The Role of Museums in the Trade of Black Market Cultural Heritage Property

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the role of MUSeUMS IN the trADe of BlACK MArKet CUltUrAl herItAGe ProPertY

leila Amineddoleh*

IntroductIon

The protection of cultural heritage1 objects is important for human civilisation, as developments in cultural heritage reflect mankind’s collective history and societal changes. In the first place, a record of mankind’s evolution facilitates an examination of humanity’s changes, including all aspects of social, religious, political, and scientific developments. Secondly, select pieces of cultural property hold great significance for various ethnic and cultural groups, because these works inspire a sense of identity and pride, a value that should be fiercely guarded. Thirdly, cultural heritage is a commodity that creates a stream of revenue through tourism, branding, and educational structures. The value that derives from cultural heritage has the capacity to last for centuries in the future. Fourthly, cultural heritage should be protected for equitable reasons; thieves should not be able to gain exclusive access to these objects and reap their value while simultaneously depriving the world from experiencing their value. Lastly, cultural heritage theft should be policed because of its link to global terrorism,2 money laundering3 and drug4 and weapons5 trafficking. Over the past decade, the trade in

1 Cultural heritage is the legacy of physical artefacts (such as buildings, monuments, landscapes, books, works of art, and artefacts) of a group or society that are inherited from past generations, maintained in the present and bestowed for the benefit of future generations. Cultural heritage is unique and irreplaceable, which places the responsibility of preservation on the current generation. UNESCO (the United Nations Educational Scientific and Cultural Organization) defines heritage as “the product and witness of the different traditions and of the spiritual achievements of the past and . . . thus an essential element in the personality of peoples.” <portal.unesco.org/en/ev.php-URL_ID=13085&URL_DO=DO_TOPIC&URL_SECTION=201.html>

2 Elena Becatoros, ‘Smuggled Antiquities Funding Iraq Extremists, U.S. Says’, Associated Press, 19 March 2008, avail. at <news.nationalgeographic.com/news/2008/03/080319-AP-iraq-insurg.html> (explaining that the smuggling of stolen antiquities from Iraq finances Iraqi extremist groups, quoting New York assistant district attorney and Marine Reserve Colonel Matthew Bogdanos, “the link between extremist groups and antiquities smuggling in Iraq was ‘undeniable.’”).

3 Patricia Cohen, ‘Valuable as Art, but Priceless as a Tool to Launder Money’, New York Times, 12 May 2013, avail. at <www.nytimes.com/2013/05/13/arts/design/art-proves-attractive-refuge-for-money-launderers.html?pagewanted=all&_r=0>.

4 Angela Kocherga, ‘Mexican Drug Smugglers Profit from Illegal Ttrade in Archaeological Artifacts’, WFAA.com, 8 Feb. 2013, avail. at <www.wfaa.com/news/world/190484501.html>

5 Aryn Baker, ‘Syria’s Looted Past: How Ancient Artifacts are being Traded for Guns’, Time, 12 Sept. 2012, avail. at <world.time.com/2012/09/12/syrias-looted-past-how-ancient-artifacts-* Of Counsel to Lombard & Geliebter, focusingon art, cultural heritage, and

intellectual property law; Executive Director of the Lawyers’ Committee for Cultural Heritage Preservation, and she teaches Art & Cultural Heritage Law at Fordham University School of Law and St. John’s University School of Law.

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looted antiquities remains one of the most prolific illicit trades globally, together with drug and arms trafficking.6

The market for illegal goods is driven by buyers’ wants,7 as the trade in looted antiquities is a demand-driven crime.8 The most effective method of protection for cultural heritage is therefore to eliminate black-market demand for these precious objects, thereby reducing the market, a method known as the ‘market reduction approach’.9 There is a well-documented link between the demand for looted items and museums.10 To eliminate black market demand, legislation is necessary to prosecute and regulate buyers, such as museums.

During the past decade acquisition policies have become a major issue, as illicit acquisitions and unethical museum practices have drawn a great deal of attention and protest from the art community. With the public trial of the Getty Museum’s former curator, Marion True, and the publication of books such as Chasing Aphrodite11 and Loot,12 the public has become aware of irresponsible and illegal acquisitions made by museums. In 2011, cultural heritage academics were outraged over the ownership dispute of the Ka Nefer Nefer funerary mask.13 The mask was unearthed in Egypt in 1952, and its ownership was vested in the Egyptian Government, before it went missing in the 1960s.14 The mask reappeared in the St. Louis Art Museum in 1998, and the Museum has refused to return it to Egypt. The case was in federal court, moved toward settlement, and, after negotiations fell through, is expected to return to the federal court docket later in 2013.15 The case continues to draw attention to the number of museum

are-being-traded-for-guns/> (quoting a smuggler: “We buy antiquities cheap, and then sell weapons expensively…The rebels need weapons, and antiquities are an easy way to buy them…”); ‘Trafficking in Cultural Property: Organized Crime and the Theft of Our Past’, UN Office on Drugs and Crimes, (30 Oct. 2012), avail. at <www.unodc.org/unodc/en/frontpage/2012/October/trafficking-in-cultural-property--organized-crime-and-the-theft-of-our-past.html>

6 Brian R. Williams, ‘What is Art Crime?’, The Damforst Museum, the Online Museum of Damaged, Forged and Stolen Art, 14 Oct. 2010, avail. at <www.damforstmuseum.org/what_is_art_crime.html>

7 Jens Beckert and Frank Wehinger, ‘In the Shadow: Illegal Markets and Economic Sociology’, p. 12, Discussion Paper, (Max-Planck-Institute For the Study of Societies, 2011); see also, Ralph Blumenthal and Tom Mashberg, ‘The Curse of the Outcast Artifact’, New York Times, 12 July 2012, avail. at <www.nytimes.com/2012/07/15/arts/design/antiquity-market-grapples-with-stricter-guidelines-for-gifts.html?pagewanted=all> (quoting Ricardo J. Elia, “[l]ooting is driven by the art market, by supply and demand.”).

8 Mark Vlasic, ‘Stamping Out the Illicit Trade in Cultural Artifacts’, Guardian, 7 Aug. 2011, avail. at <www.guardian.co.uk/commentisfree/cifamerica/2011/aug/07/egypt-antiquities-trade>

9 See generally, Stefano Manacorda and Duncan Chappell, Crime in the Art and Antiquities World: Illegal Trafficking in Cultural Property, (Springer, 2011)

10 Carl Franzen, ‘Ill-Gotten Gains: How Many Museums Have Stolen Objects in their Collections?’, Verge, 13 May, 2013, avail. at <www.theverge.com/2013/5/13/4326306/museum-artifacts-looted-repatriation>

11 Jason Felch and Ralph Frammolino, Chasing Aphrodite: the Hunt for Looted Antiquitites at the World’s Richest Museum (Houghton Mifflin Harcourt Publishing Company 2011) [hereinafter Felch and Frammolino, Chasing Aphrodite].

12 Sharon Waxman, Loot: The Battle over the Stolen Treasures of the Ancient World (Time Books, 2009).

13 Malcom Gay, ‘For the St. Louis Art Museum, a Legal Victory Raises Ethical Questions’, Atlantic, 30 May 2012, avail. at <www.theatlantic.com/national/archive/2012/05/for-the-st-louis-art-museum-a-legal-victory-raises-ethical-questions/257839/>

14 Jim Salter, ‘Judge Rules that 3,200-year-old Mummy Mask can Stay at Saint Louis Art Museum’, artdaily.com, 5 April 2012, avail. at <artdaily.com/index.asp?int_sec=2&int_new=54592#.UZOypILD9Ms>

15 See Second Status Report of Appellant United States of America Pursuant to Order Dated


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purchases made from antiquities dealers with criminal or suspect records. (The St. Louis Art Museum purchased the mask from the Phoenix Ancient Art Gallery, a gallery involved in the sale of many suspect and illegally acquired antiquities, and whose owners have both been convicted for numerous art crimes.)16 Then in July 2012, an antiquities dealer from India, Subhas Kapoor, was arrested for selling black market sacred Hindu antiquities.17 He shipped items with false customs declarations to dealers and museums worldwide. According to his records, he sold pieces to the Metropolitan Museum of Art, the Museum of Fine Arts and other museums as far away as Australia.18

Evidence clearly indicates that illegal exchanges are propagated by museums. During this time of political upheaval, with so many cultural artefacts illegally leaving the Middle East and Northern Africa, the market is full of black market antiquities. With heightened due diligence standards, museums must avoid the purchase of illegally-excavated items. Acquiring illegal property only fuels the black market for art, a market with ties to international terrorism. As institutions that receive tax benefits for their non-profit status, museums must be held to a heightened standard of due diligence. In fact, if museums continue to purchase and receive pieces from the black market, they are perpetuating the use of public dollars in the furtherance of illicit and terrorism-linked activities.19 The nexus between government dollars and black market trade requires the United States to take greater action in the prevention of museums’ acquisitions of looted artwork. This note examines current museum guidelines and fiduciary obligations in order to make recommendations for them to avoid pitfalls that harm the well-being of cultural heritage and that result in negative publicity to the museum community.

An increase in communication and knowledge within the art community is needed to deter cultural heritage destruction. With greater communication, the resale of stolen artwork will become more dangerous, increasingly difficult, and less profitable because the demand for these pieces will decrease. To further protect against art theft, the US Government should increase penalties on museums for acquiring stolen objects; monetary fines should be heightened, criminal charges should be brought against perpetrators, and the government should more aggressively investigate and pursue a greater number of cases. Museums regulate their own acquisition practices within industry guidelines (set forth through organisations such as ICOM20 and the Association of Art Museum Directors),21 but these guidelines are not enforceable as they are not codified in any federal or state laws that include sanctions or penalties for violators.22

12 Oct. 2012, United States Court of Appeals for the Eighth Circuit, filed 17 April 2013. 16 Daniel Grant, ‘Is It Possible to “Collect” Antiquities These Days?’ Huffington Post, 4 April 2011,

avail. at <www.huffingtonpost.com/daniel-grant/antiquities-collecting-due-diligence_b_844838.html>

17 Robin Pogrebin and Kevin Flynn, Museums ‘Studying Dealer’s Artifacts’, New York Times, 27 July 2012, avail. at <www.nytimes.com/2012/07/28/arts/design/us-asks-museums-to-examine-collections.html?_r=0>

18 Id.19 See below for discussion of links to terrorism. 20 See Standards and Guidelines, Int’l Council of Museums, avail. at <icom.museum/professional-

standards/standards-guidelines/> 21 See Guidelines on the Acquisition of Archaeological Material and Ancient Art, Ass’n of

Art Museum Dirs., avail. at <aamd.org/papers/documents/GuidelinesontheAcquisitionof Archaeological MaterialandAncientArtrev.2013.pdf >(last visited 17 Feb. 2013).

22 Mike Boehm, ‘Major Art Museum Group Bolsters Rules for Acquiring Ancient Art’, L.A. Times, 31 Jan. 2013, avail. at <www.latimes.com/entertainment/arts/culture/la-et-cm-major-art-museum-group-bolsters-rules-for-acquiring-ancient-art-20130130,0,6024098.story>



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Although there are laws aimed at deterring art theft,23 the US Government and the international community are not utilising these legal tools to their fullest potential. Specifically, the United States (one of the major players in the art world) has not placed high priority on halting the black market for looted antiquities. However, as the international community now recognises the extent to which artwork is stolen, governments are finding it essential to take action.24 At the forefront of this movement is the Italian Government (Italian prosecutors famously attempted to penalise the former curator of the Getty, Marion True, with criminal sanctions),25 the Turkish Government (Turkish officials have taken action by demanding the restitution of cultural heritage objects, citing human rights principles),26 and other nations rich in antiquities.27

I. Background

a. the hIstory of cultural herItage lootIng

The looting of art and cultural heritage has a long history,28 but modern day pillage is greater in scale than destruction witnessed in the past.29 The illicit art and antiquities market pre-dates ancient Greece.30 In more recent history, cultural artefacts have commonly been stolen and smuggled by hiding their sources.31 By doing this, looters deprive the world of important archaeological information about the objects. Artefacts torn from sites without adherence to any archaeological process32 lose context and scholarly value because the value of archaeological sites is realised through methodical excavation.33 Additionally, plunder

23 See Part II. 24 ‘Greek God Hercules Reunited with his Bottom Half as Museum Agrees to Send Back “Looted”

Bust to Turkey’, Daily Mail Reporter, 11 July 2012, avail. at <www.dailymail.co.uk/news/article-2017629/Weary-Herakles-reunited-half-looted-bust-returns-Turkey.html>; Helena Smith, ‘Greece Demands Return of Stolen Heritage’, Guardian, 10 July 2006, avail. at <www.guardian.co.uk/world/2006/jul/11/parthenon.arttheft>.

