Protecting Cultural Property from Plunder

Protecting Cultural Property from Plunder - Criminal Justice Efforts to Curb the Market Presented by: Dr. Saskia Hufnagel, Queen Mary University of London Date: November 26, 2021 The Problem - Laws countering art and antiquities theft, looting and trafficking are difficult to successfully apply - Even when applied, cases based on these laws often result in minimal penalties (criminal or civil) - One component that dictates which laws can be applied (and applied successfully) is the proof required for conviction - As prosecutions are rare, detection and investigations need to be analyzed in addition to case law Example: Giacomo Medici  Euphronios Krater:  Stolen object in Italy (country of origin);  Unauthorized excavation of antiquities (criminal offence in Italy since 1939 (Pastore 2001: 155));  Export to Switzerland transit country legal identity laundered (attachment of false documents of provenance)  New provenance: out of Italy since at least the 1920s;  Customs forms would have listed Switzerland as its country of origin, and not Italy;  Krater became a legitimate acquisition for the Metropolitan Museum, USA;  Routing of material through transit is a characteristic feature of the antiquities trade distinguishes it from most other transnational criminal trades, which tend to be illegal from source to destination (Mackenzie and Green 2009: 4; Polk 2009: 14-17; Kersel 2006):  Possible parallel: trafficking of blood diamonds (Tijhuis 2011: 88) Approach 1. Identified key criminal laws relating to art and antiquities theft, looting and trafficking 2. Reviewed language of the laws to identify specific proof requirements 3. Searched for criminal, administrative, civil cases since the 1970s (UNESCO Convention) 4. Use key words: art, theft, stolen, antique, antiquities, statue, painting 5. Reviewed and analyzed cases for discussions of burden of proof and how it was applied 6. Interviews with police, customs and art market practitioners for more information on cases that were not prosecuted Approach: Identifying Key Laws England & Wales - - General laws:  Theft Act 1968  Fraud Act 2006  Proceeds of Crime Act 2002  Customs and Excise Management Act 1979  Export Control Act 2002 Specific laws:  Dealing in Cultural Objects (Offences) Act 2003  Cultural Property (Armed Conflicts) Act 2017  Treasure Act 1996  The Iraq (UN Sanctions Order) 2003  The Export Control (Syria Sanctions) Order 2003  Ancient Monuments and Archaeological Areas Act 1979  Human Tissue Act 2004 Approach: Proof Requirements in the Laws England and Wales  In relation to all criminal offences the prosecution must prove the particulars of the offence beyond reasonable doubt.  The jury or magistrates should only convict if they are sure of the defendant's guilt.  Particular difficulty to prove mental element.  For criminal penalties, the prosecution must prove: 1. A crime occurred (actus rea) 2. Intent (men rea) a. Not necessary for specific offences, e.g. possession b. Situational Liability  Lack of defenses Findings England & Wales - 25 cases across all laws since 1970 - 2 criminal cases discuss proof/ use of evidence issues - 10 cases civil, 10 cases criminal, 4 cases administrative and 1 case commercial law - Difficulty of proving men rea - Difficulty of proving all elements of the offence in cross-border cases Policing Perspectives: Theft - Art Theft:  Art theft mostly only reported for insurance purposes (little trust in police re recovery); Examples: 1. Isabella Stewart Gardner Museum Theft (1990) 2. Frans van Mieris 'A Cavalier' (Art Gallery NSW, 2007)  Art world does not cooperate with police, only recently reports of increased cooperation due to successful investigations and established trust in some EU member states.  Art Loss Register and since 2014 Art Recovery International help recover works of art, but do not always report their findings to police. - Art has become a commodity, hence more financial than cultural concern re loss. Policing Perspective: Looting  Source country policing difficult due to war, political unrest, geographical remoteness, under-resourcing, corruption  Trafficking possible due to rare checks, corruption, active help by military and government, lack of knowledge (customs/police in source, transit and market countries)  Market countries' difficulty to prove where stolen, where/which documents forged and whether buyer had knowledge Pandora Papers: Douglas Latchford - Pandora Papers revealed offshore trusts used for illicit antiquities trade - Claimed that he 'rescued' items at risk in Khmer Rouge regime - Latchford was charged with trafficking in stolen and looted Cambodian objects by the Justice Department in 2019, but the indictment was dismissed when he died last year - Daughter wants to return 125 objects worth 50 million USD to Cambodia - But Latchford had donated and sold 'dozens' of items to Meet and British Museum - Absence of export documentation or provenance information no proof of looting, but higher due diligence - Despite good faith purchase or statute of limitation arguments, higher responsibility to return if looting proven Implications 1. Not all cases will discuss evidential issues or proof requirements, which makes assessment of their role in the success or applicability of antiquities trafficking laws difficult 2. Investigations are impeded by obscurity of market, transnationality of cases and problems of proving knowledge 3. As long as burden of proof is not reversed (owner needs to prove that item is not stolen) laws have little impact 4. Introducing possession offences not requiring mens rea could facilitate establishing criminal liability of sellers, buyers and middle (wo)men