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For Better and For Worse: Evolving United States Policy on Cultural Property Litigation and Restitution

Published online by Cambridge University Press:  01 October 2015

Patty Gerstenblith
Patty Gerstenblith*
Affiliation:
DePaul University College of Law, Email: pgersten@depaul.edu.
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Abstract:

This article reviews the shift in cultural property litigation in the United States over the past twenty-five years from private replevin actions, in which the original owner sues the current possessor and must bear the costs as well as overcome procedural and logistical obstacles, in particular the statutes of limitation, to civil forfeiture actions instituted by the U.S. government to obtain restitution. The article then analyzes recent cases that arguably illustrate over-enforcement of the law through the use of unclear legal standards in civil forfeiture. It then turns to shortcomings in the effectiveness of U.S. law, in particular the difficulty in imposing emergency import restrictions in the cases of Iraq and Syria, and an over-emphasis on the use of civil forfeiture, which has largely replaced criminal prosecutions in the cultural property arena—but without which there is no true deterrent to trafficking in illegal cultural objects.

Information

Type
Research Article
Information
International Journal of Cultural Property , Volume 22 , Issue 2-3 , August 2015, pp. 357 - 378
Copyright
Copyright © International Cultural Property Society 2015 

Derek Fincham’s paper, discussing the Byzantine frescoes that were looted from the Church of St. Euphemianos, located near Lysi in Northern Cyprus, and recovered by and loaned to the Menil Foundation in Houston,Footnote 1 reminds us of how the law has evolved over the past approximately twenty-five years with respect to recovery and restitution of cultural objects. What may be regarded as the companion case to that of the Lysi frescoes was the litigation concerning the Pre-Iconoclastic period Byzantine mosaics looted from the Church of the Panagia Kanakaria in the village of Lythrankomi, following the invasion of Northern Cyprus in 1974 by Turkish forces and the unofficial partitioning of the island, with the northern portion under the de facto control of the Turkish Republic of Northern Cyprus. Recalling the litigation concerning the Kanakaria mosaics provides a convenient starting point as well as significant point of contrast between then and now.

I. THE FIRST GENERATION CASES

The Kanakaria mosaics are four mosaics depicting the Christ Child, the Archangel Michael, and the Apostles James and Matthew.Footnote 2 These mosaics were looted from the apse of the Church some time between August 1976 and October 1979. The church and its mosaics were well documented in situ in a study conducted by Dumbarton Oaks.Footnote 3 Peg Goldberg, a dealer in contemporary art from Indianapolis who happened to be in Amsterdam in the summer of 1988, fell in with a group of unscrupulous dealers, including Michel Van Rijn. After viewing the mosaics briefly in the duty free zone of the Geneva Airport over the weekend of 4 July, and making only the most cursory of investigations into the mosaics’ background, Goldberg purchased them from Aydin Dikman, a Turkish dealer living in Munich.Footnote 4 After bringing the mosaics back to Indianapolis, Goldberg proceeded to try to sell them, initially to the Getty Trust, whose museum curator, Dr. Marion True, notified Dr. Vassos Karageorghis, the Director of the Department of Antiquities in Cyprus. The Republic of Cyprus and the Autocephalous Greek-Orthodox Church of Cyprus filed suit in replevin in Indianapolis to recover the mosaics.Footnote 5

While the facts of the case were relatively clear, the legal analyses of the District Court for the District of Southern Indiana and the Seventh Circuit Court of Appeals illustrate that cases involving the recovery of illegally removed cultural objects are never simple. Questions of fact, due diligence and good faith, jurisdictional issues, the barring of claims through the statutes of limitation and equitable defenses, and conflicts and choice of law all figured in this case. The primary hurdles were whether the statute of limitations for the recovery of stolen property would bar the claim and whether the courts should apply the Swiss good faith purchaser doctrine, under which Peg Goldberg, who claimed to have acquired the mosaics in good faith, might have obtained valid title through her purchase in Switzerland.Footnote 6 In the end, the courts analyzed the claim primarily under the law of the state of Indiana, in which a thief can never acquire good title, and applied the due diligence or discovery rule by which the statutory time period does not begin to run until after a claimant learns or, with due diligence, would have learned the location of the stolen property.Footnote 7 In analyzing the due diligence rule, the courts needed to dissect the conduct of the Church of Cyprus in searching for its missing property—a daunting task for the Church given that it had virtually no access to the churches in northern Cyprus and that residents of the Greek Orthodox faith had been forced to leave.

This focus on the conduct of the Church, rather than on that of the purchaser, illustrates a significant shortcoming in the use of the due diligence approach adopted by many U.S. jurisdictions to the accrual of the cause of action and running of the statute of limitations. These cases pose significant obstacles to the recovery of stolen art works and cultural objects because these works easily move across jurisdictions and often long periods of time pass before the original owner has a realistic opportunity to learn the location of the stolen work. For this reason, the different states in the United States, whose law typically controls the question of whether an original owner can recover stolen property, have adopted various rules to prevent the statutory time period, which would bar the owner’s claim, from commencing before the original owner has had a reasonable opportunity to locate the stolen property—a key element before the owner can file suit to recover the property. While New York and California have each adopted particular rules,Footnote 8 most states follow a due diligence or discovery rule, as the court did in resolving the Church’s claim to the Kanakaria mosaics.

Another example of a first-generation case is the recovery of the Lydian Hoard by the Republic of Turkey. Turkey filed a replevin action against the Metropolitan Museum of Art to recover a group of 360 objects that were looted from tombs in Western Turkey. The first issue was whether the action was barred by the statute of limitations. Once the District Court held that the action was not barred, it ordered discovery. At that point, the Metropolitan Museum decided to settle the case and returned the entire collection.Footnote 9

In these cases, which are private litigation instituted by the original owner (whether a nation, a religious or public institution, or a private owner), the original owner bears the costs of litigation, including attorneys’ fees, and the costs of developing the relevant facts. In the United States, the primary obstacle is often the question of whether the claim is barred by the statute of limitations or the equitable defense of laches. On the other hand, the question of whether the current possessor knew that the property was stolen is not relevant, removing questions of state of mind or mens rea. By contrast, in civil law jurisdictions and in those few cases in the United States where the court decided to apply the law of a civil law jurisdiction,Footnote 10 the primary question is typically whether the current possessor (or someone in the current possessor’s chain of title) acquired the stolen property in good faith, which would allow title to pass under the good faith purchaser doctrine.

II. SHIFT FROM FIRST TO SECOND GENERATION CASES

The first generation of cases involving private litigation for the recovery of antiquities and other cultural objects has largely been replaced by actions brought by the United States government on behalf of the original owner.Footnote 11 One can perhaps pinpoint the moment at which this shift occurred in the civil forfeiture action taken to recover a gold phiale, a ceremonial bowl, looted from Sicily and ultimately purchased by the New York collector, Michael Steinhardt.Footnote 12 Italy was conducting a criminal investigation of a smuggling ring based in Sicily and requested assistance from the U.S. government pursuant to a Mutual Legal Assistance Treaty. In the process of its investigation, the U.S. government discovered that the bowl had been imported by means of false statements concerning its country of origin and its value.

While these false Customs declarations provided ample basis for forfeiture of the phiale, the U.S. government sought forfeiture under a second theory—that the phiale was stolen property, taken in violation of Italy’s national ownership law that vested ownership of antiquities, such as the phiale, in the nation. The phiale was therefore stolen property imported “contrary to law.”Footnote 13 While the Second Circuit affirmed the forfeiture only on the basis of false Customs declarations, the theory had been accepted by the District Court. It was a theory to be adopted in future actions, and civil forfeiture thus became the primary method of recovery of antiquities for restitution to their country of origin.

