in the long run in their interest, like with regard to the military force multipliers I described above. To make it even simpler, one can also speak about internal (experts) and external parties, although some externals will consider themselves internal. In fact this model makes the core problem for CPP visible: parties that do not particularly like each other or, in the best case, are not interested in each other, must communicate, cooperate and share views and opinions and, not to forget, financial resources. The unwanted bureaucracy, failures and delays caused by this situation stop proactivity and the development of strategies and methods to prevent and stop looting and exploitation of cultural property. As Brodie puts it (Brodie 2015): ‘It has certainly been the most preventable cause. Regrettably, prevention has not been achieved’. I do concur with this and, regrettably, the situation will remain unchanged as long as effective international cooperation, coordination and research that should drive multidisciplinary, transnational, interagency and emergency endeavors are almost non-existing. Research—and consequently expertise about new developments regarding the changing status of heritage, its connection with identity and its position—in the changing military operational environment and the political spectrum is rare and only driven by a few private initiatives. New natural stakeholders like the military, police, customs, diplomats, global safety and religious experts are not recognized as such, nor involved enough or aware of their duty to become involved. By engaging with stakeholders, like the abovementioned, different tools for CPP will become available, or can be developed to improve CPP while simultaneously basic insights into concepts and recurring mechanisms regarding offenses against cultural property are created. This is demonstrated by the following examples form the military sphere. One method is to analyze and (for the military) translate field experiences into what are called ‘lessons learned’. A lesson learned is defined as validated knowledge and experience derived from observations and historical study of military training, exercises and combat operations (U.S. Department of Defense 2006, p. 10). In order to collect field experiences and translate them into lessons learned, the U.S. in 1985 created the Center for Army Lessons Learned (CALL). The Center developed a collection process and other procedures to achieve their goals, as is illustrated in the following quote. ‘A first step is to observe the Army’s warfighting to determine what behavior needs to be changed. Changes to behavior may result in either stopping something we have been doing, doing

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s­omething different from before, or doing something new that we have not done before’ (Global Security 2016). A very effective strategy is to incorporate directives to protect, safeguard and/or avoid cultural property during operations into the operational planning doctrines (OPLANS). An example of good practice that can serve as a model for successfully integrating CPP in operational planning is U.S. AFRICOM’s APPENDIX 6 TO ANNEX G TO CDRUSAFRICOM THEATER CAMPAIGN PLAN 2000-12 (U) CULTURAL RESOURCE PROTECTION. The United States Africa Command (U.S. AFRICOM) is one of six of the U.S.  Defense Department’s geographic combatant commands and is responsible to the Secretary of Defense for military relations with African nations, the African Union and African regional security organizations. A full-spectrum combatant command, U.S. AFRICOM is responsible for all U.S.  Department of Defense operations, exercises and security cooperation on the African continent, its island nations and surrounding waters. AFRICOM began initial operations on 1 October 2007, and officially became an independent command on 1 October 2008 (see at http://www. africom.mil/about-the-command). Appendix 6 to annex G to the  CDRUSAFRICOM Theatre Campaign Plan provides strategic guidance to all AFRICOM elements for the protection and preservation of all cultural property. The appendix has been integrated into existing guidance and processes, in this case civil affairs operations/civil military operations and civil information management. To a wider extent, its content fits the comprehensive approach and stimulates joint cooperation. For the purpose of this chapter, the definition used for ‘civil affairs’ is based on the premise that operations aimed at creating a sustainable peace must employ the relevant civilian and military instruments in a coordinated and concerted manner in order to succeed. Ideally, the civilian and military actors involved in such operations should agree on the political end state and engage in the joint planning, execution and evaluation of their operational activities in order to achieve it (see at http://subweb.diis.dk/graphics/Publications/Reports%202008/ Report_2008-15_NATO_Comprehensive_Approach_Crisis_Response_ Operations.pdf). The appendix is a major step since it will be followed without discussions upfront, since it now forms part of the planning process. It is expected that this document will serve as an example for other U.S. combatant commands and international military organizations that currently lack CPP provisions in their planning process. Conditional, of course, is a political and organizational motivation to implement CPP OPLAN strategies depending on awareness and understanding of the relevance of CPP by political and military decision-makers. Another example of effective CPP measures is the cultural nostrike list (NSL). This instrument will be explained in the Libya case study below.

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Two cases will be addressed that illustrate the complexity of current cultural heritage problems as well as possible practical solutions.

Case 1. Libya The Events in 2011 Beginning of March 2011, unrests started in Libya that swiftly developed into a full-fledged interstate conflict. Initially, the fighting included bombardments and shelling carried out by the warring parties. Later, aerial strikes and a no-fly zone operation by NATO were carried out. In the context of cultural property protection, it is relevant to note that Libya is a party to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two protocols. The country has five World Heritage sites, designated by UNESCO: the ancient Greek archaeological sites of Cyrene; the Roman ruins of Leptis Magna; the Phoenician port of Sabratha; the rock-art sites of the Acacus Mountains in the Sahara Desert; and the old town of Ghadamès—an oasis city. Apart from the world heritage sites, the Libyan coastline has a rich underwater cultural heritage. Libya also houses numerous archaeological and historical sites dating from prehistoric times to World War II and has multiple museums with important collections including the Jamahiriya Museum, which is Libya’s national museum containing an extensive collection of history and archaeology. It is located in Tripoli’s Assaria al-Hamra, or Red Castle/Fortress, the Museum of Libya on the Algeria Square in Tripoli. Significant are also the Medina (Old Quarter of the city of Tripoli) and the Libyan Archives (Kila 2013, pp. 24–28).

The Cultural No-strike List A no-strike process is a part of a no-strike and collateral damage estimation methodology. So far, the no-strike measures were mainly used to prevent damage to hospitals, embassies and the like, but CPP experts and archaeologists pointed out that cultural heritage should be part of no-strike procedures. Currently, many parties/stakeholders in CPP claim to have participated in especially the Libya cultural no-strike list. It became more or less a sensitive and competitive topic in itself. For the Libyan case, I tried to reconstruct which parties were involved, but probably some will feel left out. More important is to describe what defines a working no-strike list, and it became clear that this can only be established in situ and before evidence is removed.

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In March 2011, the U.S. Committee of the Blue Shield (USCBS) began coordinating and collecting information initially using contacts of (U.S.) Blue Shield board members. Later, American information gathering included many other archaeologists from which coordinates of important archaeological sites, museums, libraries, archives and relevant cultural and historical sites were obtained. In addition, information was gathered from various International Committees of the Blue Shield, especially on museums, libraries, archives and other sites. In the U.S., the first draft list was sent to the Special Assistant to the U.S. Army, Judge Advocate General for Law of War Matters and to Air Combat Command. Members of the Combat Command’s Cultural Historical Action Group (CHCAG) were engaged in disseminating lists and information to several parties through the United States Air Force (USAF)/Air Combat Command. The Institute for the Study of the Ancient World of New  York University (NYU) was instrumental in collating and reduplicating the data and preparing the list submitted to the DoD. It should be noted that the Libya no-strike list was received by the U.S. DoD before the no-fly zone was established. As a next step, International Committee of the Blue Shield (ICBS) colleagues in Paris were involved. The international military cultural resources working group (IMCuRWG) shared the data (some 200 coordinates) with a Staff Officer of the Strategic Plans and Policy department of NATO’s Allied Command Transformation Center (ACT) in Norfolk, Virginia. The UK Ministry of Defense (MoD) had, via different routes, also been provided with all of the information given to the U.S. UK experts from the Society for Libyan Studies, the University of Oxford, King’s College and the RPS consultancy Group added valuable data. In the UK, the list was then forwarded to the Joint Staff, and the Joint Staff Legal forwarded them to the targeteers. The IMCuRWG also provided the operational staff of the Dutch Armed Forces with the coordinates and extra information. The Netherlands took part with F-16s under NATO Command in imposing the no-fly zone over Libya backed by the United Nations Security Council. Though requested by IMCuRWG during handover, the actual use of the data was not confirmed by the Dutch Ministry of Defense (MoD). Crucial was the forwarding of the no-strike list to the U.S. Defense Intelligence Agency (DIA), since the information was entered into the targeting computer, which shares information with NATO. In fact, this was an important achievement that enabled the civilian CPP networks to establish a kind of working relationship that provides for future no-strike lists (e.g. Syria, Iran) to be entered into the (joint) system on short notice, of course taking into account all sorts of legal and ethical considerations as listed in different legal and professional rules.

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UNESCO also became involved, but that happened long after the bombing began on 19 March (this information was provided in an email by Cori Wegener to the author (USCBS), dated 9 January 2012). On 14 June 2011, UNESCO called parties involved in the armed conflict to ensure the protection of the World Heritage site of Ghadamès and its immediate surroundings. UNESCO also appealed to the parties involved not to expose the world heritage site of Leptis Magna to destruction and damage.

What Constitutes a Cultural No-strike List? When the aerial strikes by NATO started, everyone hoped that the cultural no-strike list would work. The problem, however, was that none of the military organizations involved was willing or able to inform the CPP community about whether the list was implemented and, if so, whether it had been successful. The big question was, actually, whether it existed and worked or was just an idea. This could only be checked on the ground. As happened before, for instance, when cultural heritage was under threat during the ‘revolution in Egypt’ in early 2011 (Kila 2012, pp. 128–151) the official parties tasked with CPP and the parties mentioned above that were involved in creating the cultural no-strike list were not prepared to make an in situ assessment or kept their silence and did not answer requests for an assessment in situ. To end this situation and give the international CPP community a good example, a small team of three individual cultural experts consisting of the author of this chapter, Hafed Walda and Karl von Habsburg, went undercover on the ground in Libya at their own risk and cost to check if the cultural no-strike list really worked and consequently existed. The team found proof at the site of Ras Almergib near Leptis Magna. On the top of a hill not far away from Leptis Magna near the city of Khums, in fact overlooking Khums and Leptis, Khadafi’s forces placed a radar station as part of air defense. There is also a little Roman fortification on this hilltop that carries the Arabic name Ras Almergib or al Mergheb. The radar station was protected by a circle of five anti-aircraft batteries, which were placed next to the Roman walls still standing up, varying from 2 to 3 meters in height. When the cultural emergency mission team visited the location on 29 September 2011, it found six heaps of metal rubbish: all military installations had been completely destroyed (Fig. 30.1). The mission members checked the Roman walls and the vaults situated next to the anti-aircraft weapons. There were a few visible signs of the attack on the walls: small surface scratches obviously caused by pieces of shrapnel of a bomb/rocket or by scattered parts of

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Fig. 30.1  Ras Al Margib during the assessment September 2011 photo © Joris Kila

the destroyed anti-aircraft battery. But no cracks, or fallen stones or bricks were found. Local archaeologists accompanying the team found the visit to the top a great moment, since it was their first time at this location to which access was strictly forbidden under the former regime. The Ras Almergib case serves as verification that NATO did execute precision bombardments also called ‘surgical strikes’ when cultural property was at stake in Libya. The case demonstrates the importance of providing cultural coordinates to the military—in this case NATO air strike planners. Still we have to stay realistic. During a civil-military panel discussion at the yearly American Institute of Archaeology Conference (AIA) in January 2012 in Philadelphia, military participants noted the importance of prioritizing, both to avoid an overwhelming number of site coordinates and to give the military a sense of priorities in case they need to make a decision on military necessity grounds (AIA Annual Meeting 2012). The above indicates that it is essential for cultural property protection experts to have some knowledge of the whole phenomenon of what the military call targeting and of lists of no-strike entities, known as the NSL. In addition, there is such a thing as a no-strike process that is actually part of a

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no-strike and collateral damage estimation methodology. Respective DoD or MoD policies govern the management of such a process in which weapon effects, mitigation options and collateral damage are aspects to be considered. Cooperation with the military regarding coordinates opens the door for more collaboration concerning new technical possibilities created by the use of such advanced technologies as satellite remote sensing and GIS. This way it will be possible for cultural specialists to have access to military satellite imagery and create in advance (risk preparedness and preventive conservation) cultural data to be included in (layered) geospatial data. Geospatial data is information that identifies the geographic location and characteristics of natural or constructed features and boundaries on the earth, typically represented by points, lines, polygons and/or complex geographic features. This includes original and interpreted geospatial data, such as those derived through remote sensing, including, but not limited to, images and raster data sets, aerial photographs and other forms of geospatial data or data sets in both digitized and non-­ digitized forms (see EPA’s National Geospatial Data Policy, August 2005, EPA is the United States Environmental Protection Agency). NATO received positive press for the precision air strikes during Operation Unified Protector, following the cultural no-strike list. Unfortunately, after operation Unified Protector successfully reached its end state, NATO did not follow up with the excuse that member countries should request the organization to acquire expertise on CPP. Currently, NATO still does not have any in-house CPP expertise.

The Current Situation in Libya Present-day Libya is divided into two parts controlled by two rival ‘governments’ in Tripoli and (recognized internationally) Tobruk. At the time this chapter was written (March 2016), negotiations took place under supervision of the United Nations to reunite the country. Latest news is the announcement of a new government of national accord, first temporarily based in Tunis, but now ‘the chief of Libya’s new UN-backed government has reached Tripoli, defying threats from city militias, to proclaim a new order for the conflict-ravaged country in a move that could eventually pave the way for international forces to provide troops and air support’ (Stephen 2016). Fortunately, the original Department of Antiquities in Tripoli is still active (as was confirmed to me in February 2016) and made urgent demands for international help in order to assess the nature of the threats against Libyan heritage in situ and to find simple and cheap solutions for safeguarding sites,

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museums and objects. As already mentioned, Libya has five UNESCO World Heritage sites, including Leptis Magna and Cyrene. Sites like Leptis Magna are out in the open and exposed to all kinds of threats, especially to theft and urban encroachment. Today, the Benghazi area suffers from lack of security, and, consequently, the important site of Cyrene and its necropolis is not only threatened by looting, but also by (illegal) commercial development, destroying precious heritage. In December 2015, pro-IS militants took temporary control of part of the town of Sabratha to free members seized by a rival militia. Libya’s anti-­ government Islamic militants have aligned with IS and are active in the surroundings of Sabratha. There is fear that Sabratha, and especially its large archaeological sites, will fall victim to iconoclasm and looting. According to a U.S. military spokesman, the U.S., France, Italy and the UK are looking at how to curb the growth of IS in Libya before it spreads further across the region (see at https://www.rt.com/news/332975-us-warplanes-bomb-libya/). Sources report that American, French and British special operations teams have increased reconnaissance missions to Libya in recent months, aiming to identify IS leaders and their networks for possible strikes. U.S. warplanes bombed an IS camp in the Libyan city of Sabratha early on 19 February. Iconoclastic attacks already took place against Sufi tombs and mosques, among others, in Tripoli. Although there are several international structures and organizations that could and should deal with CPP in Libya, nothing effectively happens, because these parties are (or feel) often restricted by their own governments, due to fear of possible political implications.

Case 2. Mali In Mali, or more precisely Timbuktu, cultural property, such as mosques and mausoleums containing tombs of Sufi ‘Saints’ and scholars, officially recognized by UNESCO and many (like all three historic mosques) registered on the list of endangered World Heritage sites, were damaged or demolished by the extremist Islamist group Ansar ad-Din. Meaning in the English translation ‘Defenders of Faith’. The group seeks to impose sharia law across Mali and is accused of having links with Al-Qaeda. The extremists banned singing, dancing and the celebration of Sufi festivals. They regarded the Sufi shrines as idolatrous and in violation of the Sharia. Iconoclastic attacks were reported to have started on 30 June 2012 (see, e.g. Ahmed and Callimachi 2012). According to different sources, the Mausoleum of Sidi Mahmoud Ben Amar and two other tombs were destroyed (BBC 2012). Other reports indicated

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that ‘all sixteen of the Sufi saints mausoleums were completely destroyed by the primarily Salafist Jihadists’. Nevertheless, when the author of this chapter visited Timbuktu as a member of the assessment mission by the International Military Cultural Resources Working Group (IMCuRWG) and Blue Shield on 16 January 2014 (see report at http://www.blueshield.at/), there were still a number of shrines left untouched. Some of these were more or less hidden and others hardly recognizable, like two shrines in the outside wall of the Great Mosque. Next to these two, there was one damaged because Jihadists had booby-trapped it, and later the explosives could not be removed without damage. The three shrines were only indicated as three small round holes in the wall. The antique wooden door of the fifteenth-century Sidi Yahya Mosque, also known as the ‘sacred door’, was demolished and only a few fragments were left although it was said that some wooden fragments that survived were stored elsewhere. The reason for the door’s destruction was the fact that ‘people believe that if that door is opened, the world will end’, an un-­ Islamic superstition that had to be disproved by Ansar ad-Din (Nossiter 2012).

Manuscripts Timbuktu houses a huge collection of what are called the Timbuktu Manuscripts. These manuscripts consist of medieval African documents, ranging from scholarly works to short letters that have been preserved by private households in Timbuktu. There are ‘stunning examples of Arabic calligraphy using curved letters themselves as art, some pages have golden ornaments while astronomy or mathematic manuscripts have beautiful diagrams’ (Hill Museum & Manuscript Library 2014). The manuscripts, dating back to the thirteenth century of the common era and passed down for generations in Timbuktu families, are mostly in poor condition. Many documents were kept in libraries, including a new big library (built with the support of South Africa), three new major private, but publicly accessible libraries and up to 60 other private libraries (Schuler 2012). It was feared that these documents, as symbols of open-mindedness, would suffer from attacks, damage or neglect caused by the armed struggles, or that they would be stolen and end up in antique markets. This could cause additional safety and security liabilities as the Islamist extremists with connections to Al-Qaeda in the Islamic Maghreb might find sale of the manuscripts profitable. Revenues would then be used for buying arms and ammunition. Though Ansar ad-Din took over the new building of the Ahmad Baba library and removed all the computers and other equipment, no big losses were reported.

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In January 2014, we found the library in a reasonable condition though the laboratory was empty and most of the collections gone. Many objects were brought to the capital Bamako before the extremists could touch them.

Prosecution of Perpetrators in the Mali Case When devastations started that included offenses against Mali’s cultural heritage, UNESCO and a variety of other organizations protested, but without immediate results. The regional Economic Community of West African States (ECOWAS) asked the International Criminal Court (ICC) to proceed with necessary investigations to identify those responsible for war crimes and to take necessary action against them. The ICC prosecutor, Fatou Bensouda, stated that ‘those responsible could face prosecution as their actions constituted a war crime’ (Kila 2015, p. 176). However, established legal instruments that hold both individuals and parties responsible for heritage crimes do not always extend to all perpetrators. In relation to the Mali case, it is clear that Mali is a State Party to The Hague Convention of 1954 and its First Protocol, but Ansar ad-Din, seizing power in northern Mali at the time, is not an internationally recognized party, so it does not classify as a State Party. This implies that the extremists cannot be prosecuted for the destruction of cultural property as an official party, but there is room for individual criminal responsibility. A logical legal provision would be The Hague Convention of 1954. Unfortunately, although The Hague Convention’s Second Protocol mentions individual criminal responsibility in Chapter 4, this provision cannot be applied, because Mali has not signed the Convention’s Second Protocol. However, the 1998 ICC Rome Statute, which constitutes a landmark treaty on individual responsibility for international crimes, contains important provisions for crimes against cultural property. The ICC can prosecute individuals responsible for deliberate destruction, and Mali is a party to the Rome Statute. Individual responsibility opens possibilities to prosecute certain members of extremist groups (if they originate from states that ratified treaties like the Rome Statute of 1998 or protocols that generate individual criminal responsibility). Examples of ­multinational extremist organizations include IS and al-Nusra. Having said this, Iraq and Syria are no signatories to the Rome Statute of 1998 or the Second Protocol of The Hague Convention 1954. Still (customary) international criminal law might provide further opportunities. For instance, many IS perpetrators are citizens of countries that are members of the Rome Statute of 1998 and can prosecute individuals for (war) crimes.

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In addition, it should be noted that legal instruments like the Hague Convention of 1954 and the Rome Statute of 1998 only complement the national legislation of affiliated State Parties; they do not override them.

The ICC and the Ahmad al-Faqi al-Mahdi Case Ahmad al-Faqi al-Mahdi was the first individual to appear in front of the prosecutors at the ICC for planning, directing and participating in attacks against religious monuments in the ancient Malian city of Timbuktu in the summer of 2012 (Launspach 2016). Al-Mahdi was arrested in Niger and surrendered to the ICC on 26 September 2015, following an arrest warrant issued on 18 September 2015. The initial appearance hearing was held on 30 September 2015. The charge and the legal and factual submissions in support of the charge were filed on 17 and 18 December 2015. The ICC built the case against al-Mahdi on Article 8 (b) (xi) of the Rome Statute, which states that the destruction of historic buildings without reason is a war crime. It condemns ‘Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives’. To be more specific, the only reason mentioned that would allow under strict conditions for any destruction would be that it, in this case cultural property, was made into a military objective. Normally, this indicates that a valid reason would exist, if imperative military necessity could be proven, because, for instance, a monument was used by a party to position snipers, or artillery would be placed in such a location. This was apparently not the case. After enough evidence was established, al-Mahdi was tried for his alleged involvement in the attack on the centuries-old world heritage site of Timbuktu. The case is the first by the ICC to consider destruction of cultural heritage a war crime. On 24 March 2016, the Prosecutor of the International Criminal Court, Fatou Bensouda, issued a statement, following admission of guilt by the accused in the Mali war crime case: she spoke of ‘An important step for the victims, and another first for the ICC’ (ICC 2016). The Pre-Trial Chamber I of the International Criminal Court confirmed the charge of war crime brought against al-Mahdi and committed him to trial for attacking historic monuments and buildings dedicated to religion in Timbuktu, Mali, between approximately 30 June and 11 July 2012.

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It is alleged that Mr. al-Faqi, (al-Mahdi) was an active personality in the context of the occupation of Timbuktu. He allegedly was a member of Ansar Eddine, a mainly Tuareg movement associated with Al Qaeda in the Islamic Maghreb (“AQIM”), working closely with the leaders of the two armed groups and in the context of the structures and institutions established by them. It is alleged that, until September 2012, he was at the head of the “Hisbah” (a body set up to uphold public morals and prevent vice), operational from May 2012. He was also associated with the work of the Islamic Court of Timbuktu and has participated in executing its decisions. Specifically, it is alleged that he was involved in the destruction of the buildings mentioned in the charges. (ICC 2016)

The Chamber found that the evidence presented by the Prosecutor established reasonable grounds to believe that al-Mahdi was criminally responsible for having committed, individually and jointly with others, facilitated, or otherwise contributed to the commission of war crimes alleged by the Prosecutor regarding intentionally directing attacks against the following buildings: (1) the mausoleum Sidi Mahamoud Ben Omar Mohamed Aquit; (2) the mausoleum Sheikh Mohamed Mahmoud Al Arawani; (3) the mausoleum Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir; (4) the mausoleum Alpha Moya; (5) the mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi; (6) the mausoleum Sheikh Muhammad El Mikki; (7) the mausoleum Sheikh Abdoul Kassim Attouaty; (8) the mausoleum Ahmed Fulane; (9) the mausoleum Bahaber Babadié; and (10) Sidi Yahya mosque (the door) (ICC 2013). Following this decision, Prosecutor Bensouda noted a further significant development. On 1 March 2016, al-Mahdi explicitly expressed before ICC judges and in the presence of his lawyers his wish to plead guilty. He did so during the course of the confirmation of charges’ proceedings, at a point where the exchanges were in closed session. This part of the court record has now been made public. The case will shortly be referred to a Court’s Trial Chamber. It was for the designated judges of that Chamber to decide how the case should proceed in light of al-Mahdi’s stated intention to admit guilt (Ibid.). By now, this case has been decided; Al-Mahdi pleaded guilty while accepting his individual criminal responsibility and was sentenced as a co-­perpetrator of the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion, including nine mausoleums and one mosque in Timbuktu, Mali, in June and July 2012. On 27 September 2016, the court sentenced al-Mahdi to nine years’ imprisonment.

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 eriousness of Offenses Against Cultural Property S in Times of Armed Conflict It is difficult to establish a correct method to determine the degree of seriousness regarding devastating acts against specific objects and monuments during a specific conflict when compared to the same kind of destruction to cultural property in other armed conflicts. This would be the same as judging what is art, or valuable cultural heritage and what is not, or falls in a lesser category. Such judgments are highly subjective and co-depending on economic, intellectual, geographical and political circumstances to mention a few. Still, when we approach matters from an interdisciplinary perspective, there is room for a practical approach based on legal considerations connected with the sociology, or, to be more specific, the identity aspects of cultural heritage. Such a method also serves as an example, illustrating how comprehensive evaluation and analysis could lead to clearer strategies to penalize offenses against cultural heritage, while strengthening the concept of cultural property protection in times of conflict. Micaela Frulli, when comparing the two most recent instruments containing provisions on criminal offenses against cultural property (Protocol II Hague Convention of 1954 and Rome Statute of 1998), distinguishes two different, partially divergent, approaches to the criminalization of such violations (Frulli 2011, p. 204). Two main courses have been followed to penalize acts against cultural property in times of war. One is characterized by a traditional international humanitarian law orientation that Frulli calls the civilian-­ use rationale, for example, in connection with war crimes. The second, more recently undertaken approach, reflects what Frulli calls a cultural-value approach, intended directly to criminalize acts against cultural property with a much higher degree of specificity and differentiation in gravity, like, for example, in crimes against humanity. Clearly, this perspective has to crystallize and provide for criteria on how to determine the boundaries between multiple types of crimes and disputable actions against cultural property during armed conflict. This should also include the various types of cultural heritage, like tangible and intangible heritage.

War Crimes or Crimes Against Humanity? The complexity and seriousness of today’s heritage conditions in war-stricken areas indicate that safeguarding issues cannot be taken care of by a few self-­ supporting cultural experts. An ethical, controlled involvement of military

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institutions is needed. The world cannot handle fire-fighting without speaking to the fire brigade, especially when we are facing enemies like IS that do not hesitate to start psychological warfare campaigns aiming at depersonalizing certain opponents. This depersonalization is considered a crime against humanity, and attacking a community’s identity via its cultural heritage is part of this. Inhumane acts committed against any civilian population were already considered crimes against humanity in the Nuremberg trials (Calvocoressi 1948, pp. 57–58). Often iconoclasm is exercised, driven and legitimized as an excuse for eliminating perceptions of heresy. It should be debated, if this can classify as a crime against humanity. The dilemma is, whether the focus of prosecuting offenses against cultural property during armed conflict should be in the direction of war crimes, or aimed at crimes against humanity. Of course, both classifications can apply as well, but given the identity connection and consequently attempts to erase certain identities from history and therefore from local, national and international memory, developing insights combined with empirical knowledge can bring more clarification. A complicating factor is that religious, political, legal as well as psychological/cultural cleansing elements can play a role. For example, the shelling of the sixteenth-century Ottoman Stari Most (Mostar Bridge) in Bosnia and Herzegovina became emblematic of a campaign of cultural cleansing taking place alongside ethnic cleansing (Bevan 2012, pp. 121–122). World literature also provides examples of this. In If This Is a Man, the Italian writer Primo Levi describes and analyzes the importance, but also brittleness of men’s identity. He observes the Nazi system of depersonalization, in which the dismantling of especially personal identity takes place by removing all personal belongings and references. At the end, a person’s name is removed and replaced by a number. At this stage, it becomes clear that all things, material and immaterial, owned by mankind are literary part of human identity. People who lose everything, for example, in concentration camps, can all too easily lose themselves as well. Levi came to this conclusion during his incarceration in Auschwitz. Monuments and cultural objects stand for the identity of human groups and individuals. If you want to strike a society or a nation at the heart, or erase their existence from the historical memory, their cultural heritage is an effective prey (Levi 1987).

CPP and Security Destruction of cultural property is now a matter of global security. Not only is heritage highly sensitive because of its connection with identity, but opponents and terrorists are also looting and smuggling artifacts to finance conflicts. As a

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consequence, and given the current hybrid operational environment where military forces engage in all conflict phases, circumstances involving CPP can generate operational incentives or, in military terms, force multipliers. Apart from legal and moral obligations for the military to protect cultural heritage, these force multipliers will help to put and keep CPP on the military map. Examples are: diminishing financial resources of opponents, strategic communications and force acceptance (population of host nations appreciate a foreign force to protect their heritage and therefore are more cooperative). In addition, transnational organized crime is hindered when less cultural property coming from war zones enters the market. Another development that needs to be further researched and taken into account is the overlap between cultural and natural resources, especially in African countries where wildlife forms are an integral part of the identity, such as hybrid cultural-natural property, like ivory artifacts, raw ivory and skins, which are being looted (poached) and illegally exported. As already indicated in the paragraph explaining Counter Threat Finance, many terrorist groups in Africa are financed by smuggling ivory. The international demand for ivory and ivory objects is still increasing, so loot and smuggle pay off and, like in the case of antiquities trafficking, there are strong indications that transnational crime plays a role in part of the distribution.

Conclusion Current attacks on cultural heritage show elements of psychological warfare, cultural genocide and (as acknowledged by the UN) war crimes. An organization like Islamic State is very much aware of the fact that heritage can be manipulated and bases its cultural heritage business model on three main elements: 1. Iconoclasm: on-site destruction is staged to demonstrate the group’s piety to their own audience, an attack against idolatry, emulating the foregone practices of the Middle Ages. Nevertheless, they first take away the objects that they can sell. 2. Generating financial means by looting and selling cultural property from sites and monuments. 3. Psychological warfare: overall, to provoke the West, but also to eradicate opposing and minority groups’ cultural identities. By targeting the region’s non-Sunni heritage, the group is demonstrating to people, such as the Druze and the Yazidis, that there is no place for them in the Islamic State. This is no different than the systematic erasing of identities carried out by the Nazi regime and therefore classifies as crime against humanity.

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The international community should realize that CPP in times of conflict is a complicated, multidisciplinary topic with many stakeholders that, apart from terrorist movements, includes transnational organized crime. Still, CPP suffers from insufficient or even absent transnational cooperation and funding and a lack of expertise in organizations like Europol, Interpol, NATO and academia.

Bibliography Ahmed, B., & Callimachi, R. (2012, July 2). Islamic fighters in Timbuktu continue destruction of city’s mausoleums, heritage. National Post. Retrieved July 2, 2012, from http://news.nationalpost.com/2012/07/02/islamist-fighters-in-timbuktucontinue-destruction-of-citys-mausoleums-heritage/. AIA Annual Meeting. (2012). Cultural heritage information, the military and the 1954 Hague Convention. Proceeds of workshop retrieved May 18, 2017, from http://aiamilitarypanel.org/events/champ-workshop-at-2012-aia-annual-meeting/cultural-heritage-information/. Aji, A., & Mroue, B. (2016, March 28). Recapture of Palmyra reveals more shattered antiquities. The Associated Press. Retrieved March 31, 2016, from http://archaeologynewsnetwork.blogspot.nl/2016/03/recapture-of-palmyra-reveals-more.html#. VvxIbY9OJPZ. Barta, D., Bischoff, J., JR Helmig, S. D., Michel, H., & Michel, M. (2013). “Threat Finance” – Unravelling the finances of national security threats to choke off terrorism, trafficking, corruption and other perils. Conference Paper presented at the International Financial Crime Conference & Exhibition, Hollywood, 16–18 May 2013. Retrieved April 1, 2016, from http://www.financialcrimeconference.com/ wp-content/uploads/2013/05/B-Threat-Finance1.pdf. BBC. (2012, June 30). Timbuktu shrines damaged by Mali Ansar Dine islamists. BBC. Retrieved July 3, 2012, from http://m.bbc.co.uk/news/world-africa18657463. Bevan, R. (2012, November 15–17). The role of cultural vandalism in genocide warning systems. Paper presented at symposium, Cultural Heritage Protection in Times of Risk: Challenges and Opportunities, held at Yildiz Technical University, Istanbul. Boldrick, S. (2013). Introduction: Breaking images. In S.  Boldrick et  al. (Eds.), Striking images, iconoclasms, past and present. Farnham: Ashgate. Bolliger, M. (2016, March 28). Rückeroberung Palmyras – Ein Propagandasieg für Assad. Neue Zürcher Zeitung. Retrieved April 1, 2016, from http://www.nzz.ch/ international/naher-osten-und-nordafrika/ein-propagandasieg-fuer-asad-1. 18719475. Brodie, N. (2015). Why is no one talking about Libya’s cultural destruction? Near Eastern Archaeology, 78(3), Special Issue: The Cultural Heritage Crisis in the Middle East, 212–217.

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Brooks, S. (2013). Icons and iconoclasm in buzantium. Metropolitan Museum. Retrieved October 18, 2013, from http://www.metmuseum.org/toah/hd/icon/ hd_icon.htm. Calvocoressi, P. (1948). Nuremberg: The facts, the law and the consequences. New York: Macmillan. Cheikhmous, A. (2015). Palmyra: Heritage Adrift – Detailed report on all damage done to the archaeological site between February 2012 and June 2015. Report for the Association of for the Protection of Syrian Archeology and The American Schools of Oriental Research Cultural Heritage Initiative. Retrieved April 8, 2016, from http://www.asor-syrianheritage.org/wp-content/uploads/2015/06/Palmyra_ Heritage_Adrift.pdf. Daily Mail. (2016, March 29). Send in the archeologists to help restore Palmyra – Boris Johnson. Daily Mail. Retrieved March 31, 2016, from http://www. dailymail.co.uk/wires/pa/article-3511887/Send-archaeologists-help-restorePalmyra%2D%2DBoris-Johnson.html. Feil, S.  R. (2008). Engaging interagency processes to protect cultural sites: Communities, authorities and capabilities. In L. Rothfield (Ed.), Antiquities under Siege (pp. 219–234). Lanham: AltaMira Press. Francioni, F., & Lenzerini, F. (2003). The destruction of the Buddhas of bamiyan and international law. The European Journal of International Law, 14(4), 619–651. Frulli, M. (2011). The criminalization of offences against cultural heritage in times of armed conflict: The quest for consistency. The European Journal of International Law, 22(1), 203–217. Global Security. (2016). History of the army’s lessons learned system. Global Security. Retrieved March 18, 2016, from http://www.globalsecurity.org/military/library/ report/call/call_97-13_history.htm. Hampson, F. (2016). Crimes of war A-Z guide. Military Necessity. Retrieved May 20, 2016, from http://www.crimesofwar.org/a-z-guide/military-necessity/. Henderson, I. (2009). The contemporary law of targeting. Leiden: Nijhoff. Hill Museum & Manuscript Library. (2014). Spring Newsletter. International Criminal Court (ICC). (2013). Situation in Mali. Article 53(1) Report. Retrieved May 18, 2017, from https://www.icc-cpi.int/itemsDocuments/SASMal iArticle53_1PublicReportENG16Jan2013.pdf. International Criminal Court (ICC). (2016). Statement of the prosecutor of the international criminal court, Fatou Bensouda, following admission of guilt by the accused in Mali war crime case: “An important step for the victims, and another first for the ICC”. Retrieved May 21, 2017, from https://www.icc-cpi.int/Pages/ item.aspx?name=160324-otp-stat-al-Mahdi. Jones, C. (2015, September 30). New Documents Prove ISIS Heavily Involved in Antiquities Trafficking. Gates of Niniveh. Retrieved January 26, 2016, from https:// gatesofnineveh.wordpress.com/2015/09/30/new-documents-prove-isis-heavilyinvolved-in-antiquities-trafficking/.

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Jones, C. (2016a, March 31). Assessing the damage at Palmyra. Gates of Niniveh. Retrieved March 31, 2016, from https://gatesofnineveh.wordpress. com/2016/03/31/assessing-the-damage-at-palmyra/. Jones, C. (2016b, April 7). Palmyra propaganda. Gates of Niniveh. Retrieved April 8, 2016, from https://gatesofnineveh.wordpress.com/2016/04/07/palmyrapropaganda/. Khanacademy. (2016). Iconoclastic controversies. Retrieved March 20, 2016, from https://www.khanacademy.org/humanities/medieval-world/byzantine1/beginners-guide-byzantine/a/iconoclastic-controversies. Kila, J. (2012). Heritage under siege: Military implementation of the 1954 convention for the protection of cultural property (pp. 9–50). Leiden: Brill. Kila, J. (2013). Military involvement in cultural property protection as part of preventive conservation. In J. Kila & J. Zeidler (Eds.), Cultural heritage in the crosshairs: Protecting cultural property during conflict (pp. 9–51). Leiden: Brill. Kila, J.  (2015). From crimes against art to crimes against cultural property: New perspectives and dimensions related to art crime. In J. Kila & M. Balcells (Eds.), Cultural property crime. Leiden: Brill. Kila, J., & Herndon, C. (2014). Military involvement in cultural property protection: An overview. Joint Forces Quarterly, 74(3rd Quarter), 116–123. Lamb, F. (2015, March 24). US-Syria cultural heritage cooperation? Counterpunch. Retrieved May 21, 2017, from http://www.counterpunch.org/2015/03/24/ussyria-cultural-heritage-cooperation/. Launspach, F. (2016, March 2). ICC meeting to decide on “destroyer” of Timbuktu sites. Aljazeera. Retrieved April 4, 2016, from http://www.aljazeera.com/news/ 2016/03/icc-hearing-decide-destroyer-timbuktu-sites-160301131127754.html. Lesson from the Past. (2015). Al Azhar releases fatwa condemning the destruction of artefacts. Retrieved May 17, 2017, from http://www.lessonfromthepast. com/?p=257. Levi, P. (1987). If this is a man. London: Abacus. Mac Ginty, R. (2004). Looting in the context of violent conflict. Third World Quarterly, 25(5), 857–870. Myers, S. L., & Kulish, N. (2016, January 9). “Broken System” allows ISIS to profit from looted antiquities. New York Times. Retrieved January 20, 2016, from http:// www.nytimes.com/2016/01/10/world/europe/iraq-syria-antiquities-islamic-state. html?_r=0. Newsmax. (2016, March 27). Putin hails Palmyra recapture, trumpets Russian role. Newsmax. Retrieved March 31, 2016, from http://www.newsmax.com/Newsfront/ Syria-conflict-Russia-Putin/2016/03/27/id/721072/. Nossiter, A. (2012, July 2). Mali Islamists assert control, attacking door to a mosque. New York Times. Retrieved July 3, 2012, from http://www.nytimes.com/2012/ 07/03/world/africa/mali-islamists-exert-control-with-attacks-on-mosques.html. Phys.org. (2015, October 21). Study shows Isis is not the only culprit in war-related looting in Syria. Phys.org. Retrieved March 9, 2016, from http://phys.org/ news/2015-10-isis-culprit-war-related-looting-syria.html.

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31 Protecting and Preserving Underwater Cultural Heritage in Southeast Asia Natali Pearson

Introduction Warship Diplomacy: From the Military to the Museum Late in the evening of 28 February 1942, HMAS Perth and USS Houston, both of which had survived the Battle of the Java Sea and were low on fuel, attempted to make their way through the Sunda Strait and away from the Indonesian archipelago. The survival of the two ships, which between them were carrying over 1000 sailors, was nothing short of miraculous. But just as their passage was looking possible, they were ambushed by Japanese naval forces: HMAS Perth, hit by torpedoes, sank shortly after midnight, and USS Houston succumbed shortly thereafter. The few survivors were made prisoners of war and their stories were not heard until their release years later. The sunken ships lay untouched for decades and their exact location unknown, joining countless other military, merchant and private vessels lost in Southeast Asia’s busy waters. The author is grateful for feedback and additional references suggested by Chiara O’Reilly, Mark Staniforth, Michael Flecker and Michael Leadbetter. The author wishes to thank Michael Flecker, the Marine Heritage Gallery (Jakarta) and the Asian Civilisations Museum (Singapore) for supplied images. All views expressed are the author’s own.

N. Pearson (*) University of Sydney, Sydney, NSW, Australia e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_31

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HMAS Perth and USS Houston have come to represent some of the complexities and sensitivities associated with sunken vessels in Southeast Asia.1 Unauthorised disturbance of these wrecks has occurred since at least the 1960s2 and peaked in 2013 when reports surfaced of salvage barges removing scrap metal from the sites (Besser et  al. 2013; Pearson 2016a; Anonymous 2013). Although Indonesian authorities were not implicated in the salvaging operations, they were criticised for not doing more to protect the wrecks. That same year, a diver removed a trumpet from USS Houston, an action that was met with widespread criticism (Ruane 2016). The USS Houston Survivors’ Association, to whom the diver had attempted to gift the trumpet, rejected it on the grounds that it was illegal to remove property from a US Navy wreck while involved in a dive.3 These are not isolated incidents. In November 2016, an international diving team operating in the Java Sea discovered that at least five Allied shipwrecks had completely vanished from the sea  floor, likely stolen by semi-professional salvagers for scrap metal (Pearson 2017). The sheer quantity of scrap metal on a naval ship means that a single wreck can be worth up to AUD 1 million. The bronze propellers alone are worth tens of thousands of dollars each. It is unlikely that these salvage operations were conducted in complete secrecy. The Java Sea wrecks lay close to one of Indonesia’s largest naval bases, and suspicious activity—not to mention visible environmental impacts such as oil spills—is unlikely to have gone unnoticed by  passing marine craft. The legal and ethical dimensions of these sunken warships are further complicated by the presence of human remains on the wrecks, as well as the heightened scrutiny brought to bear by living descendants of victims and survivors. The sites are considered war graves by survivors and their descendants, following a long maritime tradition of respecting human remains on shipwrecks. Being less than 100 years old, these wrecks are not defined as ‘underwater cultural heritage’4 under the provisions of the 2001 United Nations  Southeast Asia is defined for the purposes of this chapter as Vietnam, Laos, Cambodia, Thailand, Singapore, Malaysia, the Philippines, Myanmar, Indonesia, Brunei Darussalam and Timor-Leste. 2  Australian David Burchell re-discovered the wrecks in the 1960s and recovered a number of objects from the vessels (see Burchell 1971). 3  The trumpet was eventually passed to the underwater archaeology branch of the US Naval History and Heritage Command for conservation. Executive Director of the Survivors’ Association, John Schwarz, noted: ‘We have no idea of the untold number of other divers who have pilfered our ship, and were not straight up, and have kept relics retrieved for their own personal use, “stealing” that which truly belong to the lasting memory of the bravery and dedication of the men who served on these warships’ (Power 2016). 4  2001 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention, Article 1: For the purposes of this Convention: 1. (a) ‘Underwater cultural heritage’ means all traces of human 1

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Educational, Scientific and Cultural Organization (UNESCO) Convention on the Protection of the Underwater Cultural Heritage (the 2001 UNESCO Convention).5 Efforts to protect the wrecks from the threats of systematic salvaging and opportunistic souveniring have instead sought to build on established multilateral links6 and have recently developed into a form of cultural, or heritage, diplomacy. One outcome is the signing of a joint Memorandum of Understanding between the Australian National Maritime Museum and the National Archaeological Centre of Indonesia (Pusat Penelitian Arkeologi Nasional) to survey, assess and record the HMAS Perth site, with a view to it being listed under Indonesia’s domestic heritage legislation (Indonesia 2010). Some advocacy groups fear that it is already too late to protect HMAS Perth. However, the slow but steady progress being made to manage and protect these warship wrecks attests to the role that cultural diplomacy and international collaboration can play in contributing to broader efforts to protect these wrecks in an undoubtedly complex legal and ethical context.7

Southeast Asia’s Underwater Cultural Heritage This type of ‘cultural diplomacy’ extends our understanding of the diverse possibilities of managing warship wrecks and other underwater cultural heritage in Southeast Asia. Focusing on examples from the region, this chapter examines the diversity and efficacy of alternative approaches to the manageexistence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as: (i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character. (b) Pipelines and cables placed on the seabed shall not be considered as underwater cultural heritage. (c) Installations other than pipelines and cables, placed on the seabed and still in use, shall not be considered as underwater cultural heritage. 5  Nor are Indonesia, Australia or America party to the 2001 UNESCO Convention. 6  The US government enacted the Sunken Military Craft Act (SMCA) in 2004. Its primary purpose is to preserve and protect from unauthorised disturbance all sunken military craft (including USS Houston) that are owned by the US government. Pursuant to this legislation, the US Navy’s sunken military craft remain property of the US regardless of their location or the passage of time and may not be disturbed without the permission from the US Navy. USS Houston has benefited from an active, funded program and an equally active Survivor’s Association; despite these measures, however, USS Houston has not been exempt from illegal looting and salvaging (see Anonymous (Naval History and Heritage Command); see also USS Houston CA-30: The Galloping Ghost of the Java Coast [Online]. Available: http://usshouston. org/ [Accessed 2016]). 7  Indonesia’s Research Institute for Coastal Resources and Vulnerability, housed within the Ministry of Marine Affairs and Fisheries, has also assessed HMAS Perth and identified it as vulnerable to the threats of ‘the activities of illegal salvagers who loot the ship’s iron/metal, sea sandmining operations, waste pollution, and vessel traffic disturbance’ (Ridwan et al. 2016).

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ment and protection of cultural heritage beyond the stipulations of the 2001 UNESCO Convention, specifically the Convention’s preference for in situ preservation as a first option8 and the ban it places on commercial exploitation.9 Such alternative understandings are critical, because, despite early interest from a number of Southeast Asian countries including Malaysia and the Philippines, Cambodia remains the only Southeast Asian nation to have signed the 2001 UNESCO Convention.10 The Southeast Asian region is a valuable area of research not only because of the lack of consensus about the utility of the 2001 UNESCO Convention but also because of the archaeological significance of its underwater cultural heritage, much of which is ‘being lost on a daily basis’ (Flecker 2002b). Australian maritime archaeologist Jeremy Green points to the ‘legacy of a colonial system’ in creating ‘interesting and unusual problems’ for underwater cultural heritage in Asia that are quite different from the Americas, the Mediterranean and Europe (Green 2003). But this assessment only goes part of the way. Southeast Asia’s other great legacy is not that of empire but of geography, namely its central position along the ancient trading routes of the sea (Kwa 2012). Developing in parallel with the famed Silk Road, the ‘Maritime Ceramic Route’—from China, through Southeast Asian waters and onwards to the Indian Ocean—was so-called because boats were better suited to transporting high-volume, heavy cargoes of fragile ceramics than were the camels and caravans travelling overland (Kimura 2015). These vessels and their crew moved huge quantities of tradable goods around the world and were truly transnational in nature.11 When misfortune led to the wrecking of these vessels, the result was a type of accidental time capsule, in which many thousands of (often similar) objects came to rest in one location. Having lain  2001 UNESCO Convention, Article 2 (5): 5. The preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage. 9  2001 UNESCO Convention, Article 2 (7): Underwater cultural heritage shall not be commercially exploited. 10  In 2003, Malaysia (p.  61) and the Philippines (p.  160) both indicated their intention to sign the Convention (Prott 2003a). 11  As Forrest notes, ‘Seafaring, by its very nature, often involves international travel, during which a vessel from one State or nation may pick up cargoes, passengers and even crew from other States during her voyage. The complex remains of a shipwreck may therefore contain artefacts form a number of States or nations, yet the story and archaeological and historical information it can yield is distinctly international. In the case of an ancient vessel, it is often extremely difficult to determine the origin of either the vessel or her cargo… Whilst these vessels may flounder in international waters, they are more often than not wrecked on or off a coast, which might be that of a State with no cultural connection to the vessel at all. Claims by that coastal State will further confuse matters in cases of return or restitution’ (Forrest 2010). The transnational nature of ships and shipwrecks is the basis for arguments in support of a shared approach to underwater cultural heritage (see for example Staniforth 2014a). 8

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undisturbed for centuries, the remnants of these inter- and intra-regional maritime journeys are now increasingly vulnerable to a range of threats.12

Threats to Underwater Cultural Heritage Some of these threats, such as the accidental destruction of wrecks caused by deep sea trawlers, are specific to the underwater environment and are particularly common in Southeast Asia with its shallow seabeds and high volume of fishing activity. Trawlers can pull wrecks apart and drag objects for kilometres along the seabed. Off the east coast of the Malay peninsula, for example, the fifteenth-century Longquan wreck, which was found in deep water with a mostly intact cargo of Chinese and Thai ceramics, was ‘flattened and widely dispersed by Thai trawl nets’ (Flecker 2002b) before any further action could be taken.13 Deep sea exploration and infrastructure, such as cable-laying, drilling for oil and other resource exploitation are other significant contributors to the destruction of underwater heritage (Papa Sokal 2005).14 Environmental disasters, such as the 2004 Indian Ocean tsunami, can also pose a threat. The tantalising possibility of treasure, including gold, silver and ceramics,15 also presents a significant threat to underwater cultural heritage in Southeast Asia.16 The lure of treasure, the search for which has been bolstered by advances in underwater exploration equipment, manifests in the unregulated removal of objects from shipwrecks. Such activities can be described as ‘looting’, ‘pillaging’, ‘salvaging’, ‘souveniring’, ‘strip-mining’ or ‘treasure-hunting’.17 These illegally obtained objects are sold illicitly in  local or international markets,  Manders identifies four broad categories of threats to underwater archaeological heritage: physical-­ mechanical, biological, chemical and human (Manders 2012). 13  The licencing of Thai trawlers to operate in Malaysian waters is ‘potentially disastrous for the many, as yet undiscovered, shipwrecks lying off the coast of Malaysia’ (see footnote 5 of Flecker 2002b). See also Kwa (2012). 14  In Hong Kong, authorities require the inclusion of a Maritime Archaeological Investigation in Environmental Impact Assessments for offshore development activities (see Jeffrey 2003). 15  The sale of objects taken from the Geldermalsen was one of the first examples of shipwreck ceramics raising a profit at auction: ‘For the first time in the International auction market area, a shipwreck made a lot of money out of ceramics. Previously, the auctioned goods had to always be made out of gold and silver and everybody went to the Caribbean in search of ships for gold. Initially, in the early days you did not even boast about ones with silver or because the gold ones were more important. Now, suddenly Chinese ceramics became very popular…’ (Rodrigues et al. 2005). 16  Flecker writes, ‘Unlike most terrestrial archaeology, maritime archaeology is enmeshed in politics and in ethics, two seemingly contrary fields. This is because shipwrecks can contain artefacts of considerable commercial value. They can contain treasure’ (Flecker 2002b). 17  These are distinct from terms such as ‘recovery’ or ‘excavation’ which, as Tjoa-Bonatz points out, suggest a degree of compliance with recognised archaeological standards (Tjoa-Bonatz 2016). 12

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often before authorities are even aware of a wreck’s discovery.18 Because of the high volume of objects usually found at wreck sites, some are simply destroyed, returned to the ocean or buried in sand, so that the market is not diluted with lesser value objects. These unregulated activities also result in the destruction of the archaeological context, such as information about the ship’s construction. Such contextual information is critical for researchers and is a non-­ renewable resource—once lost, it is gone forever. These activities indicate the regrettable tendency to focus on the romance of sunken vessels and lost treasure. Treasure is a distraction, and often comes at a cost to not only hull remains—Kimura, for example, laments the lack of attention given to the protection of hull remains of shipwreck sites in Southeast Asia (Kimura 2015)—but also other underwater heritage sites such as ancient naval battlefields, submerged coastal landscapes and evidence of past human interaction with the sea that is now hidden by rising ocean levels. Such oversights can pose their own problems when it comes to the prioritisation of already-constrained resources in the region. Commercial salvage companies are also constituted as a major threat to underwater cultural heritage in Southeast Asia, and they are commonly dismissed as ‘treasure hunters’. Unlike the unregulated activities of the looters, however, domestic legislation in a number of Southeast Asian countries allows these companies to legally remove objects and to sell them to cover costs and raise profit. These companies can be contracted to work in partnership with local authorities, such as the excavation of the Binh Thuan in Vietnam in 2002, or via a permit system, necessitating payment of substantial up-front exploration and licencing fees, as was the case in Indonesia from 1989 to 2010. Private entities ‘that support exploration and excavation in exchange for a share of recovered materials’ are also legal in the Philippines, working in partnership with the Underwater Archaeology Unit and the National Museum in its capacity as lead agency responsible for shipwreck excavations (Orillaneda 2012). In so doing, these companies are at the centre of a common refrain in debates about the ‘shipwrecked’ state of maritime archaeology in Southeast Asia: that, irrespective of the quality of any research conducted, commercial involvement precludes real archaeology (Green 2011). These discussions provoke ‘the full gamut of rational intellectual debate and emotional scholarly fury’ (Kingsley 2011). In particular, these for-profit operations do not comply 18  Writing about the Belitung, Flecker notes that, during a weather-enforced break in operations, the commercial excavation company returned to the site to find that ‘Local divers [had] immediately moved in, sometimes at night, and removed many artefacts. Furthermore, as large jars containing hundreds of Changsha bowls were too heavy for them to lift, they smashed holes in the sides of the jars in order to gain easy access’ (Flecker 2002b).

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with the 2001 UNESCO Convention’s principles relating to the preference for in situ preservation as a first option, and the stipulation that underwater cultural heritage shall not be commercially exploited. But such arguments are complicated by the fact that most Southeast Asian nations are not party to the 2001 UNESCO Convention and are under no obligation to adhere to its principles. Muddying the waters of this debate further is that the domestic legal systems that allow commercial salvage put the onus on the companies themselves to act in accordance with recognised archaeological principles (such as systematic data collection and maintenance, conservation of objects, and publications that focus on the ship and not just the cargo); there are rarely any requirements embedded in the legislation for them to do so.19 Some companies do this better than others. Thus, while legal, the involvement of commercial salvage companies in the recovery of objects in Southeast Asian waters can encapsulate a range of archaeological outcomes from the acceptable to the problematic, forcing us to question commonly accepted understandings of what constitutes a threat to underwater cultural heritage in the region. In this chapter, I argue that the threat these commercial salvage companies pose is less about the similarities they share with looters and more a matter of the contested space such companies occupy in debates about the ethics of commercial involvement in shipwreck cargo excavations.20 Furthermore, I contend, comparisons likening the activities of commercial salvage companies to looting and pillaging preclude a more nuanced understanding of the possibilities for the former to contribute to the protection of underwater cultural heritage in Southeast Asia.

Scope The Southeast Asian region has responded to the threats to its underwater cultural heritage in a diversity of ways.21 Section One of this chapter establishes the contextual basis that has given rise to the diversity of these responses  Writing about commercial outfits operating in Indonesia, Liebner says that ‘Publication indeed is not a prerequisite of a licensed salvage’ (Liebner 2014). 20  For a longer discussion about ethics, refer to Maarleveld 2011. See also Flecker (2002b). For a more detailed look at ethics and maritime museums, see Johnston (1993). 21  Roxanna Brown notes: ‘Shipwreck sites have been located and at least partially investigated both in international waters and within the territorial waters of almost all the countries of Southeast Asia. Sites in international waters are investigated by private entrepreneurs who base their salvage rights on international laws of the sea. Sites in territorial waters have been excavated by the relevant national authorities alone or sometimes in conjunction with archaeologists from abroad or together with private companies. Sometimes the work of excavation is wholly contracted out to a private company, and sometimes the country simply issues an excavation permit to salvors for a fee. In Vietnam, the national salvage company 19

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by considering, firstly, the notion of freedom of the seas and the associated admiralty laws of Salvage and Finds. It also looks at some of the earlier Conventions and Recommendations that touched on, but did not comprehensively address, the complexities of underwater cultural heritage; one of these pertains to the illicit trade in cultural property, while another is associated with how the rule of law is governed at sea. Despite most Southeast Asian countries not being party to the 2001 UNESCO Convention, it is, nevertheless, the primary international instrument addressing underwater cultural heritage, and its principles are the yardstick by which the management of underwater cultural heritage is measured. Section Two examines some of the issues that arose during its development— such as its compatibility with other international Conventions—and considers the arguments and counter-arguments regarding the application of the principles of in situ preservation, and no commercial exploitation, in a Southeast Asian context. The diversity of approaches to the management of underwater cultural heritage in Southeast Asia is far broader than if the 2001 UNESCO Convention were more widely accepted. Having touched on the cultural diplomacy being used in relation to HMAS Perth and USS Houston, Section Three presents a further selection of examples that demonstrate this diversity of approaches. These include the oft-cited case of the Geldermalsen, which was exploited for financial benefit at the expense of archaeological research; the commercial excavation of the Belitung, which was also profit-driven—something I contend has not precluded positive outcomes in terms of scholarly research and public access; the disappointment of a joint venture to salvage and display the Binh Thuan; the institutionalisation of maritime archaeology in Thailand and Vietnam, including, in the latter instance, the role of recent capacity-building efforts; the significance of maritime archaeological research that looks beyond ‘just shipwrecks’; and the potential for interpreted public access to submerged cultural resources (‘shipwreck tourism’) as a way of preserving wrecks in situ while also availing them to the public. It also notes the potential for underwater cultural heritage to be used as a political tool in disputes over national sovereignty (Campbell 2015). It is beyond the scope and intention of this chapter to consider approaches to underwater cultural heritage in every Southeast Asian nation, nor do I intend to mention every shipwreck discovered in Southeast Asia22—rather, these examples have been is usually involved. In Thailand, the Underwater Archaeology section of the Fine Arts Department directs excavations. There is a wide range of possibilities’ (Brown 2004). 22  For such detail, useful starting points include Prott 2003a; O’Keefe 2002; Flecker 2011, 2002b; Brown 2004; Kwa 2012.

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selected for the insights they offer about the development of different management approaches to underwater cultural heritage in Southeast Asia. The chapter concludes by considering the future for underwater cultural heritage in Southeast Asia. Prott sees the need for regional ratification of the 2001 UNESCO Convention as ‘urgent’ (Prott 2003b), necessitating persistence, persuasion and awareness raising rather than criticism of current efforts in the region. Until there is wider acceptance of the 2001 UNESCO Convention, therefore, it is well worth reviewing the variety of responses to the threats posed to underwater cultural heritage in Southeast Asia. While some of these are clearly problematic, I contend that some of them may in fact offer valid, and practical, alternatives to managing and protecting underwater cultural heritage in the region.

 ection One: Traditional Maritime Laws S and Other Early Antecedents Prior to the introduction of an international regulatory framework to protect and preserve underwater cultural heritage, the adjudication of matters relating to shipwrecks and their cargo had generally been governed by traditional maritime laws such as Salvage Law, which relates to vessels in marine peril, and the Law of Finds, which relates to lost and abandoned ships. Each of these is based on the notion of the freedom of the seas, a principle that was not only widely applied in Asia but is believed to have preceded the development of similar principles pertaining to unhindered navigation and trade in Europe (Tjoa-Bonatz 2016).23 For example, there is evidence that such practices were codified in parts of the Indonesian archipelago at least as early as the tenth century. Royal edicts from the north coast of Bali, known as the Sembiran inscriptions, codify the right to the exploitation of shipwrecks. Profits were to be apportioned to up to three parties, including the local authority (Hauser-Schäublin and Ardika 2008).