25 Italy v. Marion True and Robert Hecht, Trib. Roma, sez. VI pen., 13 Oct. 2010, n. 19360/10. 26 Dayla Alberge, ‘Turkey Turns to Human Rights Law to Reclaim British Museum Sculptures’,

Guardian, 8 Dec. 2012, avail. at <www.guardian.co.uk/culture/2012/dec/08/turkey-british-museum-sculptures-rights>.

27 Tom Mashberg, ‘Khmer Art Collector Linked to Statue’, New York Times, 12 Dec. 2012, avail. at <www.nytimes.com/2012/12/13/arts/design/us-links-collector-to-statue-in-khmer-looting-case.html?pagewanted=all&gwh=39F0D521051508C363448ADC2EA40BA6>.

28 Sandro Calvani, ‘Frequency and Figures of Organised Crime in Art and Antiquities’, Organised Crime in Art and Antiquities 28 (Stefano Manacorda, ed. 2009), avail. at <www.academia.edu /88 76 47/Organised_crimes_in_Art_and_Antiquities>.

29 Neil Brodie, Jenny Doole and Peter Watson, Stealing History: The Illicit Trade in Cultural Material (McDonald Institute for Archaeological Research, 2000).

30 Id. 31 See Gov’t of Islamic Republic of Iran v. The Barakat Galleries Ltd, [2007] EWHC 705 (Q.B.D.),

rev’d by [2007] EWCA Civ. 1374 (C.A.) (antiquities dealer being told that antiquities looted from Iran were found in Syira and Afghanistan); see also, United States v. An Antique Platter of Gold (‘Golden Phiale’), 184 F.3d 131 (2nd Cir. 199) (antiquities smuggler stated that an object came from Switzerland, rather than Sicily).

32 Katharyn Hanson, ‘Why Does Archaeological Context Matter?’ in CATASTROPHE! The Looting and Destruction of Iraq’s Past, p. 45 (Geoff Emberling and Katharyn Hanson eds, Oriental Institute Museum of the University of Chicago, 2008) (stating “Archaeological context is provided by information about the archaeological level in which an artifact was found, the type of building where it was found, where it was found inside that building, objects found nearby, and how these artifacts were discarded.”)

33 Laura de la Torre, ‘Terrorists Raise Cash by Selling Antiquities’, Gov’t Security News, 20 Feb.



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harms objects near a pillage site as looters disrupt objects found near the target artefact; therefore, when art is acquired surreptitiously, archaeologists lose this valuable context information.34 In addition, art theft may also lead to the physical destruction of target objects because untrained looters unearth objects without adhering to the necessary preservation methods or using the appropriate tools.35 Further, in an effort to maintain a discreet profile, thieves transport objects in crude, unsafe and unreliable ways that may lead to the physical destruction of the works.36 And shockingly, some thieves intentionally destroy artefacts by defacing or disguising them to clear them through customs. Eventually the objects may be repaired after arrival at their destinations,37 but have been irreversibly damaged.

B. the hIstory of MuseuM collectIng

The origin of modern museums was born millennia ago. The word ‘museum’ derives from the Greek mouseion, a sanctuary or temple dedicated to the Muses, meaning ‘seat of the Muses’,38 referring to a philosophical institution or a place of contemplation. In ancient Greece, art collections honouring the gods were sacred, and symbolised the glory and power of the city-state.39 The Latin derivation, museum, was used in Roman times to indicate places of philosophical discussion.40 The word museum was revived in fifteenth-century Europe to describe the collection of Lorenzo de’ Medici in Florence, but the term conveyed the concept of comprehensiveness rather than denoting a building.41 The concept of a public museum was introduced in 1683 when the first university museum, the Ashmolean Museum of Art and Archaeology in Oxford, was opened.42 In 1759, the British Museum was established to benefit the public “not only for the inspection and entertainment of the learned and the curious, but for the general use and benefit of the public.”43 Then in 1793, the Louvre opened in Paris, with the right to visit collections belonging to all citizens.44

2006, avail. at <www.gsnmagazine.com/pdfs/38_Feb_06.pdf>. 34 See, Brodie et al., above, note 29 at p. 16; Archaeological Institute of America, Frequently

Asked Questions, avail. at <www.archaeological.org/sitepreservation/faqs>.35 See generally, Peter Watson and Cecilia Todeschini, The Medici Conspiracy: The Illicit Journey

of Looted Antiquities – From Italy’s Tomb Raiders to the World’s Greatest Museums [hereinafter Watson and Todeschini, The Medici Conspiracy] (PublicAffairs, 2007).

36 See generally, Roger Atwood, Stealing History: Tomb Raiders, Smugglers, and the Looting of the Ancient World. (St. Martin’s Press, 2004)

37 See generally, United States v. Schultz, 333 F.3d 393, (2d Cir. 2003) (describing the way in which antiquities dealer Frederick Schultz worked with Jonathan Tokeley-Parry, a British art restorer known for smuggling thousands of Egyptian antiquities out of the country by disguising the pieces as cheap souvenir reproductions, to smuggle antiquities from Egypt into the United States); see also, Peter Watson, ‘The Investigation of Frederick Schultz’, Culture Without Context, Issue 10, Spring 2002, avail. at <www.mcdonald.cam.ac.uk/projects/iarc/culturewithoutcontext/issue10/watson.htm>; Sarah Knapton, ‘Smuggled Ancient Sculpture Returns to Egypt’, Telegraph, 19 Dec. 2008, avail. at <www.telegraph.co.uk/culture/3836319/Smuggled-ancient-sculpture-returns-to-Egypt.html>.

38 “museums, history of.” Encyclopædia Britannica. 2012. Encyclopædia Britannica Premium Service. 5 Feb. 2013, avail. at <www.britannica.com/EBchecked/topic/398827/history-of-museums>

39 John H. Merryman and Albert E. Elsen, Law Ethics and the Visual Arts, 905 (Kluwer Law International, 3rd edn 1991).

40 Id.41 See above, note 38 42 Avail. at <www.ashmolean.org/transforming/>43 See above, note 38.44 <www.bonjourlafrance.com/france-tourist-attractions/louvre.htm>; <www.wga.hu/database/



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From the inception of US museums, people felt that the Government should support art museums, in the way that schools, libraries and parks were assisted.45 American museums touted their educational aims.46 Nearly all of the early museums and galleries in the United States were non-profit corporations under the control of a private board of trustees.47 The largest museum48 in the United States, the Metropolitan Museum of Art (‘the Met’), was founded with substantial government support.49 Pursuant to the institution’s charter, the Museum was built with substantive city funds and it was maintained by expenses paid by the city.50 To this day, the City of New York owns the building, but a private group of trustees still controls the Museum and its contents.51

Today, a museum is defined as an “institution dedicated to preserving and interpreting the primary tangible evidence of humankind and the environment.”52 According to the International Council of Museums (‘ICOM’), a museum is a “non-profit making, permanent institution in the service of society and of its development, and open to the public which acquires, conserves, researches, communicates and exhibits, for purposes of study, education, and enjoyment, material evidence of people and their environment.” 53 ICOM, created in 1946, is a non-governmental organisation and the only worldwide organisation of museums and museum professionals committed to the promotion and protection of tangible and intangible cultural heritage.54 ICOM maintains formal relations with UNESCO, and has approximately 21,000 members in 146 countries.55

II. state of us and InternatIonal law

The international community has recognised the importance of protecting cultural heritage, as recognised in the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, “…in view of the magnitude and gravity of the new dangers threatening them, it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value.”56 The global community first banded together to protect cultural heritage after the heartbreaking destruction of art resulting from the World Wars.57 The Hague Convention of 1954 for the

museums/louvre.html>45 See Patty Gerstenblith, Art, Cultural Heritage, and the Law (Carolina Academic Press 3rd edn,

2012). 46 See Merryman, above, note 39, at 906.47 See id. 48 <www.forbes.com/companies/metropolitan-museum-of-art/>49 Winifred Eva Howe and Henry Watson Kent, A History of the Metropolitan Museum of Art

(Gilliss Press, 1913).50 See Gerstenblith, above, note 45, at 227. 51 Id. 52 “museums” Encyclopædia Britannica. 2012. Encyclopædia Britannica Premium Service. 5 Feb.

2013, avail. at <www.britannica.com/EBchecked/topic/398814/museum>. 53 See Merryman, above, note 39, at 907; see also International Council of Museums Statutes,

Article 2.1, Icom.museum, avail. at <icom.museum/the-organisation/icom-statutes/2-mission-and-purpose/#sommairecontent> (last visited 26 Jan. 2013).

54 See ‘Who We Are’, International Council of Museums, avail. at <network.icom.museum/ictop/about-us/who-we-are/> (last visited 26 Jan. 2013).

55 Id.56 1972 Convention for the Protection of the World Cultural and Natural Heritage, 1037 UNTS

151 / 27 UST 37 / 11 ILM 1358 / [1975] ATS 47. 57 See Lisa J. Borodkin, ‘The Economics of Antiquities Looting and a Proposed Legal Alternative’,



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Protection of Cultural Property in the Event of Armed Conflict (‘The Hague Convention’) addresses wartime looting and destruction, but has proven ineffective owing to the chaotic nature of war.58 However, the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property of 1970 (‘1970 UNESCO Convention’) has been more successful because it is broader in its application.59 The Convention allows nations to seek the return of cultural heritage in foreign jurisdictions.60 But it also has major shortcomings, as it allows State Parties to cherry-pick portions of the agreement.61 And, since the Convention is not self-executing, signatories must enact domestic laws to fulfil treaty obligations.62

The United States ratified Articles 7(b)(1) and 9 of the 1970 UNESCO Convention (see the Act As Public Law 97-446; or as 19 U.S.C. 2601 et seq.)63 But it was also necessary to implement the Convention into US law, so in 1983, Congress enacted the Cultural Property Implementation Act (‘CPIA’) to meet treaty obligations. The CPIA prohibits the importation of stolen cultural material from other States Parties, and applies import controls over a State’s patrimony in danger of pillage.64 The Act applies civil regulations to monitor importation without the heavy burden of a criminal conviction.65 The CPIA authorises the Government to seize property if the object meets the UNESCO definition of ‘cultural property.’66

However, the CPIA is a civil customs statute, and it lacks the force of criminal penalties.67 In addition, the CPIA leaves particular types of thefts unpunished because the law protects only the restricted class of objects specified in the Act.68 But the CPIA is not the exclusive means for assessing penalties in cases involving objects stolen from other nations; essentially

95 Colum. L. Rev. 377, 388 (1995) (explaining that the widespread looting and bombing during the World Wars played a major part in the destruction of art, and was the motivation for laws and policies aimed to better protect these objects).

58 Patty Gerstenblith, ‘From Bamiyan to Baghdad: Warfare and the Preservation of Cultural Heritage at the Beginning of the 21st Century’, 37 Geo. J. Int’l L. 245 (discussing the obliteration of the Bamiyan Buddhas during a time of conflict); see Ashlyn Milligan, ‘Targeting Cultural Property: The Role of International Law’, Journal of Public and International Affairs, 91, 93-94 (Princeton University, 2008).

59 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO Convention), 14 Nov. 1970, 823 U.N.T.S. 231.

60 Id. 61 Id.62 Id.63 See The 1970 Convention, Bureau of Educational and Cultural Affairs, avail. at <exchanges.

state.gov/heritage/culprop/background.html> (Pursuant to Art. 7(b)(1), States Parties agree to prohibit the importation of documented cultural property stolen from museums or religious or secular public monuments in another State Party to the Convention. Article 9 allows any State Party whose cultural patrimony is in jeopardy from pillage to call for aid from other States Parties to take actions to control exports, imports and international commerce in the cultural materials concerned.)

64 See 19 U.S.C. §§ 2607-10 (2006). 65 See 19 U.S.C. §§2601-2613 (2006). 66 Id. and see note 6367 See Patty Gerstenblith, ‘The McClain/Schultz Doctrine: Another Step Against Trade in Stolen

Antiquities’, Culture Without Context, Issue 13, Autumn 2003 (posted July 2004), avail. at <www.mcdonald.cam.ac.uk/projects/iarc/culturewithoutcontext/issue%2013/gerstenblith.htm>

68 Id.



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the CPIA does not prevent the pursuance of a criminal prosecution.69 The National Stolen Property Act (‘NSPA’), Section 2315 of Title 18 of the United States Code, makes it a crime if a person “receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise…which have crossed a State or United States boundary after being stolen…knowing the same to have been stolen…”70 The Second Circuit clarified that the NSPA applies to individuals who remove cultural objects from countries with patrimony laws.71

The combination of the CPIA, NSPA, 1970 UNESCO Convention and the proliferation of domestic patrimony laws72 provides a powerful tool for the global community to combat looting of cultural heritage.73 But all of these tools are pointless if they are not utilised. It is necessary to proactively enforce these laws to prevent museums from acquiring black market works. Unfortunately, though, the nature of these institutions means many charges are not pursued against museums (see below for a discussion about the insulation of museums’ boards of trustees). However, changes occurring within the art world have inspired an increase in the number of prosecutions against art thieves.74 Museums play a significant role in the black market art network, thus it is essential for civil and criminal penalties to apply to museums and museum representatives as well, not just to private dealers and collectors. Museum employees and their host institutions should not be permitted to hide behind their non-profit educational status to evade punishment. In fact, as discussed in this article, maintaining non-profit status justifies the call for greater due diligence.