Forfeiture actions are in rem legal proceedings brought by the government against a particular item of property (either real or personal). The result of a forfeiture action is to transfer title to the United States government, after which the government decides the disposition of the property. When the forfeited property is cultural property, the government typically returns the object to its rightful owner.Footnote 14 Forfeiture actions may be brought as part of a criminal proceeding; once the defendant is convicted, whatever property was involved in the crime may be forfeited as part of the defendant’s sentence.Footnote 15 The more typical use of forfeiture in the context of cultural objects is civil; in a civil forfeiture, depending on the statute under which the forfeiture proceeds,Footnote 16 the government may not have to establish that the owner, possessor, or importer knew that the property was stolen or was illegal in some other respect.

Civil forfeiture of cultural property originating in a foreign country most frequently occurs when an object has been imported illegally into the United States. There are typically three circumstances in which a cultural object may be imported illegally: in violation of the Convention on Cultural Property Implementation Act;Footnote 17 by means of a false statement concerning the object as to country of origin or value,Footnote 18 and importation “contrary to law.”Footnote 19 When imported goods are imported in violation of a Customs provision (contained in Title 19 of the U.S. Code), the government’s burden of proof is one of probable cause, a relatively low standard, and there is no innocent owner defense.Footnote 20

This shift has been largely facilitated by the development of two branches of law. First is the expansion of bilateral agreements between the United States and other states that are party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 UNESCO Convention”). The second is the expanding use of civil forfeiture of stolen property that is imported contrary to law where characterization of the property as stolen is based on violation of a foreign national ownership law. While a foreign nation could continue to sue for recovery of stolen property, as the Church of Cyprus did in the Goldberg case or Turkey did in the “Lydian Hoard” case, the close nexus of these cases with prosecution under the National Stolen Property Act has prompted the federal government to pursue recovery of these objects as stolen objects imported contrary to law.Footnote 21

The shift away from private replevin actions and toward civil forfeiture actions brought by the U.S. government means that the U.S. government bears the costs of litigation, rather than the private litigant, and that the obstacle of the statute of limitations is considerably reduced or eliminated. The statute of limitations for a claim based on violation of the Customs laws is five years from the time the U.S. government learns of the illegal importation or the transfer of stolen property across international or state lines.Footnote 22 In addition, the statutory time period runs from the time of illegal import, not from the time of the original theft. This substantially reduces the likelihood that a claim will be barred by the statute of limitations. The next section of this article will examine the two developments of the law related to the expanding use of civil forfeiture as a means of achieving restitution of cultural objects.

III. DEVELOPING APPROACHES TO RECOVERY OF CULTURAL OBJECTS

The 1970 UNESCO Convention

The 1970 UNESCO Convention is the preeminent legal instrument that addresses the international movement of cultural objects.Footnote 23 In the years following the Second World War, the growth of the international art market proved to have a devastating effect on cultural heritage. Sparked in particular by the work of Professor Clemency Coggins, who brought world attention to the destruction of Maya architectural remains in Central America,Footnote 24 and of Karl E. Meyer,Footnote 25 the world community under the leadership of UNESCO sought to find a way to deal with the illegal trade in art works, antiquities, and ethnographic objects.

The 1970 UNESCO Convention, in Article 1, defines cultural property as “property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science” and which belongs to an enumerated list of categories, including paintings, drawings, original works of sculpture, rare manuscripts, coins more than one hundred years old, ethnological objects, products of archaeological excavations, and elements of artistic or historical monuments that have been dismembered. To some nations, Article 3 contains the key obligation of the convention: “The import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this convention by the States Parties thereto, shall be illicit.” According to O’Keefe, this provision means that States Parties shall not permit the import of property whose export from another State Party was illegal.Footnote 26

The two key provisions of the UNESCO Convention from the perspective of the United States are Articles 7(b) and 9. Article 7(b) calls on States Parties to prohibit the import of cultural property that was documented in the inventory of a museum, secular or religious public monument, or similar institution and stolen after the date on which the nation became a State Party to the Convention. This provision, when implemented into U.S. law as a part of the Convention on Cultural Property Implementation Act,Footnote 27 did not fundamentally alter U.S. law, which prohibits import and trade in stolen property. However, it did substantially simplify the elements required for recovery and largely eliminated the problem of the statute of limitations addressed in the discussion of the Kanakaria mosaics.Footnote 28

The United States’ implementation of Article 9 provides a mechanism by which the United States may enter into bilateral agreements with other States Parties to impose import restrictions on designated categories of archaeological and/or ethnological materials.Footnote 29 These import restrictions do not apply to specific identified objects but rather to categories of objects and so prevent the import of objects that have been looted directly from archaeological sites and are therefore undocumented.Footnote 30 This is one mechanism for discouraging trade in recently looted artifacts and therefore also of discouraging the initial looting of archaeological sites. Only the United States government can take action to enforce these import restrictions, thereby removing this entire type of legal action from the sphere of private litigation. On the other hand, the United States has bilateral agreements with only fifteen nations at this time and so, in that respect, it remains a somewhat limited remedy.Footnote 31

Civil Forfeiture: Importation Contrary to Law

Stolen property is property taken without the permission of the owner, as in the case of the Kanakaria mosaics. When archaeological objects are looted from the ground, particular policy concerns are implicated. In such cases, the original context of the archaeological site and the stratigraphic association of objects with each other, with architectural remains and with faunal, floral and other remains are lost. It is only through preservation of this context with scientific recovery of all the data that a site contains that the history of the site can be best understood and reconstructed. In order to remove the economic incentive and thereby discourage the looting of sites, many nations with a rich archaeological heritage vested ownership of artifacts that were as yet “undiscovered” in the nation.Footnote 32

In two criminal prosecutions of dealers in the 1970s,Footnote 33 the U.S. federal courts accepted the principle that an archaeological object removed in violation of a national ownership law would be characterized as stolen property under U.S. law in general and the National Stolen Property Act (NSPA),Footnote 34 in particular. This principle was later applied by the Second Circuit Court of Appeals, in the successful prosecution of the prominent dealer, Frederick Schultz, for conspiring to deal in antiquities illegally removed from Egypt.Footnote 35 Therefore, an archaeological object that is subject to national ownership but removed from its country of origin without permission is considered to be stolen property and one who knowingly transports, sells, buys, possesses, or otherwise handles such objects may be prosecuted.

The decisions in United States v. McClain and United States v. Schultz establish the criteria required for recognition of foreign national ownership of archaeological remains. Based on these holdings, one can deduce that there are four elements that must be satisfied before an archaeological object will be recognized as owned pursuant to a foreign national ownership law: (1) the vesting law must be clearly an ownership law on its face; (2) the nation’s ownership rights must be enforced domestically and not only upon illegal export; (3) the object must have been found within the modern boundaries of the country claiming ownership, and (4) the object must have been located within the country at the time the law was enacted. The purpose of the first requirement is that the vesting must be clear and unambiguous so as to give notice to U.S. citizens who might be adversely affected by these laws, particularly in a criminal prosecution.Footnote 36 The purpose of the second requirement is to distinguish national ownership from export controls because export controls are generally not enforced by another nation absent a specific agreement to do so.Footnote 37 The purpose of the third requirement is to ensure that the national ownership law is not given extraterritorial effect and of the fourth requirement to ensure that the national ownership law is not given retroactive effect.