Marine Peril and Salvage Law Salvage Law arose from a perceived need to encourage rescue at sea. It centred on the notion of fair compensation for the voluntary risks taken by salvors to

23

 See also Anand (1981) and Alexandrowicz (1967).

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rescue life or property in marine peril, such as piracy or inclement weather. In its simplest form, …salvage can be described as a service voluntarily rendered in relieving property from an impending peril at sea or other navigable waters by those under no legal obligation to do so. (Norris 1958)

Honest salvors were thus encouraged by the potential of a generous reward to provide assistance to vessels in marine peril. Critically, the law of salvage did not imply or grant ownership—the over-riding principle was fair compensation for successful salvage work undertaken.24 Salvage law is often used to justify removal of objects from shipwrecks, raising the question of what constitutes ‘peril’. As O’Keefe asks, ‘…are historic wrecks and their cargoes in danger?’ (O’Keefe 1996). The motivation behind Salvage Law—the perceived need to encourage rescue at sea—places it at odds with terrestrial law. In particular, The doctrine of granting a money award in favour of the volunteer salvor of distressed property at sea is peculiar to maritime law and utterly at variance with terrene common law. (Norris 1958)

Such variance is an indication of the additional level of complexity that needs to be factored in to our considerations of what constitutes an ethical, and pragmatic, approach to managing shipwrecks and underwater cultural heritage more broadly.25

F inders, Keepers: Abandoned Vessels and the Law of Finds The Law of Finds differs from Salvage Law in terms of how property rights are assigned. While the latter entitles a salvor to compensation for successful salvage, it does not transfer property rights to the salvor: the title remains with the original owner. The Law of Finds evolved in response to situations where  These principles were enshrined in the Brussels Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea (1910), which was later replaced as the primary multilateral agreement on marine salvage by its incorporation into the International Maritime Organization’s International Convention on Salvage (introduced in 1989, came into force in 1996). 25  O’Keefe examines the extent to which salvage law can be applied to historic ships and maritime archaeological sites in O’Keefe 1978, pp. 3–7. He observes the ‘difficulty in applying the concepts of salvage laws to the recovery of objects from the sites of shipwrecks where the cultural and historical value of those objects in their context will outweigh their extrinsic value’. 24

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the original owner could not be identified or was deemed to have abandoned the vessel, thus enabling the finder to acquire the title. The key word here is ‘abandon’, which, as Forrest explains, is implied by ‘the act of leaving or deserting the property without the intention of recovering it’ (Forrest 2010).26 The Law of Finds could be applied in situations where the owners had expressly and publicly abandoned their property, and where items were recovered from an ancient shipwreck and no one came forward to claim them (Schoenbaum 2004). However, the utility of the Law of Finds was complicated by factors such as whether the wreck in question was a private or a State-­ owned vessel, such as a warship. While many maritime nations hold the view that State-owned vessels ‘can only be abandoned by an express [emphasis added] declaration to that effect’ (Forrest 2010), there is also the question of whether abandonment can be implied if the original owner, in this case the State, does not take action to recover the vessel. This is despite the fact that for many warships, recovery efforts were impossible at the time of their sinking. To return to our earlier example of HMAS Perth and USS Houston: not only were their exact locations unknown until the mid-1960s, but the equipment to recover these vessels was limited at that time. The illegal salvage of scrap metal from these sites in 2013 could therefore not be justified on the grounds that the wrecks had been abandoned and were subject to the Law of Finds. Even with recent technological advances, many States have elected to leave their sunken warships in situ rather than attempt to recover them, due to the practical, financial and moral considerations associated with excavating a wreck; such decisions should not be considered as abandonment. If the wreck in question is an ancient vessel—or more complicated yet, an ancient warship—ownership, and thus abandonment, becomes even more difficult to determine (O’Keefe 1996). This is because a wreck site may be so old ‘that it predates any conception of “the State” in international law, and no existing State can claim to be the flag State’. Additionally, the original flag State may no longer exist as a separate entity, but has been broken up into smaller nation-States or subsumed within a larger State. It may also be that there is simply no historical evidence available to determine ownership of the vessel. (Forrest 2010)27 26  ‘While this may occur through a failure to take action to recover the lost vessel and its contents over a period of time, abandonment must be inferred from all the circumstances, including conduct of the owner, the circumstances of the loss of the vessel and its final resting place, as well as the opportunity for recovery’ (Forrest 2010). To this, Wilder adds that the actions of an ‘insurer that asserts ownership through abrogation’ must also be considered (Wilder 2000). 27  Forrest also notes that the definition of a warship, per UNCLOS Article 29, is ‘inappropriate as a definition for warships of earlier centuries’ (Forrest 2010).

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Because these traditional laws evolved out of antiquity, their primary focus was ‘the adjudication of property rights, not […] the protection of archaeological context’ (Papa Sokal 2005). Consequently, they proved to be increasingly inadequate to manage the legal and ethical issues arising from advances in underwater exploration.

A Note on Temporality An important factor in the growing recognition of the inadequacy of these laws was the issue of temporality,28 which connects developments in underwater exploration and the nascent discipline of maritime archaeology, with growing international efforts to protect and preserve underwater cultural heritage. Around the same time as the sinking of HMAS Perth and USS Houston, advances in underwater diving technology were heralding significant advancements in humans’ ability to explore under water. While there is archaeological evidence to suggest that humans had been scouring the seabed for millennia,29 it was not until the development of Jacques Cousteau’s aqualung in the 1940s that people were able to operate autonomously for extended periods underwater. Until this time, underwater exploration had been limited to breath-­ hold diving or unwieldy diving bells. This was the start of an unprecedented period in not only underwater exploration, but also the evolution of underwater, or maritime, archaeology—a discipline that had long been preceded by its terrestrial counterpart and suddenly had hundreds of years of catching up to do.30 But with improved access also came greater vulnerability to the threats  Lee notes the issue of temporality in his discussion about the development of the 2001 UNESCO Convention and its compatibility with UNCLOS: ‘It was only in 1960 that underwater archaeology is said to have begun with the excavation of the Cape Gelidonya wreck. From the middle or late 1980s the international community began to be aware of the existence and importance of the underwater cultural heritage’ (Lee 2003). 29  Displaced shells indicate that, as far back as 4500 BC, the search for food motivated the earliest ‘breath-­ hold’ divers. 30  The beginnings of maritime archaeology are commonly dated to the 1960 excavation of a late Bronze-­ Age shipwreck off Cape Gelidonya, in the eastern Mediterranean, by archaeologist George Bass. The ship dated to 1200 BC and was the first wreck to be archaeologically excavated in its entirety. Just as significant was that Bass made no concessions to the fact that the archaeological site was underwater. Although the depth of the wreck and the limitations of equipment precluded dives longer than 30 minutes, Bass and his team assessed and surveyed the site in a methodical and measured manner—just as if they were archaeologists working on a terrestrial site. Bass’ approach to excavating the Gelidonya incorporated his belief that it was more efficient to teach archaeologists how to dive than it was to teach divers how to be archaeologists. The excavated objects were recorded and conserved, Bass’ findings published, and the objects placed on display in a purpose-built museum. This approach demonstrated an understanding of not only the possibilities of underwater exploration but also the risks and responsibilities it entailed. 28

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posed by both commercial and recreational divers. Furthermore, the extant customary and legal framework was insufficient to mitigate against these threats.

 estruction of Heritage During Conflict: The Hague D Convention Notwithstanding developments in underwater exploration, underwater cultural heritage was very much a secondary consideration in the post-war period. Despite the loss of HMAS Perth and USS Houston, as well as many other state vessels, the international community was slow to take action to protect or recover them. Heritage protection efforts were instead centred on the military destruction and looting of cultural property that had occurred in Europe during World War II, prompting the development of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its accompanying Protocols (the Hague Convention).

Stemming Illicit Flows: The 1970 UNESCO Convention Decolonisation also had a significant impact on heritage protection efforts. The threat posed by looting had been regrettably common at terrestrial heritage sites for centuries and was frequently connected to the complicity of empire. But the changing standards of the post-colonial era meant that looting archaeological sites, and the resultant illicit trade in cultural objects, was increasingly out of favour. In 1956, UNESCO issued a Recommendation on International Principles Applicable to Archaeological Excavations, which sought to address issues such as illicit export of archaeological objects and included both terrestrial and underwater activities in its definition of ‘archaeological excavations’. However, it did not regulate which coastal state would control underwater archaeological excavations and left open the question of ownership rights. Furthermore, being a Recommendation, it was by nature advisory and not binding (Nayati 1998). The international community therefore moved to strengthen measures to combat illicit flows of cultural property31 through the introduction of the 31  The 1970 UNESCO Convention employs the term ‘cultural property’, which is also used in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, which addresses the destruction and looting of cultural property during times of armed conflict. By 1972, with the introduction of the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, UNESCO was using the phrase ‘cultural heritage’. However, the UNIDROIT Convention uses the term

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1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention). This Convention was an important line in the sand for the international community in terms of regulating and clarifying issues relating to the ownership and provenance of illicitly obtained cultural property. Even though it does not distinguish between objects found on land or under water, general provisions pertaining to the illicit traffic in cultural property can nevertheless be applied to objects of underwater origin. These include a ban on the acquisition, by museums or similar institutions, of illegally exported objects, as well as import bans on cultural property stolen from museums (Clément 2003). The 1970 UNESCO Convention has been ratified by 131 Member States of UNESCO, including, from Southeast Asia, Cambodia, Laos, Myanmar and Vietnam. Southeast Asian states that have not signed are Brunei Darussalam, Indonesia, Malaysia, Singapore, Thailand, Timor-Leste and the Philippines. The worldwide ratification rate, however, is high, and Prott notes that it has been ratified by a number of the ‘major destinations for illicitly-­ trafficked cultural property from the Asia-Pacific region’.32 In August 2001, for example, Australian legislation33 giving effect to the 1970 UNESCO Convention was used to return seven containers, holding some 71,939 pieces of Chinese porcelain, to Indonesia (Australia 2015). The porcelain had been removed from the wreck of the Tek Sing—a Chinese junk that sank on Belvedere Reef in Indonesian waters in 1821—and illegally exported to Australia (Clément 2003). However, the seized containers were just a fraction of the total: Australian authorities were powerless to stop the export of a further 40 shipping containers from Australia due to delays in receiving information sufficient for them to act. The contents were later sold at auction in Europe (Forrest 2004).34

UNIDROIT Convention The principles in the 1970 UNESCO Convention underpin the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects ‘cultural object’. The 2001 UNESCO Convention uses the term ‘cultural heritage’. In 1992, Prott and O’Keefe proposed that cultural heritage was a more appropriate phrase than cultural property because it did not connote ownership in the legal sense. Furthermore, they argued, ‘property’ does not incorporate concepts of duty to preserve and protect. See Prott and O’Keefe (1992). 32  Prott includes Australia, France, Japan, the UK and Switzerland in this list (Prott 2003b). 33  Protection of Movable Cultural Heritage Act 1986 (Cth). 34  See also Tjoa-Bonatz (2016).

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(UNIDROIT Convention), which benefits source countries by focusing on recovery, restitution and return of illegally obtained cultural objects. The UNIDROIT Convention was developed to address weaknesses in the 1970 UNESCO Convention relating to undocumented objects and looted cultural objects, which, as Clément notes, includes ‘most of the underwater cultural heritage’ (Clément 2003). As with the 1970 UNESCO Convention, the UNIDROIT Convention does not directly address objects originating underwater; however, this does not preclude relevant provisions being applied to underwater heritage. As has been noted, the omission of specific references to underwater cultural heritage in both the 1970 UNESCO Convention and the UNIDROIT Convention can be largely understood as a consequence of the nascency of maritime archaeology, relative to terrestrial archaeology, at that time.35

UNCLOS: The Constitution for the Oceans In addition to heritage-focused Conventions, the other critical Convention to consider is the widely accepted and well-established ‘constitution for the oceans’ (Lee 2003): the United Nations Convention on the Law of the Sea (UNCLOS), which was adopted in 1982 and came into force in 1994. The primary focus of UNCLOS was public international maritime law, including navigational rights and jurisdiction over coastal waters. To enable this, UNCLOS delineates the maritime domain into zones, over which States have different rights and obligations (O’Keefe 2002).36 Cultural heritage had been  See Prott (2003a).  These zones are: • A State’s internal waters, such as lakes and rivers. In terms of States’ rights and responsibilities, internal waters are generally treated as if they were land. • The territorial zone, which extends up to 12 nautical miles from the baseline (usually the low-water line) and over which a State is allowed to claim sovereignty; ships of other States have the right of innocent passage through the territorial zone. • The contiguous zone, which continues out a further 12 nautical miles beyond the territorial zone. In this zone, states are allowed to enforce laws relating to customs, taxation, immigration and pollution. • The continental shelf, which is a place where States have sovereign rights over the exploration and exploitation of natural resources (defined by UNCLOS Article 77 (4) as ‘the mineral and other non-­ living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil’). O’Keefe notes that ‘The legal definition of the continental shelf in UNCLOS is a complex one which, for political reasons, departs from the physical concept’. UNCLOS provides for States with a physically narrow continental shelf to extend their legal entitlement to a full 200 nautical miles, ‘even though this encroaches on the geological deep seabed’; meanwhile, a complicated formula is used to determine the legal extent of sovereign rights for States with a wide continental shelf (O’Keefe 2002). 35 36

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a low priority during negotiations, and there are only two Articles that directly address underwater cultural heritage in UNCLOS: Article 30337 (Archaeological and historical objects found at sea), in Part XVI (‘General Provisions’) and Article 14938 (Archaeological and historical objects), in Part XI (‘The Area’). In assessing the compatibility of UNCLOS with the 2001 UNESCO Convention, Lee notes that Article 303 has been criticised for being ‘“clumsy” in terms of logic or systematic coherence’ and ‘“counterproductive” in its practical effect on the protection of the underwater cultural heritage’ (Lee 2003). Furthermore, certain provisions contain ‘an ingenious element of legal fiction’ and have caused problems of interpretation (Ibid.). Article 303 was ‘a result of a last-minute compromise between a group of seven States’ (Ibid.), and for some commentators this fact alone is enough to lead to questions about its normative authority relative to other provisions in UNCLOS. To form consensus, delegates were compelled to set aside some contentious issues, including the issue of how UNCLOS would interface with traditional admiralty laws. Consequently, critics contend that UNCLOS ‘aggravat[es] the danger of uncontrolled plunder of the underwater cultural heritage on a “first come, first served” basis’. Recognising this, UNCLOS left open the door for the development of a new Convention specifically addressing archaeological and historical objects found at sea. Like Article 303, Article 149 has been criticised for its ambiguity and inadequacy. While it addresses the issue of objects found in the high seas (the • The Exclusive Economic Zone (EEZ) extends up to 200 nautical miles from the coastal zones and gives the coastal state sovereign right over the protection and preservation of the marine environment. O’Keefe notes that these rights apply ‘in the waters above the seabed as opposed to sovereign rights in the seabed itself [emphasis added]’. • The Area, or simply the high seas. UNCLOS defines the Area and its resources as ‘the common heritage of mankind’. No state has exclusive jurisdiction or sovereign rights over the Area or its resources. 37  UNCLOS Article 303: 1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose. 2. In order to control traffic in such objects, the coastal State may, in applying article 33 [Contiguous zone], presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article. 3. Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges. 4. This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature. 38  UNCLOS Article 149: All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.

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Area), it does not address the question of how to manage objects that lie between the contiguous zone and the Area. Furthermore, this article gives preferential rights to the country of origin, which is difficult, if not impossible, to determine for some ancient shipwrecks. UNCLOS functions well as an international mechanism for regulating ‘trade, fishing rights, commercial exploitation of natural resources in the seabed and environmental protection’ (Papa Sokal 2005). But as a mechanism for the protection of underwater cultural heritage, UNCLOS is clearly insufficient. Nevertheless, its development represented another step in the international community’s consideration of issues relating to the protection of underwater cultural heritage. These customary laws and International Recommendations and Conventions address certain aspects of underwater cultural heritage, but none in a comprehensive manner. Hence, consensus began to build towards the development of a Convention that directly addressed the protection and preservation of underwater cultural heritage—a complex effort that would attempt to bring together ‘three different spheres of law: the law of the sea, admiralty law (or maritime law) and cultural heritage law’ (Forrest 2010).

Section Two: The 2001 UNESCO Convention By 1997, UNESCO had decided to address underwater cultural heritage at an international level via a Convention.39 The following year, a group of experts met to begin work on a draft Convention of the Protection of the Underwater Cultural Heritage. In their deliberations, the group of experts drew upon a Charter developed by the International Council on Monuments and Sites’ (ICOMOS) International Committee on Underwater Cultural Heritage (ICUCH) (Staniforth 2014b). The ICOMOS International Charter on the Protection and Management of Underwater Cultural Heritage had been submitted to the ICOMOS General Conference in 1996 and was later modified to become the Annex to the 2001 UNESCO Convention (Henderson and Viduka 2014). The group of experts also drew from a draft Convention developed by the International Law Association (ILA) and passed to UNESCO in 1994. Lee describes the ILA draft as ‘very much […] a cultural heritage instrument’, which he attributes to the fact that it only refers to UNCLOS in passing in its Preamble. This description is no doubt also influenced by the 39  For more background information on the move towards the preparation of an international instrument, see O’Keefe (1996).

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ILA proposal to establish a cultural heritage zone co-extensive with the continental shelf (Lee 2003), raising concerns amongst several States that it would lead to the creation of a ‘cultural heritage’ zone additional to those specified in UNCLOS, or seek to over-ride UNCLOS altogether (Strati 1999). The 2001 UNESCO Convention was drafted with the intention of complementing both UNCLOS (Lee (2003) describes UNCLOS as having a ‘looming presence’ in the new Convention) and the 1970 UNESCO Convention. The consultation and drafting process was ‘lengthy, and at times contentious’ and ‘marred by numerous problems such as a high turnover of delegates, who were sometimes not fully informed about the issues involved’ (Papa Sokal 2005). Despite attempts to align the 2001 UNESCO Convention with other extant international instruments, some of the more powerful maritime states questioned its compatibility with UNCLOS. Their argument was that the inconsistencies arising from the concurrent application of both of these international instruments resulted in the 2001 UNESCO Convention lacking legitimacy. These states ascribed UNCLOS, the so-called constitution of the sea, a normatively higher rank than the 2001 UNESCO Convention and thus, in areas where the two appeared to be in conflict, it was UNCLOS that had supremacy.40 Their major concern was that the 2001 UNESCO Convention was arguably in violation of the ‘delicate’ provisions in UNCLOS pertaining to the exclusive economic zone and the continental shelf, and that the new Convention would lead to ‘creeping jurisdiction’.41 In particular, they feared that ‘the extension over the continental shelf and the [EEZ] of coastal States’ rights, which bore no relation to natural resources, would promote creeping jurisdiction’ (Lee 2003). The issue of Salvage Law and the Law of Finds was also problematic, and delegates were forced to compromise ‘between the views of States which wanted the possibility of salvage law and the law of finds to be retained, and those which wanted their total exclusion’ (Carducci 2003). The final text thus allows ‘differing national interpretations of the article that should allow for a broad ratification of the convention’ (Forrest 2006). Despite these concerns, however, it is notable that many of the states that opposed the Convention for the reasons outlined here have subsequently ratified it. After lengthy negotiations, the 2001 UNESCO Convention was adopted in 2001 by vote—not by consensus, as is usual, which suggests how con Despite UNCLOS Article 311(2), which specifically disavows this view: This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 41  See also O’Keefe (1996). 40

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tentious the issue had become.42 Because of the ‘20 State’ principle, it did not come into force until 2009.43 This principle had also been used with the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage,44 which subsequently took three years to come into force (1975). It is an indication of the reservations many States continue to have about the 2001 UNESCO Convention that it took not three but eight years before it had the required numbers to come into force.45 In 2017, the number of States to have ratified the Convention stood at 56, including, despite its earlier abstention, France (UNESCO 2016b). In May 2016, the Netherlands, which had also abstained, officially announced its intention to ratify as a matter of urgency (Anonymous 2016). In November 2016, Australia announced the introduction of new underwater cultural heritage legislation that would bring it closer to ratification (Frydenberg 2016). The 2001 UNESCO Convention consists of a Main Text of 35 Articles and an Annex of 36 ‘Rules concerning Activities Directed at Underwater Cultural Heritage’ (UNESCO 2001). The Convention centres on the principle of a universal approach to cooperation and has four main principles: the obligation to preserve underwater cultural heritage ‘for the benefit of humanity’46; in situ preservation as the first option; prohibition of commercial exploitation; and promotion of training and information sharing.47 The Rules constitute the most widely recognised standards in maritime archaeology and are widely considered to be a professional code for underwater archaeologists. The Rules are based on the principles developed by the  There were 15 abstentions, including France, the UK, Brazil, Greece and the Netherlands.  2001 UNESCO Convention Article 27 had stipulated that it would not come into force until ‘three months after the date of the deposit of the 20th instrument’ (i.e., 3 months after the 20th State had ratified). See O’Keefe (2002). 44  For more detail on the differences between movable and immovable heritage (sites and objects) as they are understood by UNESCO Conventions, refer to Prott (2003b). 45  Hence, in the 46 years since its introduction, 4 out of 11 Southeast Asian states (if we include Timor-­ Leste) have ratified the 1970 UNESCO Convention. In the 15 years since its introduction, 1 out of these same 11 states has ratified the 2001 UNESCO Convention; in a 45-year time period, therefore, we may expect Southeast Asian signatories of the 2001 UNESCO Convention to be about on par with the 1970 UNESCO Convention. I am grateful to Mark Staniforth for this point. Prott notes that ‘Conventions which deal with issues also the subject of other international conventions, or which have complex provisions requiring new legislation or revision of existing legislation, or those which require a change of public attitudes, or more stringent requirements of many nations, or those which reach across a series of different areas of law (such as criminal law, administrative Law, defence issues, contract or property law and so on), usually take much longer to attract a great many ratifications’ (Prott 2014). 46  2001 UNESCO Convention Article 2 (3). 47  2001 UNESCO Convention Article 21. 42 43

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1996 ICOMOS International Charter on the Protection and Management of Underwater Cultural Heritage (ICOMOS 1996). They address the qualifications of participants, documentation of underwater excavations, and methodologies for conservation and site management. A UNESCO Manual for Activities directed at Underwater Cultural Heritage elaborates on the ethical principles underpinning the Rules and supplies a series of operational guidelines to assist specialists and decision-makers to understand and apply the Rules.48 While relatively few countries have ratified the 2001 UNESCO Convention, many have chosen to adopt its Annex.

Criticisms, Complications and Conundrums Two principles go to the heart of the Convention’s aim of protecting and preserving underwater cultural heritage for the benefit of humanity. The first of these is the preference for in situ preservation as a first option.49 In framing the following discussion, it is important to emphasise that the 2001 UNESCO Convention positions in situ preservation as the first, but not the only, option. As Manders explains, in situ preservation forms just one part of management and not – as often interpreted – the only right way forward. Excavation and preservation ex situ remain options for consideration, but must be backed up with strong arguments and a detailed description of planned execution. (Manders 2008)

The preference for in situ preservation as a first option is based on a number of premises. The first relates to authenticity: contextual information—the location of objects on the seabed—is easier to assess and maintain if left undisturbed. Second, underwater sites can be made surprisingly stable if physically protected from wave movements, human interference or other disturbances— moist conditions contribute to the longevity of organic materials, while the lack of oxygen in the water slows down the degradation of materials. Excavating objects and exposing them to oxygen can lead to rapid deterioration. Finally, many maritime archaeologists maintain that excavation and preservation  See also Maarleveld et al. (2013). Their Manual expands on the ethical principles underpinning the Rules and supplies a series of operational guidelines. It specifies that in situ preservation is a first option because the site of an historic event is authentic; context defines significance; heritage is finite; and many sites cannot be preserved in situ. 49  2001 UNESCO Convention Article 2 (5): The preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage. 48

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techniques are still in their infancy and that wrecks should be left in situ until such time as more sophisticated equipment and conservation techniques, as well as better research questions, have been developed.50 However, as Flecker counters, the preference for in situ preservation as a first option: […] is all well and good in countries where the wreck-site can be constantly protected from deliberate or accidental interference, to where civic awareness is sufficiently high to render policing unnecessary. In developing countries, where finding the next meal takes priority over cultural sensibilities, this line of thinking is not only naïve but potentially destructive. (Flecker 2002b)

Flecker is Director of Maritime Explorations, a commercial excavation company with extensive operational experience in Southeast Asia and, while his position on in situ preservation should be considered within the context of his salvage work, it is equally important that his perspectives are not dismissed out of hand. Many of those expressing concern about the utility of in situ preservation as a first option, such as Flecker, are motivated by concerns about the threat of looting. Tjoa-Bonatz describes looting in Southeast Asia as ‘rampant’: to protect wrecks from looting, she argues, in situ preservation ‘must be discarded’ (Tjoa-Bonatz 2016). The second principle stipulates that underwater cultural heritage shall not be commercially exploited.51 Rule 2 expands on this: The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods. (UNESCO 2001)

The objection to commercial exploitation is based on an opposition to the sale of the artefacts for profit and the dispersal of the complete collection of excavated objects. By this, the (non-)involvement of commercial excavation companies can be clearly implied. In situ preservation in Southeast Asia all but ensures the dispersal, through illicit sale, of objects, and the destruction of archaeological context. Meanwhile, the involvement of commercial excava50  For a more detailed discussion of in situ preservation, see Staniforth and Shefi (2010). See also Williams (2015). 51  2001 UNESCO Convention Article 2 (7): Underwater cultural heritage shall not be commercially exploited.

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tion companies cannot be said to guarantee ethical outcomes, but it at least makes them possible. For this reason, commercial excavation cannot be discounted. Although museums and heritage institutions were not intended as the focus for this particular clause, there remains the question of the extent to which a museum profiting from shipwreck exhibition ticket sales can be understood as commercial exploitation under the terms of the Convention. Quoting one of the earliest maritime archaeologists, Peter Throckmorton, Liebner observes that museum catalogues and other ‘publications have to be bought; musea [sic] demand entrance fees (Throckmorton 1998, quoted in Liebner 2014). A frequent argument against commercial salvage is the “long term profit” in tourism revenues generated by “intelligently excavated, conserved, and exhibited shipwrecks”…’ (Liebner 2014). Do these considerations thus implicate museums displaying excavated underwater objects, even if the objects were excavated without involvement from commercial excavation companies? The significant expense of excavation work must also be noted here, precluding not only previously colonised but also developed countries from conducting underwater excavations. Of the 2001 UNESCO Convention, Flecker writes: This is a perfectionist policy for shipwrecks full of unique artefacts lost in the waters of developed countries that are willing to commit public funds to carry out archaeological excavations, inclusive of the time-consuming and costly tasks of conservation and long-term storage of large number of artefacts, documentation, dissemination and display. However […] the participation of responsible commercial salvors may actually be the best means of saving archaeological information in Southeast Asia, at least in the near term. (Flecker 2002b)

Many countries in Southeast Asia are blessed, and cursed, with abundant underwater cultural heritage. But with limited resources and relatively low levels of public awareness about the need to protect and preserve such heritage, they face a conundrum: leave wrecks in situ and thus at the mercy of looters, or engage commercial outfits to offset the costs of excavation, thus reducing vulnerability to looters at the same time as exposing themselves to criticism and the objects to a potentially unknown fate. The outcomes vary widely: the fate of at least one half of Indonesia’s tenth-century Cirebon (Liebner 2014) cargo, excavated in 2004, remains shrouded in secrecy, but in other instances, such as the ninth-century Belitung (Tang), the cargo was sold as a largely-intact collection and is now permanently displayed in a national museum in Southeast Asia (Pearson 2016c, pp.  10–11). Flecker’s role as a commercial salvor does not negate the legitimacy of his observations: that the

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2001 UNESCO Convention is, for many Southeast Asian states, aspirational and—at least in the short term—the resource burden it places on States precludes its practical application. My argument here is based on the premise that commercial salvage, if conducted in accordance with the internationally recognised archaeological principles in the Rules, can support ethical management of underwater cultural heritage.

 ection Three: Beyond the Good and the Bad: S Examples from Southeast Asia Only Cambodia has signed the 2001 UNESCO Convention. Its Underwater Cultural Heritage Unit was established in 2011, with the initial objective of establishing a preliminary cartography of underwater cultural heritage in Cambodia. Maritime archaeology remains in its infancy in Cambodia, and the Unit faces resourcing and capacity limitations as well as challenges enforcing domestic regulations (Kamsan 2011; Nady 2011, 2012). Elsewhere in Southeast Asia, states have elected to manage the issue of underwater cultural heritage domestically rather than through the 2001 UNESCO Convention. This diversity of responses has resulted in inconsistencies with how underwater cultural heritage is managed in the region. Because of this, it is still possible to buy illicitly removed objects not only on the black market but through established institutions—implicating not only looters but also dealers, auction houses and museums. In his commentary on the 2001 UNESCO Convention, O’Keefe describes the range of outcomes in maritime archaeology as ‘the good, the bad and the court cases’, in which he defines good as ‘extensive research, painstaking excavation, careful conservation, full publication and thoughtful exhibition’, and bad as ‘the destruction of a site, usually in pursuit of a commercial gain, leading to the loss of any knowledge that might have been obtained from it’ (O’Keefe 2002). This section offers selected examples of different approaches to managing underwater cultural heritage in Southeast Asia, in an effort to demonstrate that the situation, at least in Southeast Asia, is more nuanced than definitions of ‘good’ and ‘bad’ may allow.

A Turning Point: The Geldermalsen The case of the Geldermalsen was instrumental in prompting Indonesia to introduce legislation that both asserted State ownership of shipwrecks and their cargo in its territorial waters, and also enabled the involvement of com-

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mercial excavation companies in their salvage. It also prompted changes to underwater heritage legislation in China (Tjoa-Bonatz 2016), from where the Geldermalsen’s cargo had originated. The Geldermalsen was a Dutch East India Trading Company (VOC) vessel, travelling from China to the Netherlands with a full load of tea (which, at the time, was its most precious cargo52), porcelain and gold when it was wrecked in 1752 near Riau, south of Singapore. The wreck lay in Indonesian territorial waters and was salvaged in 1985 by Michael Hatcher. This was not an archaeological excavation: describing the discovery of tiny blue-on-white teacups in a crumbled crate, Miller writes: The least competent of archaeologists would have recorded which porcelain vessels came from which crates. No attempt was made to save the crates let alone keep track of their contents… [Hatcher] recorded almost nothing about the ship and provided almost no conservation for the artifacts. (Miller 1992)

The Geldermalsen exposed uncertainties about the ownership of VOC wrecks in Indonesian territorial waters. While Hatcher had a contract with the Dutch government (which received a percentage of the auction sale) to salvage the wreck, there is no evidence that any such arrangements were made with the coastal state, Indonesia (Nayati 1998). Hatcher himself described his work as a ‘race to get what they could before being interrupted by weather, rivals, pirates, or some government [my emphasis] (Dyson 1986). With the legality of the actual salvage in question, the case of the Geldermalsen also implicates auction houses in the exploitation of Southeast Asia’s underwater cultural heritage. Miller describes Christie’s as the ‘agent provocateur that made the scavenging possible and profitable’ (Miller 1992). In 1986, the gold ingots and over 150,000 pieces of porcelain were auctioned at Christie’s in Amsterdam. Marketed as ‘The Nanking Cargo’, Christie’s actively solicited interest beyond the usual suspects of museums and private collectors, to ‘an expanded elite clientele’ that included hotels, embassies, department stores, restaurants and interior designers (Miller 1992; Austin 1986). The auction raised more than £10 million, and many pieces were sold for 10–15 times the catalogue estimate. Observers expressed concerns about the effect of these high prices on other shipwrecks, which amounted to ‘a large bounty on any shipwrecks containing Chinese porcelain which will lead to a wholesale destruction of such wrecks’ (Miller 1992). Others criticised the  The salvage process has been likened to swimming ‘in a gigantic teapot’ because, despite the presence of gold and porcelain, the Geldermalsen’s most precious cargo, at least at the time of its sinking, was in fact tea (Habermehl n.d., see also Pearson (2016b, p. 125). 52

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‘cynical’ profit-raising enjoyed by Hatcher and the Dutch Ministry of Finance at the same time as museums ‘have to bid on the auction market with their own budget’ (Green 1988; see also Rodrigues et al. 2005). The Geldermalsen case revealed the vacuum that existed in relation to the ownership and management of underwater cultural heritage in Indonesia (Nayati 1998). As Tjoa-Bonatz notes, […] traditional Indonesian maritime laws, including salvage laws as well as laws of finds, encouraged the sale or marketing of the rescued material and were designed not to protect the entire structure of an history wreck nor the archaeological information it contained. (Tjoa-Bonatz 2016)

Consequently, Indonesia introduced legislation that asserted State ownership of all wrecks in its territorial waters in 1989.53 This legislation also established the National Committee on the Salvage and Utilisation of Valuable Cargo Raised from Sunken Ships (Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga Asal Muatan Kapal yang Tenggelam, or PanNas BMKT), which was responsible for issuing licences to commercial excavation companies. This system was used in Indonesia, in some form or another, to issue commercial excavation permits until a temporary moratorium was introduced in 2010. This moratorium was effectively made permanent in 2016.54

A Means to an Ethical End? The Belitung (Tang) Wreck It was under such legislation that the Belitung (Tang)55 shipwreck was excavated in 1998–1999. The Belitung case is important for our consideration of what constitutes an ethical—or, to use O’Keefe’s terminology, a ‘good’ or ‘bad’—approach to the management of underwater cultural heritage in Southeast Asia. Even though the excavation and sale of the ship and its cargo 53  Presidential Decree Number 43 of 1989 on the National Committee and Utilisation of Valuable Cargo from Sunken ships (Keputusan Presiden Republik Indonesia No 43 Tahun 1989 tentang Panitia Nasional Pengangkatan dan Pemanfaatan Benda Berharga Asal Muatan Kapal yang Tenggelam), proclaimed 14 August 1989. 54  The permit system for excavating shipwrecks and their cargo in Indonesia effectively came to an end in May 2016 with the introduction of Presidential Regulation Number 44 of 2016 concerning the List of Closed Business Fields and Open Business Fields With Conditions to Investment (Peraturan Presiden Republik Indonesia Nomor 44 Tahun 2016 Tentang Daftar Bidang Usaha Yang Tertutup Dan Bidang Usaha Yang Terbuka Dengan Persyaratan Di Bidang Penanaman Modal). The Regulation prohibits investment in specified business fields, including, at Appendix One, the excavation of shipwrecks. 55  The shipwreck is sometimes also known as the Batu Hitam (Black Rock) or Tang shipwreck. In this chapter, the term Belitung is used. For more on the political aspects of naming this shipwreck, see Pearson (2016c, pp. 10–11).

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did not strictly comply with recognised principles of maritime archaeology, the final outcome has many positive elements, not least of which is the availability of the assemblage at the Asian Civilisations Museum in Singapore to both the general public and to scholars. Discovered by trepang divers off the coast of Belitung Island, near Sumatra, the wreck was that of a ninth-century Arabian-style dhow (Flecker 2008). The wreck is ‘one of the most significant ever found in Asian waters’ because both the cargo, which included the biggest collection of Tang dynasty ceramics discovered in a single location, and a major portion of the hull, were largely intact (Ibid.). It is believed to be the earliest archaeological evidence of maritime trade between the Tang Dynasty (618–907) and the Abbasid ­ Caliphate (750–1258) (Krahl et al. 2010; Flecker 2001b). The wreck was excavated by a German maritime exploration company, Seabed Explorations, under a licence issued by PanNas BMKT. The excavation undoubtedly violated certain principles of maritime archaeology, including the preference for in situ preservation. The involvement of Seabed Explorations also ran contrary to the principle opposing the commercial exploitation of underwater cultural heritage, because the objects were indeed sold to cover costs and raise profit. However, the 2001 UNESCO Convention was not introduced until three years after the Belitung was discovered,56 and under Indonesian legislation the excavation was legal. The excavation was conducted over two seasons, with a monsoon-enforced break. Seabed Explorations has not made available information about the extent and quality of the archaeological supervision and recording that took place during the first season; however, other arrangements were made for the second season, with Flecker employed to oversee the excavation.57 Overall, around 60,000 objects were excavated from the site, including approximately 57,500 Changsha bowls, other types of ceramics, and some exquisite pieces of gold, silver and bronze (Flecker 2000). Flecker has subsequently published his findings in recognised journals (Flecker 2012, 2011; Burger et  al. 2010; Flecker 2008, 2002b, 2001b, 2000). One major criticism of the excavation was that the same attention was not afforded to the hull as to the objects. Nevertheless, evidence gleaned from the hull was used in conjunction with ‘historical texts, iconography, and ethnographic information’ to build a rep Furthermore, neither Indonesia nor America, from where much of the criticism originated, is party to the 2001 UNESCO Convention. 57  At the time of the Belitung salvage, Flecker based his qualifications on an early UK ruling that recognised a maritime archaeologist as anyone with at least 10 years’ field experience, relevant publications and a Bachelors degree of any kind (Flecker 2015). He has subsequently completed a PhD on the tenth-­ century Intan shipwreck—see Flecker (2001a). 56

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lica ship from scratch, using traditional materials and techniques (Vosmer 2010). The Jewel of Muscat sailed from Oman to Singapore in 2010 and is now suspended from the ceiling of Singapore’s Maritime Experiential Museum on Sentosa Island.58 Indonesia’s permit system did not require excavated collections to be kept intact and in fact encouraged their dispersal by giving the Indonesian government first choice of a selection of objects, as well as 50 per cent of the sale price.59 In a case that preceded the Belitung, the requirement to return selected objects to the Indonesian government resulted in the dispersal of the Java Sea wreck. This 13th wreck was salvaged by Pacific Sea Resources in 1996 and, although the site had already been looted and later partially salvaged by another company, Pacific Sea Resources was able to recover 12,000 pieces of celadon and other ceramics (Mathers and Flecker 1997). Despite initial efforts to sell the objects as a single collection, a buyer for the entire collection of objects could not be found, and the cargo was subsequently split as per the original licence requirement. Rather than sell its share of the cargo, Pacific Sea Resources donated it to Chicago’s Field Museum of Natural History; Indonesia, meanwhile, sold and dispersed the share that had been returned to them under the terms of the licencing agreement (Flecker 2011; Niziolek 2014). In the case of the Belitung, however, Indonesia chose to forego its share of objects and half of the sale price, in exchange for a one-off payment of US$2.5 million plus the entire cargo of the Intan (Caixia 2011),60 which had been salvaged by Seabed Explorations in 1997. This unusual arrangement enabled Seabed Explorations to sell the Belitung cargo as a largely-intact collection, which they did in 2005, to Singapore’s Sentosa Leisure Group.61 While Seabed 58  The interest in building full-scale replicas dates to the early 1980s and is used to better understand the dynamics of shipbuilding while also providing a point of comparison with the original ship (Green 2001). The construction of the Jewel of Muscat was also an opportunity for Oman to position itself in the modern-day story of the Belitung—see Pearson (2016c). 59  This clearly violates the 2001 UNESCO Convention’s requirement that objects not be irretrievably dispersed; however, as noted, the first iteration of Indonesia’s legislation relating to underwater cultural heritage had preceded the Convention and the ICOMOS International Charter on the Protection and Management of Underwater Cultural Heritage, on which the 2001 UNESCO Convention’s Rules are based, by a number of years. 60  The Intan was a tenth-century lashed-lug vessel and the oldest Southeast Asian wreck to be found with a complete cargo. Seabed Explorations obtained the permit to excavate the wreck, and the excavation was directed by Flecker in 1997. Objects excavated from the Intan are now on display at the Museum of Fine Arts and Ceramics (Museum Seni Rupa dan Keramik) in Jakarta. See Tjoa-Bonatz (2016). Flecker later wrote his PhD on the Intan: see Flecker 2002a. 61  The Sentosa Leisure Group was a wholly owned subsidiary of the Sentosa Development Corporation, which in turn was an entity established by the Singaporean Government (Lambert 2012). The objects were transferred to the Singapore Tourism Board and later to the National Heritage Board. The Belitung cargo is now known as the Tang Shipwreck Collection and is on permanent display in the Khoo Teck Puat

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Explorations’ decision to sell the collection intact could be interpreted as an example of a commercial excavation company acting ethically, it is also worth noting that their motivations in keeping the collection intact may not have been completely altruistic; releasing 57,500 near-identical Changhsa bowls onto the market would have devalued them, and there was likely far more profit to be made from selling them as one collection. Singapore intended that the collection would form the basis of an international travelling exhibition, Shipwrecked: Tang Treasures and Monsoon Winds, opening at Singapore’s ArtScience Museum in 2011 and then moving to the Smithsonian Institution’s Arthur M. Sackler Gallery in 2012. However, the Smithsonian cancelled its involvement just months ahead of the scheduled opening in Washington. The primary concern, as voiced by Elizabeth Bartman, president of the Archaeological Institute of America, was that the excavation amounted to little more than a treasure hunt: The Belitung shipwreck was salvaged unscientifically by commercially-­motivated treasure hunters. Although the excavation and disposition of these materials may be technically “legal”, it is the AIA’s position that involvement by the Smithsonian Institution in the exhibition of these artifacts will serve to blur the distinction between bona fide nautical archaeology and treasure hunting. (Bartman 2011)

The controversy dashed hopes that the Belitung would become an international blockbuster and led to delays in its permanent display in Singapore. Eventually, in late 2015, it was permanently installed as the Tang Shipwreck Collection in a dedicated gallery at Singapore’s Asian Civilisations Museum. Although it remains unlikely that the Belitung cargo will ever be displayed at the Smithsonian, there are signs that the collection may yet become the travelling exhibition organisers had anticipated. In 2014–2015, select objects were displayed at Toronto’s Aga Khan Museum as The Lost Dhow: A Discovery from the Maritime Silk Route, and 19 select objects were incorporated in the 2016–2017 Ocean Explorers: From Sindbad to Marco Polo (Aventuriers des Mers: De Sindbad à Marco Polo) exhibition in France.62 Significantly, the objects have now also been made available to American audiences, with the opening in March 2017 of Secrets of the Sea: A Tang Shipwreck and Early Trade in Asia at the Asia Society Museum, New York. A small number of objects are Gallery at the Asian Civilisations Museum, Singapore. Many objects are kept in an offsite storage facility, accessible via appointment. 62  At the Institut du Monde Arabe (Institute of the Arab World) in Paris and the Musée des Civilisations de l’Europe et de la Méditerranée (Museum of European and Mediterranean Civilisations) in Marseilles.

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Fig. 31.1  Belitung (Tang), Indonesia. Changsha bowls post-salvage. Source: Dr. Michael Flecker

also on permanent display at the recently opened Marine Heritage Gallery in Jakarta, Indonesia. More international exhibitions cannot be ruled out (Figs. 31.1, 31.2 and 31.3).63 Almost two decades since its discovery, the Belitung continues to confound binary understandings of what constitute ‘good’ or ‘bad’ approaches to the management of underwater cultural heritage in Southeast Asia, because it challenges the extent to which the problematic ‘means’ of its excavation compromise its ethical ‘end’. As we have seen, the cargo was commercially ­excavated and sold for profit—but it was sold as a largely-intact collection and is now on permanent display in a world-class museum. Complicating this narrative is that Seabed Exploration’s decision to sell it as a single collection may not have been entirely due to scholarly or ethical imperatives, but partly motivated by a desire to maximise profit. The excavation, criticised for not being scientific enough, nevertheless resulted in the publication of scholarly articles and contributed to the construction of a replica ship that was seaworthy enough to sail from Oman to Singapore. The problematic aspects of Indonesia’s model, which necessitated commercial involvement and all but ensured collections would be split up, should be understood within the context of a perceived need to assert State ownership of wrecks in the first instance. While this model has, in this case, resulted in 63  Museums that are members of the Council of American Maritime Museums (CAMM), the International Council of Museums (ICOM) or the International Congress of Maritime Museums (ICMM) are unlikely to exhibit this collection; to do so would contravene their standards and codes of ethics.

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Fig. 31.2  Belitung (Tang), Indonesia. Some of the 57,500 Changhsa bowls (each with an approximate diameter of 16 centimetres) recovered from the Belitung (Tang) are displayed in a ceramic storage jar at Singapore’s Asian Civilisations Museum. Ingenious packing techniques meant that each large storage jar held about 130 bowls, which were coiled and padded with organic material, probably straw, for protection. Source: Natali Pearson (author) (Asian Civilisations Museum)

positive scholarly and museological outcomes, the absence of archaeological imperatives embedded in the legislation has meant that the model has favoured financial, rather than cultural or historical, values.

Joint Ventures, Broken Promises: The Binh Thuan The Binh Thuan wreck, found in Vietnamese waters in 2001, promised a better example of the potential for joint salvaging ventures between commercial excavation companies and national governments. This was a Chinese vessel dating from the early 1600s,64 and its cargo included Zhangzhou porcelain and cast-iron pans.65 The wreck was discovered after nets belonging to local fishermen became tangled in its wreckage. Rather than reporting the find to local authorities, the fishermen began removing objects from the wreck and selling them to local and international antique dealers. When authorities  Archival research suggests the ‘tantalising possibility’ that the wreck was that of the unlucky Chinese merchant I Sin Ho, who was travelling from China to Johore in 1608 when his vessel, carrying silk and ceramics, sank off the coast of south Vietnam. Flecker, M. 2004. The Binh Thuan Shipwreck: Archaeological Report. Melbourne: Christie’s. 65  For more information on the trade in Chinese iron in maritime Southeast Asia, see Kwa (2012). See also Flecker (2004). 64

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Fig. 31.3  A small number of objects from the Belitung are on display at the new Marine Heritage Gallery in Jakarta. An initiative of the Indonesia Government and housed in the Ministry of Marine Affairs and Fisheries, the gallery aims to raise awareness about the historical and archaeological value of Indonesia’s underwater cultural heritage. It is home to about 1200 objects from three known shipwreck sites (Belitung, Cirebon and Pulau Buaya), as well as a number of unidentified sites. Source: Marine Heritage Gallery, Ministry of Marine Affairs and Fisheries

caught up with them, the fishermen were arrested and the national salvage company, Visal, deployed to assess the site. The excavation was delayed by up to a year while Vietnam deliberated how to excavate the wreck: by State-owned Visal, opening the excavation up to tender, or inviting foreign involvement (Flecker 2002b). As the delays continued, and despite a marine police boat being stationed near the wreck, the site was again looted. By 2002, authorities had agreed on a joint-venture excavation model involving the Vietnamese Ministry of Culture, the provincial government and Visal. A commercial excavation company was engaged to assist with documenting structural remains and provide ‘financial support, archaeological consultancy, and project management services for the excavation’ (Flecker 2004) (Fig. 31.4). The excavation yielded many thousands of artefacts, of which the Government retained all unique objects as well as four representative sets. These were to be housed in a purpose-built museum in Binh Thuan province. This approach addresses one of the major challenges of shipwreck cargo excavations, namely the high volume of similar objects that such excavations yield.

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Fig. 31.4  Binh Thuan, Vietnam. The wooden structure is the base of the foremast, stepped between tabernacle partners. It is surrounded by stacks of blue-and-white and overglaze enamel Zhangzhou ware. Chinese junk of c.1608. Source: Dr. Michael Flecker

Tens of thousands of objects are costly to conserve and difficult for museums to display and store. Although splitting collections breaches the 2001 UNESCO Convention’s Rule 2 that underwater cultural heritage shall not be irretrievably dispersed, some practitioners consider the sale of multi-­duplicates to be a valid and practical option—provided that a thorough archaeological analysis of the objects has been conducted, all data retained, fully representative samples kept for long-term study, and, with profits raised, being directed back towards local capacity building and the like (Flecker 2002b). The multi-­ duplicate ceramics were therefore auctioned by Christie’s in Melbourne, Australia in 2004, with most of the proceeds earmarked for the new museum. There was considerable interest in the auction from major institutions— including the National Museum of Australia, which holds at least one piece— and it raised AUD 2 million. Regrettably, however, this provincial museum in Binh Thuan remains unbuilt—an outcome that left those involved exposed and confirmed many of the concerns held by sceptics of commercial excavation (Staniforth 2012).

Institutionalising Maritime Archaeology Some Southeast Asian countries have a well-established maritime archaeology program, in which commercial salvage has no role. In Thailand, for example,

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maritime archaeology dates to the mid-1970s (Vatcharangkul 2012) and has now matured into perhaps the best example of what can be achieved through a sustained investment of funding and personnel. Thailand has provided training to not only its own maritime archaeologists but also those from throughout the region. The government’s Underwater Archaeology Division in the Fine Arts Department operates independently and has access to a range of sophisticated—and expensive—diving equipment. Archaeologists are based at the National Maritime Museum in Chanthaburi, established in 1994, which displays results of previous projects (Kimura 2015). Many of the Division’s research projects arise from lucky—but, often, already-looted—discoveries.66 One current project is the ninth-century Phanom Surin shipwreck, located 8 kilometres inland in swampy surrounds (the result of changing sea levels) and believed to be a contemporary of the Belitung. The wreck was discovered in 2013 by a local farmer, who reported the find to authorities. The Division has focused on a combination of in situ preservation and chemical conservation methods, but Kimura notes that ‘neither technique has been conducted at the highest standard in the region’ (Ibid.). Excavation and conservation work are ongoing and have yielded an almost complete wooden ship structure, ceramics and organic artefacts such as ropes, rice grains, betel nuts and coconuts (Figs. 31.5, 31.6 and 31.7). Since the Binh Thuan, Vietnam has taken steps to institutionalise maritime archaeology through the establishment of the Underwater Archaeology Department in 2013 (Ibid.). In 2016, the government upgraded the ­department to a Centre of Underwater Archaeology and committed to investment in new equipment. One of the key contributors to the development of maritime archaeology in Vietnam has been the involvement of the Vietnam Maritime Archaeology Project (VMAP), an international, multi-disciplinary team of researchers who have been working in various iterations since 2008 to build capacity and raise awareness.67 The Centre, which has minimal staffing and limited funding, has a mandate that includes surveying and excavating underwater and maritime cultural heritage, an ambitious undertaking given Vietnam’s coastline stretches for almost 3500  kilometres. Additionally, it is responsible for researching and publishing on Vietnam’s maritime history and 66  This is what Flecker defines as a reactive approach, revolving ‘around fishermen or sports divers stumbling upon shipwrecks, then either reporting them or more likely getting arrested looting them, before the government decides what to do with the new discovery’. Meanwhile, a proactive regime is one in which ‘a government institution would actively search for shipwrecks to excavate – or protect through archival research (generally for European wrecks), electronic survey (wreck specific or blanket), fisherman interviews (for artefact finds in nets) and the like’ (Flecker 2011). 67  Between 2008 and 2016, Vietnam Maritime Archaeology Project (VMAP) conducted 11 seasons of research and fieldwork in Vietnam, including on-site training of local personnel. They have also provided Nautical Archaeology Society training, which does not require diving, to local students, archaeologists and museum and government staff.

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Fig. 31.5  Kelson of the Phanom Surin, Thailand. This ninth-century Arabian-style sewn ship was discovered 8 kilometres inland by a local shrimp farmer, and it is now undergoing conservation and research by Thailand’s Underwater Archaeology Division. The 17-metre kelson (the wooden beam that runs along the bottom of the boat to reinforce the keel) is shown here, submerged in water for preservation. Source: Natali Pearson (author)

Fig. 31.6  Desalination, Phanom Surin, Thailand. Ceramic objects from this ninth-­ century vessel undergo on-site desalination. Source: Natali Pearson (author)

seaborne trade connections. Vietnam is not a signatory of the 2001 UNESCO Convention, but the establishment of this Centre and its prioritisation of training, cooperation and capacity building activities are in keeping with the

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Fig. 31.7  Organic objects, Phanom Surin, Thailand. Objects found at the site of this ninth-century wreck include organic artefacts such as ropes, rice grains, betel nuts and coconuts. Source: Natali Pearson (author)

Convention’s principles. The inaugural Vietnam Underwater Archaeology Training in 2015, which aimed to develop capacity amongst maritime archaeologists in Southeast Asia, indicated a turn towards a more regionally collaborative approach.68 Nevertheless, Vietnam continues to face many of the same challenges that existed at the time of the Binh Thuan excavation: minimal funding, inadequate training and a general lack of resources and equipment. As such, the new Centre remains limited in its capacity to conduct maritime archaeology projects without the direct involvement of the VMAP.  Despite these challenges, the Centre and the ongoing work of the VMAP are slowly transforming maritime archaeology in Vietnam into a more strategic and professional undertaking.

Beyond Shipwrecks: Ancient Naval Battlefields Efforts to protect underwater cultural heritage are often focused on shipwrecks, which are associated with treasure and thus highly vulnerable to the threat of looting. However, maritime archaeology is much broader than just shipwrecks, as demonstrated by research conducted by VMAP members on an ancient naval battlefield at the Bạch Ðằng River area in northern Vietnam  Regional collaboration remains under-explored in Southeast Asian maritime archaeology. See Staniforth (2014a, c). 68

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(Staniforth et al. 2014; Lê Thi. et al. 2011). This was the site of a thirteenth-­ century naval battle in which the local Đại Việt used hundreds of sharpened wooden stakes to defeat Emperor Kublai Khan’s invading Mongol fleet. The fleet was trapped by these stakes, which had been ‘driven into the river-bed at low tide… These stakes were probably covered by water at high tide and uncovered at low tide’ (Kimura et al. 2014). Similar archaeological traces have also been discovered in Japan. The Bạch Ðằng project developed into a formal partnership with Vietnam and later expanded to incorporate a related naval battle at the port of Van Don. Part of the project’s success can be attributed to the interdisciplinary skills of its members, such as a memory studies specialist who has used oral histories to trace the legacy of these ancient naval battles in contemporary Vietnamese communities (O’Toole 2014). With implications for archaeological research well beyond Southeast Asia, this project is an important reminder of what can eventuate when research efforts are focused beyond shipwrecks and their cargo.

Shipwreck Heritage Trails and Marine Eco-tourism Many of the different management approaches presented thus far have focused on the removal of objects from underwater locations. These final examples focus instead on the provision of interpreted public access to underwater cultural heritage, an approach which complements in situ preservation.69 Interpretation methods include underwater slates or plinths, land-based interpretive signs and pamphlets, use of replica objects, and virtual resources such as websites (Spirek and Scott-Ireton 2003). In Australia, the first ‘shipwreck trail’ was developed as early as 1981 (Souter 2001), providing opportunities for the public to access and interpret submerged cultural resources. However, the use of in situ shipwrecks for educational and recreational purposes is relatively untested in Southeast Asia (e.g., see Flecker 2011). In Vietnam, one of the financial backers of the 2002 Binh Thuan operation was permitted to dive the wreck during its salvage, transforming his support into an ‘entry ticket’ for an early type of shipwreck tourism. There is now increasing recognition that ‘the historical value of a wreck is immeasurably higher than what a dealer will pay’ and, at least in Vietnam, that potential tourist revenue raised through the development of a formal ‘shipwreck heritage trail’ is more sustainable than looting objects (Dissanayake 2014). Such  Manders details some of the implications for museums of in situ preservation and outlines some creative responses by museums to interpreting such material for the public. See Manders, M. 2008. In Situ Preservation: The Preferred Option. Museum International, 31–41. 69

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money could go towards training and research and could also fund dedicated museums to display unique artefacts. The challenge remains education and enforcement; while divers are an important target group, ‘the support of an informed wide community is vital to protect maritime heritage sites’ (Anderson et al. 2006). In Natuna Islands, one of Indonesia’s most northerly locales, coral reef and marine life have grown on and around at least one nineteenth-century shipwreck. Indonesia’s Ministry of Marine Affairs and Fisheries is developing a multi-disciplinary model that seeks to protect Natuna’s underwater cultural heritage through in situ preservation, as well as its marine biodiversity. The proposed ‘marine eco-archaeological park’ would also incorporate coastal cultural heritage through a heritage trail (Troa et al. 2016). This model is particularly noteworthy because of Natuna’s strategic location within the South China Sea.70 While Natuna Islands do not themselves fall within the bounds of China’s ‘nine-dash line’ territorial claims, the seas around Natuna are perilously close to the contested territory. By establishing a marine eco-­ archaeological park in these waters, Indonesia is asserting its sovereignty based on historical and cultural, as well as ecological, factors. This is a new model for the region, in which underwater archaeological remnants, which are rarely contained by national boundaries, are used for political purposes. It is likely that underwater heritage will continue being put to such use as territorial disputes simmer between China, the Philippines, Brunei, Malaysia and Vietnam.

