Sie sind auf Seite 1von 397

Cultural Property Crime

Heritage and Identity


Issues in Cultural Heritage Protection

Edited by

Joris D. Kila
James A. Zeidler

Editorial Board

Charles Garraway (UK)


Patrick Boylan (UK)
Karl von Habsburg (Austria)
Laurie W. Rush (USA)
Thomas Schuler (Germany)

VOLUME 3

The titles published in this series are listed at brill.com/ichp


Cultural Property Crime
An Overview and Analysis of Contemporary
Perspectives and Trends

Edited by

Joris D. Kila and Marc Balcells

LEIDEN | BOSTON
This hardback is also published in paperback under ISBN 978-90-04-28053-3.

Cover illustration: Serbian police guard the stolen painting The Boy in the Red Vest by Paul Cezanne at a
press conference in Belgrade, Serbia, Thursday, April 12, 2012. Reporters/AP/Darko Voijnovic.

Library of Congress Cataloging-in-Publication Data

Cultural property crime : an overview and analysis of contemporary perspectives and trends / edited
by Joris D. Kila and Marc Balcells.
pages cm. (Heritage and identity : issues in cultural heritage protection ; volume 3)
Includes index.
ISBN 978-90-04-27971-1 (hardback : alk. paper) ISBN 978-90-04-28054-0 (e-book) 1. Cultural
propertyProtectionLaw and legislationCriminal provisions. 2. Art thefts. 3. Archaeological
thefts. I. Kila, Joris, editor. II. Balcells, Marc, editor.

K3791.C854 2015
345.026dc23
2014033844

This publication has been typeset in the multilingual Brill typeface. With over 5,100 characters covering
Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities.
For more information, please see www.brill.com/brill-typeface.

issn 2211-7369
isbn 978-90-04-27971-1 (hardback)
isbn 978-90-04-28054-0 (e-book)

Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands.


Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental and Hotei Publishing.
All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system,
ortransmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior written permission from the publisher.
Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided
that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive,
Suite910, Danvers, ma 01923, usa. Fees are subject to change.

This book is printed on acid-free paper.


Contents

Preface
Criminology in Art Crime: Some Lessons for the Legislatorsix
Stefano Manacorda

List of Contributorsxiv

Part 1
Art Theft

1 Art Theft and Time Limits for Recovery: Do the Facts of the Crime Fit
the Limits in Law?3
Kenneth Polk and Duncan Chappell

Part 2
The Relationship between Cultural Heritage Crimes
and Organized Crime

2 Displacement, Deforestation, and Drugs: Antiquities Trafficking and


the Narcotics Support Economies of Guatemala23
Donna Yates

Part 3
Fakes and Forgeries

3 The Narrative Structure of Forgery Tales39


Thierry Lenain

4 Forge and Export: The Trade in Fake Antiquities from China61


Toby Bull and Stephan Gruber
vi contents

Part 4
Art and White-Collar Crime

5 Money, Art, and Laundering: Coming to Grips with the Risks79


Petrus C. van Duyne, Lena Louwe, and Melvin Soudijn

6 Art Crime as White-Collar Crime96


Marc Balcells

7 Art Fraud in Germany: Lessons Learned or the Fast Falling


into Oblivion?111
Saskia Hufnagel

8 Corruption from the Top: The Getty and Caligulas Legacy130


Tanya K. Lervik and Marc Balcells

9 An Inside Job? The Case of Robert Noortman146


Henk Schutten and Petrus C. van Duyne

Part 5
Armed Conflicts and Cultural Property

10 From Crimes against Art to Crimes against Cultural Property:


New Perspectives and Dimensions in Art Crime167
Joris D. Kila

11 Illicit Traffic in Antiquities: Some Canadian Experiences206


John M. Fossey

12 The Gurlitt Case: German and International Responses to Ownership


Rights in Looting Cases221
Duncan Chappell and Saskia Hufnagel

Part 6
Archaeological Looting

13 The Internet Market in Pre-Columbian Antiquities237


Neil Brodie
Contents vii

14 Local and International Illicit Traffic in Vietnamese Cultural Property:


A Preliminary Investigation263
Damien Huffer and Duncan Chappell

15 Crime and Conflict: Temple Looting in Cambodia292


Tess Davis and Simon Mackenzie

16 Transnational Forfeiture of the Getty Bronze307


Derek Fincham

Part 7
Art Vandalism

17 On Art, Crime, and Insanity


The Role and Contribution of Mental Disorders341
Frans Koenraadt

Conclusion: Cultural Property Crime366


Joris Kila and Marc Balcells

Index371
Preface