The characterization of the object as “stolen” also supplies one of the elements required for civil forfeiture under the “import contrary to law” provision of the Customs statute.Footnote 38 Many questions have arisen concerning the precise elements that must be satisfied when the government seeks forfeiture of a cultural object in reliance on this statutory provision.Footnote 39 Because the expanding use of civil forfeiture, in particular based on violation of this provision of the Customs statute, plays a major role in the apparent over-enforcement and under-enforcement of the law with respect to restitution of cultural objects and trafficking in such objects, the details of this mechanism are discussed in the next section.

IV. TOO LITTLE AND TOO MUCH: CASES OF UNDER- AND OVER-ENFORCEMENT

Both over-enforcement and under-enforcement of the law breed disrespect for the law. Unfortunately, in a number of recent cases of importation of cultural objects, the U.S. government has displayed examples of both under- and over-enforcement, as well as inconsistent interpretations of the law. This situation has developed because different federal prosecution offices, of which there are ninety-three, can follow their own understandings and theories of the law.Footnote 40 Discrepancies also arise because federal prosecutors are not well-trained or receive no training at all in cultural property law, a subject that is fairly specific and one that a prosecutor, particularly one based outside of a market center such as New York, may see only once in his or her career. This section will draw on a few examples in which the law has arguably been misapplied.

Examples of Over-Enforcement

The law in “Contrary to Law”

One of the more common mistakes made by federal prosecutors and others is the confusion of illegal export of cultural objects and the theft of cultural objects. As previously discussed, cultural objects owned by a nation and then illegally exported may be characterized as stolen property, if the necessary criteria for national ownership are satisfied.Footnote 41 However, an object that is only illegally exported but otherwise legally owned (and assuming proper declaration upon entry into the United States) is not stolen property under U.S. law and such import does not violate U.S. law, in the absence of specific legal provisions to that effect. However, in two and possibly three recent forfeiture cases brought under the importation “contrary to law” provision of the Customs statute, the forfeiture complaint seems to allege that the underlying law violated was a foreign export control. The theory of these cases seems to be that because the Customs statute does not specify in the “contrary to law” provision that the “law” needs to be a U.S. law, the underlying law can be a foreign law, including a foreign export control, the violation of which renders the object illegal under U.S. law. Two of these cases originate in Florida and one in St. Louis.

The origin of what might be dubbed “the Miami theory” of civil forfeiture of cultural objects arguably appeared first in United States v. One Lucite Ball Containing Lunar Material (One Moon Rock).Footnote 42 This case involved a Moon Rock that had been given by President Nixon to the President of Honduras; it was later stolen and was offered for sale to an undercover agent. The case may be interpreted as standing for the proposition that the underlying law in the “contrary to law” provision does not need to be a U.S. law, although the Moon Rock was easily classified as “standard” stolen property, whose import violated the NSPA. While the case failed to cite the NSPA as the underlying law in the “contrary to law” provision of 19 U.S.C. § 1595a(c), the Moon Rock, while characterized as a part of Honduras’ national patrimony, clearly constituted stolen property.

The first of the Florida cases involved an Egyptian sarcophagus.Footnote 43 The forfeiture complaint described a list of Egyptian statutes that in various ways protected antiquities in Egypt and regulated their export, as well as citing the 1983 Law, which was held in United States v. Schultz to vest ownership of undiscovered antiquities in the nation.Footnote 44 However, the complaint did not cite a U.S. law, other than the Title 19 forfeiture provision, as the underlying law in the “contrary to law” provision, although it did refer to the fact that there was no record in Egypt of an export license granted for the sarcophagus. The importer ultimately did not contest the forfeiture action and so this theory of forfeiture was not fully evaluated by the court.Footnote 45

The second Miami case involves the attempted import of a group of objects from Peru. Most of the objects match categories of objects on the designated list of the U.S.-Peru Memorandum of Understanding under the CPIA and these cannot be imported without an export license from Peru or other evidence that satisfies the criteria of the CPIA.Footnote 46 However, the government is seeking forfeiture of some of the objects under 19 U.S.C. § 1595a(c)(1)(A). The complaint fails to cite any U.S. law as the underlying law and it seems to equate illegal export with theft.Footnote 47 Because the case is still in litigation, it is unclear whether the court will accept the basis for forfeiture stated in the complaint.

The St. Louis case involved an Egyptian mummy mask, located at the St. Louis Art Museum.Footnote 48 While the complaint was dismissed as having insufficiently pled the law and the facts, the complaint and the Eighth Circuit’s discussion of the complaint indicate that the government was attempting to adopt a novel theory of civil forfeiture. In its memorandum in support of its motion to reconsider, the government stated, “Section 1595a itself prohibits the importation of stolen property into the United States, regardless of whether any other law has been violated in the process of importation.”Footnote 49 It seems likely, in interpreting the Eighth Circuit’s opinion, that the government’s litigation theory was influenced by the Miami cases in asserting that it was not necessary to cite a U.S. law in the “contrary to law” provision.Footnote 50 This strategy was soundly rejected by the Eighth Circuit, which stated “the stand-alone interpretation of the ‘contrary to law’ element urged in this case, if adopted, would greatly enhance the government’s forfeiture power under § 1595a(c), without any clear basis in the statute’s text for this enhancement. The issue may be unresolved, but precedent and past practice do not favor the government’s position.”Footnote 51 While this part of the Eighth Circuit’s decision is dicta, it nonetheless stands as a significant indication that the “Miami theory” of civil forfeiture under § 1595a(c) is likely not the correct interpretation of this provision.Footnote 52

Proving archaeological theft

In a forfeiture action filed against Sotheby’s for the recovery of a Khmer sculpture, the Duryodhana from the Temple of Prasat Chen at the site of Koh Ker in Cambodia, the allegation that the sculpture was stolen was based on an assertion of ownership by the Cambodian nation. The complaint survived a motion to dismiss and so the court viewed the pleadings as sufficient but needed to assume that the facts stated in the complaint were true for purposes of the motion.Footnote 53 One of the crucial questions was whether the government’s allegations established, if proven, that the statue was subject to a national ownership law.

Several of the decrees, laws, and regulations to which the complaint referred dated to the French Colonial period and concentrated on the notions of protection and regulation of cultural sites, such as the Prasat Chen Temple.Footnote 54 For example, a 1900 decree established “a baseline level of protection” and a system of classifying property for the purpose of conservation. It also prohibited “alteration, movement, sale, export, destruction, and even restoration” without permission.Footnote 55 However, none of these statements constitutes a vesting of ownership in the nation.

If the case had gone to trial, it is unclear whether the government could have established two of the three other prongs for analyzing a foreign ownership law. One of these is the question of whether the law was actively enforced domestically, so as to distinguish the ownership law from an export control.Footnote 56 It is not clear how a court would evaluate this criterion in light of the civil war and armed conflict that existed in Cambodia throughout the 1970s and later. While the third prong was easily established because the sculpture was definitely from the Koh Ker complex located within Cambodia, the fourth prong might not have been possible to determine. While circumstantial evidence indicates that the sculpture was removed from Cambodia in approximately 1972, this was not clearly established. Without a definitive date of removal from Cambodia—or at least a definitive terminus post quem—it is difficult to evaluate the law in effect at the time and the level of domestic enforcement.