Concluding Remarks The examples presented in this chapter offer not only an indication of the varying approaches to underwater cultural heritage in Southeast Asia but, more significantly, changes to the way such heritage has been managed over time. These changes include a moratorium on commercial involvement in underwater excavations in Indonesia and the institutionalisation of maritime archaeology in Vietnam. There are also increasing efforts being made towards the development of a collaborative regional approach, with Kimura noting interest in data-sharing and the establishment of ‘trans-national instruments  Tjoa-Bonatz notes that ‘since 1999, tension has arisen about territorial demarcations in the South China Sea due to China’s intensifying campaign to assert ownership over natural resources and archaeological sites, leading to violence against Philippine archaeologists. This area is traditionally claimed by China, but overlaps with claims of the Philippines, Brunei, Malaysia, Indonesia and Vietnam’ (Tjoa-­ Bonatz 2016). See also Page (2013) and Campbell (2015). 70

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and alliances to manage and protect the region’s shipwreck resources’ (Kimura 2015). Such developments would appear to support a recent observation that ‘the era of “treasure hunters” despoiling archaeological sites is over’ (Richardson quoted in Kimura 2015). Such an assessment would be welcomed, if it were accurate. But the threat faced by underwater cultural heritage in Southeast Asia is now more urgent than ever. There is no doubt that an end to looting, which results in the destruction of wreck sites and an irrevocable loss of archaeological context, would lead to better outcomes for the protection and preservation of underwater cultural heritage in Southeast Asia. Paradoxically, however, the urgency of protecting wreck sites is as great as it has ever been, and in Indonesia, the threat may have actually increased as a result of the moratorium on commercial excavation. This is because the work of commercial salvors—as distinct from looters—is being increasingly limited by some of the very changes to the management of underwater cultural heritage that were intended to better protect it. These changes may be a signal that regional attitudes are shifting, but caution is advised: while those urging ratification of the 2001 UNESCO Convention have welcomed Indonesia’s ban on commercial excavation, there are also legitimate and unanswered questions about the renewed exposure of Indonesia’s underwater cultural heritage to looting. One company which had previously worked with authorities to map shipwreck sites is now directing its research efforts towards an assessment of changes to wreck sites in Indonesian waters since 2011, to determine whether, as hearsay suggests, there has been an increase in looting activity since commercial involvement was banned. Until there is a clearly articulated plan of action to protect and preserve underwater cultural heritage in Indonesia, concerns about a return to the Geldermalsen days may not be unwarranted. The recent disappearance of a number of World War II shipwrecks in the Java Sea appears to support such concerns (Pearson 2017). Commercial involvement in shipwreck excavation does not necessarily preclude O’Keefe’s criteria of a ‘good’ outcome—extensive research, painstaking excavation, careful conservation, full publication and thoughtful exhibition— being met. Nevertheless, there is room for improvement. Flecker, for example, has called for increased action from regional governments in order to share responsibility for ethical excavations beyond that of the commercial salvage companies: It is up to governments to formulate policy that ensures that commercial groups carry out excavation work to acceptable archaeological standards, that they disseminate their results, and that fully representative samples are kept for public

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display. Governments certainly can benefit financially from the sale of artefacts, but their standing and credibility would be enhanced considerably if such funds were channelled back into museums and training so that, eventually, they would be in a position to undertake maritime archaeological projects themselves, independent of commercial companies. (Flecker 2002b)

Flecker’s suggestions are entirely valid, but the responsibility does not belong to governments, or indeed any one sector, alone. Limiting our considerations of what is meant by ‘protection’ to the stipulations of the 2001 UNESCO Convention, namely in situ preservation as a first option and a ban on commercial exploitation, precludes the development of an adequate response to this time-critical challenge. There is no doubt that the model proposed by the 2001 UNESCO Convention is an appropriate and effective solution in some parts of the world. But in previously colonised countries, where resources are limited, in situ preservation is not only impractical but may even guarantee the destruction of wreck sites. Ratification of the 2001 UNESCO Convention, which Prott sees as urgent, should not be seen as the end in and of itself. Rather, the primary goal must be understood as the protection and preservation of underwater cultural heritage. The urgency lies not in ratification per se, but in the need for a broader understanding of the diverse ways in which protection and preservation can be achieved.

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32 The Development of the Heritage Crime Programme in England Mark Harrison, Mark Dunkley, and Alison James

Historic England is the UK government’s statutory advisor on the historic environment of England and provides expert advice about all matters relating to the historic environment and its conservation as set out in the National Heritage Act 1983.1 Functions relating to underwater cultural heritage within the territorial waters of the United Kingdom derive from the National Heritage Act 2002 which extended Historic England’s (then English Heritage) general powers under Section 33 of the National Heritage Act 1983 to cover ancient monuments in, on or under the seabed within the seaward limits of the UK territorial waters adjacent to England.2 These powers include providing grant  From March 2015, certain statutory and advisory functions of English Heritage will be transferred to a new body: Historic England. 2  ‘Underwater cultural heritage’ is now the internationally accepted phrase used to refer to historical and archaeological material in the marine zone. In general usage, it has no specific temporal limit (Dromgoole 2013, p. 94). 1

M. Harrison (*) • M. Dunkley Historic England, London, UK e-mail: [email protected]; [email protected] A. James MSDS Marine – Marine & Coastal Archaeological Contractor, Derbyshire, UK © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_32

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assistance in respect of protected wreck sites, and the provision of advice to any person in relation to any ancient monuments, in UK territorial waters adjacent to England. In addition, the Secretary of State for Culture, Media and Sport issued Directions to Historic England under Section 3 of the 2002 Act to exercise functions with respect to the Protection of Wrecks Act 1973 (in relation to historic wrecks situated in UK territorial waters adjacent to England) as well as ‘wider responsibilities’ for England’s maritime archaeology. In fulfilling this latter responsibility, Historic England advocates a seamless approach to conservation management which is not determined by where the sea is now—or where it will be in the future.

Introduction The problem of crime and anti-social behaviour relating to historic buildings, archaeological sites (both maritime and terrestrial) and cultural property is not a modern phenomenon and has been documented and recorded for hundreds, if not thousands of years: from the looting of Egyptian tombs in antiquity, to the contemporary issues leading to the loss and destruction of historic sites and buildings, such as metal theft, unauthorised development, unlawful salvage and the impact of armed conflict and terrorism. However, what is new is the sheer scale and extent of the criminality. In 2010, the Fifth Conference of Parties to the United Nations Convention on Transnational Organized Crime identified trafficking in cultural property as a new and emerging crime of concern. ‘Where ancient artefacts are stolen and the sites in which they were hidden are destroyed through looting, archaeologists are unable to gather knowledge about the past […] and gives rise to the need for law enforcement response to adapt its efforts and capacities accordingly’ (UNODC 2010). For more than 100 years, and through a succession of statutory measures, legislators have recognised the need to protect England’s irreplaceable stock of historic sites and buildings, and more recently its shipwrecks, military remains and cultural objects. This has included the introduction of specific offences to counter the threats of theft, damage and unauthorised works and alteration. The challenge set for those authorities charged with the protection of the nation’s heritage was very clear and that challenge is that the historic and cultural environment should be passed to the next generation in as good or better condition than we find them—this in turn provides a definition of preservation and sustainability.

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But in reality, the division of responsibility between heritage protection bodies, local planning authorities and law enforcement agencies was not clearly described or coordinated (Harrison 2013a). This situation was exacerbated by the perceived rarity of incidents, and the lack of knowledge and understanding relating to the nature of the loss and limited expertise within the law enforcement and heritage sectors meant that the task was not being fulfilled to best effect (Harrison 2013b). In 2010, Historic England (formerly English Heritage), in collaboration with the National Police Chiefs’ Council (formerly the Association of Chief Police Officers) and the Crown Prosecution Service, recognised the need for a more structured and sustainable approach to the prevention and investigation of crime and anti-social behaviour within the historic environment of England. This was a significant development and highlighted the level of concern and commitment across the heritage and law enforcement sectors to address the issues. Since 2010, the partnership has made significant progress and has stimulated an awareness of the existence and the significance of protected heritage assets at a national and local level. It provided law enforcement agencies, heritage practitioners and local communities with the advice, training and expertise they require to protect the historic environment from the impact of crime and anti-social behaviour. A growing number of police services have identified officers to act as single points of contact for matters relating to heritage and cultural property crime— a function that is often aligned to the investigation of offences within the rural and natural environment. This network of specialist officers, police staff and support volunteers is helping to provide an effective and efficient response to heritage crime and has been supported by the publication of the ‘Heritage Crime: A Guide for Law Enforcement Officers’ (Historic England 2010). In addition, several partnership campaigns were launched to target specific heritage crime threats. These include in particular: ‘Operation Chronos’—unlawful metal detecting, sometimes referred to as ‘nighthawking’; ‘Operation Crucible’—theft of metal from protected historic sites and buildings; and ‘Operation Birdie’—unlawful interference and salvage from historic wreck sites. In parallel, the Crown Prosecution Service has identified specialist prosecutors to act as Wildlife and Heritage Crime Coordinators (Eye Witness 2011).

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Over 20 community safety partnerships, local councils and national park authorities have added their signatures to the associated memorandum of understanding, and many others have highlighted their intention to engage in the process. Across the country, local history and archaeological societies, sub-aqua and metal detecting clubs and Neighbourhood Watch groups, which now include Heritage Watch, have been encouraged to be more aware and vigilant to the threat of heritage crime within their local areas and to report any suspicious activities to the police. Our understanding of the extent and scale of the problem will continue to develop as the intelligence gathering and assessment process mature and adopt the full range of quantitative and qualitative research methodologies that are required to identify high-risk locations. An increased level of understanding will allow the implementation of the appropriate preventative and enforcement activities that are required to reduce the menace and scourge of heritage and cultural property crime, and, where offences do occur, how to identify those responsible and bring them to justice. In February 2016, the Sentencing Council published new sentencing guidelines for theft offences which now include the theft, handling and disposal of stolen heritage assets. Courts will now be able to take account of the special nature of heritage and cultural property when sentencing offenders (Sentencing Council 2015). The value of our built and cultural heritage cannot be judged in pounds and pence alone. The impact of theft from historic buildings and archaeological sites, including those situated in the maritime environment, has far-­ reaching consequences over and above the financial cost of what has been stolen. When thieves steal metal from a medieval church or artefacts from a historic wreck or archaeological deposit, they are stealing from all of us and damaging something which is often irreplaceable. The new guidelines will help the courts identify all the relevant factors to include and consider when making their sentencing decisions in relation to heritage and cultural property crime. Significant progress has been made to enhance the response to the problem of heritage crime in England, and similar programmes have been developed to tackle the issue in Scotland, Wales and Northern Ireland. There is more that can be done, and with the help of the community, volunteers and dedicated professionals, we can ensure that our past is preserved and conserved for future generations.

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 rotecting Underwater Cultural Heritage: P An English Case Study  he Framework for the Protection of Underwater Cultural T Heritage in England ‘Underwater cultural heritage’, inclusive of coastal remains, is now the internationally accepted phrase used to refer to historical and archaeological material in the marine zone. In general usage, the term has no specific temporal limit but represents a unique source of information about the diverse maritime heritage surrounding the United Kingdom. It is a finite, irreplaceable and fragile resource, vulnerable to damage and destruction through a wide range of human activities and natural processes. In coastal and intertidal zones as well as inshore waters, designated heritage assets may include protected wreck sites (designated under the Protection of Wrecks Act 1973, like the wreck of the German submarine U-8 sunk in 1915 off Dover), scheduled monuments (designated under the Ancient Monuments and Archaeological Areas Act 1979, such as the Sally, wrecked on the North Devon coast in 1769) (Fig. 32.1) and military maritime graves and aircraft (designated under the protection of Military Remains Act 1986, such as HMS Bulwark which exploded off Sheerness, Kent, in November 1914). If the Secretary of State for Culture, Media and Sport is satisfied that a shipwreck of historical, archaeological or artistic importance should be protected from unauthorised interference, he or she may designate an area around the wreck as restricted under Section 1 of the Protection of Wrecks Act 1973. A Statutory Instrument identifies the location of the site and also the extent of the restricted area used to ensure the protection of the site. Historic England offers advice to the Secretary of State and acts as the competent authority in managing and protecting the sites from unauthorised activities. In a restricted area, it is an offence to carry out certain activities without a licence, and it is generally unlawful for anyone to access a restricted area for any purpose without a licence. Submerged non-wreck sites (such as evidence of prehistoric occupation) may be protected in England thorugh the Ancient Monuments and Archaeological Areas Act 1979 which facilitates public access but makes damage a criminal offence. However, the absence of statutory designation for underwater cultural heritage does not necessarily indicate lower significance, and, authorities are

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Fig. 32.1  Probable remains of the Sally, Westward Ho!, Devon. Built during the period 1752–1800, this intertidal wreck site was protected in August 2016 on account of its rarity and survival

encouraged to consider undesignated assets, subject to the same policy principles as designated heritage assets based on information and advice from the relevant regulator and advisors. The UK Marine Policy Statement (HM Government 2011) is the framework for preparing Marine Plans and taking decisions affecting the marine environment. It contributes to the achievement of sustainable development in the UK marine area, and a high-level marine objective for the promotion of good governance is that use of the marine environment recognises the protection and management needs of underwater cultural heritage. Accordingly, the view shared by the UK administrations is that underwater cultural heritage should be enjoyed for the quality of life it brings to this and future generations, and it should be conserved through marine planning in a manner appropriate and proportionate to its significance (Figs. 32.2, 32.3, and 32.4).

 NESCO Convention on the Protection of the Underwater U Cultural Heritage This Convention, adopted in 2001, provides the international framework to enable States to better protect their submerged cultural heritage by setting out

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Fig. 32.2  Under the Headline ‘U8 seen nothing yet as WWI submarine propeller is returned to Germans’, Navy News reported on the unlawful recovery of the propeller from the hull of the German U-boat U-8 sunk on patrol in March 1915

Fig. 32.3  An archaeological diver working under an appropriate Approved Code of Practice for the activity intended

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Fig. 32.4  This gun carriage was excavated from the wreck of the HMS London in 2016. The excavation and recovery were fully supported by a project design that set out the need for the work and the method to be used

basic principles for its protection. It entered into force in January 2009 (for signatory States) and provides for a detailed State co-operation system and widely recognised practical rules for the treatment and research of underwater cultural heritage. The Convention neither regulates the ownership of wrecks nor does it change existing maritime zones. The Convention defines ‘underwater cultural heritage’ as being inclusive of all traces of human existence having a cultural, historical or archaeological character which have been partially or totally underwater, periodically or continuously, for at least 100 years. This includes (1) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (2) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (3) objects of prehistoric character. Given the 100-year rule, sunken remains from the First World War can now be considered as underwater cultural heritage. Significantly, treasure hunting, curtailed for Rule 2 of the Annex, states that ‘the commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage.

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Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods’. While not a signatory to the Convention, the UK government adopted the Rules annexed to the Convention as being best practice for underwater archaeology in 2005 (HC Hansard, Deb, 24 January 2005, 46W). In March 2016, the Department for Culture, Media and Sport (DCMS) announced in the Culture White Paper that it will review its position on ratifying the UNESCO Convention on the Protection of the Underwater Cultural Heritage (DCMS 2016, p. 46).

Marine Licensing The removal of any substance or object (including objects of historic or archaeological interest) from the seabed within the UK marine licensing area is regulated under Part 4 of the Marine and Coastal Access Act 2009. It is an offence to carry out a licensable marine activity (such as the recovery of objects of historic or archaeological interest or the use of explosive ­substances or articles) without a marine licence granted by the appropriate marine authority. The removal of objects from wreck sites of historic or archaeological interest without a marine licence therefore constitutes an offence under the Marine and Coastal Access Act 2009. In May 2016, a man was found guilty of marine licensing offences relating to salvage of shipwreck. He was sentenced to a community order with 150 hours of unpaid work by a jury at Newcastle upon Tyne Crown Court.

Seabed Survey Licences Seabed Survey Licences (SSLs) are the formal permissions granted by The Crown Estate for temporary activities that physically affect the foreshore and the seabed that they manage. The majority of SSLs relate to survey and site investigation activities or the temporary deployment of monitoring devices. Initially, The Crown Estate sought to apply licences to underwater archaeology and shipwreck investigations comprising in situ survey or retrieval of archaeological artefacts from the seabed—dependant on the level of interaction with the seabed—but this policy is currently under review.

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Tainted Cultural Objects Prevention of the disposal of tainted cultural objects is provided for in the Dealing in Cultural Objects (Offences) Act 2003. A cultural object is defined as an object of historical, architectural or archaeological interest. For the purposes of the 2003 Act, a cultural object becomes ‘tainted’ if (1) a person removes an object from a structure or monument (including the remains of any vessel) and (2) the removal constitutes an offence. It is immaterial whether the structure or monument is above or below water. The disposal of historical, architectural or archaeological objects recovered from the sea without a marine licence constitutes an offence under the Dealing in Cultural Objects (Offences) Act 2003 but, as of September 2015, there had been no prosecutions brought under the Act (HL Hansard, Deb, 21 September 2015, cW).

Merchant Shipping Act 1995 This Act consolidated various enactments related to merchant shipping and includes specific provision for salvage and wreck administered through the office of the Receiver of Wreck in the Maritime and Coastguard Agency. The Receiver deals with cases of voluntary salvage of wreck material (inclusive of the recovery of archaeological objects from historic wreck sites) across the United Kingdom, and makes sure that the interests of both salvor and owner (where known) are taken into consideration. The Receiver of Wreck processes incoming reports of wreck, which involves researching ownership of wreck material, working with the finder and owner and working with other interested parties, such as archaeologists and museums. In 2014, two divers were found guilty of the non-reporting of archaeological material recovered from historic wreck sites, using explosives and sophisticated cutting equipment. They were sentenced in Southampton and were ordered to pay a total of more than £60,000 in fines and costs (Morris 2014).

Diving at Work Regulations 1997 The British Sub-Aqua Club’s guide to safe practices of sports diving (revised, October 2015) notes that if one dives for money or reward (such as the recovery of items for salvage and then sale), even using recreational techniques and equipment, then one is considered to be a professional diver and subject to the requirements of the Diving at Work Regulations 1997.

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Approved Code of Practice (ACoP) and guidance documents published by the Health and Safety Executive (HSE) provide practical advice and set out what individuals have to do to comply with the requirements of these regulations. Significantly, the HSE distinguishes between salvage and the recovery of objects for archaeological study. Archaeological diving projects include activities carried out in support of the investigation of sites of historic interest, the analysis of physical remains, the recovery from such sites of articles for preservation and further analysis and educational instruction. Guidance on safe working practices is set out in the HSE’s scientific and archaeological ACoP and guidance. The recovery of items for salvage and then sale or personal use is covered by the HSE inland/inshore ACoP and guidance which applies to all diving projects conducted in support of civil engineering or marine-related projects— there is therefore a clear understanding of the basic principles of archaeology within diving regulations.

Cultural Property (Armed Conflicts) Act 2017 Receiving Royal Assent in February 2017, this Act enables the United Kingdom to implement the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 and the Protocols to that Convention of 1954 and 1999. Though not specifically referring to underwater cultural heritage, the Act applies to ‘movable or immovable property of great importance to the cultural heritage of every people’ and extends across Great Britain and Northern Ireland.

 he Impact of the Unauthorized Recovery and Disposal T of Cultural Objects The historic environment of coastal and offshore zones represents a unique aspect of our cultural heritage. In addition to its cultural value, it is an asset of social, economic and environmental value. It can be a powerful driver for economic growth, attracting investment and tourism and sustaining enjoyable and successful places in which to live and work. However, heritage assets are a finite and often irreplaceable resource and can be vulnerable to a wide range of human activities and natural processes. Underwater cultural heritage has the potential to provide valuable evidence of past human activity. When systematically recorded correctly, evidence and

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knowledge can be gained for the study of our shared material culture for future generations to care for, enjoy, value and understand. Like nighthawking (a term used by Britain’s metal detecting community to describe the theft of archaeological artefacts under the cover of darkness from protected archaeological sites and areas) on terrestrial archaeological sites and monuments, the theft and removal of objects from underwater archaeological contexts do much more damage beyond just the theft of an item. All archaeological sites and monuments can be likened to crime scenes, in that they provide a whole series of clues and evidence about past events, and it is this history that is disturbed and lost when items are removed and disposed of. Such removal constitutes stealing a part of our national story from all of us which can never be replaced. For the remains of any sunken vessel, the full realisation of its historical, architectural or archaeological interest is wholly dependent on the precise record of its location underwater. Where a submerged archaeological site is not legally protected, then disturbance should be within the context of an overarching framework that minimises destruction, maximises knowledge and adheres to a structured set of principles. In England, these principles are set out in the Rules annexed to the UNESCO Convention on the Protection of the Underwater Cultural Heritage which ensure that investigations are appropriate and proportionate to a sites’ significance. Rule 4 of the Annex states that activities directed at underwater cultural heritage must use non-destructive techniques and survey methods in preference to recovery of objects. If excavation or recovery is necessary for the purpose of scientific studies or for the ultimate protection of the underwater cultural heritage, the methods and techniques used must be as non-­destructive as possible and contribute to the preservation of the remains. Where archaeological objects are unlawfully removed, recovered and disposed, it is not possible to reconstruct, and therefore understand, the condition of the site, associated artefacts and sediments prior to recovery. Therefore, irreversible damage and harm is done to monuments of historic and archaeological interest that cannot be fully quantified. There are two broad negative impacts resulting from the unauthorised recovery of cultural objects: first, the unquantified and irreversible damage to historical and archaeological sites and, second, the subsequent dispersal and disposal of those objects. For any authorised excavation of an archaeological site and its setting, it is standard procedure to keep the recovered material together as a collection for future generations to enjoy, usually as a permanent collection within an accredited museum. The uncontrolled removal, recovery and disposal of

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­ istorical, architectural or archaeological objects will prevent researchers easily h undertaking further study and analysis. This will lead to the irretrievable loss of information for current and future generations, particularly where the objects are not curated, or cared for, to acceptable archaeological standards. If uncontrolled, the objects will be subject to irreversible processes of deterioration and decay, which will reduce their potential to inform, educate and please, both now and in the future.

 eritage Crime: Protected Wreck Management H Case Study The National Heritage Act of 2002 transferred general functions for England’s maritime archaeology to English Heritage, now Historic England, from the Department for Culture, Media and Sport. At the same time, an ‘ancient monument’ was redefined to include the remains of vessels, aircraft and movable structures to exist in, on or under England’s territorial seabed. To date (May 2017), 52 shipwrecks in England have legal status under the Protection of Wrecks Act 1973 (PWA) ranging from the remains of Late Bronze Age cargo scatters to early twentieth-century submarines (see Fig.  32.5). They have highlighted the research potential of shipwreck sites and illuminated diverse topics from early contacts with the Mediterranean through to the detailed understanding of a major Tudor warship. It should be noted that although the Act applies throughout the United Kingdom in waters out to 12 nautical miles, Historic England, and thus this case study, only deal with the 52 sites in English waters (see Fig. 32.5). The Protection of Wrecks Act (PWA) 1973 is an Act to secure the protection of wrecks in territorial waters and the sites of such wrecks from interference by unauthorised persons, and for connected purposes. The Act empowers the Secretary of State (for Culture, Media and Sport) to designate a restricted area around a historic wreck on account of the historical, archaeological or artistic importance of the vessel. The Act applies to cargo, which, in a number of cases, is all that is known to remain. The Act controls any access to and activity on a protected wreck site, which is generally defined by a single position and an area of 200–300  m radius around it, although this does vary between sites. Access to sites designated under the Act is restricted and licence based: licensing is undertaken by the Department for Culture, Media and Sport but administered by Historic England. The requirements for obtaining a licence become more stringent with the level of site disturbance proposed due to the potential for increased

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Fig. 32.5  A map showing all 52 sites currently designated under the Protection of Wrecks Act 1973 (June 2017)

risk to the historic environment. To obtain a licence that involves physically disturbing a site a Project Design will need to be produced detailing research objectives and method statements, a suitable repository for artefacts and an appropriate archaeologist will also need to be nominated. Holders of a licence are termed ‘licensees’, and over 90% of all sites have an active licensee. The PWA licensing system utilises the volunteer role of licensee to involve individuals with sites as effective voluntary custodians. Licensees have in many cases been involved with the sites over many years; our records show that over 60% of licensees have been involved with the sites for ten years or more. Their support, commitment and enthusiasm for these nationally important sites are crucial for furthering understanding of these sites, enabling stewardship and under-pinning effective management of them into the future. Licensees play a key role in the management of the sites designated under the Act, a fact recognised by Historic England through their status as official Historic England-affiliated volunteers.

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Advice is given to licensees on how to respond to reports of suspected illegal activity on the protected wreck sites in the guidance document Accessing England’s Protected Wreck Sites: Guidance for Divers and Archaeologists (Historic England 2015). Any suspicion of unauthorised access to a protected wreck site should be reported to the relevant local police service, Maritime and Coastguard Agency and Historic England. The public are encouraged to call 999 when a crime is in progress, or someone suspected of a crime is believed to be nearby. If an offence is believed to have been committed and the suspect is no longer at the scene they are encouraged to call the police using the national non-emergency number 101. Information about a crime relating to a protected wreck can also be passed on anonymously to Crimestoppers. They are an independent charity helping law enforcement to locate criminals and help solve crimes. They have an anonymous 24/7 phone number, 0800-555-111, that people can call to pass on information about crime. All reports of unauthorised activity are fully investigated by Historic England and the police. Licensees are encouraged to establish relationships with marine enforcement agencies (such as local Coastguard officers, Marine Police Units and Inshore Fisheries and Conservation Authority officers) in order to facilitate and promote site security. National Coastwatch Institutions should also be contacted to assist with the recognition of authorised vessels and the identification of unauthorised sea users. In all cases, Historic England can advise on contact details upon request. Some licensed groups, such as the South West Maritime Archaeology Group (SWMAG, see at http://www.swmag.org/), have gone further and created specific security protocols for the sites on which they work. The SWMAG protocol was developed to ensure all enforcement agencies were aware who had permission to be on the Salcombe Cannon and Moor Sand protected wreck sites. It details the procedures authorised dive vessels should follow, which allow those who monitor the sites to be aware if a vessel is there without permission. This is updated annually and circulated to all stakeholders, including Historic England, Devon and Cornwall Police, the Coastguard, Salcombe Harbour Master and the local coast watch station at Prawle Point. The document clearly identifies the information that should be recorded should anyone observe any illegal activity, which ensures the relevant agencies can then act accordingly and helps aid any future prosecution. The protocol was put to the test in 2010 when a vessel was observed on the site with divers in the water. The Coastwatch station was able to establish they were there illegally as the vessel had not followed the agreed protocol. The Coastwatch station alerted members of the team and Devon and Cornwall Police whilst maintaining a log of what activity they observed. Devon and

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Cornwall Police were able to intercept the vessel on its way back in to harbour and talk to the diver group on board who were unaware of the sites protected status. The club received a caution and Historic England were able to work with them to ensure that they were better informed about other protected wreck sites and the licensing system which controls access to them. There have been 44 reports of illegal activity on England’s protected wreck sites since 2003. Illegal access is the most common offence that is reported under the Protection of Wrecks Act 1973 but under the terms Act, it is a criminal offence to do any of the following in a designated area without a licence granted by the appropriate Secretary of State: • Tamper with, damage or remove any part of a vessel lying wrecked on or in the seabed or any object formerly contained in such a vessel; • Carry out diving or salvage operations directed to the exploration of any wreck or to removing objects from it or from the seabed, or use equipment constructed or adapted for any purpose of diving or salvage operations; and • Deposit, so as to fall and lie abandoned on the sea bed, anything that, if it were to fall on the site of a wreck (whether it so falls or not), would wholly or partly obliterate the site or obstruct access to it, or damage any part of the wreck. The joint investigation with the Maritime and Coastguard Agency on the recovery of bronze guns from the protected wreck site of the London in the Thames Estuary has been the highest profile case relating to a protected wreck site to date. However, the prosecution relating to that case did not involve offences under the Protection of Wrecks Act as the offences took place before the site was designated. An example of a case that has been investigated under these areas of the Act was the reported theft of the torpedo-loading hatch on the Holland No.5 submarine in 2010 (see Fig. 32.6). The licensed dive team on the site observed the hatch was missing during a routine monitoring dive. It was established that there were three possible options to explain this: fishing damage, diver removal or natural erosion. Natural erosion was easily discounted as the site was located in an area of scour that lacked heavy sediment coverage, and if it had fallen off the wreck, divers would have been able to spot it on the seabed. In support of trawling, the exhaust hatch is made of bronze but was found to still be present on the site: this could be seen as the more attractive ‘trophy’ for divers lending weight to the theory that the hatch had become caught in a fishing trawl and dragged off site. The site had obviously been trawled in the past and the hinge at the top of the hatch would be an obvious thing for a trawl to snag. A trawler could have been trying to trawl

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Fig. 32.6  The Holland 5 submarine was part of a high-profile investigation into the theft of the torpedo-loading hatch. Image Crown Copyright, Wessex Archaeology

along the top of the site and got its gear caught. If this was the case, the hatch would have come up in the gear, been abandoned with the gear on the seabed or potentially dropped out of the net on the way up. With the first of these two options, we would expect to see it somewhere on the seabed, but it was not there (at least in the immediate vicinity). In September 2010, the licensees for the site reported fresh trawl damage along the top of the submarine between the exhaust box and conning tower. Despite this, the evidence weighed strongly towards the hatch being recovered by divers. When examining the area where the removal occurred it seemed though the removal had taken place by pulling it open from the bottom and forcing it past its natural opening point. This was not the damage that could be expected from a trawl. One possibility could be that it was hit with the shot of a group diving it illegally and knocked off (but again this does not fit with being opened from the bottom). Historic England concluded that divers seemed the most likely option, but trawling could not be discounted. The incident was reported to the local police team and reported widely in the diving press. Whilst the hatch has never been located there have been rumours within the diving community that it was illegally removed, and we are hopeful it will one day be found. One of the more unusual cases that has been investigated under the Act was the reported theft of wood from the intertidal protected wreck sites of the Anne and Amsterdam in Sussex in 2010 (see Fig. 32.7). A local man had been taking material from the sites and crafting it into various items including tables, mirrors and bookcases which were then sold on to the public under the name Galleonwood. The marketing materials for the goods claimed they were

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Fig. 32.7  The Amsterdam protected wreck site which was the focus of the Galleonwood case in 2010

made from wood that was salvaged from 300-year-old wrecks. Following a lengthy investigation by Sussex Police in conjunction with Historic England (then English Heritage) and the Receiver of Wreck the individual was arrested and subsequently cautioned.

Conclusion Investigations and prosecutions under the Protection of Wrecks Act have been extremely limited until now. However, Historic England have made much ground in recent years in liaising with the police and providing them with the information needed to support their investigations. Historic England staff have accompanied police on search warrants to identify material that may be of interest to investigations and acted as expert witnesses in the subsequent trials. The system of licensed access to the sites, and the subsequent sense of custodianship that is built up within the teams working on them, is critical for ongoing site management. Our management of the sites is very much modelled as a partnership approach with a wide range of stakeholders, including volunteer licensees, law enforcement agencies and owners, where known.

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Bibliography Department for Culture, Media and Sport. (2016). Culture White Paper. Retrieved June 20, 2016, from https://www.gov.uk/government/publications/culturewhite-paper. Dromgoole, S. (2013). Underwater cultural heritage and international law. Cambridge: Cambridge University Press. Eye Witness (2011). Eye Witness. Issue 12, January 2011. Harrison, M. (2013a). Policing the past, protecting the future. In M. Harrison and M.  Harlow (Eds.), 70 Conservation Bulletin 5. Retrieved May 13, 2018, from https://historicengland.org.uk/images-books/publications/conservationbulletin-70/. Harrison, M. (2013b). Policing the past, protecting the future. Tackling crime and anti-social behaviour in the historic environment of England. In A. Lagerlof (Ed.), Who cares? Perspectives on public awareness, participation and protection in archaeological heritage management. Europae Archiaelogicae Consilium Occasional Paper, pp. 109–113. Retrieved May 26, 2018, from http://docs.wixstatic.com/ugd/881a 59_4544f509a1204eac841c54339f331150.pdf. Historic England. (2010). Heritage crime guide for law enforcement officers. Retrieved May 25, 2017, from https://historicengland.org.uk/images-books/publications/ heritage-crime-guide-for-law-enforcement-officers/. Historic England. (2015). Accessing England’s protected wreck sites: Guidance for divers and archaeologists. Retrieved July 12, 2017, from https://historicengland.org.uk/ images-books/publications/accessing-englands-protected-wreck-sites-guidancenotes/. HM Government. (2011). UK Marine Policy Statement. Retrieved June 20, 2016, from https://www.gov.uk/government/publications/uk-marine-policy-statement. Morris, S. (2014, July 2). Divers ordered to pay £60,000 for plundering artefacts from wrecks. The Guardian. Retrieved July 11, 2017, from https://www.theguardian.com/uk-news/2014/jul/02/divers-pay-60000-plunder-artefacts-wrecks-faildeclare-haul. Sentencing Council. (2015). Theft Offences Definitive Guideline. Retrieved June 29, 2017, from https://www.sentencingcouncil.org.uk/publications/item/theftoffences-definitive-guideline/. UNODC. (2010). Trafficking in cultural property. Retrieved May 25, 2014, from h t t p : / / w w w. u n o d c . o r g / u n o d c / o r g a n i z e d - c r i m e / e m e r g i n g - c r i m e s . html#Trafficking_in-cultural_property.

33 The International Politics of Cultural Heritage Crime in Cambodia: Past, Present and Future Tess Davis and Simon Mackenzie

Introduction International diplomatic and legal dialogues have been instrumental in securing the return of major cultural artifacts to their “source countries” from “market countries”, where it can be shown or reasonably inferred that those objects were looted. What, though, on the one hand, is the relationship between this political discourse and practice surrounding the repatriation of antiquities that were stolen in the past and, on the other hand, the protection of heritage sites from plunder in the future? In this chapter, we will explore this question, using the Southeast Asian nation of Cambodia as a case study. Reflecting on the history of archaeological looting in the kingdom—as well as the contemporary diplomacy that the Royal Government of Cambodia is now practicing to recover its stolen heritage from overseas collections—we consider the contours of the possible connections between repatriation claims, market sensibilities and the prevention of looting at the local level.

T. Davis (*) The Antiquities Coalition, Washington, DC, USA e-mail: [email protected] S. Mackenzie Victoria University of Wellington, Wellington, New Zealand e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_33

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Ancient sites have been pillaged throughout history, but in recent decades, the illicit antiquities trade has become increasingly recognized as a lucrative and widespread industry. In an often repeated statement—if never explained figure—the Federal Bureau of Investigation cites “losses running as high as $6 billion annually” from the illicit trade in cultural property. Despite this claim, the International Criminal Police Organization (INTERPOL) doubts “there will ever be any accurate statistics”, given the inherent difficulties in quantifying and qualifying it. Far from being mere “treasure hunting”, antiquities trafficking is part of the nexus between crime and conflict around the world, and investigations are underway into the extent to which looted cultural property is linked to the financing schemes of violent extremist organizations like Daesh (also known as the Islamic State of Iraq and Syria or ISIS). In February 2015, the United Nations Security Council considered that Daesh, the Al-Nusra Front and Al-Qaeda were arming themselves through “the looting and smuggling of cultural heritage”, in order to “support their recruitment efforts and strengthen their operational capability to organize and carry out terrorist attacks” (UNESCO 2015). In addition to this plunder for profit, these same networks are also carrying out campaigns of cultural cleansing: the deliberate and systematic destruction of targeted groups and their cultural heritage, destroying countless archaeological, historic and religious sites (especially those sacred to the Shiite and Sufi sects of Islam). Today, Mesopotamia is a global hotspot in the public eye, but four decades ago, a major issue was looting and trafficking in Indochina: Vietnam, Laos and Cambodia. In Cambodia, internationally celebrated for its twelfth-­ century temple of Angkor Wat, fighting erupted between government forces and the Khmer Rouge in 1970. Decades of civil war, mass murder and foreign occupation would follow. As is happening today in Iraq and Syria, Cambodia’s bloody conflict accelerated the development of organized antiquities looting and trafficking, which in turn helped to bankroll the fighting for some of those involved. As we are also seeing today in the Middle East, this pillage went hand in hand with the cultural cleansing of thousands of Buddhist, Muslim and Christian sites. Even as this tragedy is being repeated today in the Cradle of Civilization, where Daesh is waging an unrelenting assault on the region’s people and their heritage, Cambodia and the art world are continuing to struggle with the aftermath of cultural crimes committed in the “Killing Fields”. Over the past five years, this saga has made headlines from Phnom Penh to New York, and the consequences have been felt in both. On 29 February 2012, the New York Times exposed that Sotheby’s auction house in

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Manhattan was attempting to sell a 1000-year-old Khmer masterpiece for millions of dollars, despite allegations that thieves had hacked the figure off at the ankles from a sacred Cambodian temple and trafficked it overseas in the chaos heralding the Killing Fields. The newspaper illustrated this front-­ page story with a photograph of the larger-than-life “mythic warrior” as it appeared in the glossy pages of the sales catalogue. Another image showed its feet and pedestal, half a world away and still in situ, at the tenth-century ruins of Koh Ker deep in the Cambodian jungle (Blumenthal and Mashberg 2012a, p. A1). The resulting scandal over the Koh Ker Warrior would eventually reveal a major antiquities trafficking network that stretched from the Southeast Asian kingdom to the very heights of the global art market, implicating not only Sotheby’s, but some of the world’s top collectors, galleries and museums. In doing so, it also launched an international—and ongoing—effort to bring home the plundered past of the Khmer people. Cambodia has triumphantly played David to the art market’s Goliath, joining the host of nations fighting to recover their looted and stolen art through public appeals and legal action and giving hope to Iraq and Syria that they will one day be able to do the same. This fight for the Koh Ker Warrior blew the lid off the inner workings of the illicit “blood antiquities” trade with front-page news around the globe and in the process sent shockwaves through the art world. It led to a sea change, not only in how those in the market and museum community view Cambodian antiquities, but in how the Cambodian government and people do themselves. Finally, it served to strengthen Phnom Penh’s often tense relationship with the United States. This chapter will revisit the case, evaluate its impact thus far and reflect on the likely repercussions to come. It is an updated and expanded version of a previously published chapter by Tess Davis (2015) on cultural heritage crime in Cambodia.

 nited States v. 10th Century Cambodian U Sandstone Sculpture Cambodia’s art and archaeology has invaluable cultural, historic and religious significance to the Khmer people. Since it attracts millions of tourists each year, this heritage is also one of their most important economic resources. With the country now at peace, preservation has become a matter of national pride and increasingly a state priority.

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The day after the New York Times exposé hit the stands, the Koh Ker Warrior was also front-page news in Phnom Penh (Vrieze 2012, p. A1). However, by then, beyond the reach of the headlines and behind the scenes, Cambodia and Sotheby’s were already deep into negotiations. A wealthy donor had even stepped forward, pledging the auction house $1 million to repatriate the statue. Sotheby’s had refused this offer, continuing to demand the full catalogue price (Roasa 2012). Having reached a dead end in the negotiations, Phnom Penh accepted the help of the United States Department of Justice. On 12 April 2012, at the kingdom’s request, the U.S. Attorney for the Southern District of New York filed a civil forfeiture action against Sotheby’s, seeking to seize, recover and return the warrior. As an in rem action, brought against the property itself, the case received the somewhat improbable name of United States v. 10th Century Cambodian Sandstone Sculpture. U.S. v. Cambodian Sculpture argued that the Koh Ker Warrior was “stolen property introduced into the United States contrary to law”—including the National Stolen Property Act, anti-smuggling laws and customs laws (U.S. v. Cambodian Sculpture 12 Civ 2600 2012, complaint at 2). Strengthened by internal emails from Sotheby’s, the complaint revealed that the auction house’s own expert had warned them the piece was “definitely stolen” and suggested that its owners “might want to offer it back to the National Museum of Cambodia as a gesture of goodwill and save everyone some embarrassment”. Six months later, the government amended this complaint with more serious allegations, suggesting that the Koh Ker Warrior was not only stolen property, but was one object in a category the press and public were beginning to refer to as “blood antiquities” (Vlasic and Davis 2012). According to the new evidence entered by the Department of Justice, the Koh Ker Warrior had been looted around 1972, in the midst of the country’s violent civil war. Moreover, it had been removed from territory under communist control, raising the possibility that its theft may have been carried out by the Khmer Rouge themselves. An organized trafficking network had then smuggled it in pieces to a prominent collector in Bangkok and from there onward to Europe, where a premier London gallery sold it to Belgian royalty in 1975 (U.S. v. Cambodian Sculpture 12 Civ 2600 2012, amended complaint at 8 and 9). That same year, Phnom Penh fell to the communists, beginning one of the twentieth century’s darkest periods. In the genocide that followed, two mil-

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lion Cambodians (one-fourth of the population) died from murder, starvation and disease. The sculptures that had adorned and guarded the nation’s temples for millennia also fell victim, vanishing into the global black market by the thousands. Centuries worth of sacred relics flooded overseas— war loot hawked as fine art—and sold to the highest bidder. An increasing body of research indicates that this organized traffic in Cambodian antiquities helped to finance all sides in the fighting, including the Cambodian army, paramilitary factions and the Khmer Rouge themselves. While this illicit trade accelerated with the civil war, it has long outlasted it, continuing to this day (Mackenzie and Davis 2014; Davis and Mackenzie 2014). Despite the duration and scale of this black market traffic in Cambodian conflict antiquities, few had been identified when U.S. v. Cambodian Sculpture went to court. However, it would not take long for the New York Times to find on display in top American museums another five major pieces that had been looted from Koh Ker during the civil war. Cambodia quickly called for their repatriation as well (Mashberg 2013). The kingdom had its first success on 29 June 2013 when New  York’s Metropolitan Museum (Met) of Art returned two statues to Phnom Penh: the “kneeling attendants”. According to the Met’s spokesperson, Cambodia had presented “dispositive” evidence that the pair were its rightful property. However, Sotheby’s continued to hold firm to its position, countering in a public statement that “The Met’s voluntary agreement does not shed any light on the key issues in our case, [and] we expect to prevail on each” (Felch 2013). U.S. v. Cambodian Sculpture would continue another six months. Then, on 12 December 2013, with the case against it heating up in the U.S. district court and full discovery on the horizon, the auction house settled. The settlement stated that Sotheby’s had “a good faith disagreement” regarding whether Cambodia owned the Koh Ker Warrior, but “further litigation of this action would be burdensome” and so it had “voluntarily determined” to return it to Cambodia (Mashberg and Blumenthal 2014). On 3 June 2014, across the world in Phnom Penh, Cambodia provided a hero’s welcome to the warrior. It was joined by two other statues, which had been looted from Koh Ker at the same time (and likely by the same people) as the Sotheby’s piece—one was returned from Christie’s Auction House and the other from the Norton Simon Museum. Deputy Prime Minister Sok An, assisted by monks and traditional dancers dressed in gold and silk, led the homecoming ceremony. The event made the front page of all the local papers, in both the English and Khmer language press. The sculptures themselves, believed by many to be among the finest in the Khmer canon,

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are now being restored at Phnom Penh’s National Museum where they will be a centerpiece of the collection. Each year, research continues to identify more statues looted during the war that are now in public and private collections around the world. The Royal Government of Cambodia has made their recovery a priority, with His Excellency Sok An and the Secretary of State Chan Tani taking an active role in negotiations. At the time of writing, the Cleveland Museum has also returned another piece from Koh Ker, as has the Denver Art Museum (Duray 2016). The Musée Guimet and private collectors have made public repatriations of pieces removed from other sites (see at http://www.cambodgepost. com/5057-au-cambodge-harihara-retrouve-sa-tete-grace-a-laccord-signeavec-le-musee-guimet/; http://www.voacambodia.com/a/returned-artifactsstir-newinterest-in-cambodian-antiquity/3283937.html). Unlike Sotheby’s, all of these individuals and institutions have acted voluntarily and without any involvement from the courts. However, on 21 December 2016, the New York County District Attorney’s Office (Manhattan DA) charged prominent art dealer Nancy Wiener with criminal possession of stolen property in the first and second degrees over antiquities allegedly looted from Cambodia and a number of other South and Southeast Asian countries. One of these pieces was successfully sold in the same Sotheby’s sale that was to include the Koh Ker Warrior. Unlike U.S. v. Cambodian Sculpture, this is not a forfeiture suit, but it could foreseeably lead to the return of additional pieces to the kingdom. The first chapter to this saga may have closed with the resolution of Cambodia’s case against Sotheby’s, but it took decades to loot Koh Ker’s treasures, and it will likely take decades more to bring them home. However, U.S. v. Cambodian Sculpture and its aftermath have already had major and lasting implications, which go far beyond the return of the statues themselves. These consequences have been felt throughout the art world—at art galleries, museums and auction houses—and of course throughout the country of Cambodia.

The Impact of These Developments in Cambodia In light of the scandal over the Koh Ker Warrior, Cambodia has called anew for the protection of its past, a call which has resonated at the highest of political levels in the country. Under Prime Minister Hun Sen—who has

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ruled the country on and off since the mid-1980s—cultural heritage has always been prominent in the national agenda, at least on paper, if not always in practice. To this day, Cambodia is one of the few states in the world to have ratified all of the major international agreements on preservation and remains the only state in East or Southeast Asia to have done so. These include the Hague Convention in 1962, the UNESCO Convention in 1972, the World Heritage Convention in 1991, the UNIDROIT Convention in 2002, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage in 2006 and, most recently, the UNESCO Convention on the Protection of the Underwater Cultural Heritage in 2007. Indeed, when the decade-long Vietnamese occupation of the country ended in 1989—during the so-called transitional period and before Cambodia even had a fully functioning government—Phnom Penh was already taking steps to implement the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (more commonly known as the 1970 UNESCO Convention, which remains the major international law on the illicit antiquities trade) (Askerud and Clément 1997, pp.  5–6). As part of these efforts, in 1993, Cambodia worked with the International Council of Museums (ICOM) to publish One Hundred Missing Objects: Looting in Angkor (ICOM 2015). This selection of items stolen from the Conservation d’Angkor in the 1980s and 1990s brought international attention to Cambodia’s plight and eventually led to the repatriation of around a dozen masterpieces, including three that had once gone on the block at Sotheby’s. In 1993, the kingdom’s new constitution required the state to “preserve and promote national culture”, including “ancient monuments and artifacts”, and further stipulated that “any offense affecting cultural artistic heritage shall carry a severe punishment” (Article 69, Article 70). While crimes against cultural property had been roughly addressed by the transitional period’s penal code, in 1996, the National Assembly strengthened these provisions, adopting the Law on the Protection of Cultural Heritage, in accordance with international best practices. Cambodia also joined the World Heritage Convention in 1992, the UNIDROIT Convention in 2002 and the UNESCO Convention on the Protection of the Underwater Cultural Heritage in 2007. However, despite these accomplishments, during the 1990s and early 2000s, top government and military officials (many in Hun Sen’s own Cambodian People’s Party) still faced repeated accusations of involvement in the illicit antiquities trade. These claims have lessened in the last few years, replaced

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instead with high-profile arrests and convictions, which would have been inconceivable just a decade ago. For example, in 2012, the Phnom Penh Municipal Court convicted former Governor Lay Vireak and General Khuon Roeun to 12 and 16 years in jail, respectively, after they were caught trafficking drugs, arms and a twelfth-century Angkorian bronze artifact (Kongkea 2012). Such groundbreaking cases, while remaining few and far between, suggest that once “untouchable” figures may now finally be held legally accountable for their role in plundering the country’s past. U.S. v. Cambodian Sculpture came at a volatile time in Cambodian politics, overlapping with the lead-up to—and fallout from—the 2013 general elections, the results of which were strongly contested by the opposition, as well as some international observers. Post-election protests and outbreaks of violence were frequent until a new government formed in July 2014 (Sokchea and Ponniah 2014). During the standoff, in which some politicians openly warned of a return to civil war, Cambodia’s fight to recover the Koh Ker statues ranked among the few positive headlines in the country. The Sotheby’s litigation provided Cambodians with something of a common enemy in the auction house, alongside others deemed responsible for plundering Cambodia’s past, from the former colonial powers to the modern art market. It proved to unify the Khmer people across party lines. There were even protests held against the auction house in Phnom Penh (Lewis 2012). In such an otherwise divisive time, the importance of taking back the country’s stolen heritage was one subject on which all Cambodians agreed, regardless of their political persuasion. No doubt this opportunity was not lost on Hun Sen, who is recognized as a seasoned politician, even by his most ardent critics. Today, Hun Sen’s administration—despite receiving heated international criticism for alleged corruption, election fraud and other human rights abuses—has taken an increasingly prominent role on the world stage when it comes to cultural preservation. In June 2013, Cambodia hosted the 37th session of the World Heritage Committee Meetings in Phnom Penh, a major honor that ranks it alongside such metropolises as Doha (2014), Bonn (2015) and Istanbul (2016). The 2013 Phnom Penh meeting coincided with the Met’s return of two statues from Koh Ker, and the repatriation ceremony actually opened the proceedings. Hun Sen himself presided over the festivities. Photographs of him kissing the statues, and blessing them with jasmine garlands, soon flooded the international wires (Seiff 2014). As previously mentioned, the subsequent repatriation ceremonies were also led by some of the country’s top officials, specifically Deputy Prime Minister Sok An and Secretary of State Chan Tani. Both men have taken a strong lead-

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ership role in this issue, not only nationally but globally, demonstrating Cambodia’s dedication. The involvement of such prominent figures has garnered the world’s attention. For example, Vijay Kumar, a noted activist and blogger working to trace and recover art looted from India, has encouraged New Delhi to follow Phnom Penh’s example by noting that: “Even countries like Cambodia have been able to exercise their rights and take back their cultural property within months, whereas Indian authorities run around for years chasing what rightfully belong to us” (Kumar 2015). In Sotheby’s internal emails, which came to light during U.S. v. Cambodian Sculpture, the auction house had discussed Cambodia’s stance on the illicit antiquities trade and repatriation. It reached the conclusion that, “There are no plans at all for Cambodia or the National Museum of Cambodia in Phnom Penh to attempt to ask for the return of anything”, as “the major Cultural Property thrust” (sic) in the country was stopping looting, not recovering those pieces that had already been taken (U.S. v. Cambodian Sculpture 12 Civ 2600 2012, complaint at 13). Therefore, Sotheby’s felt it could safely proceed with the sale of the Koh Ker Warrior and that, if it did “get bad press” as a result, it would only come “from academics and ‘temple huggers’ not from Cambodians” (U.S. v. Cambodian Sculpture 12 Civ 2600 2012, complaint at 15). It can be debated whether Sotheby’s was mistaken in this assessment of the kingdom’s politics at the time or whether the revelations in U.S. v. Cambodian Sculpture prompted a change in the country’s policy. Regardless, Phnom Penh is now fully committed to the recovery of its plundered treasures, and has enjoyed significant successes on this front. Perhaps due to these triumphs, and the confidence that has come with them, the Royal Government of Cambodia has found itself in a position to be unusually generous with its heritage. For example, in November 2015, the Ministry of Culture and Fine Arts returned a statue fragment to the Cleveland Museum of Art (which had itself repatriated one of the Koh Ker statues in 2015). Cleveland had first sent the piece—a larger-than-life hand sculpted in the 600s (Pre-Angkorian)—to Cambodia in 2005, believing it was part of a Krishna statue that was then being restored by the National Museum in Phnom Penh. However, subsequent analysis, using digital technology that had not existed in 2005, later showed that it was actually part of another Krishna statue still in Cleveland. The National Museum’s Director, Dr. Kong Vireak, decided to send the hand back to Cleveland in the hopes that it would “present a new, enhanced opportunity for the public in the United States to see one of the great artistic accomplishments of the Khmer people” (Elliot 2015). In another example, in January 2016, the National Museum sent a number of sculptural fragments

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to the Musée Guimet in Paris, where they were rejoined to a statue of the goddess Uma. In exchange, the Guimet repatriated a head of the god Harihara, making whole a statue in Phnom Penh (McGivern 2016). His Excellency Sok An, in a ceremony to mark that return, said “the reunion is symbolic of prosperity” (BBC News Asia 2016). With these gestures of goodwill, or “reverse repatriations”, Cambodia has indeed demonstrated the country’s increasing prosperity. They show that Phnom Penh is now in a position not just to ask for what is theirs, but also to share what is theirs with others, even those who may have been considered adversaries in the past. In short, Cambodia has reasserted control of its past, but also over the political narrative of its present.

Impact of U.S. v. Cambodian Sculpture on the Art World The impact of U.S. v. Cambodian Sculpture has also been felt far beyond the country’s borders, reaching to the very heights of the art world’s conceptions of meaning and value in the cultural appreciation of Southeast Asian ancient art. In contrast to Classical art—which collectors have sought for hundreds of years—Khmer pieces only began to appear on the global market within the last century. Neil Brodie and Jenny Doole (2004, p. 100), writing at the time from the now-closed Illicit Antiquities Research Centre at the University of Cambridge, noted that “When in 1913 the Metropolitan [Museum of Art in New York City] acquired a stone head from the temple of Angkor Wat, it was described as ‘one of the first three or four fragments of ancient Cambodian sculpture to reach America’”. However, the authors continued that, “from the late 1960s onwards Cambodian material started to enter United States museums in increasing quantities”. Furthermore, increasingly such acquisitions were not just fragments, but complete statues. Still, as late as 1966, Oriental Art observed “that there is no public collection of first quality Khmer sculpture, or any collection at all worthy of the name” in the United Kingdom. The magazine attributed this absence “to the policy of the French government which [had] protected the cultural heritage of its colonial empire by restricting the export of works of art from Indo-China”, noting it “has, naturally, been continued since independence

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by the Cambodian government”. In conclusion, it lamented that “for those of us who are not privileged to travel to Paris or Phnom Penh our only experience of Khmer sculpture for some time to come will be through the medium of books” (Lowry 1966, p. 192). This fear was unfounded. As the story of the Koh Ker Warriors makes clear, Cambodia hemorrhaged its heritage starting with its 1970 Civil War. But even in the subsequent decades, as the art world began to talk about improving its practices—at least with regards to suspect Classical, Near and Middle Eastern antiquities—“Asian collections […] rarely figured into the debate” (Brodie and Doole 2004, p. 84). In 2004, Brodie and Doole observed that, “Most Asian objects that appear on the market do so seemingly out of thin air […] hardly ever accompanied by any details of find circumstances or previous ownership” (Brodie and Doole 2004, p. 100). They were not the only experts troubled by this double standard. In 2008, in a New York Times op-ed, critic Souren Melikian lamented how “art casualties from Tibet to Cambodia” still found “an eager market” in the United States. With regard to a Sotheby’s auction of Asian antiquities, he pondered “how it is that so few questions are asked about just how works of art of major importance, for which no government would ever issue an export license, come to tumble on to the market. Do the temples of Cambodia, erected by the Khmers at the height of their culture between the 10th and 13th centuries, ring so few bells?” Melikian concluded his scathing argument with begrudging resignation: “From Tibet to Cambodia, the common treasure of mankind is squandered at a rate that matches that of melting Antarctica. And business goes on” (Melikian 2008). Five years later, in 2012, the case of the Koh Ker Warrior provided a respite from such business going on and marks a milestone in the transition of the U.S. market away from untrammeled profiteering from loot. Sotheby’s seemed caught off guard in a misreading of, or maladjustment to, developing legal and ethical boundaries, publicly stating in the early stages of U.S. v. Cambodian Sculpture: “we are disappointed that this action has been filed and we intend to defend it vigorously” (Blumenthal and Mashberg 2012b).The company’s vice president had earlier insisted that “Sotheby’s approach to the Khmer sculpture is one of responsible and ethical market behavior and international cooperation between private and public entities” (Blumenthal and Mashberg 2012). But, as Mr. Melikian, other experts vehemently disagreed with lawyer and professor Herbert Larson telling the New York Times: “Every red flag on the planet should have gone off when this was offered for sale. It screams ‘loot’” (Blumenthal and Mashberg 2012a).

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Sotheby’s—publicly at least—appeared confident of winning the case up until the signing of the settlement. The auction house did not completely abandon this position in that agreement, in which it insisted that “Sotheby’s and its client acted properly at all times” (Blumenthal and Mashberg 2013). Even so, U.S. v. Cambodian Sculpture has made clear in general terms that the federal government strongly believes that Cambodia has a valid legal claim under American law to its stolen antiquities, including those that have been in overseas collections for decades. The Department of Justice has moreover proved itself very willing to back that belief with litigation on Cambodia’s behalf. At the time, in 2012, one member of the pro-market lobby warned that such actions had prompted a “crisis” that “threaten[ed] the very future of collecting and collecting museums” (see at https://committeeforculturalpolicy.org/wp-content/uploads/2013/06/CCP-TranscriptAsiaSocietyPanel.pdf ). But the wholesale emptying of Khmer collections in the United States—or elsewhere—has not come to pass. To the contrary, as mentioned above, Cambodia has sent pieces to the Cleveland and Guimet Museums on a long-­ term basis to make statues in those institutions whole. In addition, it has also increased its short-term loans to overseas institutions, including a number of pieces to New York’s Metropolitan Museum of Art for its “Lost Kingdoms” exhibition in 2014. Many of these pieces had never before left the country (see at The Met Museum’s Exhibition on Lost Kingdoms, “Hindu-Buddhist Sculpture of Early Southeast Asia, 5th to 8th Century”, The Met, Exhibition, http://www.metmuseum.org/exhibitions/listings/2014/lost-kingdoms). Thus far at least, unlike other source countries like Egypt, Greece and Italy, Cambodia has not sought to recover pieces that were stolen during the colonial period. Instead, it has focused its recovery efforts on pieces looted during the 1970 war and its violent aftermath. As 1970 is also the date of the UNESCO Convention, it already served as a “bright line” for many of the art world’s own acquisition codes, well before the Sotheby’s case. So on one view, in its efforts to recover the Koh Ker masterpieces, Cambodia was asking no more of museums than they already ask of themselves.