There is a need for increased prosecutions and changes in legislation to prevent the destruction of artwork. The federal government should increase penalties for cultural heritage theft;

69 See United States v. Schultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002), aff’d, 333 F.3d (2d Cir. 2003); cert. denied, 540 U.S. 1106 (2004); see also Schultz v. United States, 05 Civ. 246 (JSR), 2005 U.S. Dist. LEXIS 12836 (S.D.N.Y. 2005) (denying post-conviction relief).

70 18 U.S.C. § 2315 (2000). 71 See Schultz, 333 F.3d at 416. The indictment of criminals for cultural heritage theft has a

precedent dating back to the 1970s. In the late 1970s in United States v. McClain, 545 F.2d 988 (5th Cir. 1977); antiquities dealers were prosecuted under the NSPA for dealing in Mexican antiquities subject to a 1972 Mexican patrimony law that vested ownership of antiquities discovered in Mexican soil in the Mexican State. This case established the ‘McClain Doctrine’ that established US courts’ recognition that foreign patrimony laws may create ownership of undocumented antiquities in the national government.

72 Patrimony laws vest ownership of all undiscovered antiquities in the national government that created the law.

73 See United States v. Schultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002), aff’d, 333 F.3d (2d Cir. 2003); cert. denied, 540 U.S. 1106 (2004) (HOLDING); United States v. An Antique Platter of Gold, 195 Mag. 2167 (NRB), 995 U.S. Dist. LEXIS 19080 (S.D.N.Y. Dec. 21, 1995) (denying motion for return of property to a buyer who had purchased an antiquity smuggled out of Italy).

74 See Jason Felch, ‘Turkey asks U.S. Museums for Return of Antiquities’, L.A. Times, 30 March 2012, avail. at <articles.latimes.com/2012/mar/30/entertainment/la-et-turkey-antiquities-20120331> (describing Turkey’s demand for dozens of antiquities from major US museum collections); see also Benjamin Sutton, ‘More Antiquities Woes for U.S. Museums Loom, as Turkey Demands 18 Artifacts from the Metropolitan Museum’, ARTINFO, 20 March 2012 avail. at <www.artinfo.com/news/story/779730/more-antiquities-woes-for-us-museums-loom-as-turkey-demands-18-artifacts-from-the-metropolitan-museum> (describing the demands from Turkey as ‘worrisome’ for US museums); Allison Meier, ‘Golden Seahorse Thought to be Cursed Returns to Turkey After a Forgery Took its Place’, ARTINFO, 27 Nov. 2012, avail. at <blogs.artinfo.com/artintheair/2012/11/27/golden-seahorse-thought-to-be-cursed-returns-to-turkey-after-a-forgery-took-its-place/> (stating that Turkey is pursuing an ‘art war’.); see generally Waxman, above, note 12 (describing Egypt’s aggressive tactics to demand the return of objects from major museums around the world); Felch and Frammolino, above, note 11 (tracing Italy’s attempts to claim title to their looted objects).



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museum acquisition requirements should be mandated by federal law, museum purchases must be strictly scrutinised by legal authorities, and the Internal Revenue Service should be granted authority to examine museum records to ensure that these non-profit organisations are following appropriate measures to avoid the purchase of looted objects.

III. PartIcIPants In the Market for looted cultural herItage should face Increased PenaltIes

a. MuseuMs PartIcIPate In the Market for IllIcIt goods

It was recently estimated that the international market for cultural heritage objects is around $60 billion,75 and that the value of the market for illegally-obtained objects is approximately $8 billion.76 (This number is a low estimate because art and cultural heritage crimes are under-reported.)77 To effectively protect cultural heritage against looting, the demand for illicit antiquities must be eliminated.78 Museums, including major US institutions, historically have had a direct role in the purchase of looted items.79 Thomas Hoving, the former director of the Met, the largest US museum, openly acknowledged the role that museums had in the market for black-market antiquities.80 In the 1960s, the Met purchased a collection of looted golden coins from Turkey, now known as the Lydian Hoard,81 and later acquired the now-famous looted Euphronios Krater in the early 1970s.82 The Italian Government demanded the return of dozens of items from the Cleveland Museum of Art (‘CMA’), and eventually fourteen artefacts were returned after authorities proved that they were looted.83 In fact, CMA recently acquired two more questionable objects, including a Roman bust purchased from the Phoenix Ancient Art Gallery84 (a gallery owned by brothers with a well-publicised criminal record for dealing in looted antiquities). The John P. Getty Museum’s illegal purchases and

75 See Craig. Forrest, International Law and the Protection of Cultural Heritage, (Routledge 2010). 76 Team Approach to Art Crime, Part 1, Fed. Bureau of Investigation (2 Feb. 2010), avail. at

<www.fbi.gov/news/stories/2010/february/artcrime1_020210. 77 Alexandra McKinney, Lost, Found, and Lost Again? Crafting an Efficient Solution to Disputes

Over Stolen Art , p. 10, (2011) (unpublished student paper, Stanford University), avail. at <www.stanford.edu/dept/undergrad/cgi-bin/drupal_ual/sites/default/files/common/docs/Hoefer_McKinney.pdf>

78 See Manacorda and Chappell, above, note 9, describing the Market Reduction Approach, as decreasing the size of the market for illicit goods by reducing the demand for these items.

79 Edward Wyatt, ‘Museum Workers are Called Complicit’, New York Times, 26 Jan. 2008, avail. at <www.nytimes.com/2008/01/26/arts/design/26muse.html?_r=0>

80 Thomas Hoving, Making the Mummies Dance (Simon and Schuster, 1993). 81 Turkey’s Lawsuit Against Metropolitan Museum of Art Ends with Return of Lydian Hoard

Antiquities to Turkey, Herrick Feinstein LLP, Press Release, 1993, avail. at <www.herrick.com/sitecontent.cfm?pageID=26&itemID=9068> (stating that the Metropolitan Museum of Art returned to the Republic of Turkey the collection of 363 antiquities that were looted and smuggled out of Turkey in the mid-1960s); see also Return to Sender: The Lydian hoard, Economist, 2 Oct. 1993 avail. at <www.highbeam.com/doc/1G1-14486501.html> (Metropolitan Museum of art returns plundered antiquities to Turkey).

82 See ‘Top 10 Plundered Artifacts’, Time, avail. at <www.time.com/time/specials/packages/article/0,28804,1883142_1883129_1883079,00.html>

83 See Steven Litt, ‘Cleveland Art Museum to Return 14 Stolen Items to Italy; Authorities Prove the 14 Artifacts were Looted or Stolen’, Museum Sec. Network (23 Nov. 2008, 6:36 PM), <www.museum-security.org/2008/11/cleveland-art-museum-to-return-14-stolen-items-to-italy-authorities-prove-the-14-artifacts-were-looted-or-stolen/>.

84 See Nord Wennerstrom, ‘Cleveland Museum Strikes Defiant Tone on Antiquities’ Collecting–Updated, Nord on Art’(13 Aug. 2012), <nordonart.wordpress.com/2012/08/13/cleveland-museum-strikes-defiant-tone-on-antiquities-collecting/>



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unethical behaviour are so notorious that an entire book was written about the scandals.85 The Museum of Fine Arts in Boston has also come under fire for exhibiting pillaged works. The Museum acquired a looted statue of the Weary Herakles in early 1981,86 although the object lacked good provenance87 (‘provenance’ is a history of ownership) and good provenience (‘provenience’ is the history of excavation). After more than two decades of legal battles, in 2011 the Museum returned the statue to the rightful owner, the Republic of Turkey.88 Even more recently (in June 2012), the MFA in Boston acquired controversial Benin Bronzes in June 2012 as a gift from Robert Owen Lehman, who had purchased the Bronzes in the 1950s and 1970s.89 The Nigerian Government demands their return because the pieces were looted in the late 1890s, following the Benin Massacre of 1897.90 In early 2013, the Toledo Museum of Art returned a smuggled Etruscan artefact to Italy after documentation showed that the work had been exported out of the country in violation of that nation’s patrimony law.91 Universities have also been involved in cultural heritage scandals. The Princeton University Art Museum was criticised for its lack of transparency in its collecting practices.92 The Museum, which has twice returned antiquities to Italy since 2007, acquired another looted item in 1999.93 This is just a sampling of headline cases featuring looted objects in US museums.

By purchasing illicit objects, museums fuel the market, thus motivating robbers to steal and destroy art objects.94 To deter museums from engaging in illegal dealings, the US Government should aggressively prosecute museum representatives responsible for illegal purchases. The United States, in particular, should take action to prosecute because the American art market is the largest in the world,95 with the US importing $6.2 billion of art and antiquities in 2010.96 According to the FBI, the United States is the preferred market for selling stolen art.97

85 See generally Felch and Frammolino, Chasing Aphrodite, above, note 11. 86 Weary Herakles, Museum of Fine Arts Boston avail. at <www.mfa.org/collections/provenance/

weary-herakles>87 See Geoff Edgers, ‘Making ‘Herakles’ Whole After all These Years’, Boston Globe, 17 July 2011,

avail. at <www.boston.com/ae/theater_arts/articles/2011/07/17/museum_of_fine_arts_to_return_weary_herakles_statue_to_turkey/>

88 See ‘Greek God Hercules Reunited with his Bottom Half as Museum Agrees to Send Back ‘Looted’ Bust to Turkey,’ Daily Mail, 22 July 2011, avail. at <www.dailymail.co.uk/news/article-2017629/Weary-Herakles-reunited-half-looted-bust-returns-Turkey.html>

89 See Geoff Edgers, ‘MFA Receives Rare West African Art Pieces’, Boston Globe, 29 June 2012, avail. at <www.bostonglobe.com/arts/2012/06/28/museum-fine-arts-gets-prized-benin-bronzes-over-line-hed-here-for-two-arts-stories/KZnIxs0aGQbZPW0vaBwmWK/story.html>

90 See ‘Nigeria Demands Return of Disputed Artefacts Acquired by Boston’s Museum of Fine Arts’, Elginism (25 July 2012, 1:07 PM), <www.elginism.com/similar-cases/nigeria-demands-return-of-disputed-artefacts-acquired-by-bostons-museum-of-fine-arts/20120725/4876/>

91 Neil Brodie, ‘Toledo Museum of Art Return to Italy’, Trafficking Culture, 28 Feb. 2013, avail. at <traffickingculture.org/encyclopedia/case-studies/toledo-museum-of-art-return-to-italy-2013/>

92 Id. 93 See W. Barksdale Maynard, ‘Art Museum Returns More Ancient Artworks to Italy’, Princeton

Alumni Weekly, Vol. 112, No. 8, 7 March 2012.94 See generally Stefano Manacorda and Duncan Chappell, above, note 9. 95 See Rachel Corbett, ‘Art Market Watch: How Big is the Global Art Market?’, Artnet.com,

<www.artnet.com/magazineus/news/artnetnews/china-the-worlds-top-art-and-antique-market.asp> (although some sources are now saying that China has overtaken the US as the largest art market, there are contradictory reports to suggest that the US is still the art market leader at 29% of the global art market.)

96 Id.97 See Noah Charney, Paul Denton and John Klieberg, ‘Protecting Cultural Heritage From Art

Theft: International Challenge, Local Opportunity’, FBI L. Enforcement Bull. (U.S. Dep’t of Just. FBI), March 2012, avail. at <www.fbi.gov/stats-services/publications/law-enforcement-



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B. us law does not ProPerly deter lootIng of cultural herItage

1. US law Provides legal tools to halt the trade in looted Artefacts, but these tools are Underutilised The United States has its own statute book laws which address repercussions for stolen property, although those laws do not specifically focus on cultural heritage thefts. The National Stolen Property Act (the ‘NSPA’) provides that a person is guilty of a crime if he “receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise…which have crossed a State or United States boundary after being stolen…knowing the same to have been stolen…”98 In United States v. Schultz, the Second Circuit ruled that the Act should be broadly construed and that it applies to individuals who remove cultural objects from countries with patrimony laws.99 The requirement of applicable patrimony laws limits the usefulness of the NSPA. Although Schultz was criminally convicted under the Act for smuggling Egyptian antiquities pursuant to Egypt’s patrimony laws,100 not all nations have enacted such laws. The NSPA applies only when title to property is vested in a nation under patrimony laws.101 Therefore, more nations should adopt appropriately drafted patrimony laws in order to claim property rights because they enable foreign nations to prosecute for stolen property.102 Without patrimony laws, foreign nations cannot claim that their property has been stolen because ownership has not been vested when objects are removed from the ground.103 Patrimony laws vest ownership of undiscovered antiquities in the nation or state, depriving looters, middlemen and subsequent purchasers of title.104 The use of foreign patrimony laws in conjunction with the NSPA, allows nations to reclaim their property from thieves and other dishonest handlers within US jurisdictions.105 The fear of litigation brought forth by source nations (source nations are those with a surplus of cultural objects, such as Italy and Turkey) will reduce the incentive for theft.