It is also worth noting that it took the U.S. government at least a year after initially filing its forfeiture complaint before it was able to identify specific laws that purported to be ownership laws. Given this challenge, it is difficult to see how any law could pass the clear and unambiguous threshold set out in McClain and Schultz, and it would have been equally difficult to establish that Sotheby’s knew that the statue was subject to Cambodian national ownership.Footnote 57 None of these issues was resolved as the case settled soon after the court denied the motion to dismiss; nonetheless, the case seems to present, at best, a weak basis for alleging violation of § 1595a, given the paucity of specific facts concerning the sculpture’s background and questions as to whether the criteria for national ownership were satisfied.

Limitations of the Law

Lack of criminal enforcement

The obverse of the over-use of civil forfeiture actions is the relative dearth of criminal prosecutions and the unsatisfactory outcomes of those few criminal actions that have been attempted. The last criminal prosecution for conduct involving cultural objects from foreign countries that resulted in a meaningful prison sentence was that of the New York dealer, Fred Schultz.Footnote 58 Yet, the criminologist Simon Mackenzie has demonstrated that only the realistic threat of criminal prosecution and of punishment will deter those engaged in white collar criminal activity.Footnote 59 Two high-profile investigations and indictments have resulted in little serious punishment of the offenders.Footnote 60

The first of these was an undercover investigation carried out over several years by U.S. federal agencies and that culminated in a series of raids to execute search warrants on four southern California museums (the Los Angeles County Museum of Art, the Pacific Asia Museum in Pasadena, the Bowers Museum in Santa Ana, and the Mingei International Museum in San Diego), the Malter Gallery in Encino, the Silk Road Gallery owned by Jonathan and Cari Markell in Los Angeles, and the home of Barry MacLean, a private collector in Chicago.Footnote 61 The affidavits submitted to obtain the warrants alleged an elaborate scheme in which an undercover agent, posing as a collector, was taken to the storerooms of an alleged smuggler who sold artifacts stolen and smuggled out of several Asian countries, including China, Thailand, Cambodia and Myanmar. It is unfortunate that no one involved in the smuggling and tax fraud scheme was subject to incarceration. The only substantive result was the return of many of the artifacts seized in the raids to Thailand and Cambodia.Footnote 62

The other criminal investigation and indictment involved four individuals, Mousa Khouli, Joseph A. Lewis II, Salem Alshdaifat, and Ayman Ramadan, who were allegedly involved in an antiquities smuggling ring involving artifacts from Egypt, Iraq, and other Middle Eastern countries. Khouli pled guilty to making a false statement and to smuggling Egyptian cultural property. He faced a maximum sentence of twenty years’ imprisonment but was given six months of home detention and one year of probation. In addition, he forfeited several Egyptian and Iraqi antiquities. One of the co-defendants pled guilty to making false import declarations and faced a prison sentence,Footnote 63 one fled the United States, and charges against Joseph Lewis, a prominent collector, were dismissed.Footnote 64 These sentences seem to follow another unfortunate pattern, which may also result from poor lawyering on the part of U.S. government prosecutors, in which judges now seem to be persuaded that those who violate laws related to cultural property should not serve serious prison time—or perhaps no prison time at all.

In part to remedy this dearth of criminal prosecutions for cultural property crimes, Congressman William Keating of Massachusetts introduced the Prevent Trafficking in Cultural Property Act in May 2015.Footnote 65 Among other provisions, the bill states that it is the policy of the United States to “disrupt and dismantle smuggling and trafficking networks” and to “support Offices of United States Attorneys in prosecuting persons engaged in, conspiring to engage in, or facilitating illegal trade in cultural property.”Footnote 66 While focused almost exclusively on the Department of Homeland Security (Customs and Border Protection and Immigration and Customs Enforcement), this legislation calls for greater emphasis on coordination, education, and investigation efforts oriented toward providing support for prosecution of all those involved in illegal importation of cultural property.Footnote 67 While the House has taken no further steps as yet with respect to this legislation, if enacted, this would provide a modest impetus in the direction of focusing on criminal prosecution and conviction, rather than simply on civil forfeiture and restitution.

Shortcomings of the CPIA in emergency situations

The system established by the Convention on Cultural Property Implementation Act, by which the United States implements its obligations under Article 9 of the 1970 UNESCO Convention,Footnote 68 allows the United States to impose import restrictions on designated categories of undocumented archaeological and ethnological materials. However, for such import restrictions to be imposed, the foreign country must make a request for a bilateral agreement through diplomatic channels and submit fairly extensive background information relating to the four statutory determinations that are prerequisites to such an agreement. Another mechanism exists for imposing import restrictions in “emergency” circumstances.Footnote 69 However, the use of the term “emergency” is at best a misnomer and is frequently misunderstood.

Before the United States can impose import restrictions pursuant to an emergency action, the foreign country much first request a bilateral agreement with documentation supporting both the criteria for such an agreement and the circumstances of an emergency condition. The request must follow the same process by which the Cultural Property Advisory Committee evaluates the request and the Assistant Secretary for Educational and Cultural Affairs makes the final determinations. While the criteria for an emergency action are different from those required for a bilateral agreement, the only way in which the process differs is that an emergency action does not require the negotiations between the United States and the requesting country that are necessary for a bilateral agreement. This process is therefore not well-suited in cases of true emergency situations, as demonstrated by the recent examples of Iraq and Syria.

In the case of Iraq, as is well known, the Iraq National Museum in Baghdad was looted during the U.S.-led invasion of Iraq in March and April of 2003. For the next several years, archaeological sites, particularly in the southern part of Iraq, were looted on a massive scale.Footnote 70 In May of 2003, the United Nations Security Council adopted Resolution 1483, stating that the Security Council:

Decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq … including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed ….Footnote 71

It was not possible for Iraq to engage in the CPIA process to request import restrictions for a number of reasons. The United States and Iraq did not have diplomatic relations between 1990 and 2003. Even after the invasion of 2003, there were questions concerning the legal status of the government of Iraq, whether Iraq continued as a State Party to the 1970 UNESCO Convention, and whether the Coalition Provisional Authority had the authority to request import restrictions.

Congress therefore enacted special legislation, the Emergency Protection for Iraqi Cultural Antiquities Act, in late 2004 to remove the requirement that Iraq needed to bring a request for a bilateral agreement, among other provisions applicable to emergency actions.Footnote 72 Nonetheless, these import restrictions were not imposed until April 2008, due to bureaucratic requirements and promulgation of the designated list, a full five years after the looting of the Museum in Baghdad. However, the gap was filled by trade sanctions that had been imposed in 1990, at the time Saddam Hussein invaded Kuwait. These sanctions were left in place for cultural materials, when other sanctions were lifted in 2003, and they remain in effect today.Footnote 73

The same cannot be said for Syria, whose cultural heritage is in considerably more dire circumstances than that of Iraq in 2003. Studies have demonstrated the damage and destruction caused to Syrian cultural sites due to the ongoing conflict.Footnote 74 Studies have also documented the extensive looting of major archaeological sites, including Apamea, Mari, Dura-Europos, and Ebla,Footnote 75 while a myriad of smaller and less well documented sites have likely suffered extensive looting as well.Footnote 76 Unlike the case with Iraq, no general trade sanctions against Syria are in place.Footnote 77

In February 2015, the U.N. Security Council adopted Resolution 2199, which, in language mirroring the language of the 2003 resolution concerning Iraq, called on all U.N. member states to prohibit the import of cultural materials illegally removed from Syria after March 2011 (the beginning of the revolt against the Assad regime).Footnote 78 Even before adoption of the U.N. Security Council Resolution, the European Union had acted to prohibit import of cultural materials from Syria,Footnote 79 as did Switzerland,Footnote 80 while the U.K. adopted criminal sanctions.Footnote 81 The United States, however, has lagged behind the other major Western market countries. Legislation was introduced in the House in November 2014 that, among other provisions, would have echoed the import restrictions for Iraq for illegally removed cultural materials from Syria.Footnote 82 However, this legislation did not pass Congress before the end of the session. Legislation that was essentially identical with respect to the import restrictions, although different in other regards, was introduced in the House in March 2015 and passed by the House in June 2015.Footnote 83 No formal action has yet been taken by the Senate with respect to this legislation. Even if this legislation were to pass Congress, it is not feasible to expect Congress to enact import restrictions on a country-by-country basis to respond to every cultural crisis, such as is now looming in Libya. The inability of the United States to respond effectively and rapidly to situations of true emergency threats to cultural heritage is well-illustrated. A more general legislative corrective is needed to remedy this inability to act quickly and effectively to protect cultural heritage in other nations from the threats of looting and theft.