Impact on Cambodian-U.S. Relations In addition to having an impact on the art world and internal Cambodian politics, the fight to recover the Koh Ker Warriors also served to strengthen relations between Phnom Penh and Washington. In its efforts to recover the statues, Cambodia found a strong ally in the United States, adding a new layer to the two countries’ often tense relationship. From the American perspective,

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bilateral relations have long been overshadowed by concerns ranging from Chinese expansion, to electoral reform and the struggling Khmer Rouge tribunal (which then-Secretary of State John Kerry played a key role in creating while still a U.S. Senator). On Cambodia’s side, tensions have emanated from the illegal American bombing campaign and military coup in the 1960s and 1970s that many blame for dragging the country into civil war. However, art has proved a powerful ambassador and a bridge to productive discourse. This impact is perhaps best illustrated by U.S.  Secretary of State John Kerry’s January 2016 visit to Phnom Penh—which was part of a broader tour of the region in advance of the special the Association of Southeast Asian Nations (ASEAN) Summit in California that February. As expected, given the United States’ “pivot to Asia” (perhaps more accurately called a pivot to “Southeast” Asia), Secretary Kerry’s ambitious agenda in Phnom Penh emphasized economic ties between the two nations, as well as the importance of building democracy and fighting extremism. But he also used his platform to highlight cultural ties and the importance of heritage preservation. And in between official meetings with government, opposition leaders and civil society representatives—despite only being in the country for 24 hours—Kerry made time for a visit to the National Museum of Cambodia. Far from playing the tourist with this stop, Secretary Kerry was demonstrating the soft power of cultural diplomacy, as he paid his respects to the Koh Ker masterpieces that had been recovered in the previous three years with U.S. assistance. Kerry was photographed viewing the ongoing conservation work on the statues repatriated from the United States. Cambodian and international experts are now cooperating to put these figures back together and reattach them to the original pedestals (they had been broken into pieces when looted and then trafficked as parts). In making them whole, they provide a fitting metaphor for the entire country. During Kerry’s formal visit to the Peace Palace, the Office of the Prime Minister, Hun Sen, publicly thanked the United States for its support in recovering the statues. In his own remarks to the press, Kerry also stressed, “We are committed to building on the progress that we have already made in […] cultural preservation”. He added, “I had the privilege of visiting the national cultural museum earlier this morning where artefacts have recently been returned from the United States to Cambodia. And that museum is an extraordinary asset, a goldmine of treasure from the past”. He likewise promised that, “We are working with Cambodia to eliminate not just the painful reminders of a long war but to define the future, which is very, very different and distant from that war”.

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The country’s desecrated tombs, beheaded statues and ransacked temples are one of these painful reminders. They conjure one of the darkest periods in the twentieth century—and in all of the kingdom’s long history—which left a quarter of the population dead. Safeguarding Cambodia’s sacred sites and recovering their stolen relics are not just a matter of preservation—it is a matter of post-war recovery and national identity. Both Hun Sen and Kerry recognize that Cambodia’s art and archaeology—its past—is critical to its bright future. It has invaluable cultural, historic and religious significance to the Khmer people. And, since this heritage attracts millions of tourists each year, it is also one of their most important economic resources.

Conclusion It is a great irony that the UNESCO Convention was adopted the very same year (1970) that an organized trade in Cambodian antiquities was erupting. The Koh Ker Warrior was looted around 1972, the year that Cambodia ratified this agreement. During this time, the government was in the midst of a civil war and controlled little more than Phnom Penh, so, of course, it could not fully enforce this agreement or other laws. It is confronting that so many other countries failed to meet their domestic and international legal obligations in this story. We know that the Koh Ker Warrior—and likely the other statues plundered from the site—first crossed the Thai border to the major art market hub of Bangkok. From there, the piece traveled to a premier gallery in London and then to a private c­ ollection in Belgium, crossing numerous borders in the process. While it would remain in Belgium for decades, in 2012, it entered the United States. Then—42 years after the UNESCO Convention—the Koh Ker Warrior landed on the block of a respected auction house, featured on the front page of the sales catalogue. All this even though it had first appeared on the market directly from a war zone, in the midst of a genocide, with its feet suspiciously chopped off at the ankles. There were numerous points during this journey where the warrior could and should have been stopped—by law enforcement, if not by the art market’s own internal codes and policies. Despite these failures, which allowed the Koh Ker warrior not only to be looted, but trafficked, halfway around the world through the illicit and licit markets, once the scandal was public, law and policy provided the

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platform for resolution. An international team came together to secure the statue’s return, including the Cambodian government; the U.S. government; and intergovernmental organizations, like UNESCO, non-governmental organizations and even the art market itself. Of the latter, Christie’s and the Met appear to have identified the silver lining to the cloud of proactive repatriations, in the opportunity to strengthen relationships with Cambodia. Cambodia has been measured and proportionate on its part in the recent spate of repatriations. Throughout the last few years, it has only used litigation as a last resort and only targeted those pieces that left the country after 1970. Those collectors and institutions who feared a slippery slope in the early days of U.S. v. Cambodian Sculpture—where all Western museums would be emptied of their Khmer art—need not have worried. The public can still readily see Cambodian masterpieces in American museums and may actually be able to see more in upcoming years, as Cambodia is actively working on a number of overseas loans. The overall message from the Sotheby’s case—put forward by Phnom Penh, Washington and the more responsible players in the art world itself—is that looting, and trafficking, of antiquities is a crime, and it will no longer be tolerated: not by governments, not by law enforcement and, increasingly, not by the art world’s own norms and values, which, if not fully committed to righting past wrongs, are moving slowly but constantly in the direction of hostility to the presence of loot in the system. Where once the trading of loot was glorified and then, more recently, passively accepted, it is now evermore difficult to justify, and there is a clear sense that the old routines of the art market in this respect are operating on borrowed time. Where the market is beginning in cases, like those mentioned in this chapter, to accept the rationale and moral value in righting past wrongs in the form of present-day repatriations, work continues by researchers, lawyers and activists to prompt comparable levels of market commitment to be displayed in respect of preventing such wrongs in the first place, as opposed to just unwinding the consequences of thefts many years later. What happened in Cambodia four decades ago is happening now again in “Cradle of Civilization”. Masterpieces from Iraq and Syria are crossing borders, this time into Lebanon or Turkey. What happens next? Will they too be slapped with a plausible backstory and laundered into respectable auction houses, art galleries, private collections or even museums? Hopefully, this time, it will not take 40 years for a crisis situation of looting and trafficking to be adequately identified and undone.

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Bibliography Askerud, P., & Clément, E. (1997). Preventing the illicit traffic in cultural property: A resource handbook for the implementation of the 1970 UNESCO convention, Section 2. Paris: UNESCO. BBC News Asia. (2016, January 21). Hindu god statue’s head returns to Cambodia. Retrieved July 17, 2017, from http://www.bbc.com/news/world-asia-35378747. Blumenthal, R., & Mashberg, T. (2012a, February 28). Mythic Warrior is captive in global art conflict. The New York Times, p. A1. Blumenthal, R., & Mashberg, T. (2012b, April 4). Officials are set to seize antiquity. The New York Times. Retrieved September 29, 2015, from http://www.nytimes. com/2012/04/05/arts/design/ancient-cambodian-statue-is-seized-fromsothebys.html. Blumenthal, R., & Mashberg, T. (2013, December 12). Disputed statue to be returned to Cambodia. The New York Times. Retrieved September 29, 2015, from http://www.nytimes.com/2013/12/13/arts/design/disputed-statue-to-bereturned-to-cambodia.html. Brodie, N., & Doole, J. (2004). The Asian art affair: US Art museum collections of Asian art and archaeology. In N. Brodie & C. Hills (Eds.), Material engagements: Studies in honor of Colin Renfrew (pp. 83–108). Cambridge: McDonald Institute. Davis, T. (2015). The lasting impact of U.S. v. Cambodian sculpture. In F. Desmarais (Ed.), Countering illicit traffic in cultural goods: The global challenge of protecting the world’s heritage (pp. 95–105). Paris: ICOM. Davis, T., & Mackenzie, S. (2014). Crime and conflict: Temple looting in Cambodia. In J. Kila & M. Balcells (Eds.), Cultural property crimes: An overview and analysis on contemporary perspectives and trends (pp. 292–306). Leiden: Brill. Duray, D. (2016, February 26). Cambodian warrior comes home: Denver Art Museum returns Khmer statue. The Art Newspaper. Retrieved July 17, 2017, from http://theartnewspaper.com/news/museums/cambo dian-warrior-comes-homedenver-art-museum-to-return-khmer-statue/. Elliot, J. (2015, November 3). Statue fragments returned to Cleveland museum. The Phnom Penh Post. Retrieved September 29, 2015, from http://www.phnompenhpost.com/national/statue-fragments-returned-cleveland-museum. Felch, J. (2013, May 3). Metropolitan Museum says it will return Cambodian statues. LA Times. Retrieved September 29, 2015, from http://articles.latimes. com/2013/may/03/entertainment/la-et-cm-metropolitan-museum-returns-cambodian-statues-20130503. ICOM. (2015). International council of museums, one hundred missing objects series. Retrieved September 29, 2015, from http://archives.icom.museum/100objects.html. Kongkea, B. R. (2012, July 4). Ex-Governor gets 12 years in jail. Phnom Penh Post. Retrieved September 29, 2015, from http://www.phnompenhpost.com/national/ former-governor-gets-12-years-jail.

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Kumar, V. (2015, January 21). How India–US MOU can bring back art loot. Times of India. Retrieved September 29, 2015, from http://epaperbeta.timesofindia. com/Article.aspx?eid=31807&articlexml=AGENDA-FOR-OBAMA-HowIndia-US-MOU-can-21012015006018&Mode=1. Lewis, S. (2012, March 30). Campaign ties statue row to union dispute. Cambodia Daily. Lowry, J.  (1966). Khmer sculpture and the Angkor civilization. Oriental Art, 12(3), 191–192. Mackenzie, S., & Davis, T. (2014). Temple looting in Cambodia anatomy of a statue trafficking network. British Journal of Criminology, 54, 722–740. Mashberg, T. (2013, May 15). Cambodia presses U.S. museums to relinquish antiquities. The New  York Times. Retrieved September 29, 2015, from http://www. nytimes.com/2013/05/16/arts/design/cambodia-presses-us-museums-to-returnantiquities.html. Mashberg, T, & Blumenthal, R. (2014, May 6). Christie’s to return Cambodian statue. The New  York Times. Retrieved September 29, 2015, from http://www. nytimes.com/2014/05/07/arts/design/christies-to-return-cambodian-statue.html. McGivern, H. (2016, January 20). French museum reunites head with decapitated Khmer statue. The Art Newspaper. Retrieved July 17, 2017, from http://theartnewspaper.com/news/conservation/french-museum-reunites-heads-with-decapitated-khmer-statue/. Melikian, S. (2008, March 28). Art casualties from Tibet to Cambodia find an Eager Market. The New York Times. Retrieved September 29, 2015, from http://www. nytimes.com/2008/03/28/arts/28iht-melik29.1.11495358.html. Roasa, D. (2012, October 20). Fate of a statue: The case of the Duryodhana. Los Angeles Review of Books. Retrieved September 29, 2015, from https://lareviewofbooks.org/essay/fate-of-a-statue-the-case-of-the-duryodhana. Seiff, A. (2014, July 1). How countries are successfully using the law to get looted cultural treasures back. ABA Journal. Retrieved September 29, 2015, from http:// www.abajournal.com/mobile/mag_article/how_countries_are_successfully_ using_the_law_to_get_looted_cultural_treasure. Sokchea, M., & Ponniah, K. (2014, July 23). One year in the making. Phnom Penh Post. Retrieved September 29, 2015, from http://www.phnompenhpost.com/ national/one-year-making. UNESCO. (2015). United Nations Educational, Scientific, and Cultural Organization, United Nations Security Council Resolution 2199: Letter to ministers responsible for relations with UNESCO 3 August. Retrieved July 17, 2017, from http://unesdoc. unesco.org/images/0023/002321/232164e.pdf. Vlasic, M., & Davis, T. (2012, June 7). Should Cambodian ‘blood antiquities’ be returned? CNN. Retrieved September 29, 2015. from http://www.cnn. com/2012/06/07/opinion/vlasic-davis-cambodia-art/. Vrieze, P. (2012, March 2). Sale of looted statue Halted at Sotheby’s. Cambodia Daily, p. A1.

34 Preventing Illicit Trafficking of Cultural Objects: A Supply Chain Perspective Mariya Polner

Introduction ‘My voice sticks in my throat; and, as I dictate, sobs choke my utterance. The City which had taken the whole world was itself taken’ (Scharpf 2007, p. 257). These are the words of St. Jerome in a letter to his friend about the sack of Rome in 410 AD. Preceded by three sieges, Visigoths led by King Alaric eventually managed to take Rome. Plundering, looting, destruction and sacking of the eternal city became a watershed moment in the history of the ancient world: the beginning of the end of the Western Roman Empire. Plundering and looting during conflict can be traced back even further in history, and it could be argued that ancient Rome itself was one of the founders of this tradition (Charney 2015). However, contrary to numerous accounts and paintings depicting the fall of Rome as total chaos and anarchy, these activities were not totally chaotic. They were executed in an organised manner: the time limit was set for three days, and asylum rights for Roman citizens were granted in St Peter’s basilica. There were other sites that were also designated as protected

All views expressed in this chapter are solely those of the author and do not necessarily represent the views of, and should not be attributed to, the World Customs Organization or its members. The author is grateful to Zeynep Boz, Thomas Cantens and Michelle Medina for their continuous support, feedback and advice on this chapter.

M. Polner (*) Senior Policy Advisor, Compliance and Enforcement, Compliance and Facilitation Directorate, World Customs Organization, Brussels, Belgium © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_34

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sites, and despite looting and destruction of some parts of Rome, other parts remained untouched (Goldsworthy 2009). Throughout the following centuries, the meaning of cultural property has evolved and given rise to a market where cultural objects can be exchanged for economic gain. The modern antiquities market can be traced to sixteenth-­ century Rome where the growing interest in the past led to excavations of ruins to the extent that papal legislation to protect them became a necessity (Brodie 2012, p. 230; Hardy forthcoming). Due to the often-violent history of the nineteenth century marked by ‘punitive expeditions’ of stronger countries to their rivals (Hardy 2015, p. 22), many Western museums acquired exceptional artefacts of unique cultural value. The twentieth century brought more disastrous examples. Ravaged by World War II atrocities of immense scale, which also became known as the largest organised plundering in human history, in 1954 the Hague Convention for the Protection of Cultural Property in the event of Armed Conflict along with its First Protocol were adopted. This Convention, which by December 2018 was ratified by 133 States (UNESCO 2018), became the first international legal instrument dedicated exclusively to the safeguarding and protection of cultural property during armed conflict. The trading activity in the aftermath of World War II, which was still largely unregulated, became so massive that it led to the adoption of the United Nations Educational, Scientific and Cultural Organization (UNESCO) 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property with the objective to restrict the market and develop mechanisms to restitute and return stolen and illegally traded cultural objects. Nevertheless, massive-scale looting and destruction persisted and the world witnessed many other large-scale events, such as the siege of Dubrovnik in 1991 and the destruction of Mostar bridge, the destruction of the Bamiyan Buddhas in 2001, the looting of the Baghdad museum in 2003, the ruining of Timbuktu mausoleums in 2012, and the looting of archaeological sites on an industrial scale in different countries in the Middle East and North Africa (MENA) region. Thus, throughout history, war and instability have provided ample opportunities to feed the arts and antiquities market. This chapter addresses the issue of illicit trafficking of antiquities, which has recently become a global concern, from a supply chain perspective. The first two sections are dedicated to a brief analysis of the market in antiquities, its main actors and value chains. The third section examines the policy developments and the way Customs administrations, initially being a marginal

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player in the fight against illicit trafficking of cultural objects, started acquiring more prominence. The fourth section offers an analysis of Customs powers when dealing with conflict antiquities from a supply chain perspective; and the fifth and concluding section offers some observations on the role of Customs in this domain of enforcement.

Examining the Market The illicit market in arts and antiquities is complex and it has a number of distinguishing features. First, the type of objects that are the main focus of this chapter can be broadly defined as ‘antiquities’. This category, which also includes archaeological antiquities, is finite and, like minerals, not renewable. Therefore, irregular excavation and looting lead not only to the loss of the archaeological context, they cause irreparable damage to humanity. Second, as with any illicit market, the quantification of its value and dimensions is difficult due to its clandestine nature. There have been a number of quantitative and qualitative studies to determine the size and shape of the market. These studies use different methodologies, such as provenance research, market research through publicly available auction catalogues, investigations of archaeological site looting, media investigations, ethnographic surveys, participant observations, and so on (see for a comprehensive analysis of different methodologies Brodie 2012). The various studies provide intrinsic insights into the market and its functioning; however, they are not comprehensive. Another complication in research is that the illicit market in arts and antiquities is neither fully legal nor illegal; the licit and illicit trades are not run in parallel. One is the outcome of the other: while the objects can be illegally sourced from the country of origin, they can still be legally sold in the country of destination (Brodie 2003, p. 186). One of the contributing factors is the difference in national legislation, whereas export restrictions and prohibitions of one country are not automatically recognised or enforced by another country, which allows the ‘laundering’ of the objects by modifying their legal status. Transit countries play a significant role by providing the objects with a ‘mask of legitimacy’ (Mackenzie 2005, p. 140) or, in other words, new provenance and export documents. Smugglers and dealers know these legislative gaps and opportunities they present and use them to their advantage. Therefore, this market is often referred to as ‘grey market’ (Brodie 2011, p. 409; Mackenzie 2009; Bowman 2008). Because of this peculiarity, it is worth paying attention to demand and supply in the legal market, which is easier to represent in numbers. According

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to the 2016 European Fine Arts Foundation, known as TEFAF, Art Market Report, which is a study conducted by the research and consulting firm Arts Economics on the art and antiquities market and published every year since 2002, the global art market sales in 2016 were estimated at USD 45 billion, an increase of 1.7% since 2015 (TEFAF 2017, pp. 10–12). More than 70% of the art and antiquities market were concentrated in three countries: the United States with a 29.5% share, United Kingdom with 24% and China with 18%. Due to its economic growth during the last decade as well as the emergence of many high-net-worth individuals (HNWI), China, apart from being a major source country, became the third largest destination country in the world. Europe is estimated to be the largest continent for art and antiquities sales in the world in terms of share of sales volumes; it also accounts for more than half of world’s dealers (Ibid., p. 12). Apart from London, other European cities, notably Paris, Brussels, Amsterdam and Munich have a long-­ standing position and share of the European sales volumes. Therefore, the demand is highly concentrated in developed countries. The report also highlights that buyers ‘are seeking opacity and privacy in their transactions’ (Ibid., p. 10) and adds that private sales are particularly showing strong growth in the Middle East and in Asia. The Middle East, particularly some Gulf States, has become an emerging market for arts and antiquities. The operations of two major auction houses, Christie’s and Sotheby’s, in Dubai since 2006 and 2017  (Trade Arabia 2017), respectively; the launch of the prestigious Art Dubai in 2007, which became the leading fair in the Middle East; and the forthcoming opening of Louvre Abu Dhabi and Guggenheim Abu Dhabi demonstrate a strong interest in this part of the world. At the same time, practical knowledge and ethics standards in relation to purchasing antiquities and objects of art are rather basic. By contrast, the supply, particularly in antiquities, is concentrated in poorer countries with some notable exceptions like Italy and Greece. Moreover, since many collectors in the Gulf countries are interested particularly in Islamic art, there might be more cross-border ­movements of illicitly acquired antiquities from the conflict areas in the Middle East and North Africa (MENA) region to the Gulf countries. Third, collecting arts and antiquities has long been regarded as a noble occupation for the high society. Dealers and collectors are usually wealthy individuals with very good knowledge of art history and/or archaeology. This is why illicit trade in arts and antiquities has long been perceived as a white-­ collar crime. As mentioned earlier, buyers and sellers, particularly of exceptional high-value objects, still prefer to remain anonymous if the sale goes through a public auction.

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However, there has been a change, which constitutes the fourth observation: since the mid-1990s another big and sophisticated market has emerged, namely the Internet market (Lidington 2002; Fay 2011). Therefore, one can nowadays distinguish between a more traditional offline market based on auction houses, antique shops, art galleries, flea markets and private sales and an online market that has grown exponentially and encompasses not only the online trading platforms, such as e-Bay, but also community webpages, personal/business webpages and websites, social media, such as Facebook and Twitter, as well as encrypted communication tools, such as Telegram, Skype and WhatsApp (Hardy 2016, pp. 7–8). The emergence of the online market is characterised by two features: first, the Internet allows for the ‘democratisation’ of trade that had been previously open only to the elites. The lower value objects, particularly coins and some types of antiquities, are now being sold in high volumes and to a much larger number of buyers from all over the world, because buyers and sellers from different continents can make transactions without any hindrance due to technology. Brodie (2014), for example, conducted a study regarding the sale of pre-Columbian antiquities on the Internet between 2011 and 2013 and found out that a minimum quantity of objects sold annually was approximately 8170, while the real number could be up to 16,000. Most of these objects had either no provenance documents or provenance that did not date back before 1970. In this context, it is also important to mention that despite the fact that the 1970 Convention does not legitimise objects that were illicitly acquired prior to its entry into force, there is a common belief that a proof of the pre-1970 provenance would resolve all possible problems. Second, the Internet also brings anonymity and challenges in checking the provenance of objects (Ibid.), thus allowing for free circulation of objects whose provenance and authenticity cannot be established. Anonymity also allows for the Internet to become a frequently used platform to sell stolen objects (Yates 2015, p. 41). Even though the transaction is made on the Internet, the transfer of the objects to the buyers is usually made with the use of postal services or express carriers. However, the anonymity of the seller can still be preserved since objects can be sent without the return address. While the monetary value of trade is still concentrated in several major countries, the Internet is quickly changing the profile of buyers. It also diversifies monetary flows and allows for the sale of high volumes of lower value objects that were not of much interest to the established market actors in the past.

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Market Actors and Value Chains For decades, the antiquities market has been supplied through looting and pillaging. As the market is demand driven, the scale of looting and destruction in the source countries is strongly conditioned by the demand and it is shaped by external factors, such as political and economic instability, lack of enforcement both in terms of securing the archaeological and religious sites, historic monuments, museums and in terms of border controls, corrupt practices and armed conflicts. In particular, the phenomenon of tomb raiders was known in Antiquity, and it was so widespread that it was taxed as an economic activity in the Mameluke period. In his major work Muqqadima (or Prolegomena, meaning ‘Introduction’), the fourteenth-century Arab philosopher and historian Ibn Khaldun gave a negative account of tomb raiders by underlining that treasure hunting was not a natural way of living and describing tomb raiders as ‘ill-­ minded’ (Boz 2013). They do not realise that by trying to make a living in an improper manner, they plunge themselves into much greater trouble, hardship, and expenditure of energy than otherwise. In addition, they expose themselves to the risk of punishment (Ibn Khaldun 1967, p. 302). This phenomenon persisted throughout centuries and on different continents. It was estimated that in China more than 200,000 tombs have been looted during the last several decades (Xinhua 2005). In Syria, looting of the archaeological sites persisted in 1990s and early 2000s—well before the conflict. From the 1990s, various studies were conducted investigating the drivers of this behaviour among the local population and a different narrative emerged: instability, a poor economic situation and conflict push the local population to explore other means of supporting their families. In 1993 David Staley introduced the term ‘subsistence digger’, defining it as ‘a person who uses the proceeds from artefacts sales to support his or her traditional subsistence lifestyle’ (p. 349). Staley argued that the word ‘looters’ criminalised people who are fighting for survival in difficult political and economic conditions and digging the sites to provide their families with a ­minimum income (Ibid.). David Matsuda (1998) further examined this type of activity in his research on huaqueros or tomb diggers in Beliz. He found out that most of them were small farmers, often of indigenous origin or refugees from violent areas. This phenomenon is rather widespread, and there have been a number of similar studies in other countries, including Italy, Guatemala, Peru, Afghanistan and Syria. From the value chain perspective, an interesting dynamic can be observed: it starts from the source, where the local population receives a tiny fraction as

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low as 1% (Brodie 1998, p. 1) of what these objects are sold for to collectors or museums, where they are valued at dozens and sometimes hundreds of thousands of dollars depending on their state of preservation, exclusivity and other characteristics. Therefore, going further in the value chain the trade transforms itself from rather primitive to a sophisticated and extremely lucrative business aiming at HNWIs or cultural institutions. Legislation in the source countries is often aimed at suppression of looting through heavy penalties and criminal proceedings. It is therefore striking that diggers and subsistence looters, who are at the bottom of these value chains, assume the highest risks in exchange for a small fraction of the price that will eventually be paid by dealers or collectors in the destination countries, whose risk exposure is much lower or inexistent. While there is no doubt that there are local people who are knowingly and wittingly committing a crime and considering illicit excavations as a family business, it does not deny that, in general, illicit trade in antiquities is ipso facto the manifestation of global inequality. The conflict and insecurity it creates serve as aggravating factors for looting: while the State loses control and authority, the borders become more permeable, and incentives to loot and smuggle grow. War-torn areas of Guatemala in the Petén region were heavily looted in search for Maya polychromes and other portable antiquities in the 1970s–1980s. Most of these antiquities were never recovered (Yates 2015, p. 40). In the aftermath of the Arab Spring starting from 2011, which resulted not only in massive looting in some parts of Egypt but also in attacks on several landmark museums, such as the Cairo museum and the Malawi museum, Egyptian antiquities have been circulating in large quantities on the Western market. Numerous accounts of disastrous looting in Iraq, Syria, Libya and Yemen do not demonstrate any new dynamic. On the contrary, based on the knowledge of the functioning of this market it would be possible to presume that if nothing changes, looting will continue. Another distinguishing feature of the market is that while smaller and less precious objects tend to inundate it during and immediately after the conflict, bigger and more precious pieces tend to appear 10–20 years later, when the enforcement agencies’ focus on these countries is ebbing off. Unfortunately, the post-conflict situation does not provide much reason for optimism either: as long as institutions are weak and there is no other sustainable means of income, there is no incentive to stop looting (Gruber 2013, p. 344; Stone and Bajjaly 2008). And since post-conflict transformation takes a lot of time, more encompassing, robust and long-term policies should be developed and put in place. In many countries where antiquities are considered as an important economic resource, illicit trade is organised and sometimes controlled by armed

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gangs. There is also evidence about the linkages with other types of criminal activities, such as drugs, wildlife and arms trafficking, money laundering and tax evasion, thus making illicit trade in antiquities a part of transnational organised crime. In particular, the linkage with money laundering is the most apparent: ‘Ferrying cash across borders is difficult, and carrying diamonds or bullion creates suspicion. Moving works of art or antiquities is much easier. Even big works can be moved; ancient friezes, for example, can be exported as Italian tiles. For money launderers antiquities have an advantage over prominent paintings; it is often impossible to determine if they were stolen’ (Fidler 2003, p. 1). Therefore, laundering criminal proceeds from other types of illicit activities through cultural objects seems to be an easy option. For more than ten years, linkages with terrorist financing have also been explored (Gruber 2013, p.  347), and this particular focus has become much more prominent during the last decade, especially because of the conflicts in Syria and Iraq.

On the Policy Front The increasing numbers of theft and looting in the 1960s and the beginning of the 1970s, particularly in the countries of the South, and a subsequent emergence of the looted and stolen objects in the North, being offered to private collectors and museums, have led to the development of a major international legal instrument dealing specifically with illicit trafficking of cultural objects: the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transport of Ownership of Cultural Property. The Convention provides guidance on measures to be adopted at the national level to prevent illicit trafficking and envisages a special role for Customs. While it is not a self-executing tool, meaning that countries have to embed it into national legislation to allow for its implementation, the Convention, ratified by 139 Parties by February 2019, is universally recognised. In its Pillar I, focused on preventative measures, Article 6 is of particular interest to Customs, whereas the State Parties undertake to introduce export certificates for cultural property in conjunction with special measures to prohibit any export without these certificates. In order to facilitate the implementation of this provision, in 1995, UNESCO and the World Customs Organization (WCO) developed a Model Export Certificate for cultural objects in order to identify, trace and distinguish them from other ordinary objects, such as garments, mobile phones and so on. Both organisations recommended the adoption of the Model Export Certificate in its entirety or as a part of national export certificates for

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this category of objects. Several countries followed suit; however, currently the level of adoption of this tool is rather low. Article 9 of the 1970 Convention stipulates that State Parties may introduce ‘the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned’. Export controls of cultural objects are currently more widespread and include two major categories: embargoes through the United Nations Security Council Resolutions and national legislation and export restrictions on specific categories of cultural objects. Export controls on cultural objects are imposed in one form or another in the majority of source countries. According to the 2014 UNESCO survey on the implementation of the 1970 Convention, out of 66 countries that responded to survey, 91% reported that their national legislation contained export controls and approximately 82% of respondents reported that export certificates were required (UNESCO 2014, p.  29). However, there are several challenges associated with enforcement of these provisions: first, the destination countries are not obliged to automatically recognise an embargo or an export restriction imposed by the source country. Second, export controls are difficult to enforce in countries with long borders and lack of enforcement capacity to monitor and control them. This situation is further aggravated in the countries that have fragile borders or go through political or economic turmoil or conflict. Third, Customs and other enforcement agencies may be driven by different priorities, such as drugs or weapons smuggling. Therefore, trafficking of cultural objects would not be considered a major issue to spend resources on. Import restrictions or import controls are another tool available; however, they are used less often than export controls. In 2014, only 33 countries out of 66 participating in the survey confirmed that they had implemented legal provisions for the introduction of import controls (UNESCO 2014, p. 28). In particular, Cambodia introduced a provision in its domestic legislation whereby import of cultural objects illicitly exported from the source country is prohibited; Australia introduced import controls for protected cultural objects from other countries (UNESCO 2014, pp. 28–29). Germany passed strict cultural heritage protection legislation in July 2016 which includes the requirement for an export permit from a source country in case an object is imported into Germany (Neuendorf 2016). In July 2016, France introduced legislation that imposes import controls on cultural objects coming from outside the European Union (EU) and reinforced an import ban on all cultural objects that were illicitly exported from the countries of origin as covered by the UN Security Council Resolutions (Journal Officiel de la République Française 2016). In December 2015, upon the request of France, Italy and

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Germany (Représentation permanente de la France auprès de l’Union européenne 2015), in order to strengthen Customs controls aimed at fighting illicit trafficking of cultural objects and preventing terrorist financing, the European Commission started developing the regulation on the importation of cultural goods into the European Union. It is expected that these rules will come into force by 2019. Being the major market for arts and antiquities, the United States introduced a system of import controls based on bilateral agreements with source countries to facilitate return and restitution. This practice dates back to 1983, when the Convention on Cultural Property Implementation Act (CPIA) was adopted to implement the UNESCO 1970 Convention. The source countries may ask the United States to place import restrictions on specific categories of objects, which means that these objects would be subject to additional scrutiny by Customs and other law enforcement agencies. The first emergency actions introduced by the United States were aimed at El Salvador in 1987 and Bolivia in 1989, followed by bilateral agreements concluded in 1995 and 1997 accordingly. Currently, the United States has 17 bilateral agreements in place, with Libya being the latest country on the list since 2018 (Bureau of Educational and Cultural Affairs 2018). Other destination countries also followed suit through the establishment of bilateral agreements: Switzerland changed its legislation significantly since 2005, when a Federal Act on the International Transfer of Cultural Property (CPTA) was adopted. The Federal Act laid the ground for the repatriation of objects that were illicitly imported from a country that has a bilateral agreement with Switzerland (CPTA 2003). Currently, Switzerland has signed eight bilateral agreements with Italy, Egypt, Greece, Colombia, China, Cyprus, Peru and Mexico. An export certificate is required for cultural objects from these countries; otherwise, import is deemed as illicit and may be punishable pursuant to CPTA. Moreover, export from any country that is a signatory of the UNESCO 1970 Convention must be reported to Customs authorities, regardless of export permit requirements (Swiss Federal Office of Culture 2016). Bilateral agreements are also becoming more popular between source, transit and destination countries in the MENA region: for example, Jordan and Egypt concluded a bilateral agreement on recovery and restitution of cultural objects in 2015. This agreement allowed for the restitution of 340 archaeological objects including an alabaster statue of a head, a small hand, several stone statues and coins that were seized by Jordanian Customs at Aqaba port at the end of 2015. The objects were concealed in a shipment of coal coming from Nuweiba port in Egypt (Egypt Independent 2016). Tunisia and Algeria are currently working on a similar agreement, following an important seizure

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of the mask of Gorgone that was stolen from Algeria in 1996 and discovered in the villa of the president of Tunisia, Zine el-Abidine ben Ali, ousted in 2011 during the Arab Spring (Arsenault 2014). Lebanon uses a different procedure established by the 1970 Convention, whereby, if seized objects are foreign, a bilateral technical committee is established between Lebanon and the source country to authenticate the objects and prepare them for repatriation according to diplomatic procedures between the two countries (Seif 2015, p. 69). Lebanon, in particular, is one of the countries that, being at the border with Syria and frequently seizing Syrian cultural objects, restitutes them on a regular basis. Gruber (2013, p.  351) underlines the benefits of bilateral agreements between source and destination countries signatories of the 1970 UNESCO Convention. The agreements are an efficient tool to fight trafficking for several reasons: they stimulate public debate, raise awareness about the problem and give more power to Customs and other law enforcement agencies to act in case of detection of undocumented antiquities with a view to their subsequent seizure and restitution. These measures also serve as a deterrent for the dealers and collectors who may fear losing their objects during the trafficking operation. By the 1990s, the limitations of the 1970 Convention became evident. Apart from being a non-self-executing tool, it recognises diplomatic channels for restitution; thus, if countries have no diplomatic relations, restitution is impossible. The Convention also does not explicitly cover non-inventoried artefacts in its return and restitution provisions; thus, these provisions are not efficient for illegally excavated objects. Moreover, since the Convention has to be implemented through national legislation, its scope can be further defined by the States, which leads to a differentiated approach. Therefore, the 1995 UNIDROIT Convention was developed to complement the 1970 Convention and, being a self-executing tool, it provides a harmonised legal framework for signatory countries. While the execution of some provisions of the 1970 Convention is directly related to the work of Customs authorities, the UNIDROIT Convention can only be executed by judicial authorities, as it provides a set of measures to be used in dispute resolution. Beyond the UNESCO 1970 Convention, in cases where countries recognise undiscovered or excavated antiquities as property of the State, Article 3.2 of the 1995 UNIDROIT Convention gives an extra incentive for restitution by recognising looted antiquities as stolen ‘when consistent with law of the state where the excavation took place’ (UNIDROIT 1995). Since the UNIDROIT Convention (46 Contracting States as of February 2019) allows much less flexibility in its interpretation, this might be the reason for its rather low rate of adoption.

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A tectonic shift happened after the beginning of the Arab Spring in 2011, as the world was becoming more aware of the rate of pillaging and destruction of cultural property in the MENA region. For the first time the protection of cultural heritage was addressed from a new angle—as being of paramount importance to peace and security—due to the investigation of possible linkages between illicit trafficking and terrorist financing. This topic gained momentum at the United Nations (UN) Security Council and led to the unanimous adoption of the UN Security Council Resolution 2199 in February 2015 under the binding Chapter VII of the United Nations Charter. The Resolution 2199 specifically condemned the destruction of cultural heritage in Iraq and Syria, particularly by terrorist groups, and decided that all member states should take measures in cooperation with UNESCO, International Criminal Police Organization (INTERPOL) and other international organisations to prevent trade in cultural objects illegally removed from either country during periods of conflict (United Nations Security Council  2015a). It also stipulates that all countries should take appropriate measures to prevent trade in Iraqi and Syrian cultural property illegally removed from Iraq since 6 August 1990 and from Syria since 15 March 2011. The prohibition to trade in Iraqi cultural objects was introduced in 2003 by the UN Security Council Resolution 1483, and the Resolution 2199 extended these measures to Syria. The link between the protection of cultural property and security was reinforced by the adoption of UN Security Council Resolution 2253 in December 2015 (UN Security Council 2015b), which highlighted possible connections between illicit trafficking of cultural objects and terrorist financing, thus bringing this matter to the top of the agenda of Customs and other law enforcement agencies all over the globe. Annex I to Resolution 2253 also empowers the UN Monitoring Team to review implementation gaps and challenges jointly with the WCO and other relevant organisations and member states. Therefore, in 2015 the protection of cultural heritage entered the global political discourse as a cornerstone for peace and security. This position was affirmed in March 2017, when the UN Security Council unanimously adopted Resolution 2347 on the protection of cultural heritage in the event of armed conflict. This Resolution was called ‘historic’ by the UNESCO Director General Irina Bokova and UN Security Council Members (Baldini 2017), particularly because it is the first comprehensive Resolution recognising the importance of the protection of cultural heritage for peace and security. The Resolution addresses both preventative measures and measures aimed at countering illegal looting, pillaging and trafficking of cultural objects at national and international levels. The Resolution also highlights the important role of Customs in the prevention of illicit trafficking and calls upon the

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WCO to assist its Members in countering trafficking in cultural property in all forms (UN Security Council 2017). In order to highlight the role of Customs in preventing the illicit trafficking of cultural objects as well as delineate available tools and instruments and necessary measures to fight effectively against this scourge, the Directors General of the 180 Customs administrations unanimously adopted the WCO Council Resolution at the July 2016 sessions (WCO 2016a). Unlike the UN Security Council Resolutions, the WCO Council Resolution is of non-­ binding nature. However, addressing this topic with the Council Resolution rather than a Recommendation or Declaration demonstrates a serious commitment of the global Customs community in this domain. The Resolution recognises possible links between the illicit trafficking of cultural objects, money laundering, other criminal activities and terrorism, which move this type of crime higher on the political agenda. It also underlines that international borders still offer the best opportunity to intercept stolen and looted cultural artefacts, thus reinforcing the role of Customs as a vital contributor in fighting against this scourge. The Resolution contains a number of practical measures, such as a wider use of export certificates for cultural objects, based on the UNESCO-WCO Model Export Certificate; contribution to and use of the WCO Customs Enforcement Network (CEN) seizures database in order to conduct more in-­ depth regional and global analyses; and the use of the WCO ARCHEO, a secure communication platform for Customs, Police and other stakeholders for faster identification of cultural objects and other operational matters (WCO 2016b). Acknowledging the variety of stakeholders involved in the prevention of illicit trafficking of cultural objects, the Resolution endorses cooperation on the national, regional and international levels with other law enforcement agencies, academia and non-governmental organisations.

 ustoms and Conflict Antiquities: A Supply Chain C Perspective Customs administrations have long been at the forefront of the fight against illicit trafficking of different commodities. With their powers and mandate expanding from revenue collection to enforcing an ever-growing variety of different import and export prohibitions and restrictions, ranging from intellectual property right (IPR) infringements to drugs, small arms and light weapons, dual-use goods, chemical substances, wildlife and ozone-depleting

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substances and bulk cash, customs administrations are a natural partner to prevent illicit trafficking in cultural objects. Customs do not only possess techniques to stop different types of trafficking; they also have an intrinsic knowledge of trade flows. However, with ever-growing volumes of trade, Customs administrations face a challenge to effectively monitor and control it. Prioritisation is of key importance, particularly when facing the expanding lists of prohibitions and restrictions. Apart from the use of the bilateral agreements discussed in the previous section, some countries found it useful to introduce the relevant provisions on the protection of cultural heritage directly in the Customs Code. In Cambodia, Article 8 of the Law on Customs (2007) maintains that the Government may prohibit or restrict import or export of certain goods for ‘the protection of national treasures of artistic, historic or archaeological value’. The Algerian Customs Code was modified in January 2017 in order to reflect the latest international Conventions ratified by Algeria, as well as incorporate vectors of reforms envisaged in the Customs Strategic Plan for 2016–2019. In particular, the Customs Code reinforces the mission of Customs in the domains of security and countering illicit trafficking of cultural objects and includes the provisions on temporary export within the framework of cultural or scientific exchanges and research, which can take place only upon explicit permission by the Ministry of Culture with the further engagement to repatriate these objects from exhibition or restoration. Other challenges are mainly of tactical and operational nature. In the past, illicit trafficking of cultural objects has been predominantly treated as a national or regional problem. Given the transnational nature of trafficking, measures have therefore been largely inefficient and the illicit market kept flourishing. Some major source countries for antiquities, such as Syria, Iraq, Libya, Yemen, Lebanon and Egypt, are seriously affected by violence stemming from armed conflicts, be it because of rebellions, terrorist activities, ongoing ­conflicts or post-conflict scenarios. Fragile borders, created as a result, are vulnerable and thus are exploited not only to further insecurity but also for trafficking of different commodities.1 Customs found itself as an actor in border security, a role which traditionally belonged to the Army. Customs, however, is the only governmental agency empowered by its mandate to balance trade facilitation and enforcement measures to provide safety and security,  The ‘fragile borders’ concept is embedded in the Fragile Borders Research Programme launched by Thomas Cantens (World Customs Organization, Auvergne University). The Programme aims to take into account the specific conditions of violence in borderlands from the security, trade and development perspectives. For more on the concept of fragile borders, see Cantens and Raballand (2016). 1

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create equal access to the market and redistribute wealth through taxation mechanisms. Unlike any agency with a security function, Customs deals with both sides of the trade, legal and illegal, on a daily basis. Therefore, Customs has naturally accumulated more knowledge and skills than other border agencies to distinguish between different types of trade flows and economic actors. Since illicit trafficking of cultural objects is a profitable business, in addition to conditions of general insecurity, trying to prevent it may result in targeted violence against Customs officers. In 2005, Iraqi Customs in support of the coalition forces arrested several antiquities dealers in the town of Al Fajr. They seized hundreds of artefacts and wanted to take them to the Baghdad National Museum. The convoy was stopped several kilometres from Baghdad, eight Customs officers were killed, their bodies burnt and left in the desert and the cultural objects disappeared. Antiquities dealers were strongly supported by the local population, not only because they provided an alternative income source through the digging of archaeological sites but also because they hired people from different fractions and communities (Bajjaly 2008, p. 138). Due to the limited operational capacities at the fragile borders stemming from insecurity, there is a need to look further down the supply chain to prevent trafficking. Throughout his work as the head of investigation of the looting of the Baghdad Museum in Iraq, US Marine Colonel and New York City Assistant District Attorney Matthew Bogdanos (2008, p. 119) came to the conclusion that one of the best ways to recover stolen and looted objects, especially when the objects are small and easily transportable, is at borders where Customs and other enforcement agencies are empowered to inspect freight and luggage. With the heightened security measures due to counter-­ terrorist activities in the neighbouring countries, it is more probable for law enforcement agencies to seize antiquities at the border. For example, in 2004–2005 Jordanian Customs seized a considerable amount of Iraqi antiquities (Parapetti 2008, p. 229). This was also due to the fact that the Jordanian government had established a specialised Unit on the Iraqi border since 2003 to control illicit movement of antiquities, which detected and seized many objects, including cuneiform tablets, stamps and statues that were later restituted to Iraq (Department of Antiquities of Jordan 2010). In a similar vein, Algerian Customs recently introduced mobile brigades in two regions with the mission to safeguard national cultural heritage as well as flora and fauna, including CITES, Convention on International Trade in Endangered Species, protected species in the national parks of Ahaggar and Tassili. These brigades cooperate with the tourism agencies to ensure that tourists are aware of their rights and obligations in these domains (Goutali 2015). From January to July

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2016, one of these brigades in the Tamanrasset region made seizures of 67 metal detectors along with 5 jackhammers. Seizures were made jointly with the National Army on two occasions out of four (Direction Générale des Douanes 2016, p.  8). Since the outbreak of the Syrian conflict in 2011, numerous seizures by Customs and security forces in neighbouring countries, particularly Turkey and Lebanon, confirm that transit countries can play a vital role in preventing illicit trafficking of cultural objects. Free ports that are used for warehousing, transit and transshipment purposes have also come under scrutiny by law enforcement agencies. In particular, Switzerland, whose Free Ports were long considered as an entrepôt of stolen and looted cultural objects, changed its Customs Act on 1 January 2016 to allow Customs and contractors to monitor and control entry and exit of commodities from its Free Ports. In April 2013, Swiss Customs discovered nine cultural relicts from Syria’s Palmyra, Yemen and Libya, which were placed in the Geneva Free Port between 2009 and 2010. Most of the objects arrived in Switzerland via Qatar. The public prosecutor ordered the confiscation of the objects, and they are currently waiting for repatriation and are stored at the Geneva Museum of Art and History. In mid-November 2016, an antique stela was also discovered during the controls and restituted to the Egyptian authorities. In May 2016, the Court of Justice of Geneva decided to restitute a white marble sarcophagus to Turkey, which had been stored at the Free Port for many years (Tribune de Genève 2016). The Free Port of Geneva served as a point of controversy for decades, and many important stolen and looted antiquities have been discovered there. Going down the supply chain, the destination countries are tactically well positioned to prevent illicit trafficking of cultural objects: their operational reality is very different from the source countries and since most of the destination countries have a better operational capacity and established legal procedures, this type of activity is easier to conduct. However, the issue of awareness raising and prioritisation is also very important. In the aftermath of the war in Afghanistan and during the war in Iraq, the military and law enforcement agencies in the destination countries received a lot of information, including catalogues with photographs of stolen and looted objects from conflict areas. The results of this awareness raising translated into seizures and arrests. Between 2003 and 2007, more than 1500 artefacts from Afghanistan weighing approximately 3.4 tonnes were seized by the UK Border Agency (later known as UK Border Force) mainly at Heathrow airport from passengers coming from Pakistan and UAE (Simpson 2015, pp.  184–186). Before repatriation, the seized objects were studied at the British Museum and sample photographs were used to develop the

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International Council of Museums (ICOM) Red List of Afghan Antiquities at Risk, launched in 2008. The launch of the Red List and subsequent heightened awareness led to more seizures executed by the UK Border Force and Metropolitan Police in the next years amounting to 821 objects, which were repatriated to Afghanistan in 2012 (Ibid.). Prioritisation can manifest itself in different forms; however, a legal framework that provides instruments to operate in this domain has to be supported by law enforcement agencies. After the conclusion of a number of bilateral agreements with source countries, a specialised team at the Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) was established to lead investigations on illicit importation of cultural property and its distribution in the United States. While US Customs and Border Protection (CBP) is directly responsible for points of entry, they cooperate closely with the ICE HSI team that conducts further investigations and participates in restitutions. Since 2007, approximately 8000 artefacts were restituted to more than 30 countries by ICE HSI (ICE 2017). CBP and ICE HSI agencies work in close cooperation with each other, as well as with other governmental agencies and private institutions, such as the Prosecutor’s Office and the Smithsonian Institution. One of the most notorious seizures made by US Customs was a headless inscribed limestone statue from Lagash, Iraq, dating to approximately 2450 BC.  The statue was stolen from the National Museum of Baghdad, and Customs importation documents stated that the statue’s origin was from Syria (US ICE 2008). The investigation revealed a complex smuggling route from Baghdad to Damascus, then via Beirut and Geneva to the United States (Bogdanos 2005, p. 229). On 30 April 2003, US Customs at Newark airport made a seizure of five FedEx boxes from London containing coins, copper knives, glass bottles, a bronze stick and other objects. The objects were imported by an art dealer in Newark who declared them as of British origin. After the expertise, it was revealed that the boxes contained 671 artefacts from Iraq (ICE 2008). All the above-mentioned objects, along with other artefacts, amounting to more than 1000 pieces, were restituted to Iraq in 2008 (ICE 2008). Apart from the legal framework and its appropriate enforcement, one of the major contributing factors to the prevention of illicit trafficking of cultural objects is training of Customs and other law enforcement agencies. Apart from several countries, such as France and the United States, which have included training in this domain for their field officers, most countries do not have specialised training modules for Customs in this area. The training in the US, which is coordinated by the US State Department’s Cultural Heritage Center, Smithsonian Institution and US ICE, started more than a decade ago

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and yields very positive results. At the same time, none of the Customs administrations in the MENA region has this topic included in the training of Customs officers. In order to fill this gap, the WCO developed and started the deployment of the specialised training, codenamed PITCH (Preventing Illicit Trafficking of Cultural Heritage) for frontline Customs officers (WCO 2018) that includes awareness-raising material and tackles specific techniques related to identification, handling and investigating this type of offence. Customs-Police cooperation has been recognised as vital for the prevention of illicit trafficking of cultural objects and to ensure successful investigations and prosecutions. Security forces and the Army have also become important actors in countries suffering from instability or neighbouring them. Therefore, operational and tactical coordination and exchange of information between all law enforcement agencies and the Army in specific geographical locations are critical factors for success in this area. However, since the law enforcement agencies have no expertise in identifying and authenticating cultural objects, the Ministry of Culture, along with the museum community, emerges as a natural partner. Different models have been explored to enhance this cooperation. Egypt and Peru developed a practice to deploy archaeologists or representatives of the Ministry of Culture at the border crossing points and in major airports along with Customs and Police. For example, in Egypt, the representatives of the Ministry of Antiquities work at 40 border crossing points around the country and inspect objects together with law enforcement colleagues. Given the time restrictions, particularly at airports, where passengers are usually in a hurry to catch their flight, this approach allows for a fast and efficient distinction between antiquities and souvenirs in order not to disrupt the flow of law-abiding passengers. In other countries, like Lebanon, Tunisia or France, experts designated by the Ministry either travel to the location where the seizure was made or objects are transferred to the Ministry or a museum for further examination. In order to fill the gap in cases where national expertise is not available, the WCO ARCHEO communication platform, which has also been highlighted in the UN Security Council Resolution 2347, brings together law enforcement agencies and identification experts to facilitate the identification process in an operational way through a secure communication channel (WCO). Customs and Police can request assistance through the network based on a photo of the object and a short description. The WCO, in cooperation with INTERPOL and the International Council of Museums (ICOM), can assist in soliciting the necessary expertise in the shortest time possible. The circulation of falsified paperwork, including Customs documentation and export certificates,

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also poses a serious challenge for Customs. In 2013, Her Majesty Revenue and Customs (HMRC) officials discovered a marble statue worth around £2 million in a warehouse in west London. The statue was looted from the Cyrenaica region in Libya and smuggled into the UK in 2011 via Dubai, UAE. The owner provided falsified paperwork, claiming that the statue was of Turkish origin and was worth £60,000 (Ward 2015). When Customs authorities have no possibility to check the authenticity of documents, this type of fraud cannot be detected. The ARCHEO network can provide a safe and secure way to exchange this type of information with Customs authorities and other relevant governmental agencies of the exporting country. Last but not least, another natural partner for Customs and other law enforcement agencies, especially in the source countries, is the local population and the border community. A phenomenon of ‘sharing the burden’ between non-state actors and law enforcement agencies, particularly in the domain of so-called soft crimes, has emerged rather recently (Polner 2015, pp.  337–338). Since cultural objects are not illegal by nature and have a symbolic value for the local community, the local population might be more willing to protect them and cooperate with law enforcement agencies to prevent illicit excavation and trafficking. While a part of the local population can be engaged in illicit excavations, examples from Syria, Mali and other countries send a strong positive signal and should be taken into account when strategies to counter looting and illicit trafficking of cultural objects are developed.

Conclusion While looting, pillaging and destruction of cultural objects and antiquities are not new phenomena, a massive public outcry following the looting and destruction of iconic sites, such as Timbuktu mausoleums and Palmyra, has led to a re-evaluation of the policies and solutions that have been employed up to date. A change of paradigm where countries enforce not only the protection of their own cultural heritage, but also the protection of the cultural heritage of other countries has been recently intensified. Therefore, new policies include the need to involve actors, such as Customs administrations that, with exception of several countries, have played a marginal role in this area of enforcement. Apart from an adequate legal framework, prioritisation and awareness raising play an important role along with more specific training that should be

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available to Customs officers. While such training exists in other domains of Customs enforcement, it is currently almost non-existent on the national level in the area of prevention of illicit trafficking of cultural objects. As demonstrated in several case studies, awareness raising, prioritisation and basic training can yield positive results within a rather short timeframe and are not as demanding in terms of resources. National stakeholder cooperation, as well as its international dimension, is key, due to the nature of trafficking of antiquities. Depending on the situation, the stakeholders may comprise different state and non-state actors such as Customs, Police, security forces and the Army, Ministry of Culture, museum professionals, local population and the border community. While coordination takes a lot of time, willingness and effort, if organised efficiently, it becomes an important factor of success. The current crisis has brought a growing understanding that transit and destination countries have a bigger role to play not only because they may have better capabilities to prevent illicit trafficking if compared with the countries going through political instability and violence, but also because prevention of looting and destruction of cultural heritage by armed groups is politically and historically important for the humanity and not only for source countries. Nevertheless, despite the fact that the source countries that are in crisis are less well positioned to fight against trafficking, there is one important argument to consider. Unlike other commodities, cultural objects do not raise any controversy on the local level. The cooperation between Customs and the local population in this field may contribute to reinforcing the links between the local communities and the governmental authorities in areas where the latter have been traditionally considered purely from a coercive perspective. In its turn, this cooperation may evolve in building trust between them and re-­ installing public services in these areas, especially in the post-conflict scenario, leading to the reinvigoration of economic life and stability. And finally, from the tactical perspective, since the data on this illicit market are scarce, Customs and Police are well placed to collect the seizures data on a more regular basis. This data would shed more light on the illicit market and its trends and patterns, specifically referring to such variables as the types of demand, shifts in supply, trafficking routes and concealment methods. The analysis would also fuel work in other areas of enforcement, such as money laundering and other illicit markets, and may assist with further investigations. As a final product, it may allow to better evaluate the effectiveness of the policies in place and correct them in case of need.

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Simpson, S. J. (2015). Back to Kabul: Case studies of successful collaboration. In F. Desmarais (Ed.), Countering illicit traffic in cultural goods: The global challenge of protecting the world’s heritage. Paris: ICOM. Staley, D. P. (1993). St Lawrence Island’s subsistence diggers: A new perspective on human effects on archeological sites. Journal of Field Archaeology, 20(3), 347–355. Stone, P., & Bajjaly, J.  (2008). The destruction of cultural heritage in Iraq. Woodbridge: Boydell. Swiss Federal Council (2003). Federal Act on the International Transfer of Cultural Property, 20 June 2003 (SR 444.1). Retrieved December 18, 2018, from https:// www.bak.admin.ch/bak/en/home/cultural-heritage/transfer-of-cultural-property/ legal-basis.html. Swiss Federal Office of Culture. (2016). Import, transit and export of cultural property. Retrieved March 20, 2018, from http://www-temp.bak.admin.ch/kulturerbe/04371/04377/index.html?lang=en. Trade Arabia. (2017, March 13). Sotheby’s Dubai marks official opening. Retrieved May 17, 2017, from http://www.tradearabia.com/news/LIFE_321892.html. Tribune de Genève. (2016). Des biens pillés en Syrie saisis aux Ports Francs. Retrieved December 19, 2016, from http://mobile2.tdg.ch/articles/5841f03fab5c376113 000001. UN Security Council. (2015a). Resolution 2199, S/Res/2199. Retrieved April 18, 2017, from http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2199 %20%282015%29. UN Security Council. (2015b). Resolution 2253, S/Res/2253. Retrieved April 18, 2017, from http://www.un.org/fr/documents/view_doc.asp?symbol=S/RES/2253 (2015)&TYPE=&referer=http://www.un.org/fr/sc/documents/resolutions/2015. shtml&Lang=E. UN Security Council. (2017). Resolution 2347, S/Res/2347. Retrieved April 3, 2017, from http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/ 2347(2017). UNESCO. (2014). Evaluation of UNESCO’s standard-setting work of the culture sector. Part II  – 1970 convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property. Final Report by Barbara Toggler, Margarita Abakova, Anna Rubin and Ana Filipa Vrdoljak. Paris: UNESCO. UNESCO. (2017). Convention for the protection of cultural property in the event of armed conflict with regulations for the execution of the convention. The Hague, May 14, 1954. Retrieved June 20, 2017, from http://www.unesco.org/eri/la/convention.asp?KO=13637&language=E. UNIDROIT. (1995). UNIDROIT Convention on stolen or illegally exported cultural objects, Rome. Retrieved March 22, 2017, from http://www.unidroit.org/instruments/cultural-property/1995-convention. United Nations. (2015). Unanimously Adopting Resolution 2199 (2015), Security Council Condemns Trade with Al-Qaida Associated Groups, Threatens Further Targeted Sanctions. Retrieved August 2, 2016, from http://www.un.org/press/ en/2015/sc11775.doc.htm.

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WCO. (2016a, July 15). WCO steps up efforts to deter illicit trafficking of cultural objects. Retrieved August 9, 2016, from http://www.wcoomd.org/en/media/ newsroom/2016/july/wco-steps-up-efforts-to-deter-the-illicit-trafficking-of-cultural-objects.aspx. WCO. (2016b). Resolution of the Customs Co-operation Council on the role of Customs in preventing illicit trafficking of cultural objects, Brussels. Retrieved March 12, 2017, from http://www.wcoomd.org/-/media/wco/public/global/pdf/about-us/ legal-instruments/resolutions/resolution_cultural-objects.pdf?la=en. WCO. (2017a). Trafficking of cultural property. Retrieved May 18, 2017, from http:// www.wcoomd.org/en/topics/enforcement-and-compliance/activities-and-programmes/trafficking-of-cultural-objects.aspx. WCO. (2018). WCO publishes new tool to assist countries in the prevention of illicit trafficking of cultural heritage. Retrieved 12 December 2018, from http:// www.wcoomd.org/en/media/newsroom/2018/november/wco-publishes-newtool-in-the-prevention-of-illicit-trafficking-of-cultural-heritage.aspx. Xinhua. (2005, July 5). 200,000 tombs plundered in past decades. Retrieved May 20, 2017, from http://www.china.org.cn/english/China/134102.htm. Yates, D. (2015). Illicit cultural property from Latin America: Looting, trafficking, and sale. In F. Desmarais (Ed.), Countering illicit traffic in cultural goods: The global challenge of protecting the world’s heritage. Paris: ICOM.