2. US law does not Properly Prosecute Cultural heritage looters and tradersUnfortunately, prosecutors have not vigorously pursued art thieves and have not been using legal tools to their greatest capacity to prevent crimes committed by museums,106 and thus legal precedent in this area is minimal. Some prosecutors and law enforcement agents do not regard art crime as serious, but view the art world as ‘elitist’.107 Many law enforcement officers unwittingly believe that stealing art or destroying cultural heritage is not a matter of serious

bulletin/march-2012/protecting-cultural-heritage-from-art-theft>; see also Robert E. Madden, ‘Steps to Take When Stolen Art is Found in an Estate’, 24 Est. Plan. 459, 460 (1997).

98 See 18 U.S.C. § 2315 (2006). 99 See United States V. Schultz, 333 F.3d 393 at 416 100 Egyptian Law on the Protection of Antiquities (Law No. 117 of 1983) (declaring all antiquities

found in Egypt to be the property of the Egyptian Government). 101 United States v. An Antique Platter of Gold, 995 US Dist. LEXIS 19080 (S.D.N.Y. 21 Dec.,

1995) (denying motion for return of property), summary judgment granted, 991 F. Supp. 222 (S.D.N.Y. 1997), stay of judgment granted pending disposition on appeal, No. 95 Civ. 10537, 1997 US Dist. LEXIS 18850 (S.D.N.Y. 1997) aff’d, 184 F.3d 131 (2d Cir. 1999), cert. denied, 528 U.S. 1136 (2000).

102 United States v. McClain, 545 F.2d 988 (5th Cir. 1977).103 Republic of Peru v. Yale University, No. 3:09-CV-01332 (D. Conn. filed 11 Aug. 2008), transferred

from No. 08-cv-02109 (D.D.C. filed 5 Dec. 2008); see Iran v. Barakat, above, note 25. 104 Id. 105 See United States v. Schultz, 333 F.3d 393, 416 (2d Cir. 2003).106 Jennifer Anglim Kreder, ‘The Choice Between Civil and Criminal Remedies in Stolen Art

Litigation’, 38 Vand. J. Transnat’l L. 1199, 1206 (Oct. 2005).107 <www.damforstmuseum.org/what_is_art_crime.html>



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interest,108 and mistakenly view it as a victimless crime.109 However, that is not accurate – art and cultural heritage theft are linked to organised crime syndicates.110 In addition, cultural treasures that are found abroad are valuable to all humanity,111 and the United States should actively sanction those who are responsible for the destruction of these cultural objects because US collectors continue to drive this illicit market forward. As further deterrent, the US Government should also increase penalties on museums;112 monetary fines should be increased and incarceration may in some cases be appropriate.113 The market is worth billions of dollars, and the only way to shrink it is to aggressively prosecute and leverage penalties that actually deter.114 Criminal penalties have a significant impact on dealers and collectors who lend support to thieves who feed the market with plundered art and antiquities.115

c. the ItalIan Model

1. Italy Allocates Significant Resources to the Protection of Cultural Heritage The Italian Government places the utmost importance on the protection of art and cultural heritage.116 Italy’s Carabinieri117 art theft division employs 300 officers118 for a geographic area that is slightly larger than the state of Arizona.119 This is the highest number of personnel

108 Bojan Dobovšek and Boštjan Slak, ‘The Significance of Studying and Investigating Art Crime: Old Reasons, New World’, VARSTVOSLOVJE. Journal of Criminal Justice and Security, year 13 no. 4 pp. 392-405, 398

109 See Dobovšek and Slak, above, note 108 <www.fvv.uni-mb.si/rV/arhiv/2011-4/03_Dobovsek_Slak.pdf> (noting that the art world is seen as an elitist world and not of import to the general public).

110 See Jonathan Jones, ‘Dutch Art Theft: A Pick’n’Mix of Paintings Reduced to Criminal Collateral’, Jonathan Jones on Art Blog, Guardian, avail. at <www.guardian.co.uk/artanddesign/jonathanjonesblog/2012/oct/16/dutch-art-theft-paintings-collateral>

111 Michela Cocchi, ‘the Protection of Culture as a Shared Interest in Humanity’, Cultural Heritage and Arts Review, Spring 2010, 18-22.

112 Janet Ulph, ‘The Impact of the Criminal Law and Money Laundering Measures Upon the Illicit Trade in Art and Antiquities’, (2011) XVI Art Antiquity and Law 39-52, 49 (stating: “the general criminal law can play a valuable role in deterring not only thieves, but also accessories such as those who knowingly purchase a stolen object.”)

113 See J. Scott Dutcher, Comment, ‘From the Boardroom to the Cell Block: The Justifications for Harsher Punishment of White-Collar and Corporate Crime’, 37 Ariz. St. L. J. 1295, 1303-1309 (2006) (explaining that only harsher crimes will deter white-collar crime perpetrators).

114 Felix Lowe and Jason Burke, ‘Europe Bids to Halt Tide of Art Smuggled to America’, Observer, 22 Jan. 2006, avail. at <www.guardian.co.uk/arts/news/story/0,,1692165,00.html>

115 Simon MacKenzie, ‘Illicit Antiquities, Criminological Theory, and the Deterrent Power of Criminal Sanctions for Targeted Populations’, Art Antiquity and Law 125, 142 (2002) (finding that imprisonment has a deterrent effect on ‘white collar’ criminals).

116 See Elisabetta Povoledo, ‘Italy Defends Treasures (and Laws) With a Show’, New York Times, 7 Oct. 2008, avail. at <www.nytimes.com/2008/10/08/arts/design/08heri.html> (The nation celebrates its success in protecting antiquities, and has hosted museum exhibitions featuring repatriated objects.)

117 See History of the Carabinieri, Carabinieri.it, avail. at <www.carabinieri.it/Internet/Multilingua/EN/HistoricalReferences/01_EN.htm> (Carabinieri is the national military police of Italy, founded in 1814.)

118 See Morgan Russell, ‘Intel Brief:Art Theft and Organized Crime’, International Relations and Security Network (11 April 2008), <www.isn.ethz.ch/isn/Communities-and-Partners/Partners/Detail/?lng=en&id=52001>

119 See Geographic Statistics, NationMaster.com, <www.nationmaster.com/graph/geo_are_com_to_us_pla-geography-area-comparative-us-places>



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in the world devoted to the prevention of art crime.120 (Compare this to United States which has the world’s largest market for art:121 in 2004, the FBI established the Art Crime Team which now consists of fourteen special agents with three special trial attorneys for legal support.)122 Yet even with these resources, the Carabinieri yields a meagre 10 per cent recovery rate.123 An examination of the country’s tremendous looting problem sheds light on the motivation for Italy waging war on pillagers and their associates.124 Italy is a treasure trove of art; it is difficult not to stumble across art and cultural objects in this Mediterranean nation.125 As recognised by officials, it is impossible to stop the looting because it is not feasible to supply security at every archaeological site.126 Thus, the Italian Government finds it necessary to deter theft and repatriate objects through post-looting sanctions.

Italy’s vast resources committed to art protection are supported by the nation’s extensive laws safeguarding art and cultural heritage. Laws protecting antiquities have existed in some parts of the nation for centuries.127 Parts of Italy have had patrimony laws in place since before the unification of the Italian Republic.128 Individual regions created laws to protect their own patrimony: the Edict Pacca in 1822 in Naples (which established a Commission for Fine Arts),129 a patrimony law in 1850 in Lombardy,130 and a law in Tuscany in 1854.131 Patrimony laws in Southern Italy were promulgated as early as 1822, while the first antiquities laws covering modern Italy were enacted in 1902.132 After unification, the Republic passed dozens of laws regulating art.133 The national patrimony law was updated in 1939 in the ‘General Regulations for the Protection of Things of Historical and Artistic Interest’, which claims national ownership of antiquities in addition to regulating their excavation and exportation.134 During Mussolini’s era, laws such as Law No. 1089/1939 continued to be promulgated;

120 See Russell, above, note 118.121 See Abigail R. Esman, ‘China’s $13 Million Art Fraud – And What it Means for You’,

Forbes Art and Entertainment Blog (8 Aug. 2012, 8:01 AM) <www.forbes.com/sites/abigailesman/2012/08/13/chinas-13-billion-art-fraud-and-what-it-means-for-you/>

122 See Art Crime Team, Fed. Bureau of Investigations, avail. at <www.fbi.gov/about-us/investigate/vc_majorthefts/arttheft/art-crime-team>

123 See Russell, above, note 118.124 Stephanie Gruner, ‘Italy’s Special Carabinieri Unit Fights Art Looting’, Wall Street Journal

Opinion Page, 10 April 2006, availalable at <www.opinionjournal.com/la/?id=110008219>.125 Charles Abott, Italy 101 (Morellini Editore, 2006).126 Id. 127 Andrew L. Slayman, ‘The Trial in Rome’, Archaeology, 6 Feb. 2006, avail. at <www.

archaeology.org/online/features/italytrial/>128 Stefan Fisch, National Approaches to the Governance of Historical Heritage Over Time: A

Comparative Report 109 (IOS Press, 2008). 129 Id. 130 See Lauren Fae Silver, ‘Recapturing Art: A Comprehensive Assessment of the Italian Model for

Cultural Property Protection’, 23 New York Int’l L. R. 1, 18 n.71 (2010). 131 Id. 132 See Slayman, above, note 127.133 See Ricardo A St. Hilaire, The Weiss Ancient Coin Prosecution and What to Watch For, Cultural

Heritage Lawyer Rick St. Hilaire (22 March 2012), avail. at <culturalheritagelawyer.blogspot.com/2012/03/weiss-ancient-coin-prosecution-and-what.html>

134 See Protection of Items of Artistic and Historic Interest, Law No. 1089 of 1 June 1939 (Itl). This law was cited in United States v. An Antique Platter of Gold, 991 F. Supp. 222 (S.D.N.Y. 1997), stay of judgment granted pending disposition on appeal, No. 95 Civ. 10537, 1997 U.S. Dist. LEXIS 18850 (S.D.N.Y. 1997), aff’d, 184 F.3d 131 (2d Cir. 1999), cert. denied, 528 U.S. 1136 (2000), in a forfeiture proceeding against an antiquities collector.



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the laws during this period were known as the ‘Bottai Laws’.135 The protection of Italian patrimony continues to this day.136 Not only does Italy have comprehensive art laws, but the Italian nation aggressively enforces them by demanding the return of objects,137 prosecuting art criminals138 and pursuing violators.139 Most remarkably, museum employees have been targeted by Italian prosecutors by reason of their contribution to the looting of antiquities.140

2. the ‘true’ Case that Altered the World of AntiquitiesItalian prosecutors stunned the art world in the spring of 2005 when they announced their decision to prosecute Marion True, a curator of antiquities at the J. Paul Getty Museum in Los Angeles.141 She was charged with criminal association and receipt of stolen property in connection with antiquities believed to have been illegally unearthed in Italy and smuggled out of the country.142 True was the first American museum official to be prosecuted abroad in connection with the antiquities trade143 and charged in respect of her activities during a period from the mid-1980s through to 1998;144 she was alleged to have knowingly obtained more than 40 archaeological objects illegally excavated by tomb raiders or stolen in Italy.145 Italian prosecutors charged her with criminal association, receiving stolen Italian artefacts and laundering artworks purchased privately and sold to the J. Paul Getty Museum using allegedly fake documents.146 If convicted, True could have been imprisoned in Italy for up to ten years, but she maintained her innocence throughout her trial.147 The curator’s troubles

135 Chiara Garau and Valentina Pavan, ‘Regional Cultural Heritage: New Vision for Preservation in Sardinia’, Journal of Landscape Studies 3, 127-138 (2010) (Italy).

136 Amongst other laws are Legge N. 386 “Tutela della conservazione dei monimenti e degli oggetto d’antichita e d’arte,” a law to protect artistic and archaeological objects which was passed in 1907; Legge N. 823 “Riordinamiento delle soprintendenze alle antichita e all’arte” was passed in 1939, and provides for the protection of antiquities through a national ministry. Italy has dozens of art and antiquities laws, and in 2009 also addressed issues related to underwater archaeology. Legge N. 15 “Rattifica ed esecuzione della Convenzione sulla protezione del patrimonio culturale subacqueo, con Allegato, adottata a Parigi il 2 novembre 2001.”