CONCLUSION

While the law and methods of enforcement have evolved in the United States to be generally conducive to restitution of illegally removed (whether stolen or illegally exported) cultural materials, this very evolution has brought the shortcomings of current law and law enforcement practices into sharper focus. The second-generation cases, in which the United States pursues such cultural objects for the purpose of restitution to the country of origin, have proven relatively effective for the narrow purpose of restitution. However, this evolution is ineffective in providing criminal sanctions—the only true and effective deterrent to the underlying crime. Furthermore, the relative ease of restitution through the mechanism of civil forfeiture may be fostering the unintended consequence of discouraging government prosecutors from pursuing the more difficult, time consuming and expensive goal of actually dismantling criminal smuggling and looting networks. Only through the dismantling of such networks is it possible to prevent the ongoing loss of cultural heritage and knowledge, not only to the country of origin but to all the world.

The over-use of civil forfeiture, based on a variety of legal theories and strategies, further indicates a lack of a cohesive government policy toward cultural heritage crimes. Rather than a single enforcement strategy, reflecting centralized policy determinations, government policy is being made on an ad hoc basis with little coherence or uniformity. This also means that those responsible market players, who wish to abide by the law, are left unclear as to precisely what the law requires. Rather than encouraging “good behavior” through the fear of violating the law, this may encourage market players not to bother attempting to comply. And this is further exacerbated if the only “punishment” they risk is loss of the artifact at issue, rather than incarceration. The government’s further inability to act is underscored by the shortcomings of the Convention on Cultural Property Implementation Act with respect to emergency situations and the difficulty Congress has in enacting any legislation.

The primary solution to the current situation is that the federal government, primarily through the Department of Justice, needs to develop a single coherent interpretation of the law and ensure that the different United States Attorney offices follow this interpretation. The Department of Justice, including the Federal Bureau of Investigation, and the Department of Homeland Security need to prioritize criminal prosecution of offenders, rather than being satisfied with civil forfeiture as a means to accomplish restitution. And finally, at a time when cultural heritage is so much at risk throughout the world and it appears likely that cultural heritage is being destroyed to fund military and terrorist activity, the United States needs to be empowered to take swifter, targeted, and criminal actions against the import of such looted artifacts. But even while we attempt to close off the market in the United States to such looted artifacts to be sure that we are not directly or indirectly funding armed conflict, we need to remember that the goal is the broader one of preserving the world’s cultural heritage for the benefit of all humankind.

ACKNOWLEDGMENTS:

I would like to thank Michelle Janevicius for her research assistance. All opinions expressed in this article are those of the author and not necessarily those of the U.S. Department of State or of the U.S. government.

Footnotes

1 See Fincham Reference Fincham2015.

2 Autocephalous Greek-Orthodox Church v. Goldberg Feldman Fine Arts, Inc., 717 F Supp. 1374, 1377–78 (S.D. Ind. 1989), aff’d, 917 F.2d 278 (7th Cir. 1990).

3 Megaw and Hawkins Reference Megaw and Hawkins1977.

4 Autocephalous Greek-Orthodox Church, 917 F.2d, 281–82. Aydin Dikman, who was reputed to be one of Europe’s largest dealers in stolen antiquities and art works, was arrested in October 1997 in Munich. In his apartment, police found an estimated $30 million worth of antiquities, including Cypriot frescoes, mosaics, icons and coins, Pre-Columbian pottery, and stolen paintings. Rose Reference Rose1998. Litigation has been ongoing as to whether these antiquities will be returned to Cyprus. Mastrapa Reference Mastrapa2014.

5 Autocephalous Greek-Orthodox Church, 717 F. Supp., 1388. For a study of the condition of the mosaics after they were reset by a restorer in Indianapolis, see Sease and Thimme Reference Sease, Thimme and Tubb1995.

6 Autocephalous Greek-Orthodox Church, 717 F. Supp., 1385.

7 Ibid. For critiques of the court’s choice of law analysis, see Symeonides Reference Symeonides2005; O’Connell Reference O’Connell2008, 1081–88.

8 New York follows the demand and refusal rule, according to which the claim does not accrue (and the statutory time period does not start to run) until the original owner demands return of the stolen property and the current possessor refuses. Because this would virtually never bar a claim, the courts in New York and some other jurisdictions also utilize the equitable defense of laches, which focuses on both the unreasonable delay of the claimant and any legal prejudice this delay may have caused to the current possessor. See, e.g., Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008); Bakalar v. Vavra, 2011 U.S. Dist. LEXIS 91851 (S.D.N.Y. 2011); and Matter of Flamenbaum, 95 A.D.3d 1318 (N.Y. App. Div. 2d Dep’t 2012). California has enacted a special statute of limitations for the recovery of cultural objects stolen after 1910. Cal. Code Civ. P. § 338(c)(3).

9 Republic of Turkey v. Metropolitan Museum of Art, 762 F. Supp. 44 (S.D.N.Y 1990). The court’s decision that Turkey’s claim was not barred followed quickly on the heels of the decision of the New York Court of Appeals in Guggenheim v. Lubell, 77 N.Y.2d 311 (N.Y. 1991). Turkey was also successful in recovering a hoard of coins that were looted from Southwestern Turkey and held by private collectors, Republic of Turkey v. OKS Partners, 1994 U.S. Dist. LEXIS 17032 (D. Mass. 1994). Two unsuccessful replevin actions were Government of Peru v. Johnson, 720 F. Supp. 810 (C.D. Cal 1989), aff’d sub nom., Government of Peru v. Wendt, 933 F.2d 1013, 1991 U.S. App. LEXIS 10385 (9th Cir. 1991), and Republic of Croatia v. The Trustee of Marquess of Northampton 1987 Settlement, 610 N.Y.S.2d 263 (N.Y. App. Div. 1st Dep’t. 1994). For descriptions of the Lydian Hoard, see Kaye and Main Reference Kaye, Main and Tubb1995. Thomas Hoving, former director of the Metropolitan, recounts the story of the acquisition of the Hoard and the Museum’s knowledge at the time of acquisition that the objects were looted from tombs in Turkey in Hoving Reference Hoving1993, 217.

10 Greek Orthodox Patriarchate v. Christie’s, Inc., 1999 U.S. Dist. LEXIS 13257 (S.D.N.Y 1999). More recently, the District Court for the Central District of California applied Spanish law to hold that the claim of the Cassirer family to recover a Pissarro painting would be barred by adverse possession. The court applied both the federal common law choice of law rules and California’s choice of law rules in resolving the conflict between California and Spanish law. Cassirer v. Thyssen-Bornemsza Collection Found, 2:05-cv-03459 (C.D. Cal. 2015). This decision is currently on appeal to the 9th Circuit.