Part V Some Ethical and Allied Challenges

35 The Return of Looted Objects to Their Countries of Origin: The Case for Change David W. J. Gill

Introduction The looting of classical sites since the Second World War, in order to meet the demand for ‘ancient art’ by museums and collectors, has brought about the destruction of key archaeological sites around the Mediterranean. For example, the important early Bronze Age site in the Cycladic islands in the Aegean led to the surfacing of the ‘Keros Haul’. This consisted of fragmentary Cycladic figurines, some of which have been displayed in major exhibitions in Europe and North America (Thimme 1977; Getz-Preziosi 1987; Getz-Gentle 2006; for Keros, see Sotirakopoulou 2005; Gill 2007; Getz-Gentle 2008; Renfrew 2008; Sotirakopoulou 2008; Papamichelakis and Renfrew 2010; for Cycladic figures, see Gill and Chippindale 1993; Gill and Chippindale 2002). In Turkey, the archaic temple site of Düver led to the dispersion of its important series of architectural terracottas (Thomas 1964/1965). The sebasteion, or sanctuary of the Roman imperial cult, at Bubon, also in Turkey, led to the removal of a series of major imperial portraits that have been dispersed to collections in Europe and North America (some feature in Mattusch 1996). Such ‘celebrated’ cases of looting helped to contribute to the formulation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Vitelli 1980). The discussion concentrates on the problem of looting of classical sites in the countries around the Mediterranean since the 1970 Convention. There is D. W. J. Gill (*) University of Suffolk, Ipswich, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_35

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not scope here to discuss long disputed claims relating to cultural property such as the Parthenon sculptures (for the Parthenon: e.g. St. Clair 1983; Cook 1997; Howland 2000; Jenkins 2001; Hitchens 2008; for a discussion of the UK Parliamentary response to Greek claims, see Gill and Chippindale 2002). It could extend to other items, such as the architectural sculptures from the great Mausoleum at Halikarnassos in modern Turkey to the frieze from the temple of Apollo at Bassai in western Greece (Jenkins 1992). Other prominent ancient sculptures could include the Aphrodite from the island of Melos in the Aegean (the Venus de Milo) or the pedimental sculptures from the temple of Aphaia on the island of Aegina. One of the issues that has hampered the control of looting has been the export or trafficking of looted objects. There is evidence to prove that objects were removed from archaeological sites by unauthorised means and then brought out of their country of origin, normally contrary to local laws. In the last ten years there has been a major change in the acquisition of such recently surfaced materials thanks to a series of raids on the premises and homes of dealers in antiquities in Switzerland, Greece and the United Kingdom. These raids seized photographic and documentary evidence that was able to suggest how objects were moved across international boundaries and shed light on the networks involved (Watson 1997; Watson and Todeschini 2006; see also Gill 1997; Gill and Chippindale 2007b). Although there is a desire in some parts of the museum community and the art market to seek reform, there is unwillingness in other quarters to address concerns. This chapter suggests that—given the scale of the problem—there needs to be a fresh approach and the adoption of more rigorous due diligence processes to safeguard museums and collectors from future claims and legal action (Gill 2016a).

The Early Returns and Some Outstanding Claims The lack of evidence relating to looting has impeded the return of disputed cultural material. Countries would have to prove in a court of law that a criminal act had taken place. The Turkish Government successfully pursued New York’s Metropolitan Museum of Art over its acquisition of a hoard of west Anatolia silver plates known as the Lydian hoard (Bothmer 1984; Özgen and Öztürk 1996). The material appeared to come from elite burials in Lydia (Roosevelt and Luke 2006). The Republic of Cyprus pursued a series of Byzantine frescoes from Kanakaria that were looted in 1979. Some of the mosaics ended up in Indianapolis (Gerstenblith 1995; Sease and Thimme

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1995). The Greek Government pursued the Bronze Age treasure of Aidonia that was being offered by a New  York dealer (Demakopoulou 1996; Demakopoulou and Divari-Valakou 1997). The Turkish Government was able to secure the return of part of the Dekadrachm Hoard that had been found near Elmali in 1984 (Apostolidis and Brodie 2007). The UK Government was unable to secure the return of a series of Roman bronzes from the rural site of Icklingham in Suffolk (Reynolds 1990; Browning 1995). These were acquired by New York collectors Shelby White and Leon Levy and one of the bronzes was even displayed in an exhibition at Harvard University Art Museum (Mattusch 1996; for the display, see Cuno 2008; Gill 2009a). The Italian Government has so far been unsuccessful in their legal pursuit of the Fano athlete that was acquired by the J. Paul Getty Museum (Mattusch 1997). This had been found in the Adriatic and subsequently landed in Italy. The ownership of the major treasure of late Roman plate known as the Sevso Hoard could not be challenged successfully in the courts because the country of origin where the material was found could not be confirmed with any certainty (Mundell-Mango 1990; Mundell-Mango and Bennet 1994; see also Leader-Newby 2004). The Egyptian legal attempt to recover the Ka Nefer Nefer mummy mask excavated at Saqqara was unsuccessful (Gill 2014a). Concerns about looting in Italy have been raised from time to time. One of the prompts was the appearance of one of the tombaroli, who operated in the Etruscan cemeteries of Tuscany (Perticarari and Giuntani 1986). Other studies have drawn attention to the widespread looting in the cemeteries of southern Italy (Graepler and Mazzei 1996). A major quantitative study of classical material in private collections drew attention to the high percentage of objects that had only appeared subsequent to the 1970 UNESCO Convention (Chippindale and Gill 2000; see also Chippindale et  al. 2001). The ­methodology relating to the material consequences has been discussed by Marlowe (Marlowe 2016a), with responses from other scholars (Bell 2016; Gill 2016b; Lyons 2016; Marlowe 2016b). In spite of these concerns being raised in the public arena, looting has continued and classical material regularly surfaces on the market (Gill and Tsirogiannis 2011).

Sotheby’s in London One of the major incidents to change the market’s view of recently surfaced antiquities took place in the 1990s. A member of staff in the antiquities department at Sotheby’s in London handed over a significant amount of paperwork to a journalist (Watson 1997; see also Gill 1997). This led to a

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major investigation that allowed the route from Italy to London via middlemen in Switzerland to be identified. The paperwork indicated that a substantial part of each sale in London was derived from a single Swiss-based vendor. One of the results was that Sotheby’s decided to stop having dedicated sales of antiquities in London. It also appears that the auction house has adopted a more rigorous due diligence process for objects that are offered for sale. This is reflected by the reduced number of classical items that have been challenged on the basis of photographic evidence. One of the categories of material highlighted by the case of Sotheby’s was related to the selling of Apulian pottery (Elia 2001). Watson and his team were able to film the night-time looting of a cemetery in Puglia. A separate study by R. Elia has demonstrated that perhaps as little as 5.5 per cent of the corpus of Apulian pottery has come from scientific excavations, reminding us of the scale of damage to the archaeological record in pursuit of gaining material that can be sold on the market (ibid.). There are also intellectual consequences for understanding the material, as contexts and associations are lost on a permanent basis. An issue that has yet to be resolved is whether or not the Swiss middlemen involved in the Sotheby’s case were supplying objects to locations outside London, such as New  York. If this was demonstrated to be the case, then equal due diligence would need to be applied to objects that have passed through those routes. The same ‘red flag’ system that applied for objects with a collecting history of ‘Sotheby’s, London’ from the 1980s and 1990s perhaps should be applied to other locations.

The Impact of the Geneva Freeport The investigation into the network supplying Sotheby’s in London led directly to a warehouse facility in Geneva Freeport. A large number of objects were seized alongside a major photographic archive. These images and related documentation have provided the information that has led to the return of a significant number of objects and is informally known as the ‘Medici Conspiracy’ (Watson and Todeschini 2006; see also Gill and Chippindale 2007b). Images have led directly to the identification of objects in public collections, as well as objects more recently surfacing on the art market. This portfolio of documentation was supplemented by additional seizure of images and paperwork from the Basel storage facilities of Gianfranco Becchina and the residential office of Robin Symes on the island of Schinousa. These

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three sets of photographic and documentary information have transformed the strategy of pursuing objects suspected of being looted and removed from their country of origin.

European-Based Dealers The returns to Italy have shown that a number of high-profile dealers have been linked to the handling of recently surfaced antiquities (Watson 2006). One of the most prominent has been Robin Symes, based in London (Tsirogiannis 2012). The content of his series of some 29 warehouses in London was seized and his photographic archive found at his home on the Greek island of Schinousa was used to identify objects passing through the market. One of the most important pieces that has been returned to Italy was the ivory mask from a Roman period chryselephantine statue. The warehouse contents of Gianfranco Becchina were seized in Basel, Switzerland, and over 4000 objects returned to Italy in November 2008. The content was revealed in January 2015 in the Terme di Diocleziano del Museo Nazionale Romano. One of Becchina’s associations was the Japanese dealer Noryioshi Horiuchi. In 2010, over 300 objects worth €15 million were returned to Italy as part of Operation Andromeda. Horiuchi is linked to the supply of objects to the Miho Museum in Japan, where the Italian authorities have identified a number of items through photographic evidence.

North American Galleries and Auction Houses The scandal at Sotheby’s in London should have alerted auction houses and galleries to the potential problem of handling recently surfaced antiquities. In November 2007, the Royal-Athena Galleries in New York agreed to return eight objects to Italy (Gill 2010b). Three of the Etruscan bronzes had been reported as having been stolen from collections in Chiusi, Napoli and Ferrara. In 2010, some 16 pieces worth at least $493,000 (though the prices for five of the items were unknown or undisclosed) were identified by Tsirogiannis from images seized by the police from the Schinousa archive (Symes), from the Becchina archive (including material linked to Mario Bruno in Lugano) and from the Medici Dossier. Additional pieces, such as a pair of Apulian kraters (known from the Schinousa archive), were also spotted for sale through the Galleries in 2012.

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Edward Merrin acquired a Bronze Zeus by 1984 (Gill 2011, p. 60). It was claimed to have been acquired from a Swiss dealer in the 1960s, a statement that appears to be particularly problematic, not least because it had been stolen from the Museo Nazionale Romano in 1980. The Zeus was returned to Italy in 2011. A number of objects have been identified from the photographic archives as they passed through Christie’s in the Rockefeller Centre in Manhattan. Items include a Corinthian krater seized pre-sale in 2009, as well as an Attic pelike attributed to the Aegisthus painter and an Apulian situla that was seized subsequent to the sale (Gill 2010a, p. 4). Three further pieces were spotted in June 2010. A Roman janiform head was also returned to Italy after passing through the December 2009 sale. A number of objects that had passed through the same New York antiquities gallery were seized from two separate and unnamed Manhattan galleries in May 2017. These items included Sardinian, Apulian, Paestan and Proto-Corinthian material.

North American Public Museums One of the striking issues to emerge about the returns is that major North American museums regularly acquired recently surfaced archaeological material in spite of the 1970 UNESCO Convention and the 1983 acceptance by the United States (see O’Keefe 1997). Over 120 items have been returned from these museums, largely, though not entirely, as a result of identifications made from the seized Medici Dossier (Gill 2018). The Getty led the way with two returns: the Paestan Asteas krater and an Attic red-figured cup with Etruscan graffito. However, in 2006, Boston’s Museum of Fine Arts agreed to return some 13 items after initially rejecting approaches from the Italian authorities (Gill and Chippindale 2006; Gill and Chippindale 2008). These returns were followed by the handing over of the torso of the Weary Herakles—once part of the Shelby White and Leon Levy collection—to Turkey, so that it could be reunited with the lower part of the statue that had been excavated in Turkey and placed on display in the Antalya Museum. Other civic museums have returned objects. One of the most prominent was New  York’s Metropolitan Museum of Art. The most prestigious item was the Athenian red-figure calyx-krater ‘painted’ by Euphronios that had been purchased for the museum in 1972 for $1  million (Gill 2012b). Among the returns from the MMA was the Morgantina silver hoard (Lyons

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et al. 2013, pp. 140–141, fig. 80). This had formed part of the major holdings of Greek silver plates in the museum (Bothmer 1984; for gold and silver plate in antiquity, see Vickers and Gill 1994). The pit where the hoard had been buried has been identified along with a coin providing a terminus post quem of 214–212 BC. The hoard had belonged to an individual named Eupolemos. Other civic collections include the Cleveland Museum of Art that agreed to return 14 items in November 2008. The objects included a number of South Italian pots, as well as two silver Etruscan bracelets that had been presented to the museum in honour of its former curator Arielle P. Kozloff. In April 2017 it was announced that the museum would be returning the marble head of Drusus Minor that it had acquired in 2012 (Gill 2017). Although it was claimed that the head had formed part of a private collection in Algeria in the nineteenth century, it is now clear that it had been excavated at Sessa Aurunca in Italy during the 1920s and placed in the local archaeological store. There appears to have been a serious failure in the due diligence process and the case highlights the need for museums to obtain authenticated documentation to support acquisitions. The Minneapolis Institute of Art agreed to return an Attic volute-krater that had been handled by both Symes and Medici (Gill 2011). The Toledo Museum of Art agreed to return an Etruscan hydria attributed to the Michali painter. The hydria had been handled both by Medici and by Becchina. One of the museums that proactively conducted a due diligence search on its collections before it was formally asked to do so was the Dallas Museum of Art (Gill 2013a). The prompts were the revelations about Edoardo Amlagià and his association with Princeton University Art Museum (Gill 2012a). The Dallas Museum identified a number of Etruscan and South Italian pieces that were returned to Italy, simultaneously with the Orpheus mosaic that was shown to have been derived from Edessa (Urfa) in Turkey. The J. Paul Getty Museum was also included in a series of returns amounting to 49 items (Gill and Chippindale 2007a). The museum made two separate, but equally significant, returns in 2006 and 2007. These included the acrolithic Aphrodite from Morgantina (Felch and Frammolino 2011). Seven of the items were formerly in the Barbara and Lawrence Fleischman collection. Subsequent to this, the museum returned a terracotta head of Hades to Italy (Lyons et al. 2013, p. 192, fig. 133). It was acquired by the Getty in 1985 (inv. 85 AD 105). It seems to have been removed from the sanctuary at San Francesco Bisconti at Morgantina. In addition, the Getty returned two further items to Greece: an inscription from Thorikos and funerary stela frag-

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ments acquired from Nikolas Koutoulakis that fit a further piece in the Kanellopoulos Museum in Athens. Three university museums have made returns. The most notable was the Princeton University Art Museum with two separate returns (Gill 2012a). This included large numbers of terracotta architectural fragments from Etruscan temples. One of the batches consisted of 157 items. Among the other items were fragments of an Attic red-figured calyx-krater attributed to Euphronios. The collection at Fordham University contained a Villanovan hut that has been the subject of a transfer of ownership to the Italian Government (Cavaliere and Udell 2012). The University of Virginia Art Museum in Charlottesville returned two acrolithic statues that had formed part of the Maurice Tempelsman collection. These seem to relate to the Aphrodite returned from the Getty.

The North American Private Collectors The returns to Italy have featured a number of high-profile North American private collections. There have been long held concerns based on the analysis of the collecting histories of objects from such collections and presented in high-profile public exhibitions (Chippindale and Gill 2000; for earlier work looking at the material and intellectual consequences of looting, see Gill and Chippindale 1993; see also Chippindale et al. 2001). Although such concerns have been rejected by Mackenzie (2005), it is clear that the lack of collecting histories was a strong indicator for potentially looted items. The private collections include objects that had formed part of the items collected by the Hunt Bothers (Tompkins 1983). One of the high-profile pieces was the Euphronios Kyknos krater that was acquired by Shelby White and Leon Levy (Bothmer 1990). White came to an agreement with the Italian authorities in January 2008 that included Attic pottery, a pair of Caeretan hydriai as well as two fragments of Roman paintings. White also returned a bronze krater, allegedly found in Macedonia, and a fragmentary marble stele (from a rural cemetery in Attica where the lower part of the stela had been found) to Greece. Many of the pieces had appeared in a major public exhibition at the Metropolitan Museum of Art in New York. Additionally, their torso of the Weary Herakles was returned to Turkey from Boston’s Museum of Fine Art. The bronze krater had appeared as a cover in an exhibition of the White-Levy bronze collection. One of the Roman wall painting fragments appeared to come from the same composition as two fragments once in the

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Fleischman collection and then acquired by the Getty (Exhibition catalogue 1994). Many of the Fleischman pieces had been displayed in a major public exhibition at the Cleveland Museum of the Art and then at the Getty. Moreover the Merrin Zeus that had been returned to Italy had once formed part of the Fleischman collection, as well as a Campanian bird askos returned from Cleveland. The collection of Michael Steinhardt in New  York City included a gold phiale (Guzzo et al. 2010; Lyons et al. 2013, pp. 44–46, fig. 24). A Greek inscription shows that it was linked to Damarchos, son of Achyris. It also carried a weight inscription of ‘115 gold pieces’ using a numerical notation in use in the western part of Sicily. It has been suggested that it came from Caltavuturo on Sicily. The phiale was seized in 1995. Steinhardt has subsequently been linked to the intended sale of a Sardinian figure that was offered at Christie’s in New York in 2014, but it had to be withdrawn from the sale when it was recognised from a Polaroid in the Medici Dossier. One of the most unexpected returns was a major group of 40 figure-­ decorated pottery fragments that had formed the private collection of Dietrich von Bothmer, curator at the Metropolitan Museum of Art (Gill 2012c). It was reported that they had been part of pots already returned to Italy from other (largely North American) collections. Some of Bothmer’s fragments had formed part of reconstructed pots that had been returned by the Getty, such as the krater attributed to the Berlin painter. In all, Bothmer is reported to have donated over 100 such fragments to the Getty. Although the Metropolitan Museum of Art has only published a limited number of images from Bothmer’s extensive collection, it was possible to connect some of the fragments to an Attic red-figured cup that was in the Villa Giulia in Rome (Tsirogiannis and Gill 2014). It is unclear how Bothmer acquired such pieces for his collection. Another curator/private collector was J. Robert Guy, once curator at the Princeton University Art Museum and also collector of pottery fragments. Guy had supplied 15 missing fragments to the Attic red-figured amphora attributed to the Berlin painter that had been returned to Italy from New York’s Metropolitan Museum of Art. It is unclear how Guy had acquired the fragments, given that the amphora itself had appeared in the Medici Dossier. Part of Guy’s pottery fragment collection had been acquired (by purchase) by Harvard, though the sources of individual fragments have not been identified (Paul 1997). A further piece from an unnamed North American private collection was the marble portrait head of Emperor Tiberius (Gill 2017). It was found, with the Drusus Minor portrait head once in the Cleveland Museum of Art, dur-

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ing excavations at Sessa Aurunca in the 1920s. This is reported to have been returned to Italy in early 2017.

Due Diligence and the Auction Houses The investigation into Sotheby’s in London during the 1980s and 1990s led to the Medici warehouse in Geneva Freeport (Watson 1997). One of the results was that Sotheby’s decided to stop selling antiquities through London and to enhance its due diligence process especially for its sales in New York. This meant that relatively few pieces offered through Sotheby’s have been identified from the photographic archives. This exposé of working practice should have led to auction houses being alert to the potential of recently surfaced antiquities appearing at auction. In October 2008, Bonhams in London offered items from the Graham Geddes collection for auction (Gill 2014b, p. 47). An attic red-figured krater that had surfaced at Sotheby’s in May 1985 featured on the cover of the Bonhams magazine to add publicity for the upcoming sale. The name Geddes had been written against one of the photographs used as an illustration alongside the auction catalogue featuring in Peter Watson’s exposé of Sotheby’s  (Watson 1997). This should have placed the auction house on alert. The contemporary sale also included a piece once handled by Robin Symes. This prompted a call by the Italian minister for the sale to be stopped and a number of objects were withdrawn. In spite of the publicity surrounding this sale, there continue to be sightings of recently surfaced objects in sales in London and New York (Gill and Tsirogiannis 2011; Tsirogiannis 2013). Initially, the auction houses tried to ignore calls for the lots to be withdrawn, though in recent years they have tended to remove items without public statement. One of the issues relating to lack of transparency is that auction houses tend to obfuscate by using the term ‘provenance’ (Gill 2010a). ‘Good provenance’ can be taken to mean that the object passed through the hands of a pukkah individual, rather than having a well-established collecting history. It is clear that all too frequently auction houses have taken the word of vendors about where the item had resided and have tended to trust those oral histories in the face of established photographic and other documentary evidence, in part derived from the Medici dossier, as well as the Schinousa and Becchina archives. Another issue that has emerged is that some of the collecting histories can be fabricated. These histories need to be supported by

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documentation and, in particular, by documentation that has itself been authenticated.

Museum Acquisitions Over 350 objects have been returned from North American collections to Italy and this may represent perhaps as little as 1 per cent of the objects appearing in the thousands of photographs and documents. Museums should have learnt from poorly researched acquisitions. For example, the Getty kouros, subsequently shown to have been a modern creation, was acquired from Becchina in 1983 for $10  million (Getty Museum 1993). The acrolithic Aphrodite from Morgantina was acquired for $18 million in 1988 (Felch and Frammolino 2011). Such examples should indicate caution, especially when substantial sums of money are changing hands. Yet, there are examples that museums are not heeding advice. In 1998 the St Louis Art Museum acquired an Egyptian mummy mask for $499,000 from Phoenix Ancient Art (Gill 2014a). It is clear that the mask was excavated at Saqqara in Egypt in 1952, although the museum (and the vendor) and the Egyptian authorities disagree on the subsequent collecting history. Although this case has now gone through a legal process, it is clear from documentation that has subsequently come to light that there was an apparent lack of transparency about what was disclosed, not least the alert from the British Museum that they had suspicions about the piece in 1999. The removal of the personal name from the mask also suggests that the link to the original excavation was attempted to be obscured. More disturbing is the recent acquisition of two pieces by the Cleveland Museum of Art, both from Phoenix Ancient Art. One is the portrait head of Drusus Minor acquired in 2012 and returned to Italy in April 2017 (Gill 2017). The second piece is the so-called Leutwitz Apollo (Bennett 2013; Gill 2013b). It was claimed to derive from an old German collection that had been damaged in the final stages of the Second World War. Yet, there is no firm authenticated documentation to support the claim. It would appear that the then Cleveland’s curator, Michael Bennett, was deliberately trying to test the water in the face of ethical concerns by using the argument that such major pieces should be ‘saved’ by encyclopaedic museums. The return of the Drusus Minor has, if anything, undermined Cleveland’s position. One of the responses to concerns has been the creation of the AAMD Object Register where museums can place images and details of objects so that they can be exposed to public scrutiny. Dallas, for example, placed a

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series of objects there when it had concerns about their association with dealers who had been linked to certain allegations. The Register was also used to provide limited information about the Bothmer pottery fragments (but only a limited number of images were made public) and led directly to the association with the fragments of an Attic cup in the Villa Giulia (Tsirogiannis and Gill 2014).

Conclusion The scandal surrounding the Medici conspiracy requires a major cultural change by museum curators, antiquities dealers and private collectors. There is now a need for the art market, museums and private individuals to take due diligence far more seriously so that objects that are fresh out of the ground do not appear in museums. There is a need to go beyond the passive search to the active unpicking of the collecting history of an object with an insistence that authenticated documentation is provided. The over-reliance on databases, such as the Art Loss Register, has been a weakness and shows a lack of awareness that such databases do not contain images of objects that were unknown until they were ripped from their archaeological contexts. The absence of an image in a database does not demonstrate that the object was not looted. Museum directors, such as James Cuno, have overlooked and sometimes misrepresented what has been happening with regard to acquisitions (Cuno 2008, 2009, 2011; see Gill 2009a, 2009b, 2012d). They have confused historic claims on objects by museums with the acquisition of recently looted material. It is significant that there have been few sustained legal challenges to museums. The burden of legal proof is sometimes hard to establish, but the Italian Government has found that a sustained media campaign using images of items in fragments and often still covered in mud has been an effective tool to encourage museums to negotiate before legal proceedings are initiated. This has included the targeted use of social media (Gill 2014b). Likewise, a more confrontational approach has worked well for Egypt (Gill 2015). The threat of removing excavation permits from French teams was an effective tool to encourage France to return disputed fragments that had been acquired by the Louvre. The looted objects can rarely be reunited with the objects that they had resided with. Information has been lost irretrievably. And it is not always possible to identify the precise location or locality for the original resting place. However, this should not stop academics, museum professionals, private col-

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lectors and those involved with the antiquities market to work together to seek change and thereby protect part of the world’s archaeological heritage.

Bibliography Apostolidis, A., & Brodie, N. (2007). History lost. Athens: Hellenic Foundation for Culture/Anemon Productions. Bell, M. (2016). Notes on Marlowe’s “What we talk about when we talk about provenance”. International Journal of Cultural Property, 23, 254–256. Bennett, M. (2013). Praxiteles: The Cleveland Apollo. Cleveland Masterwork Series, vol. 2. Cleveland: The Cleveland Museum of Art. von Bothmer, D. (1984). A Greek and Roman treasury. New  York: Metropolitan Museum of Art. Bothmer, D. (Ed.). (1990). Glories of the past: Ancient art from the Shelby White and Leon Levy collection. New York: Metropolitan Museum of Art. Browning, J.  (1995). A layman’s attempts to precipitate change in domestic and international “heritage” laws. In K. W. Tubb (Ed.), Antiquities trade or betrayed: Legal, ethical and conservation issues (pp. 145–149). London: Archetype. Cavaliere, B., & Udell, J. (Eds.). (2012). Ancient Mediterranean art: The William D. and Jane Walsh collection at Fordham University. New  York: Fordham University Press. Chippindale, C., & Gill, D. W. J. (2000). Material consequences of contemporary classical collecting. American Journal of Archaeology, 104, 463–511. Chippindale, C., Gill, D. W. J., Salter, E., & Hamilton, C. (2001). Collecting the classical world: First steps in a quantitative history. International Journal of Cultural Property, 10, 1–31. Cook, B. F. (1997). The Elgin Marbles. London: British Museum Press. Cuno, J. (2008). Who owns antiquity? Museums and the battle over our ancient heritage. Princeton: Princeton University Press. Cuno, J. (Ed.). (2009). Whose culture? The promise of museums and the debate over antiquities. Princeton: Princeton University Press. Cuno, J.  (2011). Museums matter: In praise of the encyclopedic museum. Chicago: University of Chicago Press. Demakopoulou, K. (Ed.). (1996). The Aidonia Treasure: Seals and Jewellery of the Aegean Late Bronze Age. Athens: Ministry of Culture Archaeological Receipts Fund. Demakopoulou, K., & Divari-Valakou, N. (1997). The Aidonia Treasure. Athens: Ministry of Culture Archaeological Receipts Fund. Elia, R. J. (2001). Analysis of the looting, selling, and collecting of Apulian red-figure vases: A quantitative approach. In N.  Brodie, J.  Doole, & C.  Renfrew (Eds.), Trade in illicit antiquities: The destruction of the world’s archaeological heritage (pp. 145–153). Cambridge: McDonald Institute.

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Exhibition catalogue. (1994). A passion for antiquities: Ancient art from the collection of Barbara and Lawrence Fleischman. Malibu: J. Paul Getty Museum in association with the Cleveland Museum of Art. Felch, J., & Frammolino, R. (2011). Chasing Aphrodite: The hunt for looted antiquities at the world’s richest museum. Boston: Houghton Mifflin Harcourt. Gerstenblith, P. (1995). The Kanakaria Mosaics and the United States Law on the restitution of stolen and illegally exported cultural property. In K. W. Tubb (Ed.), Antiquities trade or betrayed: Legal, ethical and conservation issues (pp. 105–121). London: Archetype. Getty Museum, J. P. (1993). The Getty Kouros colloquium, Athens, 25–27 May 1992. Athens and Malibu: Nicholas P.  Goulandris Foundation/Museum of Cycladic Art/J. Paul Getty Museum. Getz-Gentle, P. (2006). Ancient art of the Cyclades. New York: Katonah Museum of Art. Getz-Gentle, P. (2008). The Keros Hoard revisited. American Journal of Archaeology, 112, 299–305. Getz-Preziosi, P. (1987). Early Cycladic art in North American collections. Richmond: Virginia Museum of Fine Arts. Gill, D. W. J. (1997). Sotheby’s, sleaze and subterfuge: Inside the antiquities trade. Antiquity, 71, 468–471. Gill, D., & Chippindale, C. (2002). The trade in looted antiquities and the return of cultural property: A British parliamentary inquiry. International Journal of Cultural Property, 11(1), 50–64. Gill, D., & Chippindale, C. (2006). From Boston to Rome: Reflections on returning antiquities. International Journal of Cultural Property, 13, 311–331. Gill, D. W. J. (2007). Review of Peggy Sotirakopoulou, The “Keros Hoard”: Myth or reality? Searching for the lost pieces of a puzzle (Athens: N.P. Goulandris Foundation – Museum of Cycladic Art, 2005). American Journal of Archaeology, 111, 163–165. Gill, D., & Chippindale, C. (2007a). From Malibu to Rome: Further developments on the return of antiquities. International Journal of Cultural Property, 14, 205–240. Gill, D., & Chippindale, C. (2007b). The illicit antiquities scandal: What it has done to classical archaeology collections. American Journal of Archaeology, 111, 571–574. Gill, D., & Chippindale, C. (2008). South Italian pottery in the museum of fine arts, Boston acquired since 1983. Journal of Field Archaeology, 33(4), 462–472. Gill, D.  W. J.  (2009a). Electronic review of James Cuno Who Owns Antiquity? Museums and the Battle Over Our Ancient Heritage (Princeton University Press, 2008). American Journal of Archaeology, 113, 104. Gill, D. W. J. (2009b). Review of James Cuno (ed.) Whose Culture? The Promise of Museums and the Debate Over Antiquities (Princeton: Princeton University Press, 2009). Journal of Art Crime, 2, 99–100. Gill, D. W. J. (2010a). Collecting histories and the market for classical antiquities. Journal of Art Crime, 3, 3–10. Gill, D. W. J. (2010b). The returns to Italy from North America: An overview. Journal of Art Crime, 3, 105–109.

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Gill, D.  W. J.  (2011). Context matters: The unresolved case of the Minneapolis krater. Journal of Art Crime, 5, 57–61. Gill, D. W. J. (2012a). Context matters: Princeton and recently surfaced antiquities. Journal of Art Crime, 7, 59–66. Gill, D. W. J. (2012b). The material and intellectual consequences of acquiring the Sarpedon krater. In P. K. Lazrus & A. W. Barker (Eds.), All the King’s Horses: Essays on the impact of looting and the illicit antiquities trade on our knowledge of the past (pp. 25–42). Washington DC: Society for American Archaeology. Gill, D. W. J. (2012c). Context matters: Fragmented pots, attributions and the role of the academic. Journal of Art Crime, 8, 79–84. Gill, D.  W. J.  (2012d). Review of James Cuno, Museums Matter: In Praise of the Encyclopaedic Museum (Chicago: The University of Chicago Press, 2011). Journal of Art Crime, 7, 86–87. Gill, D. W. J. (2013a). Context matters: Dallas museum of art takes the initiative. Journal of Art Crime, 9, 79–84. Gill, D. W. J. (2013b). Context matters: The Cleveland Apollo goes public. Journal of Art Crime, 10, 69–75. Gill, D. W. J. (2014a). The case of the Ka Nefer Nefer mummy mask. Journal of Art Crime, 12, 13–25. Gill, D. W. J. (2014b). Looting Matters: Blogging in a research context. In D. Rocks-­ Macqueen & C.  Webster (Eds.), Blogging archaeology (pp.  44–59, 246–267). Sheffield: Landward Research Ltd.. Gill, D.  W. J.  (2015). Egyptian antiquities on the market. In F.  A. Hassan, G.  J. Tassie, L. S. Owens, A. De Trafford, J. van Wetering, & O. El Daly (Eds.), The management of Egypt’s cultural heritage (Vol. 2, pp. 67–77). London: ECHO and Golden House Publications. Gill, D. W. J. (2016a). Context matters: the Auction Market and Due Diligence: the Need for Action. Journal of Art Crime, 15, 73–77. Gill, D. W. J. (2016b). Thinking About Collecting Histories: A Response to Marlowe. International Journal of Cultural Property, 23, 237–244. Gill, D. W. J. (2017). Context matters: Drusus minor and tiberius. Journal of Art Crime, 17, 89–96. Gill, D. W. J. (2018). Returning archaeological objects to Italy, International Journal of Cultural Property 25. Forthcoming. Gill, D. W. J., & Chippindale, C. (1993). Material and intellectual consequences of esteem for Cycladic figures. American Journal of Archaeology, 97, 601–659. Gill, D. W. J., & Tsirogiannis, C. (2011). Polaroids from the Medici Dossier: continued sightings on the market. Journal of Art Crime, 5, 27–33. Graepler, D., & Mazzei, M. (1996). Provenienza: sconosciuta! Tombaroli, mercanti e collezionisti: l’Italia archeologica allo sbaraglio. Beri: Edipuglia. Guzzo, P.  G., Spatafora, F., & Vassallo, S. (2010). ‘Una phiale d’oro iscritta dall’entroterra di Himera: Dalla Sicilia a New York e ritorno’ Mélanges de l’école française de Rome. Antiquité 122, pp. 451–477.

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Hitchens, C. (2008). The Parthenon Marbles: The case for reunification. London: Verso. Howland, R. H. (Ed.). (2000). The destiny of the Parthenon marbles. Proceedings from a seminar sponsored by the Society for the Preservation of the Greek Heritage and held at the Corcoran Gallery of Art Washington, D.C. February 13, 1999. Washington: Society for the Preservation of the Greek Heritage. Jenkins, I. (1992). Archaeologists & aesthetes in the sculpture galleries of the British Museum 1800–1939. London: The British Museum Press. Jenkins, I. (2001). Cleaning and controversy: The Parthenon sculptures 1811–1939. The British Museum Occasional Paper, vol. 146. London: The British Museum Press. Leader-Newby, R. E. (2004). Silver and society in late antiquity: Functions and meanings of silver plate in the fourth to seventh centuries. Aldershot: Ashgate. Lyons, C. (2016). On Provenance and the Long Lives of Antiquities. International Journal of Cultural Property, 23, 245–253. Lyons, C. L., Bennett, M., Marconi, C., & Sofroniew, A. (Eds.). (2013). Sicily: Art and invention between Greece and Rome. Los Angeles: The J. Paul Getty Museum. Mackenzie, S. R. M. (2005). Going, going, gone: Regulating the market in illicit antiquities. Leicester: Institute of Art and Law. Marlowe, E. (2016a). What we talk about when we talk about provenance: A response to Chippindale and Gill. International Journal of Cultural Property, 23, 217–236. Marlowe, E. (2016b). Response to Responses on “What We Talk About When We Talk About Provenance”. International Journal of Cultural Property, 23, 257–266. Mattusch, C.  C. (1996). The fire of Hephaistos: Large classical bronzes from North American collections. Cambridge: Harvard University Art Museums. Mattusch, C. C. (1997). The victorious youth. Getty Museum: Studies on Art. Malibu: J. Paul Getty Museum. Mundell-Mango, M. (1990). Un nouveau trésor (dit de “Sevso”) d’argenterie de la basse antiquité. Comptes rendus de l’Académie des Inscriptions et Belles-Lettres, 134, 238–254. Mundell-Mango, M., & Bennet, A. (1994). The Sevso Treasure: Part 1: Art historical description and inscriptions, methods of manufacture and scientific analyses. Journal of Roman Archaeology supplementary series, vol. 12, 1. Ann Arbor: Journal of Roman Archaeology. O’Keefe, P. J. (1997). Trade in antiquities: Reducing destruction and theft. London: Archetype Publications; UNESCO. Özgen, I., & Öztürk, J.  (1996). The Lydian treasure: Heritage recovered. Istanbul: Republic of Turkey, Ministry of Culture General Directorate of Monuments and Museums. Papamichelakis, G., & Renfrew, C. (2010). Hearsay about the “Keros Hoard”. American Journal of Archaeology, 114, 181–185. Paul, A.  J. (1997). Fragments of antiquity: Drawing upon Greek vases. Harvard University Art Museums Bulletin, 5, 1–87. Perticarari, L., & Giuntani, A. M. (1986). I segreti di un tombarolo. Milano: Rusconi.

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Renfrew, C. (2008). The Keros Hoard: Remaining questions. American Journal of Archaeology, 112, 295–298. Reynolds, N. (1990). The Icklingham bronzes. Minerva, 1, 10–11. Roosevelt, C. H., & Luke, C. (2006). Looting Lydia: The destruction of an archaeological landscape in western Turkey. In N.  Brodie, M.  M. Kersel, C.  Luke, & K.  W. Tubb (Eds.), Archaeology, cultural heritage, and the antiquities trade (pp.  173–187). Gainesville, FL: University Press of Florida. Cultural heritage studies. Sease, C., & Thimme, D. (1995). The Kanakaria Mosaics of Cyprus: The conservators’ view. In K.  W. Tubb (Ed.), Antiquities trade or betrayed: Legal, ethical and conservation issues (pp. 122–130). London: Archetype. Sotirakopoulou, P. (2005). The “Keros Hoard”: Myth or reality? Searching for the lost pieces of a puzzle. Athens: N.P. Goulandris Foundation – Museum of Cycladic Art. Sotirakopoulou, P. (2008). The Keros Hoard: Some further discussion. American Journal of Archaeology, 112, 279–294. St. Clair, W. (1983). Lord Elgin and the Marbles. Oxford: Oxford University Press. Thimme, J. (Ed.). (1977). Art and Culture of the Cyclades: Handbook of an ancient civilisation. Karlsruhe: C.F. Müller. Thomas, N. (1964/1965). Recent acquisitions by Birmingham City Museum. Archaeological Reports, pp. 63–70. Tompkins, J. F. (Ed.). (1983). Wealth of the ancient world: The Nelson Bunker Hunt and William Herbert Hunt collections. Fort Worth, TX: Kimbell Art Museum. Tsirogiannis, C. (2012). Unravelling the hidden market of illicit antiquities: The Robin Symes  – Christos Michaelides network and its international implications. PhD Dissertation, Cambridge University. Tsirogiannis, C. (2013). Something is confidential in the state of Christie’s. Journal of Art Crime, 9, 3–19. Tsirogiannis, C., & Gill, D. W. J. (2014). A fracture in time: A cup attributed to the Euaion painter from the Bothmer collection. International Journal of Cultural Property, 21, 465–480. Vickers, M., & Gill, D. W. J. (1994). Artful crafts: Ancient Greek silverware and pottery. Oxford: Clarendon Press. Vitelli, K.  D. (1980). Implementing the UNESCO Convention: A Challenge for Archaeologists. American Antiquity, 45, 558. Watson, P. (1997). Sotheby’s, the inside story. London: Bloomsbury. Watson, P. (2006). Convicted dealers: What we can learn. In N.  Brodie, M.  M. Kersel, C. Luke, & K. W. Tubb (Eds.), Archaeology, cultural heritage, and the antiquities trade (pp. 93–97). Gainesville: University Press of Florida. Watson, P., & Todeschini, C. (2006). The Medici conspiracy: The illicit journey of looted antiquities from Italy’s tomb raiders to the world’s great museums. New York: Public Affairs.

36 Illicit Antiquities in American Museums: Diversity in Ethical Standards Christos Tsirogiannis

Historical Background For hundreds of years, countries all over the world have had to deal with a devastating degree of looting of cultural treasures by states not culturally connected with the works of art they stole.1 However, it was not until November 14, 1970, that the United Nations reacted to this phenomenon through its Educational, Scientific and Cultural Organization, creating the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which entered into force on April 24, 1972 (UNESCO 1970). Article no. 7 states: The States Parties to this Convention undertake: (a) To take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has 1  Lord Byron on the transport of the Parthenon sculptures from Athens to England (in Meyer 1973, p. 178): ‘I opposed, and will ever oppose the robbery of ruins from Athens, to instruct the English in sculpture (who are as capable of sculpture as the Egyptians are of skating)…’.

C. Tsirogiannis (*) Scottish Centre for Crime and Justice Research, University of Glasgow, Glasgow, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_36

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been illegally exported after entry into force of this Convention, in the States concerned. Whenever possible, to inform a State of origin Party to this Convention of an offer of such cultural property illegally removed from that State after the entry into force of this Convention in both States; […] (b) […] (ii) 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. Requests for recovery and return shall be made through diplomatic offices. The requesting Party shall furnish, at its expense, the documentation and other evidence necessary to establish its claim for recovery and return. The Parties shall impose no customs duties or other charges upon cultural property returned pursuant to this Article. All expenses incident to the return and delivery of the cultural property shall be borne by the requesting Party. Italy ratified the Convention on October 2, 1978, while the United States implemented the Convention in 1983 by passing their Cultural Property Implementation Act (CPIA 1983). However, museums in the United States and elsewhere2 practically ignored the 1970 UNESCO Convention, acquiring illicit antiquities supplied with fake documentation. In nearly all cases, the museums did not exercise what we now call ‘due diligence’; rather, they accepted the collecting history supplied by the members of the market, although in many cases their staff had strong suspicions3 or even certainty4 regarding the illicit origin of the antiquities they were acquiring. This strategy of not exercising due diligence had the effect of creating a future defence for

 Many wealthy and powerful countries that were traditional market centres for the trade and acquisition of illicit antiquities, for example, the UK, Switzerland and Japan, have likewise merely ‘accepted’ the Convention. 3  Thomas Hoving, former Director of the Metropolitan Museum of Art in New York, with regard to the Euphronios Sarpedon krater that he was about to acquire on behalf of the museum, stated: ‘Actually, I thought I knew where it must have come from. An intact red-figured Greek vase of the early sixth century B.C. could only have been found in Etruscan territory in Italy, by illegal excavators’ (Hoving 1993, p. 309). 4  John Walsh, former Director of the Getty Museum in Malibu, Los Angeles, in a memo entitled ‘ANTIQUITIES ETHICS’ and related to a meeting with Harold Williams, the then chief executive of the museum, wrote that Williams said: ‘We are saying we won’t look into the provenance. We know it’s stolen. Symes a fence’. (Watson and Todeschini 2007, p. 285). 2

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the museums, in that, once a suspicion arose, they could claim that they bought the object in ‘good faith’, that they did not know the true origins. On September 13, 1995, the Swiss and Italian authorities raided the warehouses of the Italian antiquities dealer Giacomo Medici in Geneva, discovering and confiscating not only thousands of illicit antiquities but also his photograph archive; this consisted of about 4000 Polaroid, regular and professional prints, depicting freshly looted antiquities mainly in a fragmentary condition and still covered with soil and salt encrustations. On April 19, 2006, the Greek authorities raided a villa complex on the island of Schinousa, where the antiquities dealers Robin Symes and Christos Michaelides were spending their summer vacation. The raiding team discovered and confiscated, not only dozens of antiquities not registered by the Greek Ministry of Culture as the Greek law demands but also the photograph archive of the two dealers who dominated the international antiquities market for over 20 years until 1999—the year of Christos’ accidental death. The Symes-­Michaelides archive consists of over 2000 professional images depicting some of the highest-quality illicit antiquities discovered and supplied to museums and private collectors around the world in the post-1970 period (Watson and Todeschini 2006, pp. 20–23; 2007, pp. 314–324). Subsequent research on the Medici and Symes-Michaelides archives verified that Giacomo Medici was one of the main suppliers of Symes and Michaelides for antiquities looted and smuggled out of Italy; many of the same objects are depicted in both archives, but in a worse condition in the Medici archive, since Medici was positioned lower than Symes and Michaelides in the trafficking chain (Tsirogiannis 2013b). Based on the forensic research by Dr Daniela Rizzo and Maurizio Pellegrini, experts at the Villa Giulia Museum in Rome, on these and other archives, the Italian state since 2005 has managed to repatriate more than 320 masterpieces from the biggest, wealthiest and most reputable museums in North America. The list includes the Metropolitan Museum of Art in New York (henceforth the ‘Met’), the Boston Museum of Fine Arts, the Getty Museum, the Cleveland Museum of Art, The Princeton University Museum of Art, the University of Virginia, the Toledo Museum of Art, the Minneapolis Institute of Art and the Dallas Museum of Art (Godart et al. 2008; Tsirogiannis 2013a, p. 4). The reconstructed collecting history of the objects, based on the photographic evidence and the testimonies of the members of the market who were interrogated, left no doubt about the illicit origin of the objects; museums were forced to deliver these antiquities to the authorities without trying, in any instance, to defend their acquisitions in court. Meanwhile, Giacomo Medici was convicted and sentenced to eight years’ imprisonment and a €10 million fine for illegal export of antiquities,

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receipt of stolen goods and conspiracy (Watson and Todeschini 2006, pp.  19–22, 283). Robin Symes was convicted and sentenced to two years’ imprisonment for contempt of court in a case against his late partner’s family over the split of the common fortune (Watson and Todeschini 2007, pp. 258, 264). I was informed that an international warrant for the arrest of Symes was issued by the Greek state a few years ago for his involvement in trafficking antiquities looted and smuggled from Greece.5 In June 2008, the Association of Art Museum Directors issued a New Report on the Acquisition of Archaeological Material and Ancient Art. Article ‘H’ states (AAMD 2008, p. 6): If a member museum, as a result of its continuing research, gains information that establishes another party’s right to ownership of a Work, the museum should bring this information to the attention of the party, and if the case warrants, initiate the return of the Work to that party, as has been done in the past. In the event that a third party brings to the attention of a member museum information supporting the party’s claim to a Work, the museum should respond promptly and responsibly and take whatever steps are necessary to address this claim, including, if warranted, returning the Work, as has been done in the past.

My research on the confiscated archives over the last 10 years has produced the identification of 781 antiquities from the Symes-Michaelides archive and more than 360 identifications from the Medici and other archives, completing and expanding Rizzo and Pellegrini’s forensic work and resulting in several official claims and repatriations for the Italian and the Greek states. Among my identifications are two ancient Greek vases in the Met (one of which is depicted in the Medici archive), as well as two other Greek vases (depicted in both the Medici and the Symes-Michaelides archives), respectively, in the Ackland Art Museum of the University of North Carolina at Chapel Hill and the Speed Art Museum in Louisville, Kentucky. Using these four identifications from these three institutions as case studies, this chapter aims to highlight a significant difference in levels of cooperation when museum officials were confronted with evidence and asked for assistance for academic research aiming to reconstruct the true collecting history of the objects identified. The Met, which has a history of acquiring illicit antiquities, did not respond at all, despite the 2008 AAMD guidelines (above) that ‘the museum should respond promptly and responsibly’, and despite the inaugural statement of its Director,  Personal communication with Italian state lawyer Maurizio Fiorilli, who provided this information in 2013. However, in 2017, the British journalist Howard Swains did not find any evidence of an existing warrant against Symes (Swains 2017). 5

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Thomas P. Campbell, that ‘together we will build on the Met’s traditions of scholarship and openness’ (The Metropolitan Museum of Art 2008). The Met’s unwillingness even to respond is a strategy not followed by the museums whose possession of objects depicted in the confiscated archives of convicted dealers is here revealed for the first time. I had some reason to expect the cooperation of the ‘new’ museums, since I had experienced a high level of cooperation by other such museums in the recent past, for example, the Virginia Museum of Fine Arts regarding two objects depicted in the Medici and other archives (Tsirogiannis 2013c, d). The non-reaction of the Met may be assimilated to the technique of ‘invisibility’ described by the criminological theory of ‘Crimes of the Powerful’ (Pearce 1976, Mackenzie 2011, among others).

 ase Study 1: The Dietrich von Bothmer C Collection in the Metropolitan Museum of Art, New York: A Kylix (Cup) by the Euaion Painter Dietrich von Bothmer (1918–2009), former Curator of Greek and Roman Art at the Metropolitan Museum of Art in New York, in the course of his career (1946–2009) acquired approximately 10,000 fragments of ancient Greek vases (AAMD 2013), forming his own private collection, which he kept in his office in the Met. Although this constituted conflict of interest, the museum never demurred (Felch 2012). Bothmer, one of Oxford Professor John Beazley’s best students, was probably the foremost expert in ancient Greek pottery in the world; he had the rare skill of identifying fragments of the same vases in different institutions or in the market (e.g. Maxmin in Grimes 2009). In February 2013, the Met announced the creation of a project to digitize and put online the Bothmer collection of vase fragments, all thus far unpublished. The announcement included four random images from the collection, currently stored in shelves at the Met. One of the images depicts a kylix, put together from many fragments, in a yellow cardboard box. The exterior of the kylix seems to be preserved in a very good condition; the interior, by contrast, appears worn. A few fragments are missing, in particular, the centre of the tondo, leaving a rhomboid-shaped space. There is an image on the tondo of a satyr and a maenad, both standing, each side of a large vase of an unidentified type. While researching the Beazley Archive for the collecting history of another vase, I noticed a rhomboid fragment of another kylix, also by the Euaion

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Fig. 36.1  Reconstruction of Attic red-figured cup attributed to the Euaion Painter using images depicting the tondo (Museo Nazionale di Villa Giulia), and fragments from the collection formed by Dietrich von Bothmer (posted via the AAMD Object Registry). Courtesy of Professor David Gill

Painter: the decoration included two figures with a krater between them. This fragment matches the Bothmer’s kylix at the Met and identifies the painter (Fig. 36.1). The collecting history of the tondo fragment in the Beazley Archive reveals the origins of the kylix: 100 years before my identification, on July 9, 1913, Contessa Francesca Parisani Gnoli donated the tondo fragment (together with eight complete vases), to the Villa Giulia Museum in Rome (CVA Fasc. II (Giglioli 1926), III.I.C.16, pl. 37.4). In the CVA, the vases and the fragment’s collecting history were declared unknown (‘ignota’). The fragment had already been published by Beazley a year before the CVA publication (Beazley 1925: 356, no. 3, mentioned again in Beazley 1963, 789.2). The case of the Euaion Painter kylix fragments raises several issues to do with Bothmer’s involvement with illicit antiquities; some of these issues have been briefly described in a recent article (Tsirogiannis and Gill 2014, pp. 471–472). Crucially, since Bothmer was not even born when the central piece of the kylix was donated to the Villa Giulia Museum, it is odd that the rest of the cup was acquired in due course by him, and the way in which this

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happened was (and is) not apparent from the Met website; likewise, a full collecting history of the Bothmer fragments was not given. We needed such information to answer our query as to whether the Bothmer fragments were found together with the central piece or in a different period. On February 26, 2013, I contacted the Met, sending emails to four different addresses ([email protected], education@metmuseum. org, [email protected] and [email protected]), since no email address of any of the curatorial departments (including Greek & Roman Art) was to be found. I have not yet received an answer. On March 8, 2013, with my permission, Professor David Gill published my identification on his blog ‘Looting Matters’, and in June the Met’s image depicting the Bothmer fragments of the cup was withdrawn from the Met’s website. Immediately I notified the experts at the Villa Giulia Museum in Rome, Dr Daniela Rizzo and Maurizio Pellegrini, about the case, sending them all the evidence I had gathered, and on July 24, 2013, the Villa Giulia Museum sent me a letter by which I was notified that the Met intended to return the cup’s fragments, thanking me for my work on this case. Professor Gill and I published our article on the Bothmer collection of ancient Greek vase fragments in late 2014 (Tsirogiannis and Gill 2014, pp. 465–480). On June 28, 2015, archaeologists Rizzo and Pellegrini notified me that the Met will keep the Bothmer fragments of this Euaion Painter cup for a few years, before permanently returning them to Italy; this follows the example of the Euphronios Sarpedon krater case, for the object was returned to Italy about three years after the relevant agreement was reached between the Met and the Italian state (Watson and Todeschini 2007, p. 353). None of this information reached me from the Met directly, despite my efforts to contact them.

 ase Study 2: The Metropolitan Museum of Art, C New York: A South Italian Bell-Krater by the Painter Python In February 2014, I was preparing to publish the reconstructed history of a South Italian bell-krater that I had identified at the Met from Polaroid and several regular images in the confiscated Medici archive. In the images, the vase is depicted intact (an indication that it was found in a tomb), and parts of its base and rim are covered with soil or salt encrustations. The Polaroid image presents the krater lying on an armchair or a sofa and bears a handwritten note underneath: ‘H. cm 33,5 RΥΒΡΩΝ’, whereas in the regular print

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Fig. 36.2  Left: The South Italian calyx-krater by Python, depicted in a regular image in the Medici archive. Right: The same South Italian bell-krater by Python in a professional photograph from the website of the Metropolitan Museum of Art in New York while owned by the museum. © The Metropolitan Museum of Art

images, the krater was photographed upright (Fig. 36.2). The particular image selected here depicts the same side of the krater, at the same angle, as that shown in the Met’s photograph (Fig. 36.2), that is, the main decoration on the vase: a young Dionysos seated on a cart with a woman playing a double flute. The cart is drawn by the god’s aged companion Papposilenos. In the Medici image, the krater stands on a flat, red velvet surface that Medici often used to photograph antiquities in his warehouse, and which was found during the raid on his premises. Several of the antiquities photographed on this surface have been proven illicit and returned to their countries of origin. A simple piece of paper, of a lighter shade than the red velvet surface, has been taped to the wall behind the vase in the Medici image in an attempt to create a unified backdrop to highlight the features on the vase, but the amateurism of the mismatch in colour and texture of these reds is evident by contrast with the professional grey backdrop in the Met’s image. The krater appeared in a Sotheby’s antiquities auction on June 23, 1989, in New  York and the catalogue entry did not include any previous collecting history in the ‘provenance’ section. The krater was estimated at US$50,000–80,000 and was sold for US$90,000. Shortly after the Sotheby’s

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auction, the krater appeared in the antiquities collection of the Met, given the accession number 1989.11.4. Afterwards, it was on exhibition in gallery 161. The museum’s website records that the acquisition was possible due to the ‘Bothmer Purchase Fund’. A year after contacting the Met about the case of the Bothmer fragments of the Euaion Painter cup, with no reply, I again contacted the museum (on February 7, 2014), this time requesting information about the collecting history of the Python krater and also reminding the museum that I was still waiting to hear from its staff regarding my previous request about the Euaion Painter cup. I sent emails to three different addresses in the museum ([email protected], [email protected] and friends.groups@ metmuseum.org), but I never got any reply. After waiting for three months for an answer, I published the case in the Journal of Art Crime (Tsirogiannis 2014) and, shortly afterwards, the identification, the reconstructed collecting history and the relevant images of the vase appeared on the blogs ‘Looting Matters’ and Association for Research into Crimes against Art (ARCA). Following these publications, I heard nothing about the case, from either the Met, Sotheby’s, the Italian or the American authorities. On May 30, 2014, I notified Dr Maurizio Fiorilli, a lawyer representing the Italian state in negotiations with foreign institutions for the repatriation of looted antiquities. Dr. Fiorilli immediately let me know that he would contact the Carabinieri regarding this case. However, I never heard from them. Two years later, in April 2016, I emailed Mr. Corrado Catesi, a Carabiniero at the Art Unit of INTERPOL, and Mr. Gianpietro Romano, expert in the Carabinieri Department for the Protection of Cultural Heritage, notifying them about the Python krater case and other cases. Mr Romano emailed me stating that he had forwarded all the information to Rome. Having not heard from any Carabiniero for more than a year after that, I finally notified the District Attorney’s Office in New York in May 2017, forwarding the same evidence. By July, the krater was seized from the Met (Mashberg 2017b; Tsirogiannis 2017) and on October 19, 2017, it was delivered to the General Consulate of Italy in New  York in an official ceremony that included other antiquities seized from New York galleries (among which was another vase, an amphora by the Harrow Painter, that I had identified and for which I had likewise sent all the evidence to the New York District Attorney’s Office). The Italian state not only never contacted me through any of its authorities but also, in the official press release issued by the Consulate, did not reveal the truth regarding my identification of the Python krater and the Harrow Painter amphora, nor did it mention my discovery and submission to the American authorities of all the relevant evidence for both cases (details of the Python

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case to the Italians as well). Instead, they claimed that: ‘The recovery of these works of art is the result of investigations conducted by the Carabinieri TPC in their constant efforts to combat the trafficking of cultural property looted from Italian archaeological sites or stolen from public institutions in Italy’ (Consolato Generale d’Italia 2017). By contrast, more than two months earlier (regarding the Python krater case) and seven months earlier (regarding the case on the amphora by the Harrow Painter), respectively, the official press release of the District Attorney’s Office in New York had referred to my contribution, while the New York Times referred in detail to the identifications, as well as the photographic and documentary evidence I had already submitted to the American and Italian authorities and published in academic journals and the international press since 2014 (District Attorney’s Office in New York 2017a, b; Mashberg 2017a, b).

 ase Study 3: Speed Art Museum, Louisville, C Kentucky: A South Italian Calyx-Krater by the Painter Python A Greek South Italian calyx-krater from Paestum, decorated with a scene showing a youthful Dionysos reclining on a couch in the presence of a female double-flute player who is sitting at the end of Dionysos’ couch, is depicted in a Polaroid and in a regular image from the confiscated Medici archive. In both the images, the krater is depicted intact, there are clear traces of soil over the whole surface of the vase and salt encrustations on both handles are visible. In the Polaroid (Fig. 36.3), the krater is depicted lying on the reverse of a folded cloth decorated with a colourful flower pattern. The cloth protects the krater from lying directly on what appears to be the tiled floor of a dark room. On both sides of the Polaroid image, there is a rectangular white sticker bearing the handwritten note ‘3/177’. The only light in the room appears to come from the Polaroid camera. In the regular image (Fig. 36.3), the calyx-krater is depicted upright against a red background similar to that of Case Study 2 mentioned earlier, but this time the material appears to be a kind of board; the vertical background is not quite the same colour as the surface on which the vase stands. The body of the vase is illuminated by a strong light turned on the vase while the image was taken (likewise not a professional’s technique). Since the vase itself appears to be in the same condition in both images, and since we can tell from the background style of the regular print image that the vase was at this point in the hands of Medici, we should assume that the

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Fig. 36.3  Left: The South Italian calyx-krater by Python depicted in a Polaroid image from the confiscated archive of the convicted antiquities dealer Giacomo Medici. Right: The same calyx-krater depicted in a regular image again from the Medici archive

Polaroid comes from a looter or middleman (i.e. a stage before Medici in the chain of trafficking). If this is the case, the goal of the Polaroid photograph was to advertise the krater to Medici. Two points about this technology are worth recording. First, it was not commercially available in Europe before 1972 (i.e. after the 1970 Convention). Second, every Polaroid is a unique record, since there is no negative film for the production of copies; the Polaroid photograph, therefore, is the proof that the one who provides it is, or has direct access to, the owner of the object(s) depicted. Once Medici bought the object, he tried to photograph it in a better way, although the attempt is still clearly amateurish. The environments depicted in these two images are obviously not parts of public or private institutions where antiquities would have been treated in a caring and professional way, and indeed other evidence has proven that the Medici photograph of this vase was taken in one of his warehouses in the free port of Geneva. As we progress higher in the antiquities network, the images become more professional.