137 See Naomi O’Leary, ‘U.S. Returns Stolen Art Worth Millions to Italy’, Reuters, avail. at <www.reuters.com/article/2012/06/27/us-italy-idUSBRE85Q0X420120627>, (quoting US ambassador David Thorne as stating that increased co-operation between US Homeland Security agents and Italian Carabinieri police specialising in the prevention of art fraud should increase recoveries in the future.).

138 See ‘Looting Matters: Italian Prosecutors Calls for Return of Antiquities’, PRNewswire, 4 June, 2010, avail. at <www.prnewswire.com/news-releases/looting-matters-italian-prosecutor-calls-for-return-of-antiquities-95620419.html>

139 See Elisabetta Povoledo, ‘At Root of Italy’s Library Plunder, a Tale of Entrenched Practice’, New York Times, 11 Aug. 2012 avail. at <www.nytimes.com/2012/08/12/world/europe/naples-librarys-plunder-highlights-entrenched-dealings.html?pagewanted=all>

140 See Andrew M. Goldstein, ‘Italy May Prosecute a Princeton Curator Over Antiquities’, Artinfo, 3 June 2010, <www.artinfo.com/news/story/34823/italy-may-prosecute-a-princeton-curator-over-antiquities>; Italy v. Marion True and Robert Hecht, Trib. Roma, sez. VI pen., 13 Oct. 2010, n. 19360/10.

141 See Slayman, above, note 127.142 Id. 143 Jason Felch, ‘Charges Dismissed Against ex-Getty Curator Marion True by Italian Judge’, L.A.

Times, 13 Oct. 2010, avail. at <latimesblogs.latimes.com/culturemonster/2010/10/charges-dismissed-against-getty-curator-marion-true-by-italian-judge.html>.

144 See Lowe and Burke, above, note 114 145 Italy v. Marion True and Robert E. Hecht, Trib. Roma, sez. VI pen., 13 Oct. 2010, n. 19360/10. 146 Id.147 See Lowe and Burke, above, note 114.



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began when the Carabinieri raided a storage room in the Geneva Freeport in Switzerland.148 The storage facility belonged to Giacomo Medici149 (an infamous dealer of looted antiquities), and was filled with antiquities and evidence of illicitly acquired artefacts.150 Marion True had dealt with Medici and his business partner, Robert Hecht, and this information was used in the proceedings against against her.151

Italy used Marion True as an example: by prosecuting the curator for her part in the acquisition of black market items, Italy hoped to reduce the number of artefacts being smuggled from within its borders.152 Italy tried to deter museums from buying artefacts without provenance that may have originated from Italian soil. In October 2010, the case against Marion True ended without a verdict owing to the expiration of the statute of limitations.153 (The related case against Robert Hecht, a reported dealer of stolen artefacts, was dismissed on the same grounds.)154 The True case is seen as an attempt to place pressure on international collectors to verify the origin of their artefacts.155 “Museums must learn you can’t turn a blind eye to art theft’’, a member of the Italian prosecution team said.156 Rocco Buttiglione, the former Italian Minister of Cultural Heritage and Activities, said that the nation was paving the way for other countries to retrieve looted heritage. “The age of trafficking in art pieces is over”, he warned.157

While the trial was pending, US public prosecutor Matthew Bogdanos, explained that if True were found guilty and imprisoned, it would have the effect of preventing future crimes, as prison is an effective deterrent for many art criminals.158 Monetary fines do not stop wealthy collectors or museums with unlimited reserves, since those caught with illicit objects are often able to find financial assistance support from other members of their circles.159 When dealing with criminals with deep pockets, criminal punishments (such as imprisonment) may be the only effective deterrent160 that outweighs the economic gain from the commission of white collar crimes.161

3. A Positive outcome from the true Prosecution was the Start of an Innovative loan Programme One method for decreasing the pillage of antiquities is to reduce the incentive to acquire these pieces. Museums would not need looted objects, if legitimate objects were readily available. Rather than purchase or accept black market donations, museums can access top-quality

148 See generally Watson and Todeschini, above, note 35 (for information about Giacomo Medici’s criminal activities.)

149 Id. 150 Felch, above, note 143.151 Id; See also Chasing Aphrodite, above, note 11 for an account of Marion True and the Getty’s

illegal acquisitions. 152 See Slayman, above, note 127. 153 Italy v. Marion True and Robert E. Hecht, above, note 145154 Id. 155 Bruce Johnson, ‘Getty Museum Curator Turned ‘Blind Eye to Art Theft’, Telegraph, 19 July 2005,

avail. at <www.telegraph.co.uk/news/worldnews/northamerica/usa/1494375/Getty-museum-curator-turned-blind-eye-to-art-theft.html>

156 Id.157 See Lowe and Burke, above, note 114. 158 See Lowe and Burke, above, note 114. 159 See J. Scott Dutcher, Comment, ‘From the Boardroom to the Cell Block: The Justifications for

Harsher Punishment of White-Collar and Corporate Crime’, 37 Ariz. St. L. J. 1295, 1303-1309 (2006).

160 See Dutcher, Comment, above, note 159161 Id. at 1305.



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antiquities through loan programmes.162 Italy recently instated an innovative loan programme to encourage the return of artwork and prevent future looting.163 Institutions that co-operate with Italy’s repatriation efforts will gain greater access to an increased number of long-term loans of Italian archaeological materials.164 The Italian Ministry of Culture touted this programme when it settled an agreement with the Met in New York City. In January 2006, the Italian Ministry of Culture sent a formal proposal to the Met, which the Museum accepted the next month.165 In exchange for the return of 21 looted Italian antiquities, including the Euphronios Krater,166 the Italian Government agreed to lend the Met comparable artefacts for up to four years.167 In addition, the Museum received permission to sponsor excavations in Italy and bring finds to the United States.168

The innovative loan programme champions the preservation of art.169 A lawyer for the Italian Ministry of Culture, and the man responsible for negotiating Italy’s loan programme, Maurizio Fiorilli, hopes that it will be a model for future co-operative efforts.170 Essentially, Italy loans works to museums so that people all over the world can view and enjoy the nation’s treasures.171 Returning looted objects to gain access to loans enables museum directors to fulfil their fiduciary duties as it creates greater art access to the public, who are the intended beneficiaries of museums. Through a loan programme, the viewing public gets access to top-quality objects without museums driving the black market for looted art forward.172 With this type of programme, museum curators will not need to use black-market sources to acquire works; rather, museums will have an opportunity to collaborate with foreign nations to responsibly display licit objects.173 A loan programme provides museums with an incentive to work with foreign nations because museums demonstrating ‘good faith’

162 Press Release, ‘The J. Paul Getty Museum, Italian Ministry of Culture and the J. Paul Getty Museum Sign Agreement in Rome’ (1 Aug. 2007) avail. at <getty.art.museum/news/press/center/italy_getty_joint_statement_080107.html>

163 See ‘Euphronios Krater’, New York Times, <topics.nytimes.com/top/reference /timestopics/subjects/e /euphronios_krater/index.html> (last visited 17 Feb. 2013) (explaining that the Italian Ministry of Culture agreed long-term loans in exchange for the return of the Euphronios Krater); Ralph Frammolino, ‘The Goddess Goes Home’, Smithsonian, (Nov. 2011) <www.smithsonianmag.com/history-archaeology/The-Goddess-Goes-Home.html> (describing the return of a central Sicilian statue from the Getty Museum in consideration of exchange for long-term loans; <www.mfa.org/collections/art-past/italian-ministry-culture-agreement> (lauding the return of objects from Boston’s Museum of Fine Arts in exchange for long-term loans and educational collaboration with the Italian Ministry of Culture).

164 Hugh Eakin, ‘Italy Goes on Offensive with Antiquities’, New York Times, 26 Dec. 2005, avail. at <www.nytimes.com/2005/12/26/arts/design/26loan.html?pagewanted=all>

165 Slayman, above, note 127. 166 <traffickingculture.org/case_note/euphronios-sarpedon-krater/> 167 Elisabetta Povoledo, ‘Ancient Vase Comes Home to a Hero’s Welcome’, New York Times

19 Jan. 2008, <www.nytimes.com/2008/01/19/arts/design/19bowl.html?_r=0>168 Statement by the Metropolitan Museum of Art on its Agreement with Italian Ministry

of Culture (21 Feb. 2006), avail. at <www.metmuseum.org/press_room/full_release.asp?prid=%7BF9704AC3-297B-4704-999B-111ACC8E6804%7D>

169 See Paige S. Goodwin, Comment, ‘Mapping the Limits of Repatriable Cultural Heritage: A Case Study of Stolen Flemish Art in French Museums’, 157 U. Pa.L. Rev., 673, 689-91 (2008).

170 Eakin, above, note 164 171 Bureau of Educational and Cultural Affairs, US Dep’t of State, avail. at <eca.state.gov/

cultural-heritage-center/international-cultural-property-protection/bilateral-agreements/italy> (describing the loan programme between the United States and Italy).

172 See Suzan Mazur, ‘Maurizio Fiorillli – Italy’s Antiquities Prosecutor’, Scoop, 17 Feb. 2006, avail. at <www.suzanmazur.com/?p=123>.

173 Eakin, above, note 164.



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in their purchases will be granted loans.174 The loan programme benefits the viewing public and also protects objects from destruction at the hands of tomb-raiders and looters. As touted by former director of the Met, Philippe de Monetebello, a loan programme paves the road to ethical norms while still providing millions of museums visitors with the opportunity to see rare and valuable archaeological material.175

d. there are Inherent hurdles In ProsecutIng antIquItIes looters and dealers

1. Proving Scienter has been a Major Stumbling Block for Prosecutors One of the difficulties in prosecuting an art thief or purchaser of stolen goods under the National Stolen Property Act, is proving scienter (state of mind indicating knowledge that the goods were stolen).176 Scienter is frequently a stumbling block for prosecutors in any theft matter, but it is exponentially more difficult in cases of art theft.177 Unlike goods that are prima facie illegal (such as ivory objects), stolen art is not prima facie illegal.178 And whereas illegal items like those with parts of endangered species179 (such as art including bald eagle feathers) and regulated items are readily identifiable, recognising an art object as stolen or without provenance is complex and difficult, even for art experts and archaeologists. Art objects are unique. Unlike other sectors, such as the securities market, the art market is unregulated.180 As stated by art critic Robert Hughes, “Apart from drugs, art is the biggest unregulated market in the world.”181 This market is “a very dangerous place, populated by any number of unscrupulous figures.”182 The nature of looted antiquities makes them difficult to trace – by their very nature, these objects do not have a recorded provenance or provenience. The sale of antiquities is frequently done without the verification of provenance or provenience; therefore, it can be difficult to demonstrate a legitimate chain of title.183 Because of the often secret and anonymous nature of art exchanges,184 gaps in provenance exist, and stolen or looted objects may resurface on the legitimate market with or without the buyer’s knowledge of their surreptitious background.185

2. There are Intrinsic Difficulties in Prosecuting Museum RepresentativesMuseum representatives are often not punished for illegal behaviour or actions done in bad

174 Id. 175 Elisabetta Povoledo, ‘Italy and U.S. Sign Antiquities Accord’, New York Times, 22 Feb. 2006,

avail. at <travel.nytimes.com/2006/02/22/arts/design/22anti.html?pagewanted=all> 176 See 18 U.S.C. § 2315 (requiring knowledge that the object was “stolen, unlawfully converted or

taken”); see generally McLain, 545 F.2d at 1002 (noting that the defendants’ lack of knowledge that the articles were deemed ‘stolen’ under Mexican law, they were not liable under the NSPA).

177 See Kreder, above, note 106, at 1206.178 As explained in United States v. Mask of Ka Nefer Nefer, unlike illegal drugs, an antiquity such

as a mummy mask is not contraband per se “as [artifacts] may be lawfully owned and become contraband only based on a connection with a criminal act.” United States v. Mask of Ka-Nefer-Nefer, 4:11-CV-504-HEA, 2012 WL 1094652 (E.D. Mo. 31 March 2012)

179 The Endangered Species Act prohibits the ownership and importation of species identified as endangered. Endangered Species Act of 1973 (ESA) Pub.L. 93–205, 87 Stat. 884 (1973).

180 Toby Hill, ‘The Art Market: Unregulated Unscrupulous and Worth Billions’, Artlyst, 13 Nov. 2012, <www.artlyst.com/articles/the-art-market-unregulated-unscrupulous-and-worth-billions\>

181 Id.182 Id.183 See Kreder, above, note 106, at 1206.184 Id. at 1206; see Aris Title Insurance Corporation, <www.aristitle.com/news/docs/Quest_

Jan12%20(2).pdf (last visited 17 Feb. 2013)> (companies like Aris promise anonymity to their customers).