11 In contrast to cases involving archaeological artifacts and ancient art, cases involving the recovery of fine art, including artworks looted during the Holocaust, have tended to remain within the province of private litigation. Although there are exceptions, these cases are not further considered here.

12 U.S. v. An Antique Platter of Gold, 991 F. Supp. 222 (S.D.N.Y. 1997), aff’d, 184 F.3d 131 (2d Cir. 1999).

13 The relevant section of the Customs statute states: “Merchandise which is introduced or attempted to be introduced into the United States contrary to law shall be treated as follows: (1) The merchandise shall be seized and forfeited if it – (A) is stolen, smuggled, or clandestinely imported or introduced.” 19 U.S.C. § 1595a(c). For broader discussion of the role of civil forfeiture within the context of the Customs statute, see Brennan Reference Brennan2015; Gerstenblith Reference Gerstenblith, Francioni and Gordley2013.

14 Articles of cultural property and archaeological and ethnological materials forfeited under the Convention on Cultural Property Implementation Act must first be offered for return to the relevant State Party, 19 U.S.C. §§ 2609(b)(1), (c)(2)(A).

15 18 U.S.C. § 982.

16 There is no general statute providing for forfeiture; rather, forfeiture authority is found in individual statutes. Civil forfeiture is used when the government is unable to prosecute the wrongdoer or in cases that are serious “but not serious enough to justify a criminal conviction and a prison term.” Cassella Reference Casella2004, 132.

17 See infra notes 23–31 and accompanying text.

18 See, e.g., U.S. v. An Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999) (involving violation of 18 U.S.C. § 542, prohibiting import into the United States of “any imported merchandise by means of any fraudulent or false invoice, declaration …”).

19 Merchandise that has been introduced into the United States contrary to law if it is “stolen, smuggled, or clandestinely imported or introduced” may be forfeited under 19 U.S.C. § 1595a(c) or 18 U.S.C. § 545. For further discussion of civil forfeiture of goods imported “contrary to law,” see infra notes 41–51 and accompanying text.

20 The Civil Asset Forfeiture Reform Act, 18 U.S.C. §§ 981 et seq., raised this burden of proof for most forfeiture actions and added an innocent owner defense but exempted forfeitures under the Customs statute, Title 19, from all of CAFRA’s provisions, 18 U.S.C. § 983(i)(2)(A). For this reason, few civil forfeiture actions, at least in the international cultural property field, have been brought under any statute other than Title 19 since CAFRA’s enactment in 2000.

21 18 U.S.C. §§ 2314–15.

22 See, e.g., 19 U.S.C. § 1621 (stating that no action for forfeiture of property can be commenced more than “five years after the time when the alleged offense was discovered, or in the case of forfeiture, within two years after the time when the involvement of the property in the alleged offense was discovered, whichever was later”).

23 17 November 1970, 823 U.N.T.S. 231, 10 I.L.M. 289 (1971). A second convention, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, parallels the 1970 UNESCO Convention but has not yet achieved the same level of recognition, especially among market nations.

24 As Clemency C. Coggins wrote, “In the last ten years there has been an incalculable increase in the number of monuments systematically stolen, mutilated, and illicitly exported from Guatemala and Mexico in order to feed the international art market. Not since the sixteenth century has Latin America been so ruthlessly plundered. … The theft and mutilation of monuments is not confined to little known, or unknown sites where their loss, and the concomitant tomb-robbing, destroys all archeological evidence.” Coggins Reference Coggins1969, 94.

25 Meyer Reference Meyer1973.

26 O’Keefe Reference O’Keefe2007, 41–44.

27 19 U.S.C. §§ 2601–13. Article 7(b) of the Convention is implemented by 19 U.S.C. § 2607.

28 See the discussion of applicability of the 1970 UNESCO Convention and the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict in the concurring opinion of Judge Cudahy. Autocephalous Greek-Orthodox Church, 917 F.2d, 294.

29 19 U.S.C. § 2602–3.

30 For more detailed discussion of the U.S. import restrictions and of the implementation of the 1970 UNESCO Convention by other market nations, see Gerstenblith Reference Gerstenblith, Prott, Redmond-Cooper and Urice2012.

31 These nations are: Belize, Bolivia, Bulgaria, Cambodia, China, Colombia, Cyprus, El Salvador, Guatemala, Hellenic Republic of Greece, Honduras, Italy, Mali, Nicaragua, and Peru. An agreement with Canada expired in 2002. The U.S. restricts the import of cultural materials from Iraq based on specific legislation, rather than on a bilateral agreement. A request from Egypt for a bilateral agreement is pending.

32 See Gerstenblith Reference Gerstenblith2007, 169–174.

33 United States. v. McClain, 545 F.2d 988 (5th Cir. 1997); 593 F.2d 658, 665–66 (5th Cir. 1979), and United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974).

34 18 U.S.C. §§ 2314–15.

35 United States v. Schultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002), aff’d, 333 F.3d 393 (2d Cir. 2003). The principle of national ownership was also recognized by the British courts in a civil replevin action brought by the Republic of Iran against the Barakat Gallery to recover artifacts looted from the Jiroft region of Iran. Gov’t of the Republic of Iran v. The Barakat Galleries Ltd., [2007] E.W.C.A. Civ. 1374; [2007] 1 All E.R. 1177. For more discussion of these two decisions, see Gerstenblith Reference Gerstenblith2009.

36 Schultz, 178 F. Supp. 2d, 447; McClain, 545 F.2d, 997–1002. As these elements are deduced from two criminal prosecutions, Schultz and McClain, it is not certain whether the standard of clarity is the same in non-criminal litigation, such as a civil replevin action or a civil forfeiture action (which is nonetheless a quasi-criminal proceeding).

37 While some commentators have suggested that an illegally exported cultural object should also be considered illegal in the United States, for most purposes (and for this discussion), it is accepted that if the only violation of law involved is illegal export, the object is not illegal in the United States unless the import violates a specific agreement to restrict the import of such an object into the United States. The primary example of such an agreement is a bilateral agreement between the United States and a country of origin pursuant to the Convention on Cultural Property Implementation Act, see supra notes 29–31 and accompanying text. The import of stolen property violates the National Stolen Property Act. For further discussion of whether illegal export makes a cultural object illegal in the United States, see Gordley Reference Gordley, Francioni and Gordley2013.

38 19 U.S.C. § 1595a(c).

39 One question that has arisen among the different federal circuits is whether the government must establish knowledge or scienter on the part of someone involved in the importation of the stolen property when the underlying law involved is the NSPA, which, as a criminal statute, contains a knowledge requirement. For more discussion of this issue, see Gerstenblith Reference Gerstenblith, Francioni and Gordley2013, 166.

40 The Department of Justice, located in Washington, D.C., has “national” jurisdiction over and develops a national strategy for only a few types of cases based on subject matter—cultural property is not one of those. The federal circuit courts of appeal, of which there are thirteen, do not need to agree with each other or follow the precedents established by a different appellate court. The U.S. Supreme Court hears only about 1% of appeals from the federal appellate courts, and so differences in approach to the law are rarely resolved, leaving those who participate in the art market unclear as to what the correct law is and leaving federal prosecutors with little guidance as to how best to pursue these cases.

41 See supra notes 32–37 and accompanying text.

42 252 F. Supp. 2d 1367 (S.D. Fla. 2003).