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Fig. 36.4  Left: The South Italian calyx-krater by Python, depicted in a professional image from the confiscated archive of the illicit antiquities dealer Robin Symes. Right: The same calyx-krater depicted in a photograph produced by the Speed Art Museum, Louisville, Kentucky, while they owned the object, which now belongs to the Collection of the Republic of Italy

First, the same calyx-krater is depicted in a professional image from the confiscated Robin Symes-Christos Michaelides archive. In this image (Fig. 36.4), the krater appears fully cleaned, with a base and a background professionally formed of curved grey paper. This photograph is in fact of the highest professional quality—the lighting is lower, but otherwise the photographic technique is barely distinguishable from the professional image of the museum to which the vase was eventually sold (Fig. 36.4); indeed, several other museums to which Symes sold antiquities did (according to Symes’ testimony to the Italian public prosecutor) just use the images that he produced in their publications. On the reverse of the image, there is a handwritten note ‘SR 90/150 G&R’. From examining the whole Symes and Michaelides archive (Tsirogiannis 2013b), I deduced that ‘SR’ are the initials of Robin Symes, the first number refers to the year that the image was taken (in this case 1990), the last number is the number of the photographic shot and ‘G&R’ refers to the cataloguing of the image within the ‘Greek & Roman’ group of photographed antiquities in the possession of Symes and Michaelides.

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I identified the same calyx-krater at the Speed Art Museum in Louisville, Kentucky, from an image on the website of the museum. On enquiry, I was sent in 2015 the professional image of the object owned by the Museum (Fig. 36.4). This image is the best in the series; stronger lighting illuminates the decoration of the vase against a perfectly uniform grey background, without any shadows (contrast the professional images from the Symes-Michaelides archive); although the date of production of the Speed Art Museum photograph is unknown, the far higher quality of the image suggests technology far advanced from that available to Symes-Michaelides’ professional photographer in 1990. The text accompanying the website image of the krater states that ‘the painting on this particular krater is attributed to Python, a painter who was considered one of the leading vase painters in Paestum in the fourth century B.C’. The same text states that the krater is a ‘Gift of the Charter collectors’, without any further details on the collecting history of the krater before it became part of the Speed Art Museum’s antiquities collection. However, the accession number of the krater in the museum is given as 1990.7, which indicates that the vase was acquired by the museum in 1990, the same year that the krater was photographed by a professional photographer as a Symes and Michaelides asset. The krater appears in the book Theatre in Ancient Greek Society (Green 1994, pp. 97–99, fig. 4.7). Green refers to the calyx-krater as being a ‘new one in Louisville, Kentucky’, comparing it to the ‘well-known one in the Vatican’ (a bell-krater), which is also decorated with a ‘symposion’ scene (Green 1994, p. 97). As I noted in my publication of the Python bell-krater (Case Study 2), a krater which also appears in Green, his book contains images of several antiquities later found to be illicit (Tsirogiannis 2014, p. 70). In contrast to the policy of complete silence exercised by the Met over the last two years in the cases of Bothmer’s Euaion Painter cup and ­Medici/ Sotheby’s Python bell-krater, the staff of the Speed Art Museum proved more cooperative. Through an email exchange that I began on April 30, 2015, requesting information about the vase’s previous collecting history, the museum verified my reconstructed collecting history of the calyx-krater: the museum had indeed acquired the vase from Robin Symes in November 1990, a fact that verifies my interpretation of the handwritten note on the reverse of the Symes’ image (‘90/150’). Ghislain d’Humieres, Director of the museum, also informed me that ‘Mr Symes indicated that it was purchased from another dealer who had acquired it from a Paris collection’. To my enquiry regarding the identity of this dealer and the name of the Paris collection, Dr Scott Erbes, Chief Curator of the Speed Art Museum and Curator of Decorative Arts and Design, replied: ‘Mr. Symes did not identify the dealer from whom he acquired the piece nor the Paris collection’.

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Some of the information that I asked for was not given. For example, I asked for the price that the museum paid to Symes for the krater, and Dr Erbes replied that ‘the museum’s security policies prohibit me from releasing information related to collection values’. Although this is understandable from a security point of view, the revelation of the price paid by a museum for an illicit art work has been regarded in the past as a sign that the museum ‘wanted to be open and cooperative’ (Hoving 1993, p. 323). My two most recent enquiries, regarding the identity of the ‘Charter collectors’ who gifted the vase to the museum, and whether the museum ever conducted any research on the collecting history of the krater, have not been answered as I send this chapter for publication. However, the museum offered me an image of the krater for publication, while for my part I responded to their request to supply them with any information I had gathered. Therefore, I sent to the museum the collecting history that I reconstructed, as well as the confiscated images of the krater included in the Medici and Symes-Michaelides archives. The museum informed me that in their files, a Symes image identical to the one I sent them was included, but without the photographer’s handwritten note on its reverse. That made sense: Symes was keeping for archival reasons the image that bore the information he needed and was advertising his merchandise to his potential clients, sending them duplicates of the professional images, without the handwritten notes. All in all, then, it was a productive exchange of information regarding this calyx-krater’s collecting history. However, in late April 2016, I contacted the Speed Art Museum to verify image permission for the present volume, noticing that the krater was no longer on view on their website. Ms Lisa Parrott Rolfe, museum registrar, requested the date of the publication, adding ‘As we are actively engaged in discussions with the Italian Ministry of Cultural Heritage, your publication date will be considered’. I then enquired whether they themselves had contacted the Italian authorities, or the Italian state had independently contacted the museum (since I had not contacted the Italian authorities, waiting first for the publication of this chapter). This information would be significant. If the Speed Art Museum had taken the initiative to contact the authorities following the evidence I sent them, it would be the first museum to have followed the AAMD guidelines in full (2008, p. 6, see earlier). However, both Ms Rolfe and the director of the museum, Ghislain d’Humieres, replied that ongoing discussions between the museum and the Italian Ministry meant that they were unable to comment further. On February 1, 2018, the Speed Art Museum announced that it was returning the krater to the Italian state. However, the krater will remain at the museum for four more years, and future loans from the Italian state will follow.

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Stephen Reily, the museum’s Director, stated: ‘The Speed followed responsible museum practices when it acquired this work in 1990, and we are proud to lead the way in responsible museum practices today by initiating contact with the Italian government on this issue and then negotiating a positive resolution’ (Speed Art Museum 2018). Although the overall level of cooperation with me demonstrated by the museum after I notified it about my identification was good, two aspects of this statement are misleading. The first is the paradox of the ‘responsible museum practices […] in 1990’, which failed to prevent the acquisition of an illicit antiquity; the assertion elides the lack of further research into the collecting history of the vase before the recent developments. The second point is a strictly ethical one: on discovering that one owns a stolen object, the responsible and ethical action to take is simply to return it to its rightful owner; ‘negotiating a positive resolution’ for the museum is not key to such ‘responsible museum practices’. Overall, the Speed Art Museum, after responding well to my identification and offer of the relevant evidence by immediately contacting the Italian authorities, has emerged in 2018 with a beneficial deal for itself on the practical level, rather than simply returning the stolen object, which would have been the most ethical action.

 ase Study 4: Ackland Art Museum, C The University of North Carolina at Chapel Hill: A Greek Neck-Amphora by the Bucci Painter A Greek black-figure neck-amphora by the Bucci Painter, depicting Apollo, Artemis and their mother Leto on one side and, on the other, a chariot scene with a woman handing a departing warrior his helmet, appears in two images from the confiscated Medici archive. One of these is presented as Fig. 36.5 later in the chapter. Although a curved blue paper was used as base and background for the production of the image, reflections of strong light on the surface of the vase, as well as shadows at the sides and behind the base, mean that we cannot categorize these two images as professional. The amphora is depicted intact. However, small chips around the rim and traces of ancient repairs around the body can be observed. Encrustations around the base of the amphora are also visible. The same neck-amphora is depicted in six professional images from the confiscated Symes-Michaelides archive. Handwritten notes on the reverse of the images read ‘RS 1756’, ‘RS 1750’, ‘87/9/20’, ‘87/9/21’, ‘87/9/16’ and ‘87/9/17’, respectively. My research on the Symes-Michaelides archive revealed

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Fig. 36.5  The Greek black-figure neck-amphora by the Bucci Painter, depicted in a regular image from the confiscated archive of the convicted antiquities dealer Giacomo Medici. Right: The same neck-amphora depicted in a professional image from the confiscated archive of the illicit antiquities dealer Robin Symes

that three-numbered notes state (from left to right) the year that an antiquity was photographed, the number of the antiquity photographed in that year and the number of the shot (Tsirogiannis 2013b). In the case of the neck-­ amphora, the notes reveal that the vase was the ninth object that was photographed in or coming into the possession of Symes and Michaelides in 1987. In the Symes-Michaelides image (Fig. 36.5), the lighting is more subtle than in Medici’s image, but details of the vase’s decoration are obscured both by beams of light on the surface and by shadows. The background is also not as professional as in other professional images from the Symes archive (e.g. Fig. 36.4). I identified this neck-amphora at the Ackland Art Museum, The University of North Carolina at Chapel Hill, and on enquiry was sent their professional image for publication in this chapter (Fig. 36.6). Features of the vase appear most clearly in this professionally lit photograph taken from slightly above the object. This angle also makes very clear that the antiquity is in exactly the same condition in which it is depicted in the Medici and Symes-Michaelides images, with chips to the rim and a blemish on the

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Fig. 36.6  The same Greek black-figure neck-amphora, currently on exhibition at the Ackland Art Museum, the University of North Carolina at Chapel Hill. ©Ackland Art Museum, University of North Carolina at Chapel Hill. Ackland Fund

base. The website entry states that the vase is by the Bucci Painter (though without naming the authority for this attribution), and provides a short description of the decoration, the dimensions of the vase and its acquisition number (88.15), which shows that the object was acquired in 1988. However, no previous collecting history of the vase is stated. Instead, a note states: ‘This information may not be complete or fully up-to-date. Please contact the Museum for more information or to suggest corrections’. A short note in bold letters states that the amphora ‘is currently on view’. In an email exchange that I began on April 30, 2015, requesting information on the vase’s previous collecting history, Dr Peter Nisbet, Interim Director and Chief Curator at the Ackland Art Museum, has proved most helpful. I was promptly informed that the amphora was acquired on March 3, 1988, from Symes’ London company ‘Robin Symes, Ltd.’, and that Symes had told the museum that the amphora was previously in the collection of ‘Henri Jacques, Geneva, Switzerland’. At the time of my enquiry, the museum was preparing the publication of a catalogue which was to present

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Ackland’s ancient art collection, written by Professor Mary Sturgeon, and the link between the amphora and Symes made the museum’s staff suspicious ‘not least because of a piece formerly in Dallas that had similar information and turned out to be illegally traded’. Dr Nisbet also let me know that ‘the director of the Ackland museum when the amphora was acquired was Charles W. Millard III (long since retired from the Museum) and that the curator leading the process was Dean Walker (now deceased)’. The museum kindly offered me images to accompany the publication of the current chapter. When I expressed an interest on starting the collection of data for a future study on the pricing strategy of Symes and Michaelides, although the museum hesitated at first, they did then provide the price paid for the acquisition of the amphora, letting me know that this information was given to help me create a body of subtle scholarship about market and collecting trends in the future. This verifies the museum’s genuine willingness to cooperate with me. Respecting the museum’s initial hesitation on grounds of security and its true cooperative spirit, I will keep private the price paid for the acquisition of the amphora in my records, until this information would no longer constitute a threat for the museum’s security. When I shared with the museum the images I had from the Medici archive, as well as the two main images of the total six from the Symes-Michaelides archive, Dr Nisbet replied that the museum already had the two Symes images, but not the Medici ones, and he noted that there is no reference to Christos Michaelides in the documents related to the amphora. Before I sent this chapter for publication, Dr Nisbet notified me, in response to my further query, that he had found no written evidence in the museum’s curatorial files that additional research was undertaken on the provenance of 88.15. There are several different pieces of important information in the data supplied by Dr Nisbet. First, the date of the acquisition verified, in this case also, my interpretation of the handwritten notes on the reverse of the confiscated Symes images; the amphora was photographed in 1987 before it was sold to the Ackland museum in early 1988. Second, the museum revealed its awareness of a piece with a similar collecting history in the Dallas Museum of Art. This is an Etruscan terracotta antefix, whose repatriation to Rome was announced by the Dallas museum along with a Roman mosaic and five other antiquities (Gill 2013, p. 82). Like the neck-amphora, the Etruscan antefix was purchased from Robin Symes Ltd., and declared to the museum as previously being part of the Henri Jacques collection in Geneva. It was likewise identified in the Medici archive. Although the fact

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that the two collecting histories were identical (apart from the Medici link) was known to the Ackland Museum, I am not aware if the institution has yet taken the initiative to inform the Italian authorities about the case of the neck-amphora. The most interesting piece of additional data received from the Ackland museum is the link to Henri Jacques. Information about this figure has been publicly available since 2006, long before the Dallas case was revealed. The Medici Conspiracy, by journalists Peter Watson and Cecilia Todeschini, which is now considered the Bible of forensic archaeology on illicit antiquities (Watson and Todeschini 2006, 2007), includes a wealth of information about Henri Albert Jacques; he was not a private collector, as Symes presented him, but a French-speaking Swiss citizen, running as an administrator of Giacomo Medici’s company Edition Service, a company that consigned hundreds, if not thousands, of stolen, looted and smuggled antiquities to Sotheby’s branch in London for auction. Additionally, apart from Medici’s Edition Service, the same address in Geneva (7 Avenue Krieg) hosted one of Symes and Michaelides’ companies called Xoilan Trader, Inc, through which many antiquities without a collecting history were also consigned for sale at Sotheby’s. Henri Albert Jacques’ name appears again as an administrator of Xoilan Trader, Inc. When Jacques was interrogated by the Swiss and Italian authorities on September 11, 1995, he admitted that he was also acting as an administrator of other companies belonging to Symes (e.g. Tecafin S.A.), and that it was he who initially started Xoilan in 1976 for Robin Symes. His information contributed greatly to the ability of the Swiss and Italian authorities to raid Medici’s warehouses at the free port of Geneva. An additional role for Henri Jacques was revealed around 2003, during Symes’ legal fight with the descendants of Christos Michaelides over the split of the common fortune. It appears that in June 1991, when Symes had two meetings with Britain’s Inland Revenue, he was asked about the way his and Christos’ stock was made. Symes replied that when he and Christos spotted an interesting antiquity that was about to appear at an auction, they would notify Christos’ parents, who in turn asked Robin and Christos to attend the auction and were then instructing Henri Jacques to make arrangements (Watson and Todeschini 2006, pp. 20, 27–28, 147–148, 262). Ackland has been the most cooperative museum of the three, communicating even their doubts and suspected connection with another object revealed to be illicit. No other museum so far has volunteered this. I therefore encourage the museum to follow up on their suspicions, and other museums to follow their example of cooperation.

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Conclusions This chapter demonstrates a range of reactions by museums that can be found in relation to antiquities lacking a legal pre-1970 collecting history and depicted in confiscated archives of convicted dealers. From the first two case studies presented, I have shown that it is the Met, the institution that was found with illicit antiquities in recent years, which did not respond at all to any enquiries over the last six years, regarding objects depicted in the confiscated archives. Comparison and contrast with the other two case studies suggest that this lack of response on the part of the most reputable museum of the American continent is not just a simple failure of communication, but a strategy. ‘Crimes of the Powerful’ is a criminological theory (e.g. Pearce 1976, Mackenzie 2011), developed from the original ‘White-Collar’ crime theory (Sutherland 1940). According to a later publication of Sutherland’s theory (Sutherland  1983) ‘white-collar crimes are crimes committed by persons of respectability and high social status in the course of their occupation’. In 2007, sociologist Vincenzo Ruggiero stated that the technique of invisibility ‘contributes to making the field of study indistinct, classification formless and typologies fuzzy’ (Ruggiero 2007, p. 167). As Casey clarifies, ‘Criminal inconspicuousness or invisibility is generally defined as the notion that an offender has the ability and means to obscure the nature of his or her actions in some way. Ruggiero considers [invisibility] a defining characteristic of crimes of the powerful […] Invisibility can be accomplished through a variety of means: withholding of information, misleading terminology, suppression of inquiry, or plenty more only now being researched by scholars’ (Casey 2015, p. 41). Withholding information as a technique to achieve invisibility seems to pinpoint the way in which the Met continually over the last six years has failed to respond regarding the cases of Bothmer’s Euaion Painter cup fragments and the Met’s Python krater. This is not a new strategy for the Met: in 1993, in the case of the Morgantina treasure, the museum denied access to an academic authority, Professor Malcolm Bell, excavator of the site of Morgantina. He was not permitted to study the 15 silver vessels of which the treasure consisted. It was not until 1999 that Professor Bell was finally allowed to examine the material, only to verify its illicit origin, as being looted and smuggled out of Italy (Watson and Todeschini 2006, pp. 105–106). The treasure was returned to Italy in January 2010 (Povoledo 2006). Furthermore, following its recent apparent agreement to repatriate the Bothmer fragments of the Euaion Painter kylix, the Met had an extra reason to improve its ethical standards in dealing with such cases, and yet it continued to ignore my requests for information, against the statement of its own director (The Metropolitan Museum of Art 2008) and new guidelines from the AAMD (article ‘H’) in the same year.

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By contrast, two other US museums, which have not previously been detected as having acquired illicit antiquities, followed a completely different path from that chosen by the Met. The Speed Art Museum, in Louisville, Kentucky, and the Ackland Art Museum at the University of North Carolina at Chapel Hill not only responded immediately to my requests for information but almost fully cooperated with me, assisting me in my academic research. While the Ackland Art Museum, as part of an academic institution, matched the expected standards of cooperation, the Speed Art Museum was also quite cooperative; the curatorial staff of both museums come closer than those of the Met to modern ethical standards, when confronted with photographic evidence regarding cases that link their retired staff with antiquities trafficking. After the recent announcement by the Speed Art Museum on the return of its krater to Italy, my hope is that Ackland Art Museum, too, will act in an honest and professional way, honouring the AAMD ‘New Report on the Acquisition of Archaeological Materials and Ancient Art’, as expressed particularly in article ‘H’ (see above, ‘Historical Background’), ideally taking the initiative to contact the Italian state, or, at least, responding accordingly to a possible claim by the Italian state, if my Italian colleagues identify this krater and claim it before the publication of this chapter. Hopefully, when the time inevitably comes, the director of Ackland Art Museum would present the truth in an ethical and honest way in his statement, following the return of their illicit amphora to Italy. As for the Met, even after the seizure of the Python bell-krater, its repatriation to Italy and the negative publicity that the case generated, following the silent repatriation of the Bothmer kylix, the museum’s constant failure to respond to inquiries for academic research that would have benefited the museum itself demonstrates that the much-advertised ethical changes are not everywhere practically respected. Acknowledgements  I acknowledge support from the European Research Council under the European Union’s Seventh Framework Programme (FP7/2007-2013)/ ERC Grant agreement no. 283873. I am grateful to Professor David Gill for his permission to publish the combination he created of the two images related to the Bothmer kylix and to Dr Neil Brodie for his valuable comments. I am also grateful to Dr Peter Nisbet, interim director and chief curator at the Ackland Art Museum, The University of North Carolina at Chapel Hill, and to the museum’s Registrar Mr Scott Hankins; as well as to Mr Ghislain d’Humieres, director of the Speed Art Museum; to Dr Scott Erbes, chief curator and curator of Decorative Arts and Design; to Mr Steven Bowling, director of Marketing and Communications at the same museum; and to Registrar Ms Lisa Parrot Rolfe for their cooperation. Finally, I wish to thank Ms Josie Taylor, senior commissioning editor, Criminology, at Palgrave Macmillan–Springer Nature, for all her hard and valuable work conducted in the kindest manner.

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Bibliography Association of Art Museum Directors. (2008). New report on acquisition of archaeological materials and ancient art issued by Association of Art Museum Directors. Retrieved July 16, 2015, from https://aamd.org/sites/default/files/document/ Antiquities%20Guidelines%20with%20Intro%2006.08.pdf. Association of Art Museum Directors. (2013). Group of approximately 10,000 predominantly Greek Vase Fragments. Retrieved July 16, 2015, from https://aamd.org/ object-registry/new-acquisitions-of-archaeological-material-and-works-of-ancient-art/992. Beazley, J.  D. (1925). Attische Vasenmaler des rotfigurigen Stils. Tübingen: J.  C. B. Mohr (Paul Siebeck). Beazley, J. D. (1963). Attic Red-figure Vase-painters. Oxford: Clarendon Press. Casey, R. (2015). Analyzing criminality in the market for ancient near eastern art. The Journal of Art Crime (13), pp. 39–50. Consolato Generale d’Italia. (2017, October 19). Press Release, Consolato Generale d’Italia. Retrieved February 1, 2018, from http://www.consnewyork.esteri.it/consolato_newyork/en/la_comunicazione/dal_consolato/2017/10/repatriation-ceremony-19-ottobre.html. Convention on Cultural Property Implementation Act. (1983, January 12). Senate and house of representatives of the United States of America in Congress. Retrieved July 16, 2015, from http://eca.state.gov/files/bureau/97-446.pdf. District Attorney’s Office in New York. (2017a, March 16). Manhattan DA’s office returns ancient etruscan vessel to Italy. District Attorney’s Office in New  York. Retrieved February 2, 2018, from http://manhattanda.org/press-release/manhattan-da%E2%80%99s-office-returns-ancient-etruscan-vessel-italy. District Attorney’s Office in New York. (2017b, March 16). Ancient roman mosaic among collection of artifacts being repatriated to Italian Republic by Manhattan District Attorney’s Office. District Attorney’s Office in New York. Retrieved February 2, 2018, from http://manhattanda.org/press-release/ancient-roman-mosaicamong-collection-artifacts-being-repatriated-italian-republic-man. Felch, J. (2012, January 26). The Met’s Von Bothmer collection may be evidence in Princeton Criminal Case. Chasingaphrodite.com. Retrieved June 16, 2015, from http://chasingaphrodite.com/2012/01/26/the-mets-von-bothmer-collectionmay-be-evidence-in-princeton-criminal-case/. Giglioli, G. Q. (1926). Corpus Vasorum Antiquorum: Museo Nazionale Etrusco di Villa Giulia, II. Milan – Rome. Gill, D. W. J. (2013). Context matters: Dallas museum of art takes the initiative. The Journal of Art Crime (9), pp. 81–86. Godart, L., De Caro, S., & Gavrili, M. (Eds.). (2008). Nostoi. Repatriated Masterpieces. Athens: Lucy Braggiotti Editions. Green, J. R. (1994). Theatre in ancient greek society. London and New York: Routledge.

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Grimes, W. (2009, October 15). Dietrich von Bothmer, curator and art historian, dies at 90. The New York Times. Hoving, T. (1993). Making the mummies dance. New York: Simon & Schuster. Mackenzie, S. (2011). Illicit deals in cultural objects as crimes of the powerful. Crime, Law and Social Change, 56, 133–153. Mashberg, T. (2017a, March 16). Stolen etruscan vessel to be returned to Italy. The New  York Times. Retrieved February 2, 2018, from https://www.nytimes. com/2017/03/16/arts/design/stolen-etruscan-vessel-to-be-returned-to-italy.html. Mashberg, T. (2017b, August 1). Vase, thought to be looted, is seized from met. The New  York Times. Retrieved February 1, 2018, from https://www.nytimes. com/2017/07/31/arts/design/ancient-vase-seized-from-met-museum-on-suspicion-it-was-looted.html. Meyer, K. E. (1973). The plundered past. New York: Atheneum. Pearce, F. (1976). Crimes of the powerful. London: Pluto Press. Povoledo, E. (2006, February 22). Italy and U.S. sign antiquities accord. The New York Times. Retrieved July 10, 2015, from http://www.nytimes.com/2006/02/22/arts/ design/22anti.html?pagewanted=all&_r=0. Ruggiero, V. (2007). It’s the economy, stupid! Classifying power crimes. International Journal of the Sociology of Law (35), pp. 163–177. Speed Art Museum. (2018, January 31). The speed art museum and Italian Ministry reach loan agreement on ancient Calyx-Krater. Speed Art Museum. Sutherland, E.  H. (1940). White-collar criminality. American Sociological Review, 5(1), 1–12. Sutherland, E.  H. (1983). White-collar crime: The uncut version. New Haven: Yale University Press. Swains, H (2017, September 24). London’s loot: The legacy of Robin Symes. Medium. Retrieved February 1, 2018, from https://medium.com/@howardswains/robinsymes-looted-antiquities-9e4dc232059d. The Metropolitan Museum of Art. (2008, September 9). Thomas P. Campbell named next director of the metropolitan museum of art. Retrieved July 16, 2015, from http://www.metmuseum.org/about-the-museum/press-room/news/2008/ thomas-p-campbell-named-next-director-of-the-metropolitan-museum-of-art. Tsirogiannis, C. (2013a). Something is Confidential in the State of Christie’s. The Journal of Art Crime, 9, 3–19. Tsirogiannis, C. (2013b). Unravelling the International Illicit Antiquities Network through the Robin Symes-Christos Michaelides Archive and its International Implications. Unpublished PhD Thesis, University of Cambridge. Tsirogiannis, C. (2013c). A marble statue of a boy at the Virginia Museum of fine arts. The Journal of Art Crime, 9, 55–60. Tsirogiannis, C. (2013d). Nekyia. From Apulia to Virginia: An Apulian Gnathia Askos at the Virginia Museum of fine arts. Journal of Art Crime (10), pp. 81–86. Tsirogiannis, C. (2014). Nekyia. A South Italian Bell-Krater by Python in the metropolitan museum of art. The Journal of Art Crime, 11, 63–68.

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Tsirogiannis, C. (2017). Unethical actions, inactions and reactions by the museum and market community to the seizure of the Met’s Python Krater. The Journal of Art Crime, 18, 65–68. Tsirogiannis, C., & Gill, D. W. J. (2014). “A fracture in time”: A cup attributed to the Euaion Painter from the Bothmer collection. International Journal of Cultural Property, 21(4), 465–480. UNESCO. (1970, November 14). Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property. UNESCO. Retrieved February 4, 2012, from http://portal.unesco.org/en/ev.phpURL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html. Watson, P., & Todeschini, C. (2006). The medici conspiracy. New  York (NY): Public Affairs. Watson, P., & Todeschini, C. (2007). The medici conspiracy. New  York (NY): Public Affairs.

37 White-Collar Crime, Organised Crime and the Challenges of Doing Research on Art Crime Simon Mackenzie

Introduction Researching art crime is not easy work. It compounds some fairly well-known problems in researching a variety of criminological topics, which all come together in the case of art crime to present it as a particularly thorny issue to grasp. In particular, many forms of art crime research take place across the boundaries of white-collar crime, organised crime and policing research. White-collar crimes and other crimes of the powerful are notoriously hard to research, being committed in places which members of the public, including academic researchers, do not have privileged access to—the so-called crimes of the suites (Friedrichs 2010). Shining a light on the untoward practices of the rich and powerful can provoke threats of defamation litigation, which for the average empty-pocketed researcher can be quite intimidating. Organised crime is obscure for different reasons: there are access issues due to forms of power, which are comparable in some respects to the white-collar challenge, but it can also be a dangerous enterprise to attempt to uncover (Hobbs and Antonopoulos 2014). Art crime is one of a number of crimes on which police data are deficient and/or hard to disaggregate, and it sits on the spectrum of crimes for which other documentary sources of data are not always easily or freely available.

S. Mackenzie (*) Victoria University of Wellington, Wellington, New Zealand e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_37

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Some aspects of art crime happen online, for example illicit or fraudulent sales, and the ephemerality of those records present ‘moving target’ issues. Art crimes are committed nationally and internationally, presenting language barriers to Anglophone researchers as well as costly travel budgets for fieldwork exercises. Researching antiquities looters, for example, runs into the immediate problem that they are not especially easy to find. They are less obviously available for research participation than other popular groups of criminological research participants, such as incarcerated offenders or criminology students. Looters are also a good example of the ethical research challenges involved in gathering original empirical data in art crime research, with some  being in the sensitive categories of participants that university ethics committees quite understandably seek to give especially high levels of protection to (Noaks and Wincup 2004): possibly being vulnerable, young, likely to suffer harmful repercussions if data are mishandled, and more likely than other groups to misunderstand the purpose of the study and the impact of their participation in it. At this point, readers not already too committed to a career in researching art crime to back out might well be thinking about switching topics and looking forward to an easier life, but let us look at all of these challenges in more depth and try to show how they can be overcome. Although art crime is certainly a testing subject of study, none of these challenges is entirely insuperable and it can be a very rewarding job to think inventively about the methodological design of research projects to allow for the collection and analysis of good data. In thinking about the research implications of questions about art crime, we should probably start by breaking down the term ‘art crime’ into some of its component parts. Perhaps reflecting my own bias in terms of the research I have chosen to do in this field, I tend to think of art crime as something of a dichotomous term, encompassing trafficking cultural objects (my main research interest to date) on the one hand, and the crime problems that affect the market for more contemporary art on the other: including thefts from museums, galleries and private collections, fakes and frauds and claims r­ elating to spoliation (most notably recently in relation to the holocaust). Doing research on the latter of these two categories can no doubt be challenging, and I have had some experience of the challenges there (Mackenzie 2005a). However, by far the greatest amount of experience I have had in art crime research has been in relation to the first problem, trafficking antiquities, so I concentrate in this chapter on the research designs, setbacks and successes, which have been a part of that line of work, especially most recently having

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had the privilege to work with a marvellous and dedicated group of researchers and graduate students in the Trafficking Culture project. The research landscape of trafficking antiquities can be broken down into three phases of traffic: source, transit and demand. Actually, largely as a result of the Trafficking Culture findings, I have increasingly tended in terms of analytical focus to think about the transnational trade in antiquities as really having two phases—the first being from source to an interface point with the legitimate market and the second being the surfacing of the object in question thereafter, in other words, the market phase. In terms of talking about research design, however, it might be better for the moment to hold on to the idea of a three-fold distinction between source, transit and demand, since that will allow us to discuss researching looters at one end, buyers at the other end and the ‘interface’ personnel, who provide the key links in the networks, between the two ends.

Market-end Research The challenges of conducting market-end research in the illicit antiquities trade are really a version of the normal issues confronting research on white-­ collar crime. Why should constituents in the market like high-end dealers, collectors and museum buyers consent to participate in interviews with researchers in which they are likely to be asked to reveal some elements of their ‘trade secrets’? This question becomes ever more salient in a market widely identified as unusually—and perhaps anachronistically—private. If we accept that the antiquities trade is a ‘grey market’ (Mackenzie and Yates 2017), in which illicit artefacts are often inserted into the legitimate supply chain, then potential ‘legitimate’ interviewees in the dealing and collecting community will likely have handled these illicit objects knowingly, unknowingly or with a degree of suspicion that places their state of mind somewhere on the inscrutable spectrum between knowing and unknowing. For all of these ­market actors there is a degree of risk involved in research participation and little really to be gained. When approaching people in the market to invite them to take part in a research interview, it is therefore a good idea to be able to frame the research in a way that is not just muckraking. An interview situation may, for example, offer the interviewee a chance to set out the platform for the public trade’s engagement with the illicit antiquities question, putting forward their arguments in support of the trade and its routines, arguments the researcher commits to treating fairly in the write-up. However, for anyone

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who is actively and knowingly participating in the illicit trade—in other words, for those who would be the most interesting and revealing interviewees—that framing of the participation invitation is not likely to be at all compelling or even tempting. For those actors, keeping out of the spotlight is the aim. This issue of who is most likely to respond positively to interview requests has the effect of limiting the reach interview-type research can have into the illicit market. That reach might be bettered, for example, through academic interview research studies with convicted dealers, which is a research methodology that has shown itself to be quite productive in other areas of criminology. Those kinds of studies are completely absent from this field, however. The closest approximation is journalistic Q&A with some of the high-level accused, but even here rarely if ever with those who have been convicted. A recent example would be the interviews with Marion True, ex curator at the Getty, prosecuted in Italy for dealing in looted antiquities but with the case against her dropped due to the expiry of a five-year limitation period (Eakin 2010). Assuming, therefore, that some level of participation can be gained from market players, it is important for the study at hand to include consideration of how those research participants may differ from non-responders. Depending on how the study is framed, this may not be such a big problem as it seems. If, for example, the aim of the exercise is to access narratives about perceived wrongdoing in the market (by others) then the problem of low response rates in a qualitative study may just narrow the opportunities for data collection rather than contaminate or defeat them irretrievably. If the desired access is to narratives about wrongdoing by the respondents themselves, then, while there is no doubt that the juiciest stories are likely to remain hidden with the non-­ responders, even interviews with a limited pool of presumed ‘white knights’ can be revealing. In other words if, as it seems reasonable to suggest, the people agreeing to be interviewed represent the more ethical end of the market spectrum, it is useful to discover that even among these players there is regular handling of looted antiquities, often unknowing or ‘semi-knowing’. That sort of finding allows us to observe important problems with the functioning of the international antiquities market, summarised in the idea of ‘greyness’ or inscrutability of the provenance and pedigree of objects offered for sale (Mackenzie 2005b). A question which crops up quite regularly in relation to interview research with powerful actors generally, and research with high-end cultural paragons particularly, is: how do we know they are telling us the truth? Part of the sophistication and self-awareness discernible among the inhabitants of the

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rarefied social echelons we lowly researchers may aspire to scrutinise, is the capacity to talk a good game. Such persons can be intensely and eloquently persuasive in advocating moral positions, apparently sensible trading regimes, international business norms, data protection and other privacy imperatives and so on. But how much of that is a question of ‘perspective’ to be fastidiously noted and later analysed and ‘appreciated’ by researchers who have set it as their task to delve into and try to understand the subjective positions occupied by their interview subjects in society and economy? And how much of it is actually bare-faced cover-up, which should be systematically dismantled and rejected in analysis, where to buy into it as subjectivity would effectively be to be duped? There are various answers here, but whatever their value, the most important advice is simply to ask the question and try to be clear what you are doing about it: save yourself from the oblivion of the great mass of studies conducted by researchers who see ‘expert’ or ‘professional’ interviews as an unproblematic and easy way of finding out what the truth of a given situation is. It is a fundamental and sadly often catastrophic error to wade into a social scene with a methodological toolbox that includes only one gleaming wrench—‘do some interviews’—operating all the time on the, usually implicit, assumption that what people will tell you is ‘how things are’. The epistemological and ontological issues with that sort of approach are well worn in the books on sociological and criminological interview research. Suffice to say, it is very likely that people will, under the auspices of telling you ‘how things are’, actually tell you how they would like things to be or, more precisely, how they would like you to think things are, which they perceive to be a step in the right direction towards making it more likely that things will end up being as they would like them to be. This is especially the case with white-collar crime research among active market participants, who clearly have significant vested interests in various factors that make them unreliable witnesses to the facts: they are in the business of making profits, they are in competition with others and they have reputations to maintain. As a result, they will be highly wary of self-incrimination while being less wary or concerned with unduly ­incriminating others, especially as you are almost certainly offering them complete anonymity in your project outputs. There are various ways to approach this problem. Some interview methods include in-built truth tests and some rely on triangulation of data to try to place the interview data within a wider frame and verify its reliability as ­consistent with a bigger picture (Hobbs and Antonopoulos 2014). Classic and conventional though those methods are, there has been a tendency in  art crime research to ignore them, possibly because of the radically

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i­nterdisciplinary nature of the field, which means many researchers have not been trained in social science research methods. One way to engage with the question of reliability or ‘truthiness’ is to take a critical approach to discourse or narrative analysis, looking for the master narratives, or more colloquially ‘stories’, which seem to be guiding the interview responses. Therefore, rather than asking what is the underlying truth to which each interviewee is adverting, the method is to try to (re)construct the underlying narrative from which the micro-stories and sub-plots in the interview seem to have been drawn. In my research, for example, I have used this approach to systematically chart the structure of justifying rhetoric supporting unethical behaviour in the market. Stories, myths and anecdotes, hearsay: these all provide a basis for discursive explanation, excuse and justification for dealing in stolen goods, often having as dramatic an effect as turning crime on its head, recasting criminal behaviour as socially good, for example, when illicit dealing and collecting are constructed as preserving looted artefacts and bringing them to public display or academic study (Mackenzie and Yates 2016). So, one possibility in dealing with the conundrum of whether to take interviewees at their word is to pay closer attention than usual to what those words are and to make as the object of your enquiry the words and the underlying narrative structure which they emanate from, signal and reinforce. That is a particularly constructivist line to take and there are other potential ways forward, but as I have said already, trying to ignore the problem is not one of them. There are many more issues that could be discussed in relation to what has come in the methods literature to be called ‘researching up’, that is, turning the research gaze away from the street crime, poverty, disenfranchisement and powerlessness that have been the traditional focus of criminology and upwards instead, towards the corridors of social, economic and political power (Tombs and Whyte 2003). One, which bears mention in closing this section as being particularly applicable to art crime research, is defamation. It is variously also called, depending on legal jurisdiction, slander or libel. The issue here for art crime researchers is that the subjects of their research are quite likely to be rich and to have a reputation in the art world which is highly valuable to them, and which they are prepared to fight to protect, using lawyers. This hangs over research into art crime like a suppressing cloud. Most researchers in this field will, I think, know others who have received ‘cease and desist’–type letters from law firms, if they have not received them themselves. On the face of it, crime research does sometimes involve making reasoned propositions about people’s conduct. The line between such research-based

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propositions and ‘allegations’ about a person’s character is not always easy to draw. Veracity can defend a researcher from an accusation of defamation, but it is not always easy to prove the truth of statements made and the standards for what is considered a reasonable basis for making a proposition in the world of research may not match the legal requirements for proof. In this area, university research ethics requirements can be a blessing, as they will usually encourage anonymity as a standard format for publication based on research, and this can help contain the temptation to make personalised allegations in one’s output. In some countries, the law is making progressive moves to support academic freedom of speech by exempting peer-reviewed publications from the usual rules on defamatory statements, but nonetheless it will continue to pay to be careful. Very large amounts of money can be at stake: consider, for example, the standard practices of authenticators who will nowadays (a) never declare a painting to be a fake but prefer to say something non-committal but highly suggestive along the lines that there appear to be inconsistencies with the purported artist’s known style or materials and (b) only say this in a private letter to their client (the owner) and not more publicly. Allegations that artworks are fake or looted can have severe effects on their value and that provides a readily quantifiable estimate of the owner’s financial loss, which can be attributed to the speaker or writer of the opinion, or its publisher.

Source Research If research at the market end of the supply chain for illicit antiquities faces challenges that are broadly similar to other white-collar crime studies, research at the source end can be seen to face a series of challenges well known to organised crime researchers. Note that this is not to make any position statements or definitional assertions about looting antiquities as being organised crime, since this is a methods chapter rather than a substantive argument. I am saying that whatever your position is on the yes/no of the ‘is it organised crime’ question, the research challenges are similar. One of the first challenges in aiming to do qualitative field research with organised criminals is where and how to find them. One might suspect organised criminals, broadly conceived, to be more sophisticated in their approach to the commission of crime than more run-of-the-mill ‘street’ criminals: for example, using developed counter-intelligence strategies including at the very

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rudimentary end of that counter-intelligence continuum, simply doing their best to keep the illicit nature of their activities hidden (von Lampe 2015). Organised criminals do not always run highly sophisticated operations, however, and in the antiquities trade they are not necessarily hidden—in some countries the trade is so unregulated in practice that criminals participating in the illicit supply chain can operate through  shops openly stocked with looted goods. Finding looters can be more difficult than finding shop-tending illicit traffickers higher up the supply chain. Yet, it is certainly not impossible. Conducting research on temple theft in Cambodia with Tess Davis, this challenge presented itself (Mackenzie and Davis 2014). We tried to address it in three ways: networking, ethnographic investigation and snowballing. By networking I mean making connections with people who are likely to be closer to your target source population than you are. In our case, this was a team of local researchers in Cambodia who were able to provide us with introductions to key respondents known to them. In other scenarios, useful networking might be with local archaeologists since they spend long periods in the field and will usually get to know the local scene quite well during that time, including often experiencing looting at the sites they are working on (Bowman 2008). Making those connections can be valuable, allowing the researcher to focus in on knowledge that those archaeologists themselves might otherwise write off simply as practical experience with no implications for academic research. In terms of ethnographic investigation, we noted early in the Cambodia research that most of the temples, however remote from major routes or towns, had villages nearby, and visits to those villages were predictably rewarding. We found it best not to lurch in with questions about looting, which may have caused suspicions about our intent (were we the police?). We found a useful approach was to begin with open-ended discussions about who in the village would be best placed to tell us the stories about the relationship between the village and the temple over time. That would allow an introduction to the elders or people with some level of responsibility for community matters and in turn it may lead (and this is ‘snowballing’) to recommendations of others to consult, or even introductions to villagers who had been looters at one time or another. Generally speaking, while acknowledging the dangers and difficulties of doing primary empirical research with active organised criminals, it has been acknowledged in the methodological literature that the impediments are often over-stated or assumed to be more severe than they actually are. Many

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types of organised criminals have been interviewed by academic researchers and quite a lot of these are more dangerous and harder to reach than cultural property looters and traffickers—consider, for example, studies of hitmen and professional killers (Levi 1981; Wilson and Rahman 2015). Where active organised criminals cannot be reached, incarcerated offenders present a more easily identifiable group, as illustrated by prison-based interview studies of drug dealers and smugglers (Decker and Townsend Chapman 2008; Pearson and Hobbs 2001; Reuter and Haaga 1989). Another solution is to aim to access retired organised criminals (Antonopoulos 2008) or those now co-­ operating with the police (Paoli 2003), who are likely to present less of a threat, thus mitigating university ethics committee concerns about risk to the researcher. They are also likely to be more disposed to openness about the routines and mechanisms involved in successfully navigating illicit trade ventures, since they no longer have a vested interest in continuing the secrecy surrounding those methods.

Transit Portal Research Research in transit countries is on some measures the most difficult of the three stages in our source-transit-market research model. It aggregates the challenges of both white-collar crime research and organised crime research. Significant transit players occupy a role that Tess Davis and I have called ‘Janus’-like: the reference meaning to suggest that they are a point of interface between the underground and above-ground market, taking objects with a dirty hand as they face down the chain of supply to source and then turning round and passing them into the market with an apparently clean hand, thereby in effect ‘laundering’ or ‘fencing’ them (Mackenzie and Davis 2014). Janus figures therefore have characteristics of both organised criminals and white-collar criminals. They sit at the apex of organised chains of illicit supply, driving those chains through their demand for illicit objects. They also perform white-collar criminal functions in the market with their cultivation and abuse of bonds of trust. They may be high-status, high-value individuals with major fortunes and enterprises built up to appear legitimate, although having been financed by and continuing to facilitate the insertion of illicit objects into the marketplace. Research into trafficking at the transit phase in this global illicit supply chain needs to involve attention to personal safety, as of course all research does. Ingrained official corruption, a certain level of sophistication among

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some criminals, and possibly a long-standing organised crime scene in transit cities can present a threat to researchers asking intrusive questions. Ethnographic research into transit countries for antiquities is still in its infancy but they sometimes represent somewhat anomic trade zones—the geographical meeting or transition points between organised crime networks trafficking goods out of source countries and white-collar trading networks dealing with the goods after they are inserted into international markets. Transit portals are the points directly before the objects surface on the international market, and the established businesses set up to manipulate that surfacing may have considerable profitable assets and connections to protect in their sources of supply, as well as an ongoing interest in keeping their injection of illicit artefacts into the international market a secret. Transit and source research present similar problems of language. This is sometimes less of an issue in transit cities where English may be quite widely spoken, especially in global trading communities. Nonetheless, it is important not to allow your research to be shaped by the somewhat haphazard criteria of ‘who speaks my language’, although many studies will in fact do this, so it is important to be aware of the issue when reading other people’s research. Therefore, both at source and in transit cities, the researcher should use translators. I have found it can be helpful to use two translators at once. With only one translator, you run into the problem of the disruption of normal conversational interaction. You ask the translator a question to ask the interviewee: ‘can you ask her […]’. The interviewee waits while you ask the interpreter this, then she hears it from them in her own language. Then she replies. Eventually the interpreter gives you her reply. You think about the reply and ask the interpreter to ask her another question to follow on. And so it goes. In this format, both you and the interviewee spend much of your time waiting for something to happen, listening to people talking in a language you do not understand. With two interpreters, however, you can have one dedicated to asking your questions and one dedicated to translating the interviewee’s answers. At least in this way while you are hearing the translated answers from the interviewee’s translator you can be talking simultaneously to your translator, setting up the next question to be asked or making comments back to the interviewee. It makes for slightly better, circular, conversational flow, and it deals in some respects with the major issue of the one-translator set-up, namely the incapacity to respond to or query pieces of information mid-flow, having to wait to the end of the whole response, by which time the moment has probably been lost.

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Official Data Sources and Other Published Data One type of interviewing we have not mentioned, but which transcends source, transit and market, is official accounts. Given that the police have a privileged position in relation to access to information about the hidden criminal elements of the trade, insofar as it is part of their job to try to uncover those hidden elements, we might expect interviews with active ‘art crime’ police officers to be revealing. While some enlightening research has been done with law enforcement about first-hand perceptions of governance routines and issues (Kerr 2015), talking to the police has for the most part been disappointing as a research method in this field. Police officers have tended to be reluctant to trade information with researchers and sometimes even with other national police forces, due to concerns about the confidentiality of information gathered in the course of investigations. Access to police databases is similarly hard to achieve, apart from those which are more or less open access, such as the Interpol database of stolen works of art. Many police databases are in any event likely to be of limited utility to researchers interested in the specialist category of ‘art crime’, where that category is seldom recorded by police forces separate from the general mire of property crime statistics. Where police and customs officials do interact with researchers, it has tended to be on their terms, which has usually been where they require academic archaeological experts to help them identify seized artefacts. Unfortunately, that kind of disciplinary expertise tends to be the remit of more traditional archaeologists while the pioneering academics working alongside criminologists in developing expertise on the illicit trade usually do not have the required object identification capacities to be able to help law enforcement. The result is that enforcement officials end up talking to the wrong people for the long game: in recruiting only archaeologists who can assist with their immediate short-term concerns around identifying seized objects they are missing the opportunity to interact with the real specialists in the field. Fortunately, this problem is becoming less of an issue over time, as international conferences and specialist meetings bring together academics, government representatives and law enforcement at regular panel sessions and closed meetings to develop global solutions. Court files are a staple of organised crime research (Hess 1973; Catanzaro 1992; Gambetta 1993; Campana 2011). These have so far been little used in studies of art crime, other than where revealing excerpts of documentary productions in court have been posted on the internet by journalist bloggers like Jason Felch through his excellent investigative Chasing Aphrodite website.

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The same can be said of customs files and data: enterprisingly used in criminological studies of organised crime (Soudijn 2006; van Dijck 2007), largely unused in studies of art crime by any discipline outside of occasional analysis in the blogosphere, in this case notably by the lawyer Rick St Hilaire. Secondary analysis of published data sources other than official records and statistics also has productive precedents in white-collar and organised crime research. For example, the biographies and autobiographies of convicted and sometimes repentant criminals can provide rich sources of data, albeit with the obvious caveat that these are performative documents, deliberately produced by their authors and subjects for public consumption and therefore quite possibly presenting the very definition of a one-sided view on matters (Hunter 2015). In the field of illicit antiquities studies, Tsirogiannis has combined a review of published literature, in this case The Medici Conspiracy (Watson and Todeschini 2007), with a social network analysis to produce network maps of the major players in the conspiracy—Medici, Hecht, True and so on—and their trading relationships with museums and less prominent dealers (Tsirogiannis and Tsirogiannis 2016). This approach supports, among other things, something that researchers in this field have long acknowledged: that some of our best access to data is due to the high quality of some investigative journalism and resulting popular books (Watson 1997; Felch and Frammolino 2011; Atwood 2004; Silver 2009). In terms of other available literature, auction and museum catalogues have been used to good effect both in studies of the extent and market impact of decent provenance information, and in the more practical business of identifying suspicious artefacts and reporting them. The work of two of my colleagues in the Trafficking Culture consortium exemplifies these two types of auction catalogue exercise: Neil Brodie in respect of the former and Christos Tsirogiannis in respect of the latter. 

Conclusion: Researching Art Crime, Why and How In addition to being inherently interesting to most people, for criminologists, art crime—and, in the case of this chapter, particularly antiquities trafficking—presents an accessible case study within the category of global illicit trades. This is interesting theoretically in its aggregation of the analytical categories of white-collar crime and organised crime and the interfaces and overlaps between them. That conceptual relationship is currently one of the many cutting-edge interests in the criminology of serious for-profit crimes, with recent attention being paid to ‘facilitators’ and ‘brokers’ in the field of ­organised crime studies (Morselli and Roy 2008; Morselli 2013), where those

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roles are acknowledged sometimes to be white-collar ones, as well as being part of the division of labour within organised crime groups and networks. In studying antiquities trafficking, we have a market where the internal composition of the networked activity seems to consist of a transition, sometimes from organised crime origins in heritage-rich countries to white-collar crime reception in the market, so the theoretical examination of the links joining and boundaries separating those two criminological ideals of white-collar and organised crime is a rich and rewarding source of inquiry. One step back from those conceptual questions sits the issue of how practically to research them and, in this chapter, I have tried to lay out and consider some of the challenges and solutions in the empirical study of this area. The central proposition, which I hope it is clear that this analysis supports, is not only that the criminology of white-collar and organised crime is an essential context to the study of global art crime, but also that studies of art crime can contribute important contexts to research and conceptual development in the broader fields of study in white-collar and organised crime, both in terms of generating empirical data and in terms of developing methodological techniques.

Bibliography Antonopoulos, G.  A. (2008). Interviewing retired cigarette smugglers. Trends in Organized Crime, 11, 70–81. Atwood, R. (2004). Stealing history: Tomb raiders, smugglers, and the looting of the ancient world. New York: St Martin’s Press. Bowman, B. A. (2008). Transnational crimes against culture: Looting at archaeological sites and the “Grey” market in antiquities. Journal of Contemporary Criminal Justice, 24(3), 225–242. Campana, P. (2011). Eavesdropping on the Mob: The functional diversification of Mafia activities across territories. European Journal of Criminology, 8(3), 213–228. Catanzaro, R. (1992). Men of respect. New York: Free Press. Decker, S. H., & Townsend Chapman, M. (2008). Drug smugglers on drug smuggling: Lessons from the inside. Philadelphia: Temple University Press. Eakin, H. (2010, October 14). Marion true on her trial and ordeal, New York Times. Felch, J., & Frammolino, R. (2011). Chasing aphrodite: The hunt for looted antiquities at the world’s richest museum. Boston/New York: Houghton Mifflin Harcourt. Friedrichs, D. O. (2010). Trusted criminals: White collar crime in contemporary society (4th ed.). Belmont, CA: Wadsworth. Gambetta, D. (1993). The Sicilian Mafia: The business of private protection. Cambridge, MA: Harvard University Press.

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Hess, H. (1973). Mafia and Mafiosi: The structure of power. Lexington, MA: DC Heath. Hobbs, D., & Antonopoulos, G. A. (2014). How to research organized crime. In L.  Paoli (Ed.), The Oxford handbook of organized crime. Oxford: Oxford University Press. Hunter, B. (2015). White-collar offenders and desistance from crime: Future selves and the constancy of change. London: Routledge. Kerr, J.  (2015). The securitization and policing of art theft: The case of London. Farnham: Ashgate. Levi, K. (1981). Becoming a hit man: Neutralization in a very deviant career. Urban Life, 10(1), 47–63. Mackenzie, S. (2005a). Criminal and victim profiles in art theft: Motive, opportunity and repeat victimisation. Art, Antiquity and Law, X(4), 353–370. Mackenzie, S. (2005b). Going, going, gone: Regulating the market in illicit antiquities. Leicester: Institute of Art and Law. Mackenzie, S., & Davis, T. (2014). Temple looting in Cambodia: Anatomy of a statue trafficking network. British Journal of Criminology, 54(5), 722–740. Mackenzie, S., & Yates, D. (2016). Collectors on illicit collecting: Higher loyalties and other techniques of neutralization in the unlawful collecting of rare and precious orchids and antiquities, Theoretical Criminology, 30(3), 340–357. Mackenzie, S., & Yates, D. (2017). What is grey about the “Grey Market” in antiquities? In J. Beckert & M. Dewey (Eds.), The architecture of illegal markets. Oxford: Oxford University Press. Morselli, C. (Ed.). (2013). Crime and networks. New York: Routledge. Morselli, C., & Roy, J.  (2008). Brokerage qualifications in ringing operations. Criminology, 46(1), 71–98. Noaks, L., & Wincup, E. (2004). Criminological research: Understanding qualitative methods. London: Sage. Paoli, L. (2003). Mafia brotherhoods: Organized crime, Italian style. Oxford: Oxford University Press. Pearson, G., & Hobbs, D. (2001). Middle market drug distribution, Home office research study 227 London: Home Office. Reuter, P., & Haaga, J. (1989). The organisation of high-level drug markets: An exploratory study. Santa Monica, CA: RAND. Silver, V. (2009). The lost chalice: The epic hunt for a priceless masterpiece. New York: HarperCollins. Soudijn, M. R. J. (2006). Chinese human smuggling in transit. The Hague: BJU. Tombs, S., & Whyte, D. (Eds.). (2003). Unmasking the crimes of the powerful: Scrutinizing states and corporations. New York: Peter Lang. Tsirogiannis, C., & Tsirogiannis, C. (2016). Uncovering the hidden routes: Algorithms for identifying paths and missing links in trade networks. In T.  Brughmans, A.  Collar, & F.  Coward (Eds.), The connected past: Challenging networks in archaeology and history. Oxford: Oxford University Press.

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van Dijck, M. (2007). Cigarette shuffle: Organising tobacco tax evasion in the Netherlands. In P. C. Van Duyne, A. Maljevic, M. Van Dijck, K. von Lampe, & J. Harvey (Eds.), Crime business and crime money in Europe. Wolf Legal: Nijmegen. von Lampe, K. (2015). Organized crime: Analyzing illegal activities, criminal structures, and extra-legal governance. London: Sage. Watson, P. (1997). Sotheby’s: The inside story. London: Bloomsbury. Watson, P., & Todeschini, C. (2007). The medici conspiracy: The illicit journey of looted antiquities – From Italy’s tomb raiders to the world’s greatest museums. New York: Public Affairs. Wilson, D., & Rahman, M. (2015). Becoming a hitman. Howard Journal of Criminal Justice, 54(3), 250–264.

38 In Vacuums of Law We Find: Outsider Poiesis in Street Art and Graffiti Lucy Finchett-Maddock

If graffiti changed anything, it would be illegal. Banksy

Introduction In 2014, six law students and I took part in a ‘StreetLaw’ project where we worked with a local alternative art gallery ‘Art Schism’ (Brighton) and their lead street artist ‘Sinna One’ to answer some questions the gallery had on the legality and illegality of street art and graffiti (StreetLaw 2014). The students investigated the law surrounding the art form, learnt to spray paint and ran a street art workshop for excluded children from the local Pupil Referral Unit. Some of the questions raised by Sinna One have now been the subject of case law, with Creative Foundation v Dreamland Leisure Ltd [2015] deciding the ownership of street art between landlords and tenants. Taking inspiration from StreetLaw Brighton, I analyse the application of criminal law and real and intellectual property law in regulating street art and graffiti, to see not only what the art form and its creators can tell us about the dissident subculture, but also what the movement may tell us about the link between authorities of art and law more generally. I argue that acceptability by

L. Finchett-Maddock (*) University of Sussex, Brighton, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_38

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authority in art and in law is historically the same, highlighting the role of property in both art and law as the deciding gradient of aesthetic tolerability and intolerability. This authority reproduced and manifested is discussed as a Western construction spread through property and the expropriation of art for commodifying purposes. Looking at street art and graffiti demonstrates the role of property not only in law, but also in conceptions of what is acceptable (or otherwise) forms of art. Street art and graffiti is thus an obvious protest against the destructive histories connected to the establishment of the art world, the law and property in sum. In the past few years, street art and graffiti has become an increasingly familiar and commonplace adornment to our cemented towns and cityscapes. Similarly, thousands of websites and Twitter and Instagram accounts portray a now colourful and vivid cement-riddled street art and graffiti-strewn planet. This ‘mainstreaming’ of street art and graffiti appears to be prevalent not just within more accepting communities, but across the world, and for different reasons. The commercialisation of street art and graffiti has been commented on by the academic voice on deviant urban art and writing, criminologist and legal thinker Alison Young in her work ‘Street Art World’ (2016a). In this text, designed to be accessible beyond academia, she speaks of a world full of street art and graffiti. She comments on the sardonicism of showing privately owned Banksy works in a commercial gallery space that charges admission, as opposed to the free commons of the street, asking ‘Is this “exit through the gift shop” an ironic and knowing wink at Banksy’s critique of the commercialisation of street art in his 2010 movie? Is it possible to own an ironic Banksy mug?’ (Young 2016b). This commercialism reminds us of the colonial extractivism synonymous with forms of state-market governance, allowed and enacted through law. Urban spaces appear legally complete, the majority of land is owned privately with the resultant recourse to private law mechanisms to govern any protest, at least in the UK context (Mead 2010; Finchett-Maddock 2016). This recourse to private law means of removing resistance from the streets speaks of council outsourcing to corporate contracts for cleaning city walls and ridding them of both legal and illegal art placed on the street. The unique ambiguities of street art and graffiti posit not just in terms of artistic expression or ways of recognising one community by another through territorial demarcation, not just new ways of the global art market to spread their feelers for profitable forms of propertied exchange and commercialism, but the very abstract-legal and material divisions street art and graffiti is made on create legal vacuums for poiesis, protest and property on the threshold of aesthetic and juridical legitimacy and illegitimacy. Street art and graffiti’s

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ambiguity is confounded through the mixture of legal forms, categories and demarcating lines that the creations and its creators manage to traverse. Street art and graffiti’s existence indicates a melting pot of both law and its absence, and law’s omnipotence and its impotence, as at once this supposedly abnormal art surpasses legal category and yet is a stark reminder of the boundaries of legal and illegal. The laws governing street art and graffiti and the actions of its creators range from trespass to intellectual properties of copyright and trademarks, art market law, real property, heritage and planning laws, criminal law, environmental health and council bye-laws. It is a legal elixir, and yet demonstrably transcends law entirely, as whether it is legitimate or otherwise, its performance endures. Its most instructing alchemy points to junctures between intellectual and real property, between artistic expression and ownership, between crime and creativity and between law and its outside. Iljadica’s work ‘Copyright Beyond Law: Regulating Creativity in the Graffiti Subculture’ (2016) on informal graffiti and copyright norms speaks of the intersection of physical and intellectual territories that binds graffiti, codes of appropriation and re-appropriation in terms of both the material and immaterial (Iljadica 2016, p. 49). Despite at once being unscaffolded by law, indicating the life force of expression that cannot be touched by legal category, street art and graffiti is synchronically defined entirely by the legal and the illegal, what is deemed right, what is deemed wrong and legitimate and illegitimate. This is much like the proper or improper, created by the artifice of property, as Margaret Davies would opine (2008). Whether it be the judicious questioning of the art establishment on the content and form of street art and graffiti as ‘reputable’ beyond the gallery space, to the definition of a creative work of art that may decipher copyright protection between a tag and a mural, we are talking boundaries, thresholds, lines and resultant ‘vacuums’ of law and the intersecting role of property. Iljadica speaks of these vacuums as the ‘bounded commons’, ‘[…] a regime that is bounded by property rights but creates a type of limited public domain (or commons) within its boundaries’ (Macmillan 2007, p. 106 in Iljadica 2016, p. 50). These are vacuums much in the way that Lambert (2013) talks of what exists within the thickness of the line of the architect’s drawing, what resides within the very boundary of law and its outside. Art is the threshold between law and life as Agamben would concur and the use of street art and graffiti is very much an expression of experience, territory and code, as much as it may be an ulterior form of copyright, as Iljadica argues (2016), or bottom-up commons of Mulcahy and Flessas in ‘Limiting Law: Art in the Street and Street in the Art’ (2016) that speaks of legal pluralisms.