185 See id.



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faith. The structure of museums’ boards of trustees and self-regulators is an exclusive group of close-knit individuals.186 Yet, the dynamics of the museum hierarchy militate against whistle-blowing; the board members themselves are the people responsible for overseeing the inner-workings of the institutions.187 Essentially, wrongdoers are insulated.188 More troubling is that outsiders rarely discover illegal acquisitions in a timely manner, as there is generally no legal requirement for museums to publish their acquisitions.189 Actions against these institutions are rarely pursued.190 Without a system equivalent to the shareholder reporting requirements that regulate publicly-traded companies, the non-profit structure of museums leads to difficulty in maintaining proper supervision. The lack of shareholders or individually defined beneficiaries or owners leads to difficulty in oversight and enforcement of appropriate standards of conduct for the managers of non-profit organisations.191

Charitable organisations, such as museums, are generally considered public institutions;192 therefore, the entire public should benefit from their activities.193 However the public does not have direct standing to sue museums, and instead must rely upon the Attorney-General (AG) to bring suit.194 Unfortunately though, there is nothing to compel legal action195 because museum trustees are usually wealthy and influential,196 and there is often insufficient knowledge or impetus for the AG to file an action. And since the preservation of artwork has historically not been the primary concern of governing officers, acquisition of looted cultural property has been left unchecked. Making the situation worse, each state’s AG department is understaffed and underfunded.197 With all of these factors, public intervention is too sporadic to be a credible threat of imminent, informed legal action.198

Unlike the United States, nations such as Greece and Italy have recognised the importance of taking action against cultural heritage criminals.199 Since the US art market is probably the

186 Robin Pogrebin, ‘Trustees Find Board Seats are Still Luxury Items’, New York Times, 2 April 2010, <www.nytimes.com/2010/04/03/arts/03center.html?pagewanted=all> The Board of Trustees lists notable members such as editor of Vogue, Anna Wintour; New York City Mayor, Michael Bloomberg; former CEO of March and McLennan, Jeffrey W. Greenberg. See Metropolitan Museum of Art, <www.metmuseum.org/~/media/Files/About/Annual%20Reports/2010_2011/Board%20of%20Trustees.ashx>

187 See Gerstenblith, above, note 45, at 235. 188 See Alan Riding, ‘American Museums Grapple with Looted Artifacts Claims’, 27 Nov. 2005,

<articles.chicagotribune.com/2005-11-27/news/0511270249_1_museums-antiquities-long-term-loan> (noting that Shelby White, the widow of Leon Levy and a donor of millions of dollars or art, is a Metropolitan Museum of Art trustee); see also, Elginism, <www.elginism.com/similar-cases/academic-backlash-against-leon-levy-foundation/20060401/379/> (noting that the Leon Levy Foundation contained looted objects and that the donor and his wife have a close relationship with the Metropolitan Museum of Art).

189 See Boehm, above, note 22. 190 John H. Merryman, ‘Museum Ethics’, (2006) avail. at <www.law.harvard.edu/faculty/martin/

art_law/museum_ethics.html>191 Patty Gerstenblith, ‘Acquisition and Deacquisition of Museum Collections and the Fiduciary

Obligation of Museums to the Public’, 11 Cardozo J. Int’l and Comp. L. 409, 412-13 (2003). 192 People ex rel. William J. Scott, Attorney General v. George F. Harding Museum 58 Ill. App. 3d

408, 374 N.E.2d 756 (1978).193 See Gerstenblith, above, note 45, at 236.194 People ex rel. William J. Scott, above, note 192 195 See Merryman and Elsen, above, note 39, at 966.196 See Merryman, above, note 190.197 Id.198 Id. 199 See Associated Press, ‘Two Greeks Jailed for Life Over Illegal Antiquities, Two More Men



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largest in the world,200 law enforcement agents there have an obligation to prevent these crimes against humanity.201 There are many wealthy collectors who will pay exorbitant amounts of money to acquire stolen artwork.202 Without criminal sanctions, art theft will continue, so it is necessary for government officials to regulate museums and pursue criminal actions against these seemingly untouchable institutions. As one art investigator aptly stated, “Until the entire art world decides it can’t handle stolen goods, things are unlikely to get better.”203

e. MuseuMs acquIsItIon PolIcIes should Be federally Mandated and Purchases should Be suBject to scrutIny froM federal and state authorItIes

1. Stricter oversight of Museums is NecessaryLegislation is essential to regulate the ways in which museums and galleries acquire artwork. Stricter acquisition standards are necessary. Museums are established to further society’s knowledge about art and culture, thus these institutions should act responsibly.204 According to the American Association of Museums (‘AAM’), “As society has come to rely more on museums for education about, as well as preservation of, its cultural heritage, it has also come to expect more of its museums – more accountability, more transparency of action, and more leadership in community…”205 However, there are no federally mandated civil penalties or criminal penalties for violation of AAM guidelines.206 To ensure that appropriate standards are being followed, museums should be subject to greater scrutiny with legal consequences. But museums may hesitate to support stricter standards because they restrict curators to acquiring only items that have a definitive provenance and bill of sale. By limiting curators’ abilities to acquire objects, museums would lose out on prize items and desirable objects for their collections.

2. Museums receive tax Advantages, thus have an obligation to Acquire Items Responsibly and Fulfil their Fiduciary Obligations to the Public It is reckless to assume that museums always act as good faith purchasers. These institutions enjoy tax benefits, thus should be required to follow more stringent standards and to complete

for 20 and 16 Years’, artdaily.org, <artdaily.com/index.asp?int_sec=2&int_ new=59703#.UR0FZ7so5jo> (last visited 17 Feb. 2013) (explaining that two men in Greece were given life sentences for dealing in looted antiquities); Trib. Roma, sez. VI pen., 13 Oct. 2010, n. 19360/10 (It.) (the nation of Italy leveraged criminal sanctions against museum curator, Marion True).

200 See Rachel Corbett, ‘Art Market Watch: How Big is the Global Art Market?’, Artnet.com, <www.artnet.com/magazineus/news/artnetnews/china-the-worlds-top-art-and-antique-market.asp> (although some sources are now saying that China has overtaken the US as the largest art market, there are contradictory reports to suggest that US is still the art market leader at 29% of the global art market).

201 See Noah Charney, Paul Denton and John Klieberg, ‘Protecting Cultural Heritage from Art Theft: International Challenge, Local Opportunity’, FBI L. Enforcement Bull. (US Dep’t of Just. FBI), March 2012, avail. at <www.fbi.gov/stats-services/publications/law-enforcement-bulletin/march-2012/protecting-cultural-heritage-from-art-theft;> see also Robert E. Madden, ‘Steps to Take When Stolen Art is Found in an Estate’, 24 Est. Plan. 459, 460 (1997)

202 See David W. J. Gill, ‘Looting Matters for Classical Antiquities: Contemporary Issues in Archaeological Ethics’ (29 April 2010), avail. at <www.presentpasts.info/article/view/pp.14/23> (listing Leon Levy and Shelby White, and the Fleishmanns as collectors of looted art); Elginism above, note 156 (noting that the Levy-White collection at the Metropolitan Museum of Art is widely believed to contain many looted objects).

203 See Lowe and Burke, above, note 114. 204 See Wyatt, above, note 79 (quoting law professor Patty Gerstenblith “As educational institutions,

museums have a responsibility to look beyond that particular object” that they may be acquiring).205 See AAM 2000 Museum Guidelines, Am. Alliance of Museums, <aamftp.aam-us.org/

museumresources/ethics/borrowb.cfm (last visited Feb. 17, 2013)> 206 See Boehm, above, note 22.



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thorough provenance research before purchasing new acquisitions. Museums should research and authenticate the provenance of artwork because they have the superior knowledge and the best ability to research their acquisitions.207 In fact, these institutions are in the best position possible to do so because they have full-time employees who devote their careers to the study of art.208 As non-profit institutions, museums receive funding through tax benefits; some of those government funds should be used to properly research purchases.

The Association of Art Museum Directors revises its guidelines every decade, and in its most recent revision, the acquisition standards were heightened. However, despite the recent changes, the guidelines are not sufficiently demanding. As defined by the International Council of Museums (‘ICOM’), a museum is “a non-profit making, permanent institution in the service of society and its development, and open to the public which acquires, conserves, researches, communicates and exhibits, for purposes of study, education, and enjoyment, material evidence of people and their environment.”209 This definition clearly provides that museums are established for public service.210 Museums by reason of their educational missions, are, or should be, the most passionate advocates for the preservation of antiquities.211 To properly serve the public, museums must refrain from illegal acquisitions and protect cultural objects in order to fulfil their stated purpose. By failing to establish policies that respect the history of an object and its scientific value, museums breach their fiduciary obligations of due care.212 Acquiring looted objects and purchasing objects from dealers working with looted antiquities does not assist in preservation because it deprives society of valuable information about the objects. According to Paul Bator (former Harvard Law and Chicago Law School Professor who served as US Deputy Solicitor General during the Reagan Administration), the acquisition of smuggled objects by ‘public institutions’ is inappropriate for museums that must commit to preservation.213 He argued that when a museum acquires a smuggled object it cannot be certain that it did not help reward cultural destruction.214 It is highly unethical, and contrary to its stated purpose, for a museum to support in any way, whether directly or indirectly, that illicit market.215

Museums have fiduciary duties of loyalty and care216 arising from their status as charitable trusts

207 See Geoff Edgers, ‘A Detective’s Work at the MFA’, Boston Globe, 11 Dec. 2011, <www.bostonglobe.com/arts/2011/12/11/detective-work-mfa/6iaei4YOQOj83s9u3YfDXO/story.html> (Boston’s Museum of Fine Arts recently created a curatorial position, Curator of Provenance, that is devoted solely to the research of provenance for objects in the museum’s collection).

208 See Aimee L. Taberner, Cultural Property Acquisitions, Navigating the Shifting Landscape, 55 (2011) (explaining the proposition that curators are the individuals most likely to recognise red-flag issues related to illicit excavations and archaeological site destruction); Id. at 92 (finding that museums have research resources readily available).

209 International Counsel of Museums, <archives.icom.museum/hist_def_eng.html>210 See Gerstenblith, above, note 45, at 236. 211 See Taberner, above, note 208, at 108. 212 See Gerstenblith, above, note 189, at 453.213 Ildiko Pogany DeAngelis, ‘How Much Provenance is Enough?’– Post-Schultz Guidelines for

Art Museum Acquisition of Archeological Materials and Ancient Art’ (2005), cited in Barbara T. Hoffman, Art And Cultural Heritage: Law, Policy And Practice 407 (2006).

214 Id. 215 See Brodie, above, note 29, at 43. 216 Patty Gerstenblith, ‘Acquisition and Deacquisition of Museum Collections and the Fiduciary

Obligations of Museums to the Public’, 11 Cardozo J. Int’l and Comp. L. 409, 416 (2003); Jennifer L. White, Note, When It’s OK to Sell the Monet: A Trustee-Fiduciary-Duty Framework for Analyzing the Deaccessioning of Art to Meet Museum Operating Expenses, 94 Mich. L. Rev. 1041, 1051 (1996), reprinted in (1996) I Art Antiquity and Law 375.



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or non-profit corporations.217 Yet museums differ from other trusts because the beneficiaries of museums are not named individuals, but the general public.218 The duty of loyalty is complete loyalty towards the beneficiary.219 In fact, the Association of American Museum Directors’ Code of Ethics acknowledges the principle that museums have a commitment to the public.220 The Code recognises that a museum’s duty to the public is not only to act legally, but also ethically, responding and representing the public interest.221

3. Museums’ Not-for-Profit Status Should Rrequire Heightened StandardsAs non-profit corporations, museums also follow state charitable trust laws, which are designed to promote the public good.222 The Supreme Court has held that organisations classified as ‘charitable’ and established for the public good (such as museums) must not act against established public policy.223 Since museums are given tax deductions and government funding, they should use these monetary resources for their intended purpose – the public good. It is in the public’s welfare for museums to properly investigate their acquisitions.224 Members of museums should ask questions of their institutions to determine whether the museum’s acquisition and accession policies diverge from accepted ethical purchasing standards.225 By reason of the tax benefits enjoyed by museums and non-profit institutions, museums should be required to follow more stringent standards and to complete thorough provenance research prior to making new acquisitions.

4. Stricter Scrutiny is Appropriate owing to federal tax treatmentNon-profit organisations receive advantageous tax treatment at the federal and state levels, but are restricted to a narrower category of permissible purposes and stricter regulation of activities and dissolution processes.226 The purposes of this category are more restrictive, but include educational missions.227 Since museums receive the benefit of tax deductions, they should also be subject to investigation by the Internal Revenue Service. A museum’s ability to guarantee the legality of an object should add to the market value of the object.228 It is

217 Emily A. Graefe, ‘The Conflicting Obligations of Museums Possessing Nazi-Looted Art’, 51 B.C.L. Rev. 473, 493, n. 168 (2010), <lawdigitalcommons.bc.edu/bclr/vol51/iss2/4>, citing Daniel Range, ‘Comment’, Deaccessioning and Its Costs in the Holocaust Art Context: The United States and Great Britain, 39 Tex. Int’l L.J. 655, 657 (2004).