43 United States v. One Ancient Egyptian, Yellow Background, Wooden Sarcophagus, dating to the Third Intermediate Period, Complaint filed 8 October 2009, Case 09-23020, 6 (S.D. Fla. 2009) (alleging that the sarcophagus “was introduced or was attempted to be introduced into the United States contrary to law” but without stating what law pertained to the “contrary to law” provision). Default Judgment of Forfeiture, Case No. 09-23030-CIV-Huck, entered 31 December 2009.

44 United States v. Schultz, 333 F.3d 393 (2d Cir. 2003).

45 This illustrates a somewhat common characteristic of the second-generation cases. Because the costs of litigation are borne by the U.S. government, the claimant (the party with standing to contest a forfeiture) is less likely to pursue the litigation and the case ends in an uncontested forfeiture. As a result and although a court must still approve a forfeiture order, the legal merits of these cases are rarely evaluated by the court and so the theories advanced in a complaint seem to take on a perhaps unjustified aura of legitimacy.

46 19 U.S.C. § 2606.

47 United States v. Three Artifacts Constituting Cultural Property from Peru, Case 1:2013-cv-22585-JAL, entered 18 July 2013 (S.D. Fla. 2013). The complaint states that the objects are “merchandise that [have] been introduced into the United States contrary to law, as [they] constitute property unlawfully exported from Peru and stolen, smuggled or clandestinely imported or introduced into the United States.” Ibid., 2. The complaint then states: “Because the defendant property was taken from Peru in violation of Peruvian law, ownership of the artifacts has reverted to the government of Peru.” Ibid., 2–3. It then cites provisions of Peruvian law that prohibit export of cultural property and state that ownership of such illegally exported property “reverts to the state.” Ibid., 3. (citing Peru’s Law No. 28296, Title III, Article 33 and Title I, Article 10). The complaint fails to cite the NSPA or any other U.S. law as the underlying law in the “contrary to law” provision and cites only the Peruvian law. The notion that ownership would “revert to the state” upon illegal export or attempted illegal export is arguably an attempt to have the ownership provision apply extraterritorially, particularly in a situation, such as here, where the artifacts were exported. This theory of national ownership was held not to create ownership that would be recognized in foreign courts in Att-Gen of New Zealand v. Ortiz [1984] AC 1 (CA and HL), where New Zealand law in effect at that time provided for forfeiture of objects upon attempted illegal export. It is unclear whether this holding is still regarded as good law following the decision in Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd, 2007 EWCA Civ 1374 (Court of Appeal [Civil Division]).

48 United States v. Mask of Ka-Nefer-Nefer, 2012 U.S. Dist. LEXIS 47012 (E.D. Mo. 2012) (dismissing government’s complaint as insufficient), 2012 U.S. Dist. LEXIS 76220 (E.D. Mo. 2012) (denying government’s petition to file an amended complaint), aff’d, 752 F.3d 737 (8th Cir. 2014).

49 Ibid., 741.

50 The government’s belief that no underlying U.S. law needs to be violated may have been an attempt to eliminate the scienter element of the NSPA. United States v. Mask of Ka-Nefer-Nefer, Complaint filed 16 March 2011, Case 4:11-cv-00504-HEA, 4 (alleging that the mask was stolen but not alleging that anyone involved in importation of the mask knew it was stolen). After its complaint was dismissed, the United States attempted to amend its complaint, in part, so as to include an allegation that the St. Louis Art Museum had consciously avoided learning the mask’s legal status, thus satisfying a knowledge requirement. The district court refused to allow an amended complaint to be filed because the government’s motion to do so was not timely.

51 752 F.3, 741–42. The Eighth Circuit took a strong view that where the NSPA is the underlying law, then knowledge that the property is stolen must be proved. It cited the need to establish scienter in the Portrait of Wally decision. U.S. v. Portrait of Wally, A Painting by Egon Schiele, 663 F. Supp. 2d 232, 269 (S.D.N.Y. 2009) (setting for trial the question of whether the Leopold Museum could rebut the government’s showing that Rudolf Leopold knew the painting had been stolen). The court also referred to the congressional view expressed in CAFRA that the use of civil forfeiture against innocent parties should be curtailed. 752 F.3d, 742 n. 7. This may, however, contradict Congress’ direct view that forfeitures under Title 19 are exempt from CAFRA and therefore are not subject to an innocent owner defense. See, e.g., U.S. v. Davis, 648 F.3d 84, 92 (2d Cir. 2011) (stating that in civil forfeitures, “the claimant’s culpability is often irrelevant: ‘a long and unbroken line of cases holds that an owner’s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was put to such use.’”). See also the concurring opinion by Judge Murphy in the Ka-Nefer-Nefer decision, 752 F.3d, 745–46 (emphasizing the lack of a good faith owner defense in civil forfeiture actions). In Davis, however, while the current possessor may have been unaware that the painting was stolen, the government adequately alleged that the thief imported the painting into the United States and thus the scienter requirement was satisfied.

52 Another possible defect in many of these civil forfeiture cases is the question of whether civil forfeiture should be undertaken only when accompanied by an active criminal investigation and the possibility of criminal prosecution. It is worth noting that the New York dealer, Robert Haber, in the Antique Platter case was apparently the subject of a criminal investigation. See U.S. v. An Antique Platter of Gold, 991 F. Supp. 222, 232 (S.D.N.Y. 1997) (stating that Haber “invoked the Fifth Amendment at a deposition and refused to answer any questions regarding the Phiale’s purchase or importation…. From this fact the Court can draw an adverse inference against Haber that he knew the Phiale was stolen at the time he imported it.”). There was also an ongoing criminal investigation in Italy of Vincenzo Cammarata, the second dealer to trade the phiale, and other figures in the case; Italian police found 30,000 archaeological objects in Cammarata’s villa in Sicily. Rory Carroll, “Loot,” The Guardian, 4 May 2002, 44. Many of the recent civil forfeitures cases, including the Miami sarcophagus case, the Ka-Nefer-Nefer mask case and the Cambodian sculpture case, see infra notes 53–57 and accompanying text, clearly were not part of a criminal investigation.

53 United States v. 10th Century Cambodian Sandstone Sculpture, 2013 U.S. Dist. LEXIS 45903, at 12 (S.D.N.Y. 2013). The Government alleged three statutory bases for forfeiture in its complaint: 18 U.S.C. § 981(a)(1)(C) (on the grounds that the statue constituted or derived from proceeds traceable to a violation of an offense constituting specified unlawful activity, which includes violation of the NSPA); 18 U.S.C. § 545 (providing forfeiture for merchandise knowingly imported contrary to law), and 19 U.S.C. § 1595a(c) (again, based on a violation of the NSPA). Ibid., 14–16. The first two bases would have required the government to satisfy the preponderance of the evidence standard, because forfeitures under Title 18 are subject to CAFRA, while the third basis would have required the government only to meet the probable cause standard. Only the third basis for forfeiture is considered here. The court acknowledged that while the “contrary to law” and the “stolen, smuggled, or clandestinely imported or introduced” prongs of Section 1595a are distinct, they can be satisfied through the same statutory predicate, in this case the NSPA.