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The irony is that at the point at which street art and graffiti resists state law, it opens it up as commons; the streets and their art align with copyleft, situationist philosophies. And yet between the artists themselves there are histories, expectations and etiquettes, similar to those in any other normative situation. Offered is a glimpse into the sensorial performance of aesthetics and law, where the two are not indistinct, where value, judgement, form and method rule in both legal and artistic terms. Street art and graffiti stands in contradiction to, and in protest of, the established customs of Western aesthetic and legal sensibilities that are built upon the buying and selling of private property. The apparently separate institutions of art and law rely on the authority of one another in order to support the flow of capital in art, law or realty, and it is the works of artists, such as those paintings and writing in the street, that seek to reveal the underlying capital of art and law. And yet, at the same time their art seems to defy the law, where both property and expression become plateaus and mezzanines striating law and the same vice versa, creating vacuums of criminal poiesis within law and art itself. The following pages seek to discuss street art and graffiti in relation to the law of England and Wales, as well as other jurisdictions, specifically, criminal damage, as well as intellectual and real property intersections, where there can be found an account of not only street art and graffiti’s legal regimes, but also what this ‘outsider’ form of art may teach us of the virtual and material of law and aesthetics beyond.

 ubvertising, Legitimation, Co-optation S and Critique Banksy’s own attribution site, the ‘Pest Control Office’ (see http://www.pestcontroloffice.com/whatispco.html), is a great starting point to enter the ambiguity and satire of the street art and graffiti world, where art created without permission has become such a cultural and economic paragon that the artist has to manage the influx of attribution claims virtually without compromising his identity. Banksy, amongst other illicit art legends that preceded him, such as Jean-Michel Basquiat, Keith Haring as well as peers Blek Le Rat, Shephard Fairey and graffiti crews, such as MSK, is a street artist associated with the worldwide scene of underground artists and graffiti writers and their artistic forms. Rafael Schacter (2014) uses the terminology ‘Independent Public Art’ of theorist Javier Abarca to describe street art and graffiti, an umbrella label describing all forms of ‘autonomously produced aesthetic production in the public sphere’. Schacter (2014) describes the global nature of

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the artists’ networks, where crews resemble the cooperative artisanry of medieval guilds (Sennett 2008, p. 60). The history and origins of street art and graffiti have been well documented, with in-depth and accomplished works on the art form that may differ from one to the next, but most genealogies locate the start of the art form as we know it today as emanating from the late 1960s onwards, directly expressing the styles and aesthetics of 1970s hip hop in New York. Its philosophy is intertwined with the anti-advertising philosophy of ‘culture jamming’ (Lasn 2000), ‘subvertising’ and anti-branding groups, such as Vermibus (Berlin), Brandalism, Protest Stencil (UK), Public Ad Campaign (New York), Billboard Utilizing Graffitists Against Unhealthy Promotions (US), BUGA-UP (Australia) and Citizens Organized Using Graffiti Hits on Unhealthy Products (COUGH UP) (UK), which seek to retake public space for their own expression, using graffiti, stickering, ‘slaps’ and street art to dissent from the commercialisation of the public sphere. The anti-commodification stance of the art form is a direct descendent of the Situationists and Dadaists, where cultural memes of capital are resisted, subverted and recoded, akin to the ‘semiotic democracy’ expressed by Fiske (1999). The impetus for street art is expressed suitably by Banksy: ‘Modern street art is the product of a generation tired of growing up with a relentless barrage of logos and images being thrown at their head every day, and much of it is an attempt to pick up these visual rocks and throw them back’ (McIntyre 2013, p. 309). Street art and graffiti as an art practice is as old as law itself, cave paintings, public wall art and muralism dating back through Medieval times to ancient Pompeii and beyond. As Germaine Greer notes, ‘Whether at Lascaux 17,000 years ago or in Western Arnhem Land 50,000 years ago, art began on a wall. If the sandblasters had been around in either place, we would have lost a precious inheritance’ (Greer in Edwards 2009). Graffiti is the plural word and form deriving from the Greek term grafein (to write) and Italian plural graffito meaning pictures ‘scratched’ (‘graffiato’) or etched on a surface, a technique dating back to ancient graffitists as they sketched their work onto walls as murals and frescoes (Rychliki 2008). Today, however, graffiti refers to the large colourful lettering, fonts, signatures and stylised pseudonyms, expressed in less intricate forms of ‘tagging’, and ‘throw ups’ of large bubble style lettering, whereas street art is more akin to muraling. Academic commentary on street art and graffiti has exploded from early conservative criminologists dramatising the art to Baudrillard’s essay ‘Kool Killer’ (1993 [1976]), Barthes’ text entitled ‘Cy Twombly’ (1991 [1979]) and the thinkers writing literature directly on the street art and graffiti as seen through the lens of criminal and intellectual property. Today, street art and

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graffiti is the subject of specialised art books, biographies as well as artists themselves, using social media to record the creating of their work and the locations, especially notable on Instagram. All this is a nod to its increased acceptance and legitimation by society and certainly a shift away from the early anti-branding days, with the simultaneous pitfalls of it becoming co-­ opted and mainstreamed, sold back to us as a commodity on the high street canvas.

The Law, the Outsider and Deviant Creativity The law that gathers and seeks to construct street art and graffiti is not a simple amalgamation. Under the criminal law the ‘graffer’ or artist will be assessed on their culpability—and to some extent likely culpability—as a vandal. In 1995, New York Mayor Rudolph Giuliani introduced an ‘Anti-Graffiti Task Force’ (New York Mayoral Executive Order No. 24, July 11, 1995). To combat the wave of graffiti that had occurred since the 1960s and 1970s in the city, laws were introduced making the sale of spray paint to anyone under the age of 18 a criminal offence (Section 110-117.2 New York Administrative Code: Defacement of property, possession, sale and display of aerosol spray paint cans, [and] broad tipped markers and etching acid prohibited in certain instances). A similar campaign was brought in through English and Welsh law with the ‘Keep Britain Tidy’ campaign, resulting in legislation granting the use of graffiti removal notices (Anti-Social Behaviour Act 2003 2003, s.48-52. s.31 and Part 4 of the Clean Neighbourhoods and Environment Act 2005 amended the Graffiti Removal Notices to ‘Defacement Removal Notices’ to incorporate fly-postering and stickering), amongst other measures to tackle graffiti and street art ‘vandalism’1 that are discussed shortly. Yet, copyright law has the capacity to protect the street artist’s or writer’s moral integrity through the protection of authorship rights. This abstruse approach by the law equates a crime-art division that Halsey and Young (2006, 2012, 2013) evinces in her work. She explains how aspects of everyday life become criminal acts and how street art and graffiti’s deviant art scene’s ambiguous images straddle the artcrime dichotomy, not least the real or imagined line between artist and criminal. This treatment by the law speaks of liminal crossings, in which the law clearly governs a separation between purely creative ‘affective encounters’ (Young 2012) and those that are crimes. ‘Liminality’ comes from the Latin word limen and refers to our happenstances of thresholds, such as street artists  Gomez (1993) presents a dichotomous categorisation of graffiti—‘graffiti art’ and ‘graffiti vandalism’.

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and graffiti writers teetering on and existing within these edges, not just of legality and illegality but also of aesthetic recognition. Their art is thought of as a form of outsider art (Cardinal 1972),2 in the sense that the participants are thought to not have art school training (although this cannot be generalised), and yet arguably by categorising the art as outsider, more divisions are created that speak of the combined influence of the prescribed art world establishment as well as the institution of law. This reminds us of Howard Becker’s seminal criminological text ‘The Outsiders’ ([1973] 2008), where deviancy is determined not as an inherent but cultural assumption, that we behave as we are so labelled. Following from Halsey and Young (2006, p. 277), whereby graffiti writing is described as ‘an affective process that does things to writers’ bodies (and the bodies of onlookers) […]’, one can see how the combined intersecting planes of criminal, intellectual and real property (law) and the expectations of the art establishment (aesthetics) will affect, effect, construct and label the street artist and graffiti writer as synchronically outsiders in law and outsiders in art. It is the affective encounter of law that labels to produce a self-fulfilling prophecy of deviance. What motivates the street artist or graffiti writer varies and has been referred to extensively (Young 2006, 2012, 2013), but the role of the law in deciding the illicit nature of the art certainly speaks of labels, those which are supported and upheld through a combination of juridical expectations and that of the commodified world of the ‘insider’ art establishment. Bird (2009, p. 1) refers to Davies (2008), for whom the illegality of an act cannot be seen at face value; only after we see the act through the filter of the law is it seen as criminal. This demonstrates the power that law has to categorise and yet, arguably, there are material conditions of law, aesthetics and property preceding an act that bind, effect and give affect to the creative outcome of the artists and writers. This creates not only the ‘entrenched ressentiment of the illicit artist’ (Girard 1977 in Young 2012, p. 4; 2013), but simultaneously holds up the establishments of law and art, fused in the elixir of property and colonisation. The impact of law on street art and graffiti is discussed specifically in the UK (English and Welsh law) context, in order to draw wider conclusions around the role of property and law in aesthetics. First we turn to the criminal plane of law in which we find street art and graffiti caught, followed by the copyright framework and the extent to which the genre is set free, finishing with the striating whim of real property, on which both the law and the art sit. Whether the criminal and copyright planes of law affect one another is to be  Jean Dubuffet coined the term art brut, translated by Roger Cardinal in the 1970s as ‘outsider art’ (1972). 2

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seen; the threshold at which the two meet is that of real property, the land as material commodity. This real property translates into moveable property on the art market, the alternate trafficking of global capital and the quiet colonising of aesthetics that comes back round to law.

Crime, Damage and Outsider Behaviour Street art and graffiti is an illegal urban artefact (or practice and performance, according to Schacter 2014; Mulcahy and Flessas 2016) in most places around the globe, if it is created without the property owner’s permission. Under English and Welsh law, street artists and graffiti writers, if caught in the act of making their artwork without permission of the owner of the property, can be prosecuted under s.1 Criminal Damage Act 1971, where the definition of criminal damage is, ‘A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence’. Under this legislation, if found guilty, there is a maximum penalty for those over 18 of 10 years if the criminal damage exceeds £5000 (s.4 (2) Criminal Damage Act 1971). Additionally, under the Anti-Social Behaviour Act 2003 (ss.48-54A as amended by Part 4 Clean Neighbourhoods and Environment Act 2005), someone caught in the act of creating street art and graffiti without ­permission can be issued with a fixed penalty notice by the local authority (s.48 as amended by s.28 Clean Neighbourhoods and Environment Act 2005). Using the same act, local authorities can issue ‘Graffiti Removal Notices’ (amended by Part 4 of the Clean Neighbourhoods and Environment Act 2005 to ‘Defacement Removal Notices’ to incorporate fly-postering and stickering) to owners of street furniture to remove illicit art pieces or writing. If the owner fails to do so within 28 days, the local authority may do it themselves (s.48 [1-3]) and charge the owner for the costs (s.48 [4]). A piece of work can stay on someone’s property, if they so wish, as long as the graffiti or street art is regarded as legal, regardless of the canvas owner’s opinions or permissions, if the words or images do not incite racial hatred (an offence under the Public Order Act of 1986 Part 3 s.18-19). The 2003 legislation also makes it illegal for retailers to sell spray paint to people under the age of 16 (Anti-Social Behaviour Act 2003 s.54-54A as amended by s.32 Clean Neighbourhoods and Environment Act 2005) and gives power to the police or local authority to issue anti-social behaviour orders (ASBOs) to control those repeatedly caught (Anti-Social Behaviour Act 2003 s.85). ASBOs have

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now been superseded by injunctions and Criminal Behaviour Orders under the Anti-Social Behaviour, Crime and Policing Act 2014, bringing in ‘public space protection orders’ (PSPOs) that specifically criminalise anti-social behaviour linked with a specific place (such as illegally camping in a park or writing on a wall in the instance of street art and graffiti) where the ‘unreasonable’ activity is being committed. Across the world there are alternate criminal law approaches to street art and graffiti and how to manage those creating the works. As yet there is not one specific law condoning graffiti in the UK;3 however, there exist more draconian measures elsewhere, such as the specific Victorian Graffiti Prevention Act 2007 covering the geographical area of Melbourne, a city famed for its graffiti and street art, written extensively on by Young (2012, 2013), as well as in New York, as mentioned previously. This more extreme response is linked to the conservative policies of the cities’ authorities, where criminalisation is used to ‘crack down’ on the illicit acts that are seen as deviant vandalism as opposed to creative adornments to urban environments. There remain examples of graffiti writers and street artists being treated with the full force of the law. The case of GSD Crew where the artists were given an 11-year sentence (Young 2016b, p.  35) and DPP v Shoan [2007] where Noam Shoan had his fine overturned for a prison sentence, taking the case up to the Australian Supreme Court, are examples of an extreme response from the law, seeking to make examples of Shoan and GSD to deter future graffiti writers and street artists with heavy punishments. A UK case R. v Dolan (Thomas James) [2007] [2008] discusses the harsh sentencing of prisoners creating graffiti. Singapore goes to an extreme with its draconian cleansing laws, repeatedly enforcing eight cane strokes, three years in jail and fines worth $1471 (Hopes and Fears 2017). The British Home Office, reflecting Keep Britain Tidy and the classification of graffiti and street art as anti-social behaviour, introduced a ‘Name That Tag’ initiative, offering rewards for information on prolific graffiti writers. According to the Crime Prevention website, the British Transport Police ran an information sharing database of tags accessible by local authorities, a means of tracking illicit artists and writers, as well as the extent of the damage caused by graffiti, which can be collated and taken into account by courts in sentencing (2017). In Berlin, a city known for its bohemian lifestyle and as a place for art and creativity, street art and graffiti is curbed by more lenient laws, such as fines worth €15, and Bogota, Colombia, has seen a moratorium on all laws around  Scots Law similarly prescribes the control of graffiti and street art under the Anti-Social Behaviour Act (Scotland) 2004 ss. 58–61. 3

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street art and graffiti after the police shot and killed Felipe Becerra as he was painting: ‘No permits are required for painting a building’s facade, police rarely intervene, and when they do they can only ask the writer to erase their work and leave’ (Hopes and Fears 2017). Buenos Aires, Argentina, is recognised as a mecca for graffiti and street art, as well as Mumbai, India, and Cape Town, although these cities’ criminal laws are still strict around art placed in the street (Hopes and Fears 2017). Edwards’ (2009) discussion on the interpretation of criminal damage in the case of the street art of Banksy is an interesting and comprehensive one, giving an insight into how the law views alternate aesthetics and the ever prioritising of property over those who create the art. He explains ‘there is no separate exculpatory or justificatory defence of ‘aesthetic value’, and so graffiti artists must argue that they either have not ‘damaged’ property, they lacked mens rea or they had lawful excuse’ (2009, p. 345). He argues that the importance of work such as Banksy’s as social and political commentary forces a rethinking of the definition and ambit of criminal damage (2009, p. 345), raising three issues—whether street art and graffiti constitutes ‘damage’ according to the tests, whether the defendant can claim they did not intend to cause damage but intended to create an artistic work (relieving them of the mens rea, the mental intention necessary for a criminal damage charge) and whether there is a defence for street artists under s.5 of the Criminal Damage Act 1971— that an urban artist does not believe their work to be damaging. For Edwards, after combing through appellate court decisions on definitions of criminal damage (R v Fiak [2005], Roe v Kingerlee [1986], Whiteley [1991]), the test of criminal damage is so broad that it warrants street art and graffiti being considered under an alternate legal framework. Higher courts rely on the magistrates’ courts and their jurisdiction to assess whether damage has been inflicted under s.1 of the Criminal Damage Act 1971, following the rulings in Fiak and Roe v Kingerlee (Edwards 2009, p. 348). Edwards discusses how each of the cases specifically relates to the extent to which ‘harm or injury’ is inflicted on the ‘value or usefulness’ of the property (Fiak and Morphitis v Salmon [1990]), a narrower continuation of Whiteley where any physical alteration at all may be deemed damage (Edwards 2009, p. 349). In Hardman v Chief Constable of Avon and Somerset (1986), campaigners for nuclear disarmament had used soluble paint and claimed that no criminal damage had occurred as the rain had washed the paint away. But it was held that damage had been incurred through the ‘expense and inconvenience’ on the part of the local authority having to remove the paint with high-pressure jets. There is a lack of consistency over how the courts should deal with street artists and graffiti writers and this troubles Edwards, where there are clearly no means by which to judge a defendant and their work other than through a very broadly

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defined ambit of damage, placing property rights above the artistic expression of the artist defendants (Edwards 2009, p. 350). As such, Edwards calls for an alternate prism in which street art and graffiti should be viewed by the courts: ‘Damage’ can only be assessed by reference to the spatial context in which the act occurs. Both ‘beauty’ and ‘damage’ are context-dependent; both involve an interaction between subject and observer, the labels being the means of conveying to others the observer’s affective response to the subject’. Not only does the criminal law apply to graffiti and street art in terms of defining the damage to property, but also the behaviour of the artists concerned. An interesting development in Common Law countries’ jurisdictions has been the crackdown on ‘anti-social behaviour’, arguably a development of criminologists Wilson and Kelling’s ‘broken windows’ theory (1982). This ‘zero tolerance’ approach claims that one piece of graffiti ‘vandalism’ can lead to the degeneration of an area, contrary to the belief that street art could actually benefit an area and be deemed an asset to a community to look after for future generations. Millie argues, in a similar stance to criminal damage and the fluctuating nature of artistic acceptability, that what is or may not be ‘anti-­ social’ is context specific (Millie 2008). This seemingly is reflected in the handling of graffiti as anti-social behaviour by the courts. In R. v Moore (Samuel George) [2011], the stance was lenient, with anti-social behaviour deemed too extreme for street art and graffiti and yet, with R. v Brzezinski (Tomaosz Adam) [2012], graffiti was viewed as anti-social behaviour, whether deliberately offensive or otherwise, followed by R v Ruth (Tobias Daniel) [2014] EWCA Crim 546, where graffiti was automatically assumed as criminal damage. For street artists and graffiti writers, the label vandal repeats through its link association with their works and how they feel the law sees them, an inevitable loop leading to intentional criminal damage giving effect to that which the law has so labelled.

Intersecting the Intellectual and the Real Many cities and towns now have ‘free walls’ where street art and graffiti can be done legally without any reprimand, where local authorities designate the area as a licenced space. Arguably, the acceptance of graffiti and street art relies on the local community’s shared views as to whether they wish it to be there or not, whether overtly through the extent to which local authorities enforce the law or unconsciously through the snowballed approval of the art as it gathers in a space without any obstruction. In a place such as Brighton, there is little reservation to the practice of street art and graffiti, a culture of urban creativity that even the local police have been known to condone. A number of stories

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of local enforcement authorities turning a blind eye as they stumbled upon artists’ mid-paint or spray were shared from experience to myself and my awe-­ inspired students by Sinna One. The mainstreaming nature of commercialism has meant that street art and graffiti has become more commonplace. Co-optation and commodification has increased the amount of licenced pieces, as well as the work of the artists being used for advertising and marketing, often at times without their permission. Here, the anti-capitalist heritage of street art and graffiti comes full circle with a countering of its original purposes and intentions as the movement rescinds to create advertising as opposed to subvertising. Enter intellectual property as a legal plateau that contrasts with the criminal law, offering the artists’ work the possibility of protection, afforded in authorship rights. Copyright is increasingly playing an integral role in the protection of illicit artists’ and writers’ works, as images, designs and fonts are being used and profited by corporations, either with or without the consent of the artists. The filing of a copyright breach against McDonald’s for the unlicensed use of graffiti and tagging art by the family of the late artist Dash Snow in 2016 (Jade Berreau v McDonald’s Corporation Case No. CV 16-7394) demonstrates the irony of corporate use and mainstreaming of street art and graffiti taken to an extreme. Dash Snow, who lived the nihilistic edge of his art through street daubing in crews and on his own from a young age, dying from a drugs overdose at the age of 27, expressed his opposition to capitalism through his tagging as a reclamation of space from corporate culture. Dash Snow was notorious for his extreme work as an artist, at times using his own semen in his work, and had been noted as stopping homeless persons to write on their backs, an interesting take on what constitutes street furniture (Buffenstein 2016). Snow’s signature and internationally recognised tag ‘SACE’ had been reproduced by McDonald’s across its international suite of restaurants and was recognised by the former partner of Snow when she had visited a London McDonald’s. When the multinational refused to remove the art when requested by the family, a copyright infringement was filed as a violation of the artist’s economic and moral rights as well as falsified copyright management through the inauthentic use of Snow’s signature.4 The case was later settled out of court and closed in January 2017.  The 1709 Copyright Blog cites McDonald’s intentional falsified copyright management information as a violation of 17 U.S.C. § 1202 ‘which forbids anyone to knowingly and intentionally, in order to induce, enable, facilitate, or conceal infringement, to provide false copyright management information’, and this argument has also been made by graffiti artists Revok and Steel of graffiti crew MSK in their copyright infringement suit against Roberto Cavalli (Williams, Chapa, and Rubin v. Cavalli) (Central Dist. Of CA, 2014) (Weiss 2017).

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What undeniably stands out is how the use of Snow’s work to decorate the insides of McDonald’s cuts to the core of where lines and thresholds have been crossed, not just in a theoretical analogy, but in a literal hypocrisy that not only misunderstands but simply does not care why street artists and graffiti writers risk and expend their lives for the cause of painting the street. Nothing can mean more to a graffiti writer than their ‘street cred’, which incorporates their resistant stance towards authority and capitalist co-optation and their place within their own creative and territorial peer groups. So, for an artist who spent his sadly short life defying the system, to have his work misused and misrepresented by the very echelons he was fighting is the ultimate disrespect and undermining of his work. As the family’s argument on behalf of Snow expressed this: ‘Mr. Snow’s reputation and legacy have been irreparably tarnished, diminishing the value of his work’ (Weiss 2017). It is here where copyright protection can be used as an anti-advertising tool, allowing ‘[…] artists to object to and (try to) prevent what still several street artists, especially those who stick to the original values of the subculture, do not accept, namely a commercial exploitation of their art which is antithetical to that message’ (Bonadio 2017, p. 39). This story of the underground fighting back against corporate use and mainstreaming of their work and the flagrant trammelling of the street art and graffiti scene’s roots and anti-advertising philosophy are being repeated at an expansive rate as the artwork becomes more widespread and marketing teams easily access images of street artists’ and graffiti writers’ work online to use as magnets for their business portfolios. Most of these cases are being settled out of court,5 leaving the question of whether their works can be protected under copyright as yet unsettled in law and open for interpretation by the intellectual property community. At least such deals out of the courtroom offer those artists concerned the recompense in financial terms, if not the silence of the global corporations admitting their misappropriation of these artists’ work. The copyright plateau the plaintiffs have engaged in these cases is split in economic and moral terms of authorship rights, based on the presumption that street artists and graffiti writers are protected by intellectual property law. Under UK law, the works of street artists would be defined in the Copyright Designs and Patents Act (CDPA) 1988 as an ‘artistic work’ ‘irrespective of its

 Recent US examples other than Jade Berreau v McDonald’s are: Anasagasti v. American Eagle Outfitters, Inc., No. 1:14-cv-05618 (S.D.N.Y. Jul 23, 2014); Hayuk v. Sony Music Entertainment et al, No. 1:14-cv-­ 06659 (S.D.N.Y.  Aug 19, 2014); Miller v. Toll Brothers, Inc., No. 1:15-cv-00322 (E.D.N.Y.  Jan 21, 2015). 5

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artistic quality’ (section (1)(a)),6 repeated under Article 2 of the international Berne Convention for the Protection of Literary and Artistic Works.7 The intellectual property of the street artist and graffiti writer subsists in moral and economic authorship rights that are attached to their works, as has been discussed much more comprehensively by copyright thinkers Bonadio (2014, 2017) and Iljadica (2014, 2016). Street artists and graffiti writers may find means of protecting their moral rights (right to be designated as author, right to object to derogatory treatment of their work and right to object to false attribution, CHIV Defined by Copyright Designs and Patents Act [CPDA] [1988] and economic rights [right to reproduction, renting, lending the work, performance communication and adaptation (s.16 CPDA), rights to resale (droit de suit), licencing]). Both Bonadio (2017) and Iljadica (2014, 2016) separately argue that copyright protection should extend to the work of artists who choose to paint and write in the street, in spite of the illicit nature of the acts they are committing8: ‘The process by which an artwork is created should be neutral in copyright terms. Other works that are created illegally are indeed protected by copyright in many jurisdictions—paparazzi pictures that violate privacy laws, for instance’ (Bonadio 2014). The fact that street artists and graffiti writers very often conceal their work with a pseudonym does not detract from copyright protection, the author’s work retaining rights despite their oft-‘orphan’ status (Rychlicki 2008).

 acuums of Poiesis: Protest and the Striation V of Property In spite of intellectual property law clearly giving scope to the protection of street artists’ and graffiti writers’ work (whether as fixed objects or more preferred as performance, as per Mulcahy and Flessas 2016), the point at which any protection feels vulnerable is where the plane of real property re-enters.  UK, Defined by Copyright Designs and Patents Act (CPDA) 1988, (1) in this Part “artistic work” means—

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a. a graphic work, photograph, sculpture or collage, irrespective of artistic quality; b. a work of architecture being a building or a model for a building; or c. a work of artistic craftsmanship. 7  Article 2 of the Berne Convention states: “[T]he expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as […] cinematographic works […] works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works […] works of applied art […]” 8  Bonadio (2014) refers to cases in the US, such as English v BFC&R E. 11th St LLC, where the question raised by defendants was, since it was illegal to place a mural graffiti work, it should be excluded from the copyright protection, as well as Mitchell Bros. Film Group v Cinema Adult Theater, in which the obscenity of a work was taken into consideration when claiming validity of protection and copyright infringement.

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The ownership question generates a juncture where the rights of the owner of the material object on which the street art is daubed meet those of the creator. From what we have seen, authorship rights are settled enough to construe the owner of the moral and economic rights of a work as the author themselves (CDPA s 9(1) and s.11(1), as well as the case of Naruto v Slater 2016).9 And yet, in the instance of graffiti and street art, ownership is not just a concern for the author of the work of art, but also for the owner of the real property on which the art sits. A recent case law in England and Wales has directly clarified the position of who might own a work of street art and graffiti in the context of a landlord and tenant situation. In Creative Foundation v Dreamland Leisure Ltd Chancery Division [2015] EWHC 2556 (Ch), the landlord was deemed the owner of any street art and graffiti added to their property as per the tenancy agreement between Creative Foundation and Dreamland Leisure. In 2014, Creative Foundation organised an art fair in Folkestone Triennial where there appeared a Banksy mural ‘Art Buff’ on the back of an amusement arcade leased from Creative Foundation by Dreamland Leisure, who removed the Banksy piece from the property to sell at a New York art gallery (Maxwell et al. 2015). The court held that the lessee did not have the right to remove the mural, affirming that the freeholder owned the street art where the tenancy did not assert the right to remove chattels as part of upkeep and that the mural should be delivered up to the claimant. Interestingly, Iljadica argues that under copyright law, the freeholder could be argued to have infringed the distribution right of the author by placing the chattel embodying the work on the market without the author’s consent under s. 18(1) CPDA and Article 4(2) Infosoc Directive (2017, at 261). Bonadio asks ‘There is a strong tension between artists and owners of the surfaces where artworks are placed. Who should the law protect more strongly?’ (2017, p. 20). Given the case of first instance in Creative Foundation where the freeholder has been deemed to own the art, what happens to the street artist’s rights as per Naruto? The moral personality rights always remain with the author of the work, and yet, the economic rights can be transferred by street artists and graffiti writers using their droit de suit to claim their royalties if their work is sold.  A famous demonstration of this is the case of the ‘Monkey Selfie’ Naruto v Slater (2016), where the plaintiff PETA acted on behalf of Naruto (the monkey who had taken a photo of himself using photographer David Slater’s camera), claiming that the monkey selfie pictures came ‘from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by Naruto’ (Guadamuz 2017). PETA were deemed not to have standing to represent Nurato and, as Guadamuz explains, the copyright subsists with the photographer Slater, given the ‘sweat of the brow’ argument. 9

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This brings us back to the concern of ‘value’, capital and commodity (Edwards 2009; Young 2000), where the striating force of real property will take precedence over any original expression in terms of intellectual rights of the creative (Griffin 2010): ‘The distinction between the work and the embodiment becomes here blurry as the alteration of a physical support inevitably modifies the work understood as immaterial concept’ (Bonadio 2017, p. 21). It is here that we experience the division, the liminal, where outsider art touches insider law, where the outsider law of street artists and graffiti writers traverses aesthetic authority and where private property cuts into expression, protest and poiesis, creating categories of acceptable art and acceptability in sum. In Markel (2000), it is suggested that US federal legislation should be passed so as to invalidate any copyright claim for works produced as a result of criminal law infringement (Bonadio 2017, p. 34). Whether arguing that the criminality of the act does or does not affect incorporeal protection for works of street art and graffiti, what is forgotten is the deciding role of real property and how it characterises what is acceptable or otherwise. Individual property has the final say on the legitimacy of the aesthetic value of street art and graffiti through its division of our urban environment in terms of ownership, where you can and cannot create and the proffered version of aesthetics that ownership and law support as a result. Salib (2016) discusses the alternate ways in which street art and graffiti can be understood in terms of property in the US context, and Iljadica (2015) considers how real property may offer a way through which the artist can argue their ‘moral right of integrity’ as to the treatment of their work by freeholders. This is through having a say in cases where their work is deemed to be destroyed along with the building, with a tentative argument found in Harrison v Harrison [2010], as well as Snow v The Eaton Centre [1985], that may support street artists being able to decide as to the ‘treatment’ of their work. This is more in line with the Visual Artists Rights Act (VARA) (1990) in the US, legislation that protects the moral rights of artists in their work where VARA recognises and protects works of visual art that have been ‘incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work’ (s.13). In Cohen v. G&M Realty LP (2013), referring to the licenced graffiti and artwork of the legendary illicit art mecca ‘5Pointz’ that had been encouraged by the owner since the 1990s, 17 graffiti artists filed a VARA lawsuit to stop developers from raising the factory that was covered in their works upon news that the property owner wanted to destroy the buildings to redevelop the area. The lower court held that ‘VARA

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protects even temporary art from destruction’; however, the art had to be of a ‘recognised stature’ to be protected from destruction, thus produced legally. Mulcahy and Flessas (2016) discuss street art as an artefact through the listing of buildings in the UK context as a way around the unconsented destruction of street artists’ work. Under s.1(5) of the Planning (Listed Building and Conservation Areas) Act 1990, part of a building can be listed, as long as it is in the interests of the architectural nature, aesthetic merits, historical interest, national interest, heritage asset and localism of the area. The legislation counters instances where, even if the owner of a wall wishes graffiti to stay, the local authority can serve a s.215 notice under the Town and Country Planning Act 1990, if in the authority’s opinion the piece is detrimental to the area. This use of heritage and planning law to protect illicit art was found in two Banksy pieces, one in Park Street, Bristol, where the local community opposed the removal of the work and managed to keep it after petitioning the council, arguing it was an asset to the community, and the second was local community opposition to the removal and sale of Banksy’s Slave Labour from the Turnpike Lane area of London, Wood Green.10

Who’s Aesthetics? Street Beauty and the Law The originality of a work within Common Law jurisdictions, such as the US and UK, rests on considering the ‘sweat of the brow’11 or the workmanship and effort put into a given piece. This legal framing of creativity offers a mechanism of attributing the artists, as well as defining what may persist as art, in law. On first sight, it appears that creative merit is irrelevant to the procedure of copyrighting necessary to demarcate the edges of private property, not just of the intellectual nature, but specific to the street art and graffiti denomination, ultimately, as it rests on realty. 10  Perhaps the most potent form of protest, following a long tradition of Temporary Autonomous Art that thrives on its impermanence, is exemplified in artist Blu’s destruction of his own work in protest against the local authorities in Bologna’s hypocritical stance towards street art and graffiti as they opened their doors to a bank-sponsored exhibition ‘Street Art Banksy & Co’ in 2016 whilst exerting draconian criminalisation of street artists and graffiti writers: ‘We are faced with arrogant landlords who act as colonial governors and think they’re free to take murals off our walls. The only thing left to do is making these paintings disappear, to snatch them from those claws, to make hoarding impossible’ (Vogt 2016). Forget the removal of works by the owners in realty, but the invisibalisation of art by the artists themselves. 11  Defined in leading UK case Walter v. Lane, EU ruling Football Dataco Ltd and Others v Yahoo! UK Ltd and Others - C-604/10 - Football Dataco and Others; and in the US - Feist Publications v Rural Telephone Service Co 499 US 340 (1991) 113 L Ed 358 (1991) (Sup Ct) at 369 (found at Stokes 2014).

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According to Edwards, the question of ‘Where is the boundary between art and criminal damage?’ is superfluous, ‘as if these concepts are mutually exclusive, and as if a threshold exists beyond which something adjudged “art” loses that status and becomes criminal’ (2009, p. 347). Young agrees as she states the law does not distinguish between aesthetic styles, artistic media and the subcultural groupings of practitioners. Instead, all that matters is whether or not the image’s presence is authorised through a commission or the consent of the property owner (Young 2012, p. 4). Similarly, Mulcahy and Flessas discuss the impotence of law in the face of street art and graffiti’s energy and form, ‘There is no reason to use law to legitimate art. It either legitimates itself, or it is forgotten; sometimes the purpose of its very existence is only to celebrate its destruction, as the Dadaists, surrealists, and others have posited in the past’ (Mulcahy and Flessas 2016, p. 22). Yet, if we look to the manner in which property relations effect and affect not only the legal nature of street art and graffiti, but also what are acceptable and unacceptable forms of art overall, we can question whether finding a division between criminality and art is so redundant after all. Under the VARA act in the US, moral rights are only protected for those works of a ‘recognised stature’, which specifically relates to the Cohen case, deeming uncommissioned works as outside both the law and the artistic preference of the educated art world. VARA protects visual artists’ ‘moral rights’ by prohibiting the destruction of visual art, ‘including paintings, drawings, sculptures or photographs of “recognised stature”’, which is further defined in case law as ‘art experts, the art community, or society in general views as possessing stature’ (Carter v. Helmsley-Spear, 861 F.  Supp. 303, 324–25 (S.D.N.Y. 1994). Although not on UK shores, this expresses an interesting inter-connection between the functioning of the art and legal establishment beyond the state. As suitably referred to elsewhere, it is the crucial ‘where’ of graffiti (Cresswell 1996) and street art that shapes its treatment by the law, the art world, property owners, passers-by, admirers and opponents, as ‘when taken off the street, and into the gallery, it is art. On the street, it is crime’ (Bird 2009, p.  2). Ferrell (1996, pp.  141–143) and Young (2005, pp.  56–62; 2014) further illustrate that for many years the association with graffiti has been a derogatory judgement of ‘disgust’ where street artists and graffiti writers resemble ‘dogs’ marking their territory. Why it should prompt such outrage goes back to the line drawn by what is acceptable and otherwise, in law and in art. Clearly, unless the surface is the public boundary of the property, the artist will have to trespass, thus creating a civil wrong before they have even started creating the art, crossing the line of law. Nevertheless, to say that the law does not impact in any sense on the works of graffiti and street artists and how they

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are more widely perceived themselves is right to an extent given the precarious nature of the works they produce—there will be an inevitable who-gives-a-­ shit risk-taking attitude of ‘what more can they do to us’? However, this view of the artist and their art as unaffected by legality and illegality detracts from the preceding layers of law lain down historically that effect and affect what we perceive as aesthetics and what is aesthetically pleasing. These previous layers of law perpetuate a sedimented exchange of inclusion and exclusion through inter-sovereign systems of private property in art (as moveable capital) and land (as immoveable capital), the construction of spatial and temporal historical materialisms, slavery, violence and colonising divisions that construct the system of law, capital and aesthetics that we have come to know. These designs, walls and architectures are all human fiction that rely on the greatest fiction of all, private property and the law that supports this, resulting in capital found in land, but also in great cultural and artistic commodities. The ordered nature of the new urban world is in direct contrast to the underlying chaos wrought to create it, the ‘civilised’ appearance of the city hiding its ‘disordered’ underbelly. Michael Buor’s depiction of the structure of New  York in the 1950s portrays this order-disorder dichotomy: ‘marvellous walls of glass with their delicate screens of horizontals and verticals, in which the sky reflects itself; but inside those buildings all the scraps of Europe are piled up in confusion […] The magnificent grid is artificially imposed upon a continent that has not produced it; it is a law one endures’ (Buor in Arnheim 1971, pp. 2–3). The subjective nature of art appreciation connects the creator, the viewer, the audience, the purchaser, the private property owner and the law, where we assert a choice as to whether we value something or not as an artistic work. Yet, this assumption that aesthetic appreciation and the work produced come from an absence of law, from an autonomy of art (Rancière 2005, p. 20), is circuitous, closing the gap on other narratives that may be influencing what is acceptable or otherwise. The expression ‘Beauty is in the eye of the beholder’ escapes the situatedness of the beholder and the aesthetic regime within which their gaze may be locked. Dialectics of beauty v ugly, order v disorder, assert a mathematical discrimination for artworks that are not a totality, not a symmetry and not a category that private property can easily attach itself to. According to Lorand, beauty does not have one single opposite (1994, p. 399), it cannot be shoehorned into an impossible equilibrium, the very same impossible equilibrium of private property and its assertion of edges, finite divisions of what is correct and otherwise. Dominant understandings of aesthetics, aesthesis, aesthetikos, aisthanomai, to sense, to feel, perceive, emanate from the very same space of law; Eurocentric

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origins that create an aesthetic hegemony over other connotations of what is beautiful or otherwise. Rancière’s ‘distribution of the sensible’ highlights the limiting role of time and capital (2005, p. 13) as it alienates us from our ability to experience art is a historical materialist account that, despite its critique of property in art, sits on a privileged platform of male-dominated post-­ Kantian continental philosophy, where his voice will be heard louder than those voices from anywhere else. Responding to an increasing responsibility to learn from voices other than those dictating and familiar, this chapter undoubtedly sits from a similar privilege and would hope to not abuse its position but to add to a debate epitomised by the work of Vazquez and Mignolo (2013). Rolando Vazquez and Walter Mignolo’s ‘Decolonial AestheSis’ (2013) speaks of a movement in thought, word and art, a ‘Decolonial Manifesto’ to counter the colonisation of aesthetics by the West, where dominant perceptions of aesthetic quality are laden with the prevailing ideology of the aesthetic and political establishment. Decolonial aesthetics does not distinguish between the rules of aesthetics and the rules of law, the two coterminous and codependent for the protection of an elitist status quo. The ‘outsider’ nature of street art and graffiti demonstrates this congenital link between property, capital, law and aesthetics, as the art establishment seems unaccepting of the artists’ work, reasserting the aesthetic hegemony of the art world held up by capital and law. Nevertheless, the fact that street art and graffiti is ardently debated in contemporary art criticism demonstrates these views are not the entire voice of the art world, revealing schisms between modern contemporary art forms and those more traditional. An example that epitomises this ongoing incongruity came from Jones (2004 in Watson 2004) who wrote that street art and graffiti evinces ‘the dead hand of convention’ and has lost its outsider status: ‘Call it art if you want. But it’s very bad art’. The question may be which side of the aesthetic hegemony Jones is situated to be able to articulate his educated views on a world distinct from his. That said, other thinkers have also discussed the commonplace sexism and racism in street art and graffiti (Wilson 2014) and counter-movements, such as the ‘Doomsbury Set’ (2016) that has sought to paint over offensive street art and graffiti using simple clean line brushstrokes of Abstract Expressionism to distinguish from the art ‘establishment’ underneath. The likes of Doomsbury Collective inflect the ambiguity of what authority and establishment mean and street art and graffiti’s role in this and yet equally demonstrates the colonisation of aesthetics at play on the canvas of the street.

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Conclusion Given this discussion on street art and graffiti and its not inconsequential, nor coincidental, expression of the role of law in art and art in law, where can we go next to recognise its importance as an art movement to those who partake, to urban dwellers, whether from an oppositional stance or one that seeks to preserve works for the community? Some arguments may contend to the protection of street art under constitutional freedom of expression guarantees (Mettler 2012), recognising the dissident cacophony of street art as it bemuses itself and its audience, with the ordinary and spectacular of everyday life,12 whilst the likes of Edwards and Bonadio would seek a recourse to criminal and copyright jurisprudence in turn. One way of recognising graffiti and street art’s dissident ability to pose a threat to the aesthetic of authority and private property (Ferrell 1996, p. 175) is to recognise its capacity to question the historically bound authority of ­aesthetics. The harsh sentencing of street artist Noam Shoan in Melbourne further demonstrates the command of one form of aesthetics authority over another, where Justice Buchanan castigates Shoan for ‘unilaterally impos[ing] his notions of art and decoration on the rest of the world’ (DPP v Shoan [2007] VSCA 220 in Bird 2009, p. 5). Illicit urban aesthetics, such as street art and graffiti, manifest the ‘frontier’ (Nandrea 1991), a border aesthetic that inhabits a place ‘at authority’s edge’ (Spyer 2008, p. 546), designs that ‘fix and unsettle borders’ (1998, p. 3). And yet, this edgework can be seen as an opening, a recasting of law and aesthetics where artistic expression plays out in a public display of pluralism in aesthetics. It displays a vacuum of law where art and law are all and nothing at once, expressing systems of domination preceding and hopeful displays of expression to come. Young (2000, p. 265) argues that the desire to judge artworks is a desire for the reinstatement of the law (of community, of religion and of representation). This same desire holds true to the art of the street, where at every criminal act of uncommissioned painting on private property, at every out-of-court settlement for artists seeking to protect their work from marketisation, the art/law authority is restored. 12  Right to protest claims under the Human Rights Act 1998 (Articles 10 and 11, freedom of expression and freedom of assembly) in the UK context have thus far proven fruitless coming up against the rights of the landowners on whose land protests have been occurring as per City of London Corp v Samede [2012], demonstrating the striating role of property in expression not confined to the placement of art in the street. However, where right to private and family life under Article 8 arguments have been used, one can see the development of precedent around the use of the article, a defence in protests on private land can be engaged where the rights of the protestors may have the potential to trump the Article 1 Protocol 1 right of peaceful possession of property by the landowner in ‘exceptional circumstances’ (Manchester Ship Canal Developments Ltd v Persons Unknown [2014]; Malik v Fassenfelt [2013]).

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By discussing the meeting point of criminal law with intellectual property, on the street artist’s canvas of private property, it is hoped the congenital link of aesthetics and law has been demonstrated. This piece seeks to further contribute to the subversion of this aesthetic-legal hegemony through demonstrating the colonisation of art through law, and law through art, to the detriment of other forms of aesthetics, such as the alternative creativity of street artists and graffiti writers discussed in this piece, those whose voices have only recourse to the street. Acknowledgement  With many thanks to the editor Saskia Hufnagel for the inclusion of my work in the handbook and her reading of my work and Donald McGillivray and Andres Guadamuz for their kind assistance in reading and commenting on this piece. Thank you to Colin King for putting me in contact with the editors of this handbook in order to give me space to develop these ideas around street art, graffiti, aesthetics, law and property. With many thanks to Alison Young and Marta Iljadica for their work on street art and graffiti that I refer to and our contact in recent times on the intersection of art and law.

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Davies, M. (2007). Property: Meanings, histories, theories. London: Routledge Cavendish. Davies, M. (2008). Asking the law question (3rd ed.). Sydney: Lawbook Co. Doomsbury Set. (2016). Open arts surgery. Retrieved February 9, 2017, from http:// openartsurgery02.blogspot.co.uk/. Edwards, I. (2009). Banksy’s graffiti: A not-so-simple case of criminal damage? Journal of Criminal Law, 73(4), 345–361. Ferrell, J. (1996). Crimes of style: Urban graffiti and the politics of criminality. Boston: Northeastern University Press. Finchett-Maddock, L. (2016). Protest, property and the commons: Performances of law and resistance. London: Routledge. Fiske, J. (1999). Television culture. London: Routledge. Girard, R. (1977). Violence and the sacred. Baltimore: John Hopkins University Press. Gomez, M. (1993). The writing on our walls: Finding solutions through distinguishing graffiti art from graffiti vandalism. University of Michigan Journal of Law, 26(3), 633–707. Griffin, J. (2010). Illegal graffiti: A copyright perspective. Intellectual Property Law Bulletin, 22, 123–155. Guadamuz, A. (2017). The monkey selfie: Copyright lessons for originality in photographs and internet jurisdiction. Internet Policy Review, 5(1), 1–12. Halsey, M., & Young, A. (2006). Our desires are ungovernable. Theoretical Criminology, 10(3), 276–277. Hopes and Fears. (2017). What are the Penalties for Graffiti around the world? Retrieved February 9, 2017, from http://www.hopesandfears.com/hopes/city/ city_index/168925-penalties-for-graffiti. Iljadica, M. (2015). Graffiti and the moral right of integrity. Intellectual Property Quarterly, pp. 1–23. Iljadica, M. (2016). Copyright beyond the law: Regulating creativity in the graffiti subculture. London: Bloomsbury Publishing. Jones, J. (2004). Dim, cloned conservatives: Modern graffiti is not subversive – it is a formulaic, bankrupt cliché. The Guardian. Retrieved February 9, 2017, from https://www.theguardian.com/politics/2004/aug/07/arts.ourcritics. Lambert, L. (2013). Weaponised architecture: The impossibility of innocence. Barcelona: DPR. Lasn, K. (2000). Culture jam: How to reverse America’s Suicidal Consumer Binge – and why we must. New York: Quill. Lorand, R. (1994). Beauty and its opposites. The Journal of Aesthetics and Art Criticism, 52(4), 399–406. Macmillan, F. (2007). Altering the contours of the public domain. In C. Waelde & H. MacQueen (Eds.), Intellectual property: The many faces of the public domain. Cheltenham: Edward Elgar. Markel, D. (2000). Can intellectual property law regulate behaviour? A ‘Modest Proposal’ for weakening unclean hands. Harvard Law Review, 113, 1503–1520.

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Maxwell, T., Shaw, B., & Bruce, A. (2015). Who owns street art? Law Gazette. Retrieved February 9, 2017, from https://www.lawgazette.co.uk/practice-points/ who-owns-street-art/5051041.article. McIntyre, I. (2013). How to make trouble and influence people: Pranks, protests, graffiti, and political mischief-making. London: PM Press. Mead, D. (2010). The new law of peaceful protest; rights and regulation in the human rights act era. London: Hart Publishing. Mettler, M. (2012). Graffiti museum: A first amendment argument for protecting uncommissioned art on private property. Michigan Law Review, 111(2), 249–281. Millie, A. (2008). Anti-social behaviour, behavioural expectations and an urban aesthetic. British Journal of Criminology, 48(3), 379–394. Mulcahy, L., & Flessas, T. (2016). Limiting law: Art in the street and street in the art. Law, Culture and the Humanities, pp.  1–23. https://doi.org/10.1177/ 1743872115625951. Nandrea, L. (1991). Graffiti taught me everything I know about space, urban fronts and borders. Antipode, 31(1), 119–116. Rancière, J.  (2005). From politics to aesthetics. Paragraph, 28 (1). Retrieved February 9, 2017, from http://www.euppublishing.com/doi/pdfplus/10.3366/ para.2005.28.1.13. Rychliki, T. (2008). Legal questions about illegal art. Journal of Intellectual Property Law and Practice, 3(6), 393–400. Salib, P. N. (2016). The law of banksy: Who owns street art? University of Chicago Law Review 83(4). Retrieved February 9 2017, from https://ssrn.com/abstract= 2711789. Schacter, R. (2014). Ornament and order: Graffiti, street art and the parergon. London: Routledge. Sennett, R. (2008). The craftsman. New Haven: Yale University Press. Spyer, P. (1998). Border fetishisms: Material objects in unstable spaces. London: Routledge. Spyer, P. (2008). Christ at large: Iconography and territoriality in postwar Ambon. In V. de Hent (Ed.), Religion: Beyond a concept. New York: Fordham University Press. Stokes, S. (2014). Digital copyright: Law and practice. London: Bloomsbury Publishing. StreetLaw. (2014). Retrieved February 9, 2017, from https://streetlawbrighton. wordpress.com. The Crime Prevention Website, Graffiti. (n.d.). Retrieved February 5, 2017, from https://thecrimepreventionwebsite.com/garden-boundaries-fences-and-defensiveplants/681/graffiti/. Vazquez, R., & Mignolo, W. (2013). “Decolonial AestheSis”: Colonial wounds/ decolonial healings. Social Text. Retrieved February 9, 2017, from http:// socialtextjournal.org/periscope_article/decolonial-aesthesis-colonial-woundsdecolonial-healings/.

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Vogt, A. (2016). Graffiti artist destroys his own work after his art was removed from original locations. The Telegraph. Retrieved February 9, 2017, from http://www. telegraph.co.uk/news/worldnews/europe/italy/12192754/Graffiti-artist-destroysown-work-after-his-art-was-removed-from-original-locations.html. Watson, M. (2004). Graffiti: Popular art, anti-social behaviour or criminal damage? Criminal Law and Justice Weekly, 35(168), 668–670. Weiss, M-A. (2017). A big tag with fries and a can of spray. The 1709 Blogspot. Retrieved February 9, 2017, from http://the1709blog.blogspot.co.uk/2016/10/ a-big-tag-with-fries-and-can-of-spray.html. Wilson, J. Z. (2014). Ambient hate: Racist graffiti and social apathy in a rural community. The Howard Journal, 53(4), 377–394. Wilson, J., & Kelling, G. (1982). Broken windows. Atlantic Monthly, 249(3), 29–38. Young, A. (2000). Aesthetic vertigo and a jurisprudence of disgust. Law and Critique, 2000(11), 241–265. Young, A. (2005). Judging the image. London: Routledge. Young, A. (2012). Criminal images: The affective judgment of graffiti and street art. Crime Media Culture, pp. 1–25. Young, A. (2013). Street art, public city: Law, crime and the urban imagination. London: Routledge. Young, A. (2016a). Commodifying banksy. The Conversation. Retrieved February 9, 2017, from https://theconversation.com/commodifying-banksy-66679. Young, A. (2016b). Street art world. London: Reaktion Books.

Cases Creative Foundation v Dreamland Leisure Ltd Chancery Division [2016] EWHC 859 (Ch) Creative Foundation v Dreamland Leisure Ltd Chancery Division [2015] EWHC 2556 (Ch) Manchester Ship Canal Developments Ltd v Persons Unknown [2014] EWHC 645 (Ch) R v Ruth (Tobias Daniel) [2014] EWCA Crim 546 Malik v Fassenfelt [2013] EWCA Civ 798, [2013] 3 E.G.L.R. 99 City of London Corp v Samede [2012] EWHC 34 (QB) R. v Brzezinski (Tomaosz Adam) [2012] EWCA Crim 198 R. v Moore (Samuel George)[2011] EWCA Crim 1100 Harrison v Harrison [2010] FSR 25 R. v Dolan (Thomas James) [2007] EWCA Crim 2791; [2008] 2 Cr. App. R. (S.) 11 (CA (Crim Div)) DPP v Shoan [2007] VSCA 220 R v Fiak [2005] EWCA Crim 2381

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Whiteley (1991) 93 Cr App R 25 Morphitis v Salmon [1990] Crim LR 48 Hardman v Chief Constable of Avon and Somerset [1986] Crim. L.R. 330 (Crown Ct (Bristol)) Roe v Kingerlee [1986] Crim LR 735-6 Snow v The Eaton Centre [1985] 70 CPR (2d) 105

Non-UK Jade Berreau v McDonald’s Corporation, 2:16-cv-07394 (Central District of California) Naruto, et al. v. Slater, et al., no. 15-CV-04324 (N.D. Cal. January 28, 2016) Miller v. Toll Brothers, Inc., No. 1:15-cv-00322 (E.D.N.Y. Jan 21, 2015) Williams, Chapa, and Rubin v. Cavalli (Central Dist. Of CA, 2014) Anasagasti v. American Eagle Outfitters, Inc., No. 1:14-cv-05618 (S.D.N.Y.  Jul 23, 2014) Hayuk v. Sony Music Entertainment et  al, No. 1:14-cv-06659 (S.D.N.Y.  Aug 19, 2014) Cohen v. G&M Realty LP, 988 F. Supp. 2d 212, 214, 109 U.S.P.Q.2d 1869 (E.D.N.Y. 2013) English v BFC&R E. 11th St LLC Mitchell Bros. Film Group v Cinema Adult Theater Carter v. Helmsley-Spear, 861 F. Supp. 303, 324-25 (S.D.N.Y. 1994).

39 Taking Culture and the Balancing Act of Power John Kerr

Introduction This chapter offers a historical context to generate greater understanding about the taking of cultural objects by people with specific political motivations. It examines two case studies of audacious incidents that occurred in important cultural locations in London: Westminster Abbey in 1950 and the Tate Gallery (now Tate Britain) in 1956. Driven by Scottish and Irish nationalist motives to reclaim cultural objects, the perpetrators invaded the carefully crafted settings in which the objects were kept and managed to remove the items, in what they saw as recoveries rather than thefts. Through their actions and the reaction and publicity that resulted, they intentionally created theatre out of the contested ownership claims of the objects. The two cases demonstrate that if people employ the technique of neutralisation of ‘it is not wrong because…’ (Mackenzie and Yates 2016, p. 13) when trying to take objects for which they believe they have legitimate claims and/ or for a cause for which they want to generate publicity, they can present a determined and potentially different security threat to cultural locations. They can also pose a larger problem for the authorities in how to react to the incident because of the desire to create publicity as well as remove the object. In addition, if they succeed, the publicity can highlight security problems that might not otherwise be publicised. Faced with this challenge, the British J. Kerr (*) University of Roehampton, London, UK e-mail: [email protected] © The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6_39

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authorities tried to stage manage the aftermath of the events in the two case studies. With authorities having the ‘the power and privilege of discretion’ (Davis 1998, p. 1), the balancing act of power became crucial for them to avoid, first, creating heroes or martyrs for a cause and, second, highlighting poor security in specific cultural locations. As long as cultural locations, particularly in the Global North, continue to display or keep in storage huge amounts of cultural objects to which other people claim to have rights, the threat from people who want to recover these objects will continue to exist. Although security has improved greatly in both locations and in similar sites nationally and internationally since the two cases were examined in this chapter, cultural locations across the globe continue to be sites of opportunity for those who want a stage on which to express and demonstrate their cause and/or recover items to which they believe to have legitimate ownership rights. Lessons learnt from the two case studies can enhance current understanding of the threat for those involved in the security of these objects and for those in roles that require them to decide on an appropriate reaction (e.g. the police, the government and the Crown Prosecution Service in the UK). The chapter begins by briefly considering the context of cultural items as targets. After explaining the data sources used, it then examines the events in specific case studies and the authorities’ reactions to them. Subsequently, the chapter analyses the level of success of the response to the incidents and concludes with lessons learnt from the case studies.

Context: Cultural Items as Targets Globally, there is a very long history of cultural items being targeted by people for a range of reasons such as to acquire the objects, to damage them or to use them for financial gain. For instance, the history of imperialism and colonisation includes extensive theft of and damage to many types of art (Mayer et al. 2017, p. 315). Cultural objects remain an important source of meaning for people who want to show the power of the state and, also, for those who want to challenge this power (Mayer et al., 2017, p.3). It is no surprise, therefore, that political motives have been the cause for past incidents involving theft and damage of cultural objects (Boser 2009; Chappell and Polk 2014; Kerr 2015; Mackenzie 2005; McShane and Matera 2006; Scott 2010). With the ownership rights of many diverse cultural objects remaining contested, the locations in which they are kept face the risk that people might try to recover them. Objects and locations have been targeted by people, and continue to be

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so, for the following political motives: First, to enter the location to publicise a cause without focusing on a specific object; second, to publicise a cause by going into the location to damage the specific object or an area of the location; and third, to enter the location to recover an object (knowing that the action has a high chance of being foiled) and to publicise a cause and/or ownership claim. This chapter focuses on the third motive. While incidents of intentional damage of cultural items in the name of a cause are also an important and current threat, this chapter focuses on attempts to remove or ‘recover’ objects from cultural locations rather than damage them. This is because the safe keeping and return of the objects can engender greater empathy for the cause and make the authorities’ reactions more complicated than when a cultural object has been damaged.