218 Patty Gerstenblith, ‘The Fiduciary Duties of Museum Trustees’, 8 Colum.VLA J.L. and Arts 175, 177 (1983); Range, above, note 217, at 657.

219 Graefe, above, note 217, citing Renz v. Beeman, 589 F.2d 735, 740 (2d Cir. 1978); Meinhard v. Salmon, 164 N.E. 545, 546 (New York 1928) (stating that “[n]ot honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior”); Scott and Ascher on Trusts, 3 Austin Wakeman Scott et al., Scott and Ascher on Trusts § 17.2 (5th edn. 2007); See generally Victor Brudney, ‘Contract and Fiduciary Duty in Corporate Law’, 38 B.C. L. Rev. 595, 601–07 (1997) (providing an overview of the fiduciary duty of loyalty).

220 See Am. Ass’n of Museums, Code of Ethics for Museums (2011), <www.aam-us.org/museumresources/ethics/coe.cfm> (last visited 17 Feb. 2013).

221 See id. 222 See People ex rel. William J. Scott, Attorney General v. George F. Harding Museum 58 Ill. App.

3d 408, 374 N.E.2d 756 (1978).223 See Bob Jones University v. United States, 461 U.S. 574 (1983).224 See Am. Ass’n of Museums, Code of Ethics for Museums (2011), <www.aam-us.org/

museumresources/ethics/coe.cfm> (last visited 17 Feb. 2013). 225 See Taberner, above, note 208, at 14, 16. 226 Id. 227 See People ex rel. William J. Scott, Attorney General v. George F. Harding Museum 58 Ill. App.

3d 408, 374 N.E.2d 756 (1978).228 See Gerstenblith, above, note 189, at 464.



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reasonable for good title to be incorporated into valuation for tax deduction purposes.229 Donors should not be given tax deductions, but unfortunately this often happens.230 Donors purchase objects at ‘wholesale’ or ‘black market’ value (objects on the black market generally sell for less than objects on the legitimate market), receive inflated appraisals, donate the objects with the values stated on the appraisals, and then receive tax deductions for the gifts.231 The Getty has been recognised as carrying out this tax scheme, and assisting contributors such as Sy Weintraub make millions of dollars from donations.232 (Museum donors guilty of using inflated estimates for tax deductions have been prosecuted by the US Government for tax fraud.)233 Thus, if the museum cannot prove proper title, then federal financial assistance through tax deductions should be denied, particularly since some of these objects fund terror.234

f. as InstItutIons entrusted wIth the care of art and cultural herItage, MuseuMs should Be suBject to heIghtened due dIlIgence standards

1. Changes in Acquisition Practices Should be legally Mandated and enforcedDecontextualisation of antiquities is a major problem, and museums play a prominent role in this process.235 Deficient acquisition practices diminish society’s knowledge of history and cultural heritage. The cultural, historical and scientific information that is lost is detrimental to the charitable organisation’s supposedly educational mission.236 To fulfil their non-profit mission, museums must refrain from bad acquisition practices.237

The International Council of Museums (‘ICOM’) is an organisation with voluntary membership that sets forth a Code of Ethics for Museums.238 To join ICOM, museums must agree to abide by the ICOM Code, which was drafted in 1986 and then updated in 2004 and 2006.239 The Code establishes minimum standards of professional practice and performance for museum institutions.240 In the most recent edition, the Code calls for museums to recognise the necessity of ethical acquisition practices, stating: “Members of the museum profession should not support the illicit traffic or market in natural and cultural property, directly or indirectly... Museums should not acquire objects where there is reasonable cause to believe their recovery involved the unauthorised, unscientific, or intentional destruction or damage of monuments, archaeological or geological sites, or species and natural habitats.”241 (It should be noted that museums must do more than follow proper acquisition practices. In addition to not purchasing looted items, museums should also refrain from accepting illicit objects from donors or lenders.)242

229 Id. 230 See Felch and Frammolino, Chasing Aphrodite above, note 11, at 32-36.231 Id. 232 Neil Brodie, ‘Jiri Frel’, Trafficking Culture, 12 Aug. 2012, avail. at <traffickingculture.org/

case_note/jiri-frel/> 233 Jason Felch, ‘Getty Museum Review Targets its Antiquities Collection’, L.A. Times,

18 Jan. 2013, avail. at <www.latimes.com/entertainment/arts/culture/la-et-getty-ambers-20130119,0,1165994.story?page=1&goback=.gde_3674711_member_206310047>.

234 See Lowe and Burke, above, note 114. 235 See Gerstenblith, above, note 189, at 450. 236 Id.237 See Wyatt, above, note 79. 238 International Counsel of Museums, <icom.museum/the-organisation/>239 International Counsel of Museums, <icom.museum/the-vision/code-of-ethics/>.240 Id. 241 <archives.icom.museum/ethics.html#intro>242 See Taberner, above, note 208, at 85.



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But as the name suggests, ICOM ‘guidelines’ are not binding law and they do not carry any economic or criminal penalties. Similarly, the American Association of Museums (‘AAM’) and the Association of Art Museum Directors (‘AAMD’) offer acquisition guidance, in the form of standards, reports, recommendations and codes of ethics.243 These too have little effect, as the guidelines and recommendations are not obligatory mandates.244 Currently, museum acquisition policies are problematic since most allow for acquisitions without full documentation.245 Proper title and good faith actions on the part of the seller and acquiring party should not be the presumption.246 It is irresponsible for museums to merely accept the word of a seller or donor about the provenance or legitimacy of an object.247 Failure to provide a museum with documentation related to the work’s provenance and legitimacy should be a red flag.248 In addition, museums should consider a dealer’s or donor’s reputation and any criminal record or questionable sales or donations.249

Museums’ guidelines have historically been ignored or disregarded when in conflict with major acquisitions. For example, the Getty Museum’s Policy requires the Museum to acquire only collections documented prior to 1995.250 This requirement was lauded because it effectively prohibited the Museum from collecting looted or illegitimate items. However, shortly after this policy was enacted, the Getty acquired a collection of over 300 objects of Greek, Roman and Etruscan origin from a private collector.251 Provenience for 85 per cent of these objects was unknown, but the Getty relied upon its own catalogue from a loaned exhibition to manufacture provenance.252 Critics accused the Museum of producing documentation to fulfil its own requirements for provenance and thereby tacitly condoning the flow of illegal antiquities.253

As discussed above the St. Louis Art Museum (‘SLAM’) recently defended itself against federal charges for purchasing a missing 3,000-year-old funerary mask that had been excavated in Egypt in 1952.254 Egyptian and US authorities allege that the piece was stolen; SLAM denies this charge, and claims to have purchased the mask in good faith, after examining the mask’s good provenance.255 The Museum purchased the antiquity from Phoenix Ancient Art, a gallery owned by Ali and Hicham Aboutaam, brothers with a criminal history for dealing in looted antiquities.256 Although the Museum was on notice of the brothers’ reputation for

243 Id. at 40244 Id. at 43; see Boehm, above, note 22. 245 See Louisiana World Exposition v. Fed. Ins. Co., 864 F.2d 1147, 1150 (5th Cir. 1989); Stern v.

Lucy Webb Hayes Nat’l Training Sch. For Deaconesses and Missionaries, 381 F. Supp. 1003, 1013 (D.D.C. 1974).

246 See Taberner, above, note 208, at 49. 247 Id. at 66. 248 Id. at 66.249 Id. at 66.250 See Hoffman, above, note 213, at 405. 251 See DeAngelis, above, note 213. 252 Robin Short Myren, Provenance Factors for Antiquities Acquisitions, Society for California

Archaeology Proceedings, Volume 24 (2010), 3.253 Id. 254 United States v. Mask of Ka-Nefer-Nefer, No. 11-cv-504 (HEA) (E.D. Mo. 31 March 2012). 255 Id. 256 See Steven Litt, ‘Cleveland Museum of Art Buys Important Ancient Roman and Mayan

Antiquities’, 12 Aug. 2012, <www.cleveland.com/arts/index.ssf/2012/08/cleveland_museum_of_art_buys_i.html>; Watson, above, note 30; <www.theatlantic.com/national/archive/2012/05/for-the-st-louis-art-museum-a-legal-victory-raises-ethical-questions/257839/>; See ‘For the St. Louis Art Museum, a legal victory raises legal questions’, The Atlantic, 30 May 2012, <www.



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dealing in loot, SLAM purchased the mask. The Museum claims that the Aboutaams provided an accurate provenance, although important documents were missing from the report which contained questionable pieces of information that should have raised concern for any curator or museum professional acquiring objects.257 The dealers assert that the piece was legitimately bought, although there is no record of a legal purchase or transport out of Egypt.258 Phoenix Ancient Art sold the mask to SLAM in 1998 for nearly half a million dollars.259 Owing to the Aboutaams’ well-known ‘criminal history’, the feds characterise SLAM’s due diligence as ‘pro forma’, charging the museum “knew or was willfully blind to the fact that the Mask was stolen property both before and after its importation.”260

2.the Security and exchange Commission is a Model in which to Properly Monitor MuseumsBy turning a blind eye to suspicious circumstances, museums breach their fiduciary duties when acquiring looted items.261 Museums are not typical purchasers of art, but institutions with the means to investigate title and origin.262 Museums should not contemplate the purchase of objects that would, in any actual or even perceived way, encourage the trade and illegal import of looted cultural heritage.263 Museums are established to house, educate and preserve.264 If these are truly the aims of museums, then applying greater scrutiny to these institutions is appropriate, as greater oversight from outside governance will champion the cause of preservation and education. There is a need for a uniform, and legally enforceable, standard in the United States on which to model museum acquisitions.265 Since museums control priceless objects of fundamental societal interest, it is appropriate to hold these organisations to a standard similar to other organisations and businesses controlling valuable assets. An appropriate model for guidance is the stock exchange listing requirements. During the past two decades, the Securities and Exchange Commission (‘SEC’) has made requirements more stringent to avoid scandal and protect stockholders266 and to protect consumers.267 In the same way, stricter standards are needed to protect the beneficiaries (the public) of museums. Corporate scandals were gaining greater attention during the past

theatlantic.com/national/archive/2012/05/for-the-st-louis-art-museum-a-legal-victory-raises-ethical-questions/257839/>.

257 Id. 258 Paul Balford, Focus on the Ka Nefer Nefer “Collection History” (1) (“Here Zakki, you can

have this”), 8 April 2012, avail. at <paul-barford.blogspot.com/2012/04/focus-on-ka-nefer-nefer-collection.html>.

259 See Malcom Gay, ‘Out of Egypt’, Riverfront Times, 15 Feb. 2006, <www.riverfronttimes.com/2006-02-15/news/out-of-egypt/full/>

260 See Balford, above, note 258. 261 See Wyatt, above, note 79. 262 See Virginia Museum of Fine Arts, <www.vmfa.state.va.us/Collections/About_the_Collection/

VMFA_and_Provenance_Research.aspx>; Museum of Fine Arts Boston, Acquisitions and Provenance Policy, <www.mfa.org/collections/art-past/acquisitions-and-provenance-policy>

263 See Taberner, above, note 208, at 49. 264 See International Counsel of Museums, <icom.museum/the-vision/museum-definition/> 265 Hugh Eakin, ‘Antiquities Trade puts Museums under Scrutiny’, San Diego Times, 27 Nov.

2005, avail. at <www.utsandiego.com/uniontrib/20051127/news_1a27looted.html>.266 See Compensation Committees and the Stricter Standards of Independence under SEC rules

and the IRS Code, Waller (24 Jan. 2005) <www.wallerlaw.com/News-Events/Bulletins/89105/Compensation-Committees-and-the-Stricter-Standards-of-Independence-Under-SEC-Rules-and-the-Internal-Revenue-Code ; Jessica Holzer, ‘SEC Proposes Stricter Standards for Securities Brokerage’, WSI (11 June 2011) <www.programbusiness.com/news/SEC-Proposes-Stricter-Standards-for-Securities-Brokerages

267 See Holzer, above, note 266.



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two decades268 and spurred the passage of the Sarbanes Oxley Act,269 just as nations around the world are becoming acutely aware of the multi-billion dollar market for black market antiquities that finds their way into private collections and museums.270 Consequently, there is a need for stricter regulation of museums. Just as regulations are needed to protect the public good of stocks, regulations must protect the public and societal goods of priceless artefacts. The SEC requires that people within a corporate hierarchy inform authorities about improper practices.271 Similarly, museum representatives and lawyers working as in-house counsel should have a responsibility to report and receive information from employees and directors about improper transactions. Requirements should be instated to require museum employees to disclose illicit acquisition activities and further to impose self-regulation.272

g. the need for federal oversIght Is aPParent

1. Museums are Unable to effectively Self-regulateThe continuing acquisition practice of looted artefacts273 demonstrates that museums cannot self-regulate in a responsible way that will fulfil their non-profit purposes.274 The Federal Government should intervene, and legislation must be enacted to regulate museums’ acquisition practices. At a minimum, museums should be required to use internet government resources to investigate the legality of potential acquisition pieces.275 If an object in the collection was stolen at one time, there is a possibility that it is listed in a database of stolen art276 and searching such databases should be a minimum first step. However, databases do not list objects that are undocumented such as those surreptitiously excavated, so their effectiveness for archeological material is limited.277 Museums should be required to check the US Department of State’s website for objects controlled pursuant to CPIA.278 The

268 See Penelope Patsuris, ‘The Corporate Scandal Sheet Forbes’ (26 July 2002, 5:30 PM) <www.forbes.com/2002/07/25/accountingtracker.html>

269 See John C. Coffee Jr., ‘Limited Options’, <www.legalaffairs.org/issues/November-December-2003/review_coffee_novdec03.msp>; Sarbanes–Oxley Act of 2002 (Pub.L. 107-204, 116 Stat. 745, enacted 30 July 2002).