54 United States v. 10th Century Cambodian Sandstone Sculpture, Verified Amended Complaint, 12 Civ. 2600, 24.

55 Ibid., 25. 2013 U.S. Dist. LEXIS 45903, 22–24. Claimant’s expert on French Indochinese law, Professor Alexandre Deroche, explained that most of the legal sources relied on by the government referred to measures adopted by the French Indochinese colonial government for classification, protection, administrative regulation, and the ability to expropriate cultural objects (upon payment of appropriate compensation). None of these provisions or similar regulations qualify as national ownership laws, as discussed in the Schultz decision, 393 F.3d 393, 405–06 (2d Cir. 2003) (contrasting New York State regulations for the harvesting of clams where “the purpose of asserting ownership was only to regulate and control the use and disposition of wildlife, not to actually take possession of it.”). The primary provision on which the government relied was an order of 16 May 1925; Deroche pointed out that the use in French of the word “de” (literally meaning “of”) when followed by a geographic location, indicates the place where something is located and does not indicate ownership. Memorandum of Law in Support of Claimant’s Motion for Judgment on the Pleadings and for a Stay of Discovery, 12 Civ. 2600, 19–21 (9 September 2013); Declaration of Prof. Alexandre Deroche, 12 Civ. 2600, 6–9 (9 September 2013).

56 The court rejected the notion that this prong needed to be pled in the complaint, United States v. 10th Century Cambodian Sandstone Sculpture, 2013 U.S. Dist. LEXIS 45903, 24, citing United States v. One Tyrannosaurus Bataar Skeleton, 2012 U.S. Dist. LEXIS 165153, at 30 (S.D.N.Y. 2012).

57 This case might also have raised an interesting question not only concerning scienter but the question of who needs to know that the sculpture was stolen. If national ownership could have been established, it seems more likely that the consignor, who had previously attempted to sell the sculpture, knew or should have known that there were legal obstacles to the sale than that Sotheby’s knew or had reason to know.

58 U.S. v. Schultz, 333 F.3d 393 (2d Cir. 2003). Schultz was sentenced to 33 months in jail and ordered to pay a fine of $50,000 and to return a relief still in his possession to Egypt. Because the conduct for which he was convicted occurred before the Cultural Heritage Resource Crimes Sentencing Guideline was adopted in late 2002 (see infra note 60), his sentence was not calculated under that provision.

59 Mackenzie Reference Mackenzie2005, 149–56.

60 This is ironic, and unfortunate, in light of the Cultural Heritage Resource Crimes Sentencing Guideline that Congress adopted in late 2002 specifically to make more severe sentences for crimes involving cultural resources available. 18 U.S.C. Appx § 2B1.5.

61 Zagaris Reference Zagaris2008; Edward Wyatt, “Four Museums Are Raided in Looted Antiquities Case,” New York Times, 25 January 2008, A14; Edward Wyatt, “Papers Show Wider Focus in Inquiry of Artifacts,” New York Times, 30 January 2008, A11.

62 Immigration and Customs Enforcement/Homeland Security Investigations, “Ancient Artifacts Returned to Cambodia via the USNS Mercy,” press release, 18 August 2010, http://www.ice.gov/news/releases/ancient-artifacts-returned-cambodia-usns-mercy (accessed 18 July 2015); Morgan Cook, “Mingei’s Seized Artifacts Will Go Free,” U-T San Diego, 4 March 2015, http://www.utsandiego.com/news/2015/mar/04/mingei-art-case-artifacts-vault/?#article-copy (accessed 18 July 2015) (describing repatriation of “thousands of seized artifacts” to Thailand). Two defendants charged as a result of these investigations pled guilty and were sentenced in 2012 to serve probation and pay fines and restitution. Several other possible defendants died during the time of the investigation. Ibid.

63 Caulderwood 2015.

64 Lee Rosenbaum, “‘Fight of My Life’: Antiquities Collector Joseph Lewis Wins Dismissal of Charges,” 17 February 2014, ArtsJournalBlogs, http://www.artsjournal.com/culturegrrl/2014/02/fight-of-my-life-antiquities-collector-joseph-lewis-wins-dismissal-of-charges.html (accessed 18 July 2015).

65 H.R. 2285, https://www.congress.gov/bill/114th-congress/house-bill/2285/text?q={%22search%22%3A[%22cultural+property%22]} (accessed 18 July 2015).

66 Ibid., § 3(1).

67 Ibid., § 4.

68 See supra notes 27–31 and accompanying text.

69 See 19 U.S.C. § 2603 (describing the process for imposing import restrictions pursuant to an emergency action and the definition of emergency condition).

70 See, e.g., Stone Reference Stone2008.

71 S/RES/1483, 2003, para. 7.

72 Sections 3001–03, P.L. 108–429. This legislation removed the limitations of 19 U.S.C. § 2603(c), including the requirement that the other State Party first bring a request for a bilateral agreement, the limitation of the emergency import restrictions to a maximum of eight years, and the limitation of the import restrictions to archaeological and ethnological materials, as defined in the CPIA, 19 U.S.C. § 2601(2).

73 See 31 C.F.R. 575.533(b)(5) (prohibiting “trade in or transfer of such [cultural] items”).

74 Wolfinbarger et al. Reference Wolfinbarger, Drake, Ashcroft and Hanson2014.

75 Ibid. The weekly reports produced by the American Schools of Oriental Research Syrian Heritage Initiative also provide documentation of the looting and destruction of sites in Syria, http://www.asor-syrianheritage.org/ (accessed 18 July 2015).

76 It is beyond the scope of this article to consider the extent to which the Islamic State of Iraq and the Levant (ISIL) may be benefiting from the looting of these sites. However, several major sites, including Dura-Europos, Mari, Palmyra, Nineveh, Nimrud, Hatra and Korsabad, are located within ISIL controlled territory. While some looting occurred at these sites before ISIL took control in the first half of 2014, it is clear that the pace of looting accelerated significantly after these sites fell under ISIL control, and that it is likely that ISIL is benefiting financially from the looting and trafficking of cultural materials.

77 It is possible that Executive Orders freezing certain assets of the Assad regime would apply to archaeological materials. See, e.g., Executive Order 13582, Blocking Property of the Government of Syria and Prohibiting Certain Transactions with Respect to Syria, 17 August 2011, http://www.treasury.gov/resource-center/sanctions/Programs/Documents/syria_eo_08182011.pdf (accessed 18 July 2015).

78 UNSCR 2199, 2015, para. 15–17, http://www.un.org/press/en/2015/sc11775.doc.htm (accessed 18 July 2015) (and reaffirming the earlier Security Council Resolution 1483, para. 7, with respect to Iraq). Both resolutions were adopted under Chapter VII of the United Nations Charter, which makes it mandatory on all U.N. member states to act in accordance with the resolution.

79 Council Regulation (EU) No. 1332/2013 of 13 December 2013 amending Regulation (EU) No. 36/2012 concerning restrictive measures in view of the situation in Syria, Article (4) adding Article 11c; Annex XI.

80 Verordnung über Massnahmen gegenüber Syrien (Ordinance on Sanctions against Syria), revised on 17 December 2014, art. 9A, para. 1, http://www.seco.admin.ch/themen/00513/00620/00622/04669/index.html?lang=de (accessed 18 July 2015).

81 The Export Control (Syria Sanctions (Amendment)) Order 2014, No. 1896, para. 2 (inserting Article 12A), http://www.legislation.gov.uk/uksi/2014/1896/made (accessed 18 July 2015).

82 Protect and Preserve International Cultural Property Act, H.R. 5703 (2014), https://www.congress.gov/bill/113th-congress/house-bill/5703/text (accessed 18 July 2015).

83 Protect and Preserve International Cultural Property Act, H.R. 1493 (2015), https://www.congress.gov/bill/114th-congress/house-bill/1493 (accessed 18 July 2015). With respect to cultural property illegally removed from Syria, the version passed by the House added a sunset provision for the import restrictions and a waiver provision that would allow the President to waive the import restrictions in situations where a foreign owner asked to deposit cultural objects in the United States temporarily for the purpose of safekeeping.

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