Data Sources The data for this chapter come from three types of sources. First, the data come from archives from the National Archives Collection in Kew, London. These include previously closed files from Cabinet Office papers, House of Commons and House of Lords records, the Law Officers’ Department, the Metropolitan Police Service and Records of the Prime Minister’s Office. Second, the data come from newspaper articles. Third, the data come from existing literature (academic and popular) on the specific cases and academic literature on wider issues concerning art crimes, history and theatre.

The Events The first case study is the removal of the Stone of Scone from Westminster Abbey in the early hours of Christmas Day 1950. Scottish monarchs had traditionally been crowned on the Stone and it is a historically significant symbol of Scottish power and nationalism. In 1296, King Edward I of England took the stone during a military campaign and placed it in Westminster Abbey in London (Barrell 2004; Trevor-Roper 2008). Nearly 650 years later, the fact that the Stone remained in the Abbey was a cause of contention for Scottish nationalists. Ian Hamilton, one of the people involved in taking the Stone, was clear about their aim: ‘In the space of a few short hours we planned to show to the English government that there was a limit to their domination of Scotland; we planned also to show to the world that Scotland was awake again, and above all wished to give to the Scottish people a symbol of their

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liberty’ (Hamilton 2008, p. 17). The level of contention over the ownership of the Stone was evidenced in the House of Lords during discussions in 1951 and 1952 about where the Stone should reside. Lord Strabolgi warned that: ‘Great harm can be done by brushing lightly aside the deep-rooted hereditary sentiments of Scotsmen with regard to the Stone of Destiny’ (House of Lords 9/5/1951, p. 844). Lord MacPherson, in his argument that the stone should be returned to Scotland, highlighted that: ‘For hundreds of years, Scotsmen have resented the presence of that Stone in Westminster Abbey’ (House of Lords 9/5/1951, p. 851). The English peer Lord Calverley argued that: ‘All Englishmen should feel that the possession of this Stone offends their conscience and that they ought not to be the receivers of something that was shamelessly looted 650 or so years ago’ (House of Lords 11/3/1952, p. 605/6). The taking of the Stone was performed by four Scottish students. Despite expecting to be caught in the act, they managed to successfully remove the Stone (although they did unintentionally damage it), evade the police and, after initially hiding it in England, returned the Stone to Scotland. They sent a petition to King George VI for the Stone to remain in Scotland. On 11 April 1951, 3.5 months after the incident, they left the Stone under a Scottish saltire flag on the altar at the ruins of the Abbey of Arbroath (CAB (Cabinet Papers) 128/19/29 Conclusions, 19/4/1951; Hamilton 2008). The second case study is the removal of a Berthe Morisot painting, titled Jour d’été, from the Tate Gallery, London, on 12 April 1956. The French Impressionist painting is 1 of 39 paintings of the disputed Hugh Lane Collection. The art dealer and philanthropist Sir Hugh Lane provisionally gave the Collection to the Dublin Municipal Gallery in 1912. He then took the Collection away over an argument with the Dublin Corporation and bequeathed it in his will in 1913 to the National Gallery in London (who showed some of the Collection at the Tate Gallery). He later changed his mind and in a codicil to the will on 3 February 1915 he left the Collection to the Municipal Gallery of Dublin. However, his signature on the codicil was unwitnessed. When he died in the sinking of the Lusitania ship in May 1915, the British government did not recognise the codicil and refused to hand over the paintings to Dublin. Similar to the Stone, the Morisot painting acquired symbolic nationalist power. Although a French Impressionist painting, it became an Irish nationalist symbol because of the ongoing ownership disputes between Ireland and the UK over the Collection after Lane’s death. According to McDiarmid (2005, p.  37), this ‘hibernization’ of the Lane Collection was sealed when the British government officially refused to return the Collection in 1926. In a very symbolic gesture, when the Municipal Gallery of Modern Art in Dublin moved to new premises, a room called the

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Sir Hugh Lane Gallery was left empty for the return of the Collection (McDiarmid 2005; Paul 1998; House of Commons 5/11/1954). With the aim of publicising the Irish claim in a direct manner, two Irish students, Paul Hogan and Bill Fogarty (an IRA member), took the painting at 10.20 am on 12 April 1956 when the Tate Gallery was open to the public. After conducting some reconnaissance the previous day, the act was straightforward: Hogan and Fogarty went to gallery room 24 and Hogan simply lifted the painting off the wall and placed it between the cardboard of his art portfolio, and, despite regulations that people with art equipment (such as portfolios) must go through a special ‘check post’ at a side entrance, he walked straight out the front door of the gallery and down the main steps without being stopped. They had earlier telephoned a news agency to advise them to send a photographer to the gallery, on the premise that there was going to be an Irish demonstration outside the gallery. This photographer was able to take an iconic photograph of Hogan leaving the gallery with the painting under his arm. Hogan then left the scene in a taxi with the painting. The gallery only realised the painting was missing at 11.20 am when the director received a telephone call from the Irish News Agency who had received an anonymous call just after 11 am. The caller announced that members of the Irish National Students Council had ‘removed’ a painting that ‘is the property of the city of Dublin’ and were petitioning on behalf of the Council for the collection to be returned to Ireland. The following day, the painting was left at the Irish Embassy whose staff returned it to the Tate Gallery (House of Lords 17/4/1956; Police report from Cannon Row station Div ‘A’, 15/4/1956; McDiarmid 2005).

The Theatre of Contested Ownership The fact that the Stone of Scone and the Hugh Lane Collection were kept in London was symbolic for many Scots and Irish people of the domination over their countries and cultures by England. In addition to the objects taken in both incidents having significant symbolic power, the performances of the acts to recover them were also hugely symbolic. In his Theatre of the Oppressed, the Brazilian theatre Director Augusto Boal (2000) proposed that during his plays, members of the audience could ‘invade’ the stage and seize power from the actors in order to free themselves from oppression. It is a useful way to view the two case studies, as the people involved in both incidents believed they were acting legitimately against a dominant power in the name of oppressed people. In carrying out their actions, they were invading the locations in which the items were on display and they were trying to shape the

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history of both items. Boal (2000) viewed his theatre as a practice or rehearsal of a real act. However, both case studies in this chapter were not rehearsals but real performances in which the actors created theatre out of the contested ownership with the aim to generate maximum publicity from a wide audience in order to ultimately recover the objects and also challenge the dominant play of English power. In the Tate incident, Hogan and Fogarty were blatant in their actions and with their identities. In his police report, Divisional Detective Superintendent ‘A’ highlighted that Hogan even had his name on the art portfolio, which he used to carry the painting through the gallery and out of its front door during the incident, and that Hogan and Fogarty had arranged for a press photographer to be present outside the gallery to take photographs of them in the act (Police report from Cannon Row station Div ‘A’ Divisional Detective Superintendent ‘A’ to A.C.C (Thro’ Chief Superintendent C.I.D.1) 15/4/1956). According to the witness statement of the Tate’s assistant head attendant, Hogan also used his own name the day before the incident when he went to the gallery to apply for a student’s card to make sketches within the gallery (Police witness statement 12/4/1951). Although Hogan said that they wanted to claim the painting, ‘My idea was simple—a Dublin man should go and claim it because the collection should have been in Dublin’ (Gallagher 15/12/2002), they both were expected to be stopped during the incident. Fogarty summed up how they believed the incident would play out: ‘We fully expected to be caught in the act […]. We were more surprised than any to get away with it’ (Fogarty Interview RTE radio tape in McDiarmid 2005, p. 41). By ‘invading’ the stage of the Tate Gallery and making sure there would be a public record of the event in the form of the iconic photograph, the aim was publicity for the cause of returning the paintings to Dublin, not to keep the painting for themselves. Hogan said: ‘We hoped we would get a modest amount of publicity and force the authorities to do something’ (Gallagher 15/12/2002). Similar to Hogan and Fogarty, two of the perpetrators of the Stone incident, Kay Mathieson and Alexander Stuart, expressed surprise in their police statements that they had actually succeeded in recovering the Stone (Police statements 17/03/1951, 20/03/1951). While the Scots took more precautions than those in the Tate Gallery incident and ‘did not want to hand police evidence on a tray’ (Hamilton 2008, p. 101), they still left clues and expected ultimately to be discovered and arrested. One of those involved, Ian Hamilton, accepted prior to the incident that it ‘would almost certainly earn us an English jail-room’ (Hamilton 2008, p. 17). When deciding what to do with the Stone once they had successfully brought it back to Scotland, Hamilton (2008, pp. 202–203) explained: ‘In retrospect it would have been better if we

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had been caught with it somewhere in Scotland and then the problem would have been the government’s, not ours’. By leaving the Stone at the Abbey of Arbroath (scene of the 1320 Arbroath Declaration that argued Scotland should be recognised as an independent kingdom), they introduced more theatre into the incident (Hamilton 2008; National Archives of Scotland 2009). In another example of their understanding of the power of theatre within their actions, they nailed a second petition for the Stone to reside permanently in Scotland to the door of St. Giles Cathedral in Edinburgh. Hamilton (2008, p. 204) wrote that: ‘The press loved it’. Mackenzie and Yates (2016, p. 13) highlight how, when trying to understand the illicit acquisition of rare and precious goods by collectors, the technique of neutralisation of ‘it is not wrong because…’ is more suitable than a more normal technique of neutralisation beginning with ‘Yes I know it’s wrong, but…’ The former also fits both case studies in this chapter. For example, the people who took the Stone, as well as their acquaintances, used the words ‘recover’ and ‘recovery’ in their police statements. One example is David Rollo, a roommate of Gavin Vernon (one of the people who took the Stone), who said to the police ‘You are wrong, not larceny, recovery’ (Police Report (Chief Inspector O.H. McGrath CID) Aug 1951, p. 28). The petition by Hogan and Fogarty in the Tate incident used similar language, with words such as ‘removed’ and ‘returned’: Today members of the Irish National Students Council removed from the Tate Gallery, London a painting which is the property of the city of Dublin. The authority for this action is the Codicil of the will of Sir Hugh Lane, dated 3 February 1915, bequeathing the treasures to the City of Dublin. This action has been taken in the Irish National interest and with the express approval, not only of the Irish people, but also with the approval of the Liberal minded people of Great Britain. All former appeals to the honour of Britain and in law have met with failure. The Irish National Students council demands that this collection be returned to Ireland. (Police report from Cannon Row station Div ‘A’ Divisional Detective Superintendent ‘A’ to A.C.C (Thro’ Chief Superintendent C.I.D.1) 15/4/1956)

Balancing Act of Power in the Reaction It is worth comparing the two case studies with the ‘moral scaffolding of appeal to higher loyalties’ that Mackenzie and Yates (2015, p.  11) propose private collectors of rare and precious items such as antiquities and orchids can construct when they illicitly acquire these items. Although both sets of

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people in the Scone and Tate incidents were appealing to higher loyalties when taking the objects, their morality needed little scaffolding, as publicity for the cause of their higher loyalties was a central aim rather than any desire to keep the items for themselves. While private collectors of orchids and antiquities can also claim to be ‘saving’ items as justification for their illicit acquisitions, their claims over this ‘saving’ are part of a denial of responsibility (Mackenzie and Yates 2015) compared to the people in the two case studies who were prepared to sacrifice themselves for their higher loyalty to nationalist causes and were prepared to accept responsibility, albeit for the ‘recovery’, not ‘theft’. This made the potential reaction by the government more difficult: If the actors’ loyalties were higher than the law (Mackenzie and Yates 2015), then what reaction could be appropriate? Should the authorities display their power and send out a message by prosecuting those who had invaded the stage, and, if so, what might be the ramifications, especially as the participants had expected to be caught and were willing to self-sacrifice in the name of their cause? Furthermore, should they return the items to the same setting that was ‘invaded’ or should they acquiesce to the demands and hand the contested items to Scotland and Ireland? In both cases, the British government was aware that it was a balancing act in how to proceed with their reaction for the following three concerns. First, a successful prosecution was far from certain; second, a prosecution would expose the lack of security at the nationally important locations; and third, and most importantly, the act of prosecuting could generate even more publicity irrespective of whether the prosecution was successful or not (Police report from Cannon Row station Div ‘A’ Divisional Detective Superintendent ‘A’ to A.C.C (Thro’ Chief Superintendent C.I.D.1) 15/4/1956; File Cabinet Office Confidential C.P. (51) 111, 17/4/1951; Parliamentary Questions Oral answers 19/4/1951). Writing about race and prosecution in the USA, Davis (1998, p. 1) uses the very useful term ‘The power and privilege of discretion’ when analysing the decision-making position held by those in power when they are choosing whether to prosecute people or not. Prosecutorial discretion is a formidable tool (Davis 1998; Gelsthorpe and Padfield 2003) and the British authorities had the power and privilege to make the decision to not prosecute the people in both cases in order to attempt to gain control of the situation and dilute the publicity that could fuel the specific ownership claims and nationalist causes that had driven them. Power could be displayed by not prosecuting because the actors would be denied a further stage on which to promote their claims and causes. For example, while a long way from the sacrifice involved in Irish hunger strikes as political protest, Hogan and Fogarty’s actions are in line with

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the Irish ‘cult of self-sacrifice’ (Sweeney 1993), and they were prepared to follow in its long history (Gallagher 15/12/2002). Similarly, the Scottish people involved in the Stone incident were also prepared to self-sacrifice if they were discovered, arrested and possibly convicted to jail terms (Hamilton 2008; Police statement 17/03/1951). There was no prosecution in either case. The fact that the Morisot painting and the Stone were returned was cited as a key reason for there being no public interest in proceeding with a prosecution. With the Tate incident, after receiving a phone call that the director of public prosecutions would not recommend a prosecution if the painting had been returned, Commander ‘C’ proposed that: ‘In these circumstances, as the picture has now been handed back I suggest that we treat this in the same way as the matter of the Stone of Scone. The Crime Book should be marked up “No Crime”—no evidence of felonious intent’ (Police report Commander ‘c’, correspondence number 230/56/966, 17/4/1956). The second and third aforementioned reasons, particularly trying to avoid more publicity, were also central to the decisions taken by the attorney general in 1951 and the director of prosecutions in 1956. In his report of the Tate incident, Commander ‘c’ made links to the Stone of Scone (Police report Commander ‘c’, correspondence number 230/56/966, 17/4/1956) as did Divisional Detective Superintendent ‘A’ who stated that, despite there being ‘sufficient evidence for a prosecution’, as had also been the case with the Stone of Scone, no action would be taken (Police report from Cannon Row station Div ‘A’ Divisional Detective Superintendent ‘A’ (Thro’ Chief Superintendent C.I.D.1) 115/56/37, 15/4/1956). It is highly debateable that there was ‘sufficient evidence’, owing to the reasons expressed on the day of the theft by a Mr Parham to the assistant chief constable. He explained that if the painting was returned: ‘the element of larceny intent to deprive the owner permanently thereof, would be absent. Secondly, this was not larceny with intent to sell the picture to someone else’ (Mr Parham to A.C.C, correspondence number 230/56/966, 12/04/1956). Regarding the Stone incident, in 1951 the attorney general, explaining to Cabinet about his decision, argued that a prosecution for theft or damage would be difficult, but his main concern was the publicity: ‘Moreover, I am satisfied that a ­prosecution would do no good except perhaps to the defendants to whom it would give the opportunity of being regarded as martyrs if they were convicted or as heroes if they were acquitted’. He also added: ‘In Scotland a prosecution would produce a very adverse reaction’ (File Cabinet Office Confidential. C.P. (51) 111, 17/4/1951). With the Tate incident, the words heroes and martyrs were also used in considerations recorded in official papers, as was the potential problem about achieving a successful prosecution because the painting

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had been returned and, lastly, owing to the fear that the incident would show to potential thieves how easy it was to steal paintings from the gallery (MEPO 2/9900 correspondence number 230/56/966, Commander ‘c’, 17/4/1956). Hogan argued: ‘I’m not surprised if the authorities were reluctant to prosecute—if I had been the head of the Tate Gallery, the last thing I would have wanted was further publicity’ (Milmo 22/5/2015). It is worth highlighting that the decision to not prosecute the people who took the Stone occurred at a similar time as the trial (9–18 April 1951) of seven dockers who were charged with three offences relating to inciting strikes and obstructing their employers. The decision to bring criminal proceedings against the dockers was authorised by the attorney general, who also led their prosecution at the Old Bailey before the Lord Chief Justice (File Cabinet Office Confidential. C.P. (51) 111, 17/4/1951; Heilbron 2012). With the country reliant on the docks for imports and exports, the attempted prosecution intended to send out a strong message, as the attorney general said in the trial ‘The complaint against […] them is that in order to promote what they thought, rightly or wrongly, was in the interests of their fellow dock workers, they were prepared to hold the nation to ransom and defy the law of the land’ (Heilbron 2012, p. 122). Although the dockers were acquitted in the trial, the case showed how the privilege and power to prosecute could be used to try to send out a warning. In contrast, the Stone case demonstrated how the power and privilege to use discretion to not prosecute could also be used. Even though the dockers and the people involved in removing the Stone had strong loyalties to a cause, the authorities chose to send out a strong message to the dockers (and other similar workers) but not to those who had removed the Stone and the wider Scottish public. However, the minister of labour was very aware that the cases might be compared. To prevent, in his words, an ‘invidious comparison’ between the cases, he proposed that if the prosecution of the dockers was successful then it would be unwise to announce the decision to not prosecute the people involved in the Stone case at the same time as the dockers were sentenced (Cabinet GEN.360/1st Meeting, 16/04/1951). The attorney general was very aware how this difference in prosecutorial decision-­ making might be seen and argued to Cabinet that although opinion about those who took the Stone might be that these ‘presumably middle class offenders should not be allowed to go free’, the cases were ‘totally different’ because in the dockers’ case ‘offences were still continuing and there was a grave threat of their extension on a large scale’ (File Cabinet Office Confidential. C.P. (51) 111, 17/4/1951). Mindful also that the authorities could be accused of not doing enough in their reactions to the incident, especially as the Coronation Chair and the

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Stone had both been damaged and there was the added charge of sacrilege (as the incident had occurred in the Abbey), the attorney general’s statement on 19 April 1951 tried to show that it was a serious matter: The clandestine removal of the Stone from Westminster Abbey, the manner of its taking and the manifest disregard for the Sanctity of the Abbey were vulgar acts of vandalism which have caused great distress and offence both in England and Scotland and have brought the individuals concerned in them into great disrepute. I do not think, however, that the public interest requires that I should direct criminal proceedings to be taken. (Parliamentary Questions Oral answers 19/4/1951, p. 2001)

Cabinet discussions, as set out in the conclusions for a meeting on 19 April 1951, also reveal this attempt to achieve some sort of balance: In discussions of the terms of the proposed announcement, it was suggested that nothing should be said to imply that the incident had brought discredit on those who supported the claim for a greater measure of Scottish self-government but condemned sensational or extreme measures in pursuit of it. While the removal of the Stone could properly be described as a vulgar act of vandalism, it would be inexpedient to use stronger language which might invite the rejoinder that it ought to be possible to take some proceedings against those responsible for it (CAB 128/19/29 Conclusions 19/4/1951).

The slowness of the Stone investigation and the very public searches for it, such as the police dredging the Serpentine Lake in London, added to the amount of publicity generated and increased the embarrassment for the authorities (Hamilton 2008). Similarly, the brazen nature and ease of the removal of the Morisot painting from the Tate Gallery were embarrassing for the gallery and authorities, despite protestations to the contrary in the House of Lords by the Earl of Serwick who argued that: ‘I do not feel that because something is stolen it is necessarily proof that there is carelessness within the building’, to which Lord Strabolgi replied: ‘My Lords, is the noble Earl aware that it is sometimes possible to walk through the whole of the Continental Rooms of the Tate Gallery without encountering a single attendant? I have done so myself ’ (House of Lords 17/4/1956). Although the Tate incident was front-page news internationally (Chicago Tribune 1956, New  York Times 1956, Winnipeg Free Press 1956), the quick return of the painting and the lack of damage to it or other items in the gallery made it an easier case for the authorities to stage manage than the aftermath of the Stone case. Hogan and Fogarty had achieved their aim of generating publicity and the British

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authorities did not want to give them any more publicity or further highlight the security shortcomings of the gallery. The reaction to both incidents illustrates the power and privilege of discretion that the British authorities held. It was highly significant that the two sets of people who removed the objects believed that they were righteously recovering items that belonged to their countries and were prepared to sacrifice themselves to create publicity for the ownership claims and nationalist causes. This contentious nature of the ownership of both objects also shaped the aftermath to the cases and to where the items finally ended up.

 uccess of the Incidents for the Perpetrators S and for the Authorities It is difficult to measure the overall success of the incidents. The objects were successfully removed from Westminster Abbey and the Tate Gallery, and both incidents succeeded in the main aim of generating a lot of publicity nationally and internationally for the Scottish and Irish ownership claims to the objects. However, while the British authorities used their power and privilege of discretion by not prosecuting the people involved, once they had the objects, again they asserted their power in another manner by returning the objects to the same cultural locations from where they had been taken. The actual act of removing the Stone from Westminster Abbey and returning it to Scotland was clearly a success. The police failed to find the Stone and it was only discovered when it was left to be found in the ruins of the Abbey of Arbroath. The incident generated huge publicity for the cause of the Stone to reside in Scotland and for Scottish nationalism. On 12 April 1951, a day after the Stone was found at the Abbey of Arbroath, the home secretary confirmed to Cabinet that it was the genuine Stone and that ‘Arrangements were being made for the Stone to be brought back to London, in circumstances which should obviate the danger of any demonstrations’ (CAB 128/19/27 Conclusions 12/4/51). There was much debate about whether the Stone should reside in Scotland or England, with strong opinions voiced for either potential outcome (e.g. House of Lords 9/5/1951; House of Lords 11/3/1952; Scottish Office 9/5/1951). On 10 May 1951, in a delaying tactic to quell publicity, the Cabinet chose to not make a decision over it and instead announced that no more statements were to be made on the matter at that current time (CAB 128/19/35 Conclusions 10/5/1951). Ultimately, the petitions for the Stone to reside in Scotland were unsuccessful and in February

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1952 the Stone was once again placed in the Coronation Chair in Westminster Abbey. After the return, Prime Minister Churchill, who had replaced Clement Attlee during the previous year, announced in a statement in the House of Commons, rather antagonistically, that ‘The Stone has been restored to its traditional place’ (House of Commons 26/2/1952). While the British authorities had asserted their power and privilege through choosing to not prosecute the people who took the Stone, this line in his statement was a different type of assertion of power as it was a public statement in Parliament. The Stone was eventually returned to Scotland on loan in 1996 and is now in Edinburgh Castle (Edinburgh Castle 2017). On whether he and his colleagues were successful, Hamilton (2008, p. 211) was fairly negative: ‘Did we achieve our purpose to awaken our country? For a short time we did, but old habits persisted. In 1955 the majority of the total electorate voted Tory. They voted for the strongest unionist party of all’. Alex Salmond, the former First Minister of Scotland, gave them more credit and argued that the taking of the Stone ‘started the modern process of waking this country up to its history and potential’ […] ‘And in returning the Stone to Scotland they demonstrated that there was a new generation in our country which was prepared to take individual risks in order to assert our national rights’ (Salmond in Hamilton 2008, p. vii). Although Salmond’s statements could appear hyperbolic, the theatre of the act and the publicity it generated were certainly significant at the time. Furthermore, as a symbolic act of defiance against the dominant power, perhaps the historical significance of the incident grew further in the second half of the twentieth and the start of the twenty-first centuries as the desires for self-government and independence became more popular in Scotland. A film about the event released in 2008 generated even more publicity (Smith 2008). Concerning the Tate incident, Paul Hogan told The Independent in 2015: ‘We achieved what we set out to do. We were enormously successful in putting the issue in the headlines’ (Milmo 22/05/2015). They certainly achieved this, as the national and international press coverage illustrated. However, it is very hard to know the extent to which Hogan and Fogarty’s acts impacted on the subsequent return of the paintings on loan through a series of agreements between the Irish and British governments. In November 1959, a first agreement was reached whereby the Hugh Lane Collection was divided in half between the Municipal Gallery in Dublin and the National Gallery in London, with the two galleries exchanging halves every five years. In 1979, a second agreement resulted in 8 paintings remaining in London and 30  in Dublin. The 39th painting, Les Parapluies by Renoir, would spend 7 years in each city. In the 1993 agreement, 27 paintings were to be kept in Dublin, 4 in

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London. The remaining eight were split into two groups and would move between Dublin and London. This sharing agreement expires in 2019 (McDiarmid 2005; Paul 1998, p. 202; Dublin City Gallery The Hugh Lane 2017; Weaver 26/5/2015). According to McDiarmid (2005), key to the paintings’ return was the support of Lord Moyne and Thomas Bodkin, who had been the Director of the National Gallery of Ireland in Dublin, and Lord Longford who helped them ask Prime Minister Harold Macmillan about the issue. The Dublin City Gallery The Hugh Lane (2017) highlights that Taoiseach John A. Costello initiated negotiations with Macmillan in 1948, which eventually led to the agreement in 1959. However, the contested ownership was an ongoing issue throughout the twentieth century, with examples including House of Commons Committees considering the issue in 1926 and 1954. Although a debate in 1954 for the Collection to be ‘handed over to the National Gallery of Ireland’ through an amendment to a Bill (the Bill transferred the responsibility of the Tate Gallery Collection from the National Gallery Trustees to the Tate) was lost 20 votes to 89, loans to Dublin were proposed (House of Commons 5/11/1954). In February 1961, to celebrate the return of half of the Collection, a large reception was held at the Municipal Gallery of Modern Art (Dublin) for 700 people, with leading political, religious and cultural figures present. The Irish Times reported that Bill Fogarty went to the gallery but was refused admission to the reception (McDiarmid 2005). This perhaps illustrates that even if their actions did impact on the negotiations, it was not acknowledged publicly, and the two of them were certainly not lauded for their actions. Despite the loan agreements from 1959 to the present, the Collection is still owned by the UK.  When the present agreement expires in 2019, the British authorities will once again have a decision to make about whether to return the paintings permanently or not. While the actions of those who managed to negotiate the agreements were successful insofar that Dublin received increasing numbers of the paintings on loan, the negotiations could have aided the British in retaining the ownership because the agreements enabled British governments to collaborate with Dublin and therefore to present some form of ethical veneer while maintaining their full ownership claim. This is despite the morality of this ownership claim being judged, even by many UK politicians, as wrong (House of Commons 5/11/1954). In 1956, The Spectator labelled the attitude of British governments over the matter as a ‘dog-in-the-manger attitude’ (Spectator 20/4/1956, p. 7). Hogan and Fogarty’s approach clearly differed immensely from the one taken by the elite Irish in their negotiations. It is impossible to know if more direct action, in line with Hogan and Fogarty’s removal of the Morisot painting or through other means,

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such as protests, could have resulted in placing greater pressure on the British authorities to hand over the ownership to Dublin instead of loan agreements. However, Hogan and Fogarty’s audacious actions in creating theatre from the contested ownership of the Collection did succeed in making the issue known nationally and internationally, exposing the British authorities’ ‘dog-in-the-­ manger attitude’ to a very wide audience.

Conclusions Cultural locations across the world, particularly in the Global North, continue to have many objects to which other people and countries feel they have legitimate ownership rights. The potential for people to attempt to recover them is a current threat for those tasked with the security of the objects. There are key conclusions from the two cases that have relevance to this threat in 2017. The two cases show that legal deterrents have little effect in dissuading people from carrying out these types of acts. With higher loyalties to the place where they believe the item should reside, rather than to the law of the country from which they aim to try to remove the item, the people involved are often prepared and even expect to be caught. The knowledge that this will generate publicity for their cause makes this very understandable. Furthermore, as this generation of publicity is a key aim in the theatre of the act, prosecution after the event makes little sense because it runs the risk of making martyrs or heroes out of the actors and can highlight the lack of security to a very wide international audience. This can lead to locations suffering from the flag effect, whereby they become targets for future incidents, including thefts of art that might not involve ownership issues (Kerr 2015; Mackenzie 2005). In addition, the cases highlight how people who try to remove objects that have contested ownership claims will try to look after the items. This is because an attempt (successful or not) to remove an item can gain more publicity and generate more empathy for the specific cause of the object’s return, or a wider cause, if the object is taken care of well. Although the Stone was broken during its removal from Westminster Abbey, this was unintentional. Indeed, a concern voiced about the Stone’s ability to survive in its first hiding place near Rochester in Kent (owing to the possible detrimental reaction that sandstone could have to the wet and cold of the winter outdoors after 600 years inside Westminster Abbey) led to a group rushing down from Scotland to take the Stone to an indoor hiding place in Scotland. This was despite their initial plans to wait because of the added risk posed by police checks on cars close to the border (Hamilton 2008). Similarly, the Morisot painting was looked after

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well and handed over to the Irish Embassy in good condition (House of Lords 17/4/1956). Another important point emphasised by these cases is how cultural objects can act as strong nationalist symbols. The Tate case also highlighted that an object, in this case a French Impressionist painting of two women enjoying a summer’s day in a boat on a lake, can become a symbol for a country, even if that object originally had nothing to do with that country or its people and had only spent a very small amount of time in the country. It was the obstinacy of the British government and National Gallery in their refusal to return the painting and the rest of the Collection that gave the painting its symbolic meaning, which it otherwise would never have had. Owing to this symbolic power that such objects can attain, an attempt to recover them can be a useful, viable option for people who want to highlight a contested ownership issue and/or to generate publicity for a wider nationalist cause. Another lesson is that keeping the item for an extended period generates even more publicity; however, there is also a point at which the object cannot appear to be permanently hidden from view; otherwise, the very purpose of recovering it is lost. Security has improved markedly in both locations, as well as in similar places in London and other comparable cities. Items in locations already have varying levels of security that depend on the amount of perceived risk judged by in-house security assessors and other public sector and private sector assessors (Kerr 2015). However, while aspects, such as financial value and opportunity, are key determiners in potential incidents, such as thefts of cultural objects that occur, the two cases are important reminders that the history of objects needs to also always be a significant factor in risk assessments and that specific items, which have contested ownership issues, might potentially need extra security measures. This may be obvious with some of the famously contested items, such as the Elgin Marbles in the British Museum, but there are many other objects whose contested ownership debates are much less well known and therefore less apparent to those tasked with their security. Even if there is an enhanced level of awareness, costs are an issue. For instance, the decreasing levels of funding currently being experienced by many British cultural locations (Museums Association 2015) might restrict the potential risk management and security in some locations. Security assessors must also be aware that potential incidents could be brazen in nature as the theatre involved in the act of taking the object can be a part of the objective, and therefore, the actors in the incidents might not follow more usual steps addressed in crime scripts (Cornish 1994). In addition, awareness about the historical issues concerning specific objects can give more understanding about who poses the most likely security threat.

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An obvious, simple solution to the issue of people trying to remove cultural objects that they believe have been taken from their people is for governments and those who run cultural locations to return the objects permanently. However, for a wide number of reasons that this chapter has not had space to consider, it is highly unlikely that cultural locations in the Global North will start handing over huge swathes of their collections. If these locations keep items to which others believe they have legitimate claims, these locations will remain as symbols of dominant power and targets for incidents such as those that occurred with the Stone of Scone and the Morisot painting.

Bibliography Barrell, A. (2004). Medieval Scotland. Cambridge: Cambridge University Press. Boal, A. (2000). Theatre of the oppressed. London: Pluto Press. Boser, U. (2009). The gardner heist. The true story of the world’s largest unsolved art theft. New York: Harper Collins Smithsonian Books. CAB 128/19/27 (Cabinet Papers) Conclusions 12/4/1951, File LCO.2/5149. CAB 128/19/29 (Cabinet Papers) Conclusions 19/4/1951, File LCO.2/5149. CAB 128/19/35 (Cabinet Papers) Conclusions 10/5/1951, File PREM 8/1516. Cabinet GEN.360/1ST Meeting 16/4/1951 355 362(Cabinet papers), File PREM 8/1516. Chappell, D., & Polk, K. (2014). The peculiar problem of art theft. In D. Chappell & S. Hufnagel (Eds.), Contemporary perspectives on the detection, investigation and prosecution of art crime (pp. 37–59). Farnham: Ashgate. Chicago Daily Tribune Newspaper, 13/4/1956 p. 1. Cornish, D. (1994). The procedural analysis of offending and its relevance for situational prevention. In R.  Clarke (Ed.), Crime prevention studies (Vol. 3, pp. 159–196). Monsey, NY: Criminal Justice Press. Davis, A. (1998). Prosecution and race: The power and privilege of discretion. Fordham Law Review October 1998, pp. 13–67. Dublin City Gallery The Hugh Lane. (2017). Return of the hugh lane pictures. Retrieved March 2, 2017, from http://www.hughlane.ie/current-collections/887lanepictures. Edinburgh Castle. (2017). The stone of destiny. Retrieved February 27, 2017, from https://www.edinburghcastle.gov.uk/discover/highlights/the-stone-of-destiny. File Cabinet Office Confidential. C.P. (51) 111, 17/4/1951, File PREM 8/1516. Gallagher, J. (2002, December 15). How we nicked a painting. The People Newspaper. Gelsthorpe, L., & Padfield, N. (Eds.). (2003). Exercising discretion. Decision making in the criminal justice system and beyond. Cullompton: Willan Publishing. Hamilton, I. (2008). Stone of destiny. Edinburgh: Birlinn.

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Heilbron, H. (2012). Rose Heilbron: Legal pioneer of the 20th century: Inspiring advocate who became England’s First Woman Judge. Oxford: Hart. House of Commons. (1954, November 5). Sitting- national gallery and tate gallery bill [Lords] Clause 1. HC Deb 5/11/1954 vol. 532 cc733-70. Retrieved February 28, 2017, from http://hansard.millbanksystems.com/commons/1954/nov/05/ clause-1-transfer-from-national-gallery. House of Commons 26/2/1952, File PREM 11/252. House of Lords 11/3/1952, File L02/139A. House of Lords 9/5/1951, File L02/139A. House of Lords Official report. (1956, April 17). Theft of Tate Gallery Picture. Parliamentary debates (Hansard): 17/4/1956 vol. 196 cc1043-5. Kerr, J. (2015). The Securitization and policing of art theft: The case of London. Farnham: Ashgate/Routledge. Mackenzie, S. (2005). Criminal and victim profiles in art theft: Motive, opportunity and repeat victimisation. Art Antiquity and Law, X(4), 353–370. Mackenzie, S., & Yates, D. (2016). Collectors on illicit collecting: Higher loyalties and other techniques of neutralization in the unlawful collecting of rare and precious orchids and antiquities. Theoretical Criminology, 20(3), 340–357. Mayer, M., Lillehoj, E., & Howland, D. (2017). Introduction: An interdisciplinary approach to art and sovereignty. In D. Howland, E. Lillehoj, & M. Mayer (Eds.), Art and sovereignty in global politics (pp. 1–30). New York: Palgrave Macmillan. McDiarmid, L. (2005). The Irish art of controversy. New York: Cornell University Press. McShane, T., & Matera, D. (2006). Stolen Masterpiece Tracker. Fort Lee, NJ: Barricade Books. Milmo, C. (2015, May 22). We didn’t really think we’d get away with it: The astonishing story of how two young Irish men completed an audacious £7m art heist’. The Independent Newspaper. Museums Association. (2015). Cuts Survey 2015. Retrieved February 28, 2017, from https://www.museumsassociation.org/download?id=1155642. National Archives of Scotland. (2009). Declaration of Arbroath (1320). Retrieved February 27, 2017, from http://www.nas.gov.uk/downloads/declarationarbroath.pdf. New York Times Newspaper, 13/04/1956 p. 1. Parliamentary Questions Oral answers 19/04/1951, File PREM 8/1516. Paul, C. (1998). Visits and revisits: W.B. Yeats at the Municipal Gallery, Dublin. In R.  Finneran (Ed.), Yeats: An annual of critical and textual studies (Vol. XVI, pp. 58–83). Ann Arbor: University of Michigan Press. Police report Commander ‘c’, correspondence number 230/56/966, 17/4/1956, File MEPO 2/9900. Police report from Cannon Row station Div ‘A’, 115/56/37, 15/4/1956, File MEPO 2/9900/1. Police report from Cannon Row station Div ‘A’ Divisional Detective Superintendent ‘A’ 15/4/1956, 115/56/37, File MEPO 2/9900/1.

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Police report from Cannon Row station Div ‘A’ Divisional Detective Superintendent ‘A’ to A.C.C (Thro’ Chief Superintendent C.I.D.1), 15/4/1956, 115/56/37, File MEPO 2/9900/1. Police report No 729 (Chief Inspector O.H. McGrath CID) M.P.-42884/30,000/ Aug 1951, File L02/139A. Police statement (Alexander Stuart) 20/03/1951, File L02/139A. Police statement (Kay Mathieson) 17/03/1951, File L02/139A. Police witness statement (Assistant Head Attendant (Christopher White)) 12/4/1956, File MEPO 2/9900/1. Scott, H. (2010). Responding to art vandalism in British Museums and Galleries: A survey of the situation. Journal of Art Crime, 11(Spring 2010), 11–24. Scottish Office 9/5/1951, File LCO.2/5149. Smith, C. (2008). ‘Stone of Destiny’ film. Retrieved February 27, 2017, from www.imdb.com/title/tt1037156/. Sweeney, G. (1993). Irish hunger strikes and the cult of self-sacrifice. Journal of Contemporary History, 28, 421–437. The Spectator (20/4/1956) ‘A Spectator’s Notebook’, p. 7. Trevor-Roper, H. (2008). The invention of Scotland. New Haven: Yale University Press. Weaver, M. (2015, May 26). National Gallery Hints that disputed art collection belongs to Ireland. The Guardian Newspaper. Retrieved May 31, 2017, from https://www.theguardian.com/world/2015/may/26/national-gallery-disputedart-collection-belongs-to-ireland-sir-hugh-lane. Winnipeg Free Press Newspaper, 13/4/1956 Page 1.

Index1

A

Alfred Flechtheim Gallery, 275 ALR, see Art Loss Register Amarna Princess, fake provenance, 293 Amore, Anthony, 65, 68, 137, 139, 180 Antiquities faking of, 4, 58, 248, 494, 509, 560, 576, 816 gray market in, 49, 81–82, 84, 841 laundering of, 83, 776 looted, and terrorism, 10, 18, 27, 35, 36, 49, 57, 61, 62, 67, 69, 84, 248, 251, 271, 661, 678, 679, 752, 779, 784, 817, 818, 823, 842 market, 10, 13, 57, 60, 61, 68, 81–83, 121, 123, 251, 483, 486, 490, 492, 543, 558, 560, 563, 770, 772, 774, 809, 817, 842 trade, legal/illegal distinction, 440 UNESCO Convention on Cultural Property (1970), 19, 27, 57, 98, 471, 510, 757, 779, 816 1

unprovenanced, and fraud, 58, 466, 509 See also Euphronios (Sarpedon) krater Archaeological sites destruction of, 24, 63, 742, 797 looting of, 45, 63, 70, 81, 82, 84, 409, 428, 430, 486, 529, 616, 672, 697 Art authenticity, 17, 67, 68, 256, 257, 302, 303, 318, 339, 345, 346, 348–350, 358 definition, 40, 152, 316 as investment, 239, 298, 314 Art crime Asia (see Asia, art crime) Australia (see Australia, art crime) case studies, 55, 69, 850 China, 70 definitions, 4, 9, 34, 44, 58, 188, 214 extent, 133 guardianship concept, 12 identification problems, 3, 10

 Note: Page numbers followed by ‘n’ refer to notes.

© The Author(s) 2019 S. Hufnagel, D. Chappell (eds.), The Palgrave Handbook on Art Crime, https://doi.org/10.1057/978-1-137-54405-6

901

902 Index

Art crime (cont.) image of, 13, 860 and information, lack of, 69, 111, 155 and Interpol, 10, 11, 13, 91, 94, 95, 99–100, 103, 104 Italy, 44, 89, 91, 103, 226, 227, 231 language issues, 840 and law enforcement, 7, 10, 13, 55, 71, 133, 214–216, 227, 232 and legal differences, 69, 226 media coverage, 16 nature of, 69, 70, 228, 232 North America, 70 ownership, establishment of, 270 and politics, 96, 230 as property crime, 13, 56, 218, 228, 231, 232, 849 reporting, reluctance, 96 scope, 251 specialist units, 71, 217, 219, 220, 226, 849 statistics, lack of, 69, 70 study of, 26, 28, 39, 851 types of, 45, 58, 60, 66, 216, 224, 227, 228, 328, 677 USA, 62, 259, 267 See also Art theft Art crime policing EU operational level, 228, 231, 232 policy level, 13, 215–227, 231, 232 transnational police cooperation, 231 See also Europol; individual countries Art fraud Australia, prosecutions, 68 investigation, 302, 322–336, 338, 388, 396 meaning, 321, 323 and organised crime, 324

victims, 16, 17, 313, 314, 318, 327, 328, 336, 338 Art Gallery of New South Wales (AGNSW), 20, 124, 139, 306, 445, 473, 478–480, 512 thefts, 139, 141, 145 (see also A Cavalier (self-portrait) (Frans van Mieris), theft from AGNSW) Art history, and provenance, 17, 358, 383, 400 Art Loss Register (ALR), 11–14, 70, 96, 97, 99, 115, 133, 145, 188, 203, 229, 230, 238–241, 243–251, 257, 475, 808 Interpol, cooperation, 94, 230 Art market primary, 485 secondary, 118, 119 secrecy in, 269, 508, 520 Art reparations, 17, 416, 420 Art theft and art dealers, 71, 115, 116, 119, 126, 142, 162, 178, 222, 240, 244, 248 case studies, 154 as conquest, 504 and cultural heritage, 123, 151, 152, 154, 159, 180, 188, 199, 214, 221, 225, 226 and drug trafficking, 119 information about, 11, 112, 118, 154, 170, 239, 260, 506 by insiders, 12, 13, 118, 149, 154, 155, 170–173, 177, 181, 204, 256, 261–262 and the internet, 223, 255 and market access, 120, 123 to order, 113, 117–119, 122, 123, 127, 140, 144, 152, 154, 179, 180, 198, 218, 240, 254, 258, 259 and organised crime, 110, 194, 222

 Index 

for pleasure, 113–116 for political reasons, 122–123, 195 in popular culture, 214 publicity, variable, 167, 259, 262, 266 ransom payments, 123, 141, 142, 193, 195, 259, 260 recovery rate, 133, 145, 179, 260 reward offer, 137, 259–262 Rotterdam Kunsthal, 134, 143 unrecovered items, 124, 137, 145 unreported, 45, 487 Art works as cultural ambassadors, 763 genuineness (see Authenticity) loans third-party claimants, 238, 239, 250, 255, 265 meaning, 319 and money laundering, 14, 40, 64, 187, 251, 255, 259, 268, 269, 520 See also Seizure of art works Asia archaeological sites destruction of, 511, 621, 690, 705, 722 looting, 21, 511, 515, 697, 751 art crime and corruption, 520 education, need for, 231 poverty alleviation, 518, 519 prevention strategies, 70 and provenance, lack of, 16, 229 art fraud, 310, 470, 509 Association for Research on Crimes against Art (ARCA), 63, 823 Association of Art Museum Directors (AAMD), guidelines, 592, 593, 818, 828, 834

903

Attribution, definition, 17, 312, 346, 384, 400 Australia antiquities dealers, 19 antiquities market, 483 art crime and copyright act, 330 See also A Cavalier (self portrait) (Frans van Mieris), theft from AGNSW art fraud, prosecutions, 68, 314, 316 Art Gallery of New South Wales (AGNSW), 20, 139, 141, 145, 306, 473, 478–480 thefts, 145 forgeries, 305, 308, 309, 311, 313, 314, 316, 317, 330 Kapoor affair, impact, 19–21, 441, 463, 465, 466, 469, 470, 472, 475–477, 512, 513 National Art Gallery (NGA), 19–21, 134, 136, 141, 305, 350, 441, 442, 463, 465–467, 469–477, 479, 480, 512 Austria art crime policing, art crime unit, 216–217 seizure of art works, legislative protection, 590 Authenticity and condition of art object, 68, 256, 302 and context, 15, 17, 704 determination of, 346–348, 358, 381–382, 573 evidence of, 15, 310, 318, 346, 347, 381, 382, 388, 561 materials and techniques, 302, 311, 382, 705 provenance, 15, 16, 67, 257, 298, 302, 306–307, 310, 318, 346, 350, 358, 773

904 Index B

Bamiyan Buddhas, destruction of (2001), 656, 770 Belgium, art crime policing ARTIST database, 217 Bureau of Art and Antiques, 217 Beltracchi Case jail sentences, 325, 333, 335, 336 perpetrators, 337 Beltracchi, Helene, 324, 325, 330, 337 Beltracchi, Wolfgang, 16, 295, 298, 302, 318, 324, 334, 336–338 charismatic personality, 335, 336 forgeries, 298, 321, 323–334, 336–338 life, 337 talent, 323 as Till Eulenspiegel/Owlglass, 321 Boser, Ulrich, The Gardner Heist, 64, 882 Breitwieser, Stéphane, 113, 114 British Museum, 56, 82, 168, 194, 293, 413, 417, 423, 472, 505, 568, 572, 574, 642, 784, 807, 896 C

Cambodia artifacts and human remains, 758 legal protection, 26 looting of, 48, 478, 505, 507 Campendonk, Heinrich paintings, forgeries of, 337 Canada, 102, 164, 311 A Cavalier (self portrait) (Frans van Mieris), theft from AGNSW delay notifying police, 140 Gardner Museum thefts, comparison, 134, 137–139, 145

investigation, suspension of, 139, 140 security issues, 140 social media use, 140 timeline, 139, 140 value, 124 Chappell, Duncan, 5, 11, 15, 21–23, 35, 43, 48, 68, 70, 96, 109, 116, 123, 133, 171, 181, 321, 323, 358, 364, 439, 506, 528, 529, 535, 542, 575, 576, 589, 882 China art crime penalties, 516, 517, 621 Conklin, John, 4, 9, 34, 39, 45, 50, 58, 153, 158, 162, 168, 170, 177, 179, 187, 188, 214 Art Crime, 39, 50 Connoisseurship, 298, 303–304, 310, 345, 347, 382, 383 Constable, John, 293 Council of Europe European Convention on Offences relating to Cultural Property, 37, 98, 732 Looted Jewish Cultural property, resolution, 220, 419 ‘Count of Waldstein,’ fake Giacometti sculptures, 324, 332 Croatia, Mostar Bridge, destruction of, 426, 770 Cultural heritage and art theft, 33, 49, 505 code of ethics for dealers in, 472 crimes, International Criminal Court, 674 endangered items list, 672 legislation, 25, 39, 40, 216, 422, 484, 487, 489, 497, 517, 687, 703, 708, 775, 777 restitution, meaning of, 595

 Index  D

Denmark, art crime policing, 226 Dongen, Kees van, 337 Drewe, John, 17, 67, 294, 315, 316, 318 E

Ernst, Max, 337 Esser, Manfred, 336 Euphronios (Sarpedon) krater ancient/modern values, 62, 821 and antiquities trade, 62, 83 description, 802, 804 discovery, 56, 62, 83, 296, 804, 816n3, 821 Italy, return, 62, 804, 816n3, 821 provenance claim, 62, 296 purchase, Metropolitan Museum of Art, 56, 802 revealed as stolen, 83 European Police College (CEPOL) annual meetings, 228 art crime courses, 228 European Union (EU) art crime, policing, 13, 213–232 on export of cultural goods, 778 Europol art crime policing, 10, 231 Europol Cultural Property Crime Handbook, 228 Experts, role of, 144, 257, 290, 296, 346, 450, 533, 843 F

Fakes forgery, distinction, 627 police ambivalence towards, 434 removal from circulation, 139 responses art market dealers, 6, 8, 27, 64, 508

905

artists, 68, 317, 335 public, 450, 839, 845 Federal Bureau of Investigation (FBI) Art Squad recoveries, value of, 259 National Stolen Art File, 11, 124, 133 Finland, art crime policing, 219 Fischer, Wolfgang, 334, 336, 337 Flechtheim, Alfred, 275 Forgery definition, 17, 266, 267, 291, 316, 381, 386 fakes, distinction, 291 and law enforcement, 16, 318, 323, 338, 541 See also Art fraud; Beltracchi case France art crime policing, 44, 194, 219, 226, 227, 230 Central Unit, Fight against Trafficking in Cultural, 219 seizure of art works, legislative protection, 786 TREIMA database of stolen art, 219 G

Gardner Museum, theft of paintings A Cavalier theft, comparison, 134 public awareness about, 57, 706 reward offer, 262 German Government, World War II, art thieves, 599 Germany art crime policing, 10, 13, 213, 215, 216, 226–229, 231, 232 seizure of art works, legislative protection, 116 Getty Kouros, fake provenance, 296 Getty Museum, 27, 61, 64, 67, 424, 466, 799, 803, 807, 816n4, 817

906 Index

Giacometti sculptures, forgeries, 324 Greenhalgh, Sean, 293–294, 294n1, 325 Amarna Princess, fake, 293 H

Hague Convention for Protection of Cultural Property & Protocol (1954), 23, 34, 421, 426, 427, 430, 607, 608, 610, 611, 615, 654, 667, 674, 675, 677, 697, 741, 770 Second Protocol (1999), 427, 608, 654, 674, 677 Hermitage Museum (St Petersburg), art thefts, 118 Holocaust Era Assets, Washington Conference (1998), 592 Holocaust materials, theft of, 272 Hoving, Thomas, 296, 307, 424, 816n3, 828 I

International Criminal Court (ICC) cultural heritage crimes, 674 establishment, 674, 675 International Foundation for Art Research (IFAR), 4, 9, 56, 57, 229, 256, 347 Internet, and art theft, 47 Interpol and art crime, 10, 13, 91, 94, 95, 99–100, 103, 104 expert working group, 103 Art Loss Register, cooperation, 94, 248 establishment, 91, 98 information exchange, 89, 103 international partners, 92, 99–100 membership, 91, 92, 95, 97, 101, 102, 215, 227, 229, 231, 780 National Central Bureaux, cooperation, 215

PSYCHE project, 91, 102, 223 Stolen Works of Art Database, 47, 91–93, 97, 100, 101, 104, 223, 224, 227, 230, 849 input from Leonardo database, 101 wide availability, 92, 100 and UN Conventions, 98 UNESCO, cooperation, 94, 780 wanted persons alert, 97 Ireland, art crime policing, 194 Isabella Stewart Gardner Museum, see Gardner Museum, theft of paintings Italy art crime, 104, 133 extent, 133 Leonardo database, 101 art crime policing, 226 K

Kapoor, Subhash, arrest, impact in Australia, 441, 466, 472, 512 Klimt, Gustav, stolen paintings, 63 Knoedler Gallery, New York, 16, 17, 267, 302, 316, 318, 344, 347, 348, 350, 351, 358 L

Law cases Malewicz v City of Amsterdam, 333 R v John Douglas O’Loughlin, 68 Law enforcement and art crime, 10, 13, 55, 71, 96–100, 133, 214–216, 227, 230–232, 849 and forgery, 249, 318 Lempertz Gallery, 338 Leonardo database, stolen art, 101, 222, 223 input to Interpol database, 101, 104 Lithuania, art crime policing, 223

 Index  M

Mackenzie, Simon, 28, 39, 40, 45, 46, 48, 49, 61, 68, 70, 81, 82, 153, 167, 170, 213, 214, 439, 440, 451, 454, 505, 508, 520, 755, 771, 804, 819, 834, 840–842, 844, 846, 847, 881, 882, 887, 888, 895 Macquarie Galleries, Sydney, unrecovered stolen paintings, 125, 134 Market access, and art theft, 11–14, 16, 64, 68, 96, 109–128, 153, 162, 229, 504, 510 Mashberg, Tom, 65, 137, 443–446, 446n2, 511, 548, 753, 755, 761, 762, 823, 824 Medici, Giacomo, 27, 62, 68, 83, 803, 817, 822, 824, 825, 833, 850 Meegeren, Hans van, 66, 67, 295, 303, 383, 387, 402, 403 Metropolitan Museum of Art (NY), 19, 27, 56, 83n1, 307, 441, 463, 465, 512, 755, 798, 802, 804, 805, 816n3, 817, 819–824 purchase of Euphronios (Sarpedon) krater, 56, 802, 816n3 Mona Lisa attempt to sell, 127 theft from Louvre, 126, 256 Money laundering, and art works, 64 Myatt, John, 7, 16, 17, 67, 195, 294, 297, 298, 315, 316, 325, 363, 364, 387 N

Nairne, Sandy, 73, 179 Napoleon Bonaparte, art thief, 332, 415 National Gallery Melbourne, Weeping Woman (Picasso), theft, 122, 134, 141 Nazi-Confiscated Art, 592

907

Netherlands, art crime policing, 223, 224, 227 North America, art crime, 70 O

Organised crime and art fraud, 28, 194, 324, 839–851 and art theft, 110, 194 UN Convention Against (2004), 5 P

Parthenon Marbles, 56 Pechstein, Max, 329, 337 Picasso, Pablo, 114, 115, 117, 122, 134, 141–144, 290, 327, 330, 344, 348, 587 art works, theft by electrician, 117 on forgeries, 290 Weeping Woman, theft of, 122, 134, 141–143 Politics, and art crime, 195 Polk, Kenneth, 11, 15, 63, 68, 70, 81, 83, 96, 109, 123, 133, 171, 214, 358, 439, 440, 454, 470–472, 474, 480, 575, 576, 882 Protection System for Cultural Heritage (PSYCHE) database countries benefiting from, 102 data insertion by members, 101 financial support, 102 improvements, 101, 104 limitations, 103 training service, 103 Provenance and art history, 358 and authenticity, 350, 773 documentation, 424, 454, 510, 575, 773 fake, 510

908 Index

Rembrandt van Rijn, 11, 64–66, 72, 137, 139, 190, 192, 256, 309, 311, 321, 335, 373, 379, 384 authenticity example, 311 Restitution, meaning, cultural heritage, 600, 779 Restoration, problems with, 782 Rotterdam Kunsthal, art theft, 134, 143 Russborough House (Wicklow, Ireland), thefts from, 119

international conventions, 421 Switzerland, 590 UK, 25, 798 USA, 785 Signatures, problems with, 316, 335, 884 Sloggett, Robyn, 17, 307, 308 Smith, Grace Cossington, unrecovered stolen paintings, 134–137 Spain, art crime policing, 224, 225, 227 Specialist units, art crime, 71, 217, 219, 220, 232, 849 Spies, Werner, 337 Spurzem, Jeanette, 324, 336 State ownership, of antiquities, 707, 709, 713 Straus, Dorit, 14, 256 Street art, 28, 215, 855–876 Sweden, art crime policing, 226 Switzerland, seizure of art works, legislative protection, 590

S

T

Provenance (cont.) meaning, 304 and scientific analysis, 17, 306, 345, 383 PSYCHE database, see Protection System for Cultural Heritage database R

Schiele, Egon, Portrait of Wally, 327 Scholarship, historical, damage to, 385 Schulte-Kellinghaus, Otto, 324, 336, 337 Scientific analysis and provenance, 17, 306, 345, 383, 386, 400 techniques, 306, 394 The Scream (Munch) ransom demand for, 193 recovery, 193, 256 thefts, 65, 193, 256 Seizure of art works, 601 as evidence, 98 immunity from, 473 legislative protection Australia, 473 Austria, 216 France, 786 Germany, 594

Terrorism, and looted antiquities, 39 Thailand antiquities looted, 510 trafficking hub for, 764 art crime, penalties, 516 Tijhuis, Antonius, 20, 40, 60, 61, 70, 81, 83, 109, 110, 113, 116, 118–120, 125, 133, 153, 155, 162, 171, 214, 452, 454, 455 TREVI programme, art crime policing, 230 True, Marion, 67, 425, 466, 842 U

UNESCO Convention on Cultural Property (1970) adoption, 770

 Index 

antiquities provisions, 699, 702 impact assessment, 433 ratifications, 693, 722, 723 relevance, 25 and secrecy, 706 cooperation with other agencies, 38, 780 cultural mandate, 717 illicit traffic, raising awareness of, 57, 95 interpol, cooperation, 94 Recommendations on Archaeological Excavations (1956), 697 Return of Cultural Property to Countries of Origin (1999), 98 on state ownership of antiquities, 546 State Ownership of Undiscovered Cultural Objects, Model Provisions, 68 UNIDROIT, Convention on Stolen or Illegally Exported Cultural Objectives (1995), 98, 698 United Kingdom (UK) Art and Antiques Unit, 226 ArtBeat officers, 226 Dealing in Cultural Objects (Offences) Act (2003), 740 London Stolen Arts Database, 226 seizure of art works, legislative protection, 119 United Nations (UN)

909

Convention Against Transnational Organised Crime (2000), 5 Convention Against Transnational Organised Crime (2004), 5 United States of America (USA) art crime, 71 extent, 10 (see also Federal Bureau of Investigation (FBI)) seizure of art works, legislative protection, 785 V

Van Meegeren, Hans, 66, 67, 295, 303, 383, 387, 402, 403 Vermeer, Jan, 11, 64, 66, 73, 119, 124, 137, 189–191, 290, 295, 303, 387, 402 The Concert, 64, 73, 137, 191 Lady Writing a Letter with Her Maid, 64, 189–191 Volpe, Robert, 71 W

Wittman, Robert, 71 undercover operations, 72 Works of art, exchanges, 101, 104, 358, 468, 504, 516, 599, 602, 831, 856, 873 World Archaeological Congress, 431, 613 World Jewish Restitution Organization, 229