270 See Randy Kennedy, ‘Museum Defends Antiquities Collecting’, New York Times, 12 Aug. 2012, <www.nytimes.com/2012/08/13/arts/design/cleveland-museum-buys-antiquities-stirs-ethics-debates.html?pagewanted=all&_r=0>

271 See Gary DiBianco and Andrew M. Lawrence, Skadden, Arps, Slate Meagher and Flom LLP, Investigation and Reporting Obligations under Section 10A of the Securities Exchange Act: What Happens when the Whistle is Blown? Securities Fraud National Institute (29 Sept. 2006).

272 See Merryman, above, note 39, at 966.273 Last year, the Republic of Turkey demanded the return of 21 antiquities from the Cleveland

Museum of Art, after the Museum purchased items without appropriate provenance. Jason Felch and Ralph Frammolino, ‘The Getty’s Looted Amber: A Window into the Museum’s Deepening Dilemma’. Chasing Aphrodite (19 Jan. 2013), (<chasingaphrodite.com/2012/04/02/the-cleveland-list-21-objects-turkey-wants-cleveland-museum-of-art-to-return/>). The Museum of Fine arts in Boston acquired a collection of looted Benin bronzes in 2012. See Museum of Fine Arts Boston, Mission Statement, <www.museum-security.org/opoku_boston_return.htm>

274 See Museum of Fine Arts Boston, above, note 278; Katherine Brooks, ‘Boston’s Museum of Fine Arts Urged to Return Looted Artifacts to Nigeria’, Huffington Post, (20 July 2012, 1:46 PM), <www.huffingtonpost.com/2012/07/20/bostons-museum-of-fine-ar_n_1690062.html>

275 See DeAngelis, above, note 217, at 262.276 See Interpol database, <www.interpol.int/Crime-areas/Works-of-art/Works-of-art>. For a

partial list of databases, see <www.saztv.com/page9.html>277 See DeAngelis, above, note 217, at 251. 278 See Immunity from Judicial Seizure–Cultural Objects, US Dep’t of State, <www. state.gov/s/l/

c3432.htm>.



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International Property Protection Homepage of the US Department of State is illustrated with thumbnail photographs of the type of objects subject to temporary import restrictions.279

2. With the Destruction of Wartime looting it is Imperative that Museums not Purchase Plundered Antiquities and fuel a Market that results in Widespread PillagingOne consequence of war is the destruction of cultural heritage.280 (In fact, UNESCO has issued a warning to the international art market that artefacts coming from some of the war-torn regions may have been looted.)281 During times of conflict, museums and archaeological sites often go unguarded, leaving them vulnerable to looters.282 During the upheavals during the ‘Arab Spring’ and the still-raging civil war in Syria, archaeological sites have been plundered.283 Items are more easily smuggled during these times, and they enter the black market, and possibly find a final destination with a purchaser abroad.284 International organisations and representatives have warned antiquities buyers that thousands of objects from Syria have been looted and are now appearing on the market.285 Museum directors must consider the fluctuating market place and the flux of items from warring nations when making acquisitions, and must be mindful not to fuel the market for loot.286 Julien Anfruns, director general of ICOM, has warned buyers not to purchase objects from Syria, stating, “We really, really strongly advise any buyers to be extremely prudent … it’s a serious legal matter and due diligence is even more necessary in the current case.”287 The provenience or ‘find spot’ of objects from a politically torn nation should act as a warning to buyers that those objects may have been illicitly acquired.288 Museums must exercise heightened scrutiny and not purchase items from war-torn nations, unless an ironclad provenance or provenience is provided.289

279 See About the Image Database, U.S. Dep’t of State <eca.state.gov/cultural-heritage-center/cultural-property-protection/about-image-database>

280 See Robert Fisk, ‘Syria’s Ancient Treasures Pulverized’, Independent, 5 Aug. 2012, avail. at <www.independent.co.uk/voices/commentators/fisk/robert-fisk-syrias-ancient-treasures-pulverised-8007768.html>; see also Paul Peachey, ‘Watch out for Looted Libyan Artifacts, UN Warns Auction Houses’, Independent, 16 Aug. 2011, <www.independent.co.uk/news/world/africa/watch-out-for-looted-libyan-artefacts-un-warns-auction-houses-2344154.html>

281 ‘UNESCO Warning Over Libya Looting’, BBC (26 Aug. 2011, 7:39 AM), <www.bbc.co.uk/news/entertainment-arts-14676197>

282 See Mark Fisher, ‘Tomb Raiders’, Guardian 19 Jan. 2006, avail. at <arts.guardian.co.uk/features/story/0,,1689799,00.html>; see generally Matthew Bogdanos, Thieves of Baghdad (2005) (describing the destruction and looting of antiquities during the US occupation of Iraq starting in 2003).

283 Suleiman Al-Khalidi, ‘Syrian Violence Threatens Ancient Treasures’, Reuters, 20 Feb. 2013, avail. at <www.reuters.com/article/2013/02/20/uk-syria-crisis-antiquities-idUSLNE91J01C20130220>; Paul Barford, ‘Rebels and Refugees: Looting in Syria, Portable Antiquity Collecting and Heritage Issues’, 13 Feb. 2013, avail. at <paul-barford.blogspot.nl/2013/02/rebels-and-refugees-looting-in-syria.html>; Mike Elkin, ‘‘Arab Spring Impacts Archaeology, Libya/Egypt/Tunisia/Syria, Archaeology, Vol. 65 No. 1, Jan./Feb. 2012, avail. at <archive.archaeology.org/1201/features/topten_arab_spring.html>.

284 See Vlasic, above, note 8. 285 Dale Gavlak, ‘Syria Official Warns of Trafficking in Antiquities’, Assyrian National News

Agency, 13 Feb. 2013, avail. at <www.aina.org/news/20130213155211.htm>.286 Ian Johnston, ‘“Emergency Red List” targets Syria’s looted treasures’, NBC News, 10 Sept.

2012, avail. at <worldnews.nbcnews.com/_news/2012/09/10/13727086-emergency-red-list-targets-syrias-looted-treasures?lite>; Taberner, above, note 208, at 96.

287 Id. 288 See Vlasic, above, note 8. 289 Taberner, above, note 208, at 96-97; see Int’l Council of Museums, Code of Ethics for Museums

(2004), 2.21 Protection Against Disasters, avail. at <icom.museum/professional-standards/code-of-ethics/2-museums-that-maintain-collections-hold-them-in-trust-for-the-benefit-of-



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Consequently, it is necessary to enact heightened scrutiny and museum acquisition procedures that take into consideration the country of origin and question whether art or cultural heritage was misappropriated during a time of conflict.290 At a minimum, museums should be required to check the FBI Art Theft Program prior to purchasing items from war-torn regions.291

3. the Connection Between Cultural heritage looting and terrorism Necessitates Stricter Acquisition PracticesThere is a proven link between black market cultural heritage objects and terrorism,292 as there is a connection between art crime and terrorism.293 There is a growing body of evidence that links the trade in looted antiquities to organised crime and terror.294 US public prosecutor and former head of investigation into the looting of Iraq’s National Museum after the 2003 US invasion, Marine Reserve Colonel Matthew Bogdanos, states “the claim that the illicit art industry funds terrorism is undeniable.”295 Art crime (looting, fraud and theft) has been reported as the second largest criminal activity after the narcotics trade.296 This alone makes it a rich source of funds for terrorist groups.297 The United States is the prime market for this enterprise, and many of the illicit antiquities are coming from Middle Eastern nations under the influence of terrorist networks such as the Hezbollah and Islamic Jihad.298

The Government effectively funds terrorist networks when museums acquire art and cultural heritage objects through the black market.299 Purchasing objects without proper acquisition practices funnels money into the network of smugglers, looters, thieves and destroyers.300 This implication requires the United States to take greater steps to prevent art theft. As explained by Matthew Bogdanos, “the link between extremist groups and antiquities smuggling in Iraq was ‘undeniable.’”301 The Government’s lack of action in preventing cultural heritage theft may contribute to struggles with global terrorist groups.

society-and-its-developme/>. 290 See Taberner, above, note 208, 96-97.291 <www.fbi.gov/about-us/investigate/vc_majorthefts/arttheft> 292 Eti Bonn-Muller, ‘Inside the Israel Antiquities Authority: Interview with Amir Ganor’,

Archeology.org, 2010, <www.archaeology.org/israel_antiquities_authority/ganor.html>; Associated Press, ‘Antiquity Smuggling Finances Terror, Heritage Watch’, 13 March 2008, avail. at <www.heritagewatchinternational.org/antiquity-smuggling-finances-terror.html> (describing the sale of antiquities to sponsor terrorist activities).

293 Blood Antiques (LinkTV broadcast 8 Oct. 2009); S. Fidler, ‘A Black Art: How The Trade in Stolen Artifacts Aids Money Laundering, Organized Crime, and Terrorism’ Financial Times, (24 May 2003).

294 Joel Leyden, ‘Swift-Find: Terrorism Funded By Stolen Property’, Israeli News Agency, avail. at <www.israelnewsagency.com/terrorismstolenpropertyswiftfindregistry881016.html>; Laura de la Torre, ‘Terrorists Raise Cash by Selling Antiquities, Gov’t Security News’, 20 Feb. 2006, avail. at <www.gsnmagazine.com/pdfs/38_Feb_06.pdf>.

295 See Lowe and Burke, above, note 114.296 See Juliet Williams, ‘Is Stolen Art Funding Terrorism?’, Douglas Art Prints News (18 Sept.

2005), avail. at <douglasartprints.com/mt/archives/2005/09/is_stolen_art_f.html>. 297 Id. 298 See de la Torre, above, note 33.299 See id. 300 See Wyatt, above, note 79. 301 See Matthew Bogdanos, ‘The Terrorist in the Art Gallery’, New York Times, 10 Dec. 2005,

avail. at <www.nytimes.com/2005/12/10/opinion/10bogdanos.html?pagewanted=all&_r=0>; Robert S. Mueller, III, Director, Fed. Bureau of Investigation (15 Nov. 2004), <www.fbi.gov/pressrel/speeches/mueller111504.htm>.



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conclusIon

The illicit trade in looted cultural heritage is a major problem internationally, as it deprives humanity of the objects’ cultural, education, and aesthetic values. The global black market for cultural objects has recently gained media attention due to its prevalence as the second or third largest criminal activity internationally. Startlingly, art crime has links to terrorism, money laundering, and the weapons and narcotics trade. Art and cultural heritage can be protected by reducing the demand for these objects to limit the size of the market. One way to minimise the black market is to regulate market intermediaries, including museums. Museums should not be permitted to turn a blind eye to an object’s looted past. These institutions are intended to preserve art; therefore, museum directors must not participate in the market for illicit goods. To ensure that museums engage in proper due diligence, it is necessary to enact mandates that effectively deter inappropriate acquisition practices. The government must also aggressively monitor museum representatives and prosecute those engaging in underhanded dealings. Additionally, existing statutes should increase penalties to include heavier fines and incarceration as criminal sentences may be the only true deterrent.

It is imperative that museums be subjected to greater scrutiny. Museum representatives should not simply assume that works have valid title and were properly acquired; rather, museums should be required to research the works and prove proper ownership. The tax benefits enjoyed by museums means that they should they should follow more stringent standards and complete thorough provenance research prior to new purchases. Despite the recent changes in the AAMD guidelines, they are still not demanding enough. Cultural heritage is vested with a value for all humanity for generations to come; therefore, the government should aggressively protect these priceless and irreplaceable objects, a testament to humanity’s progress and shared achievements.


The Role of Museums in the Trade of Black Market Cultural Heritage Property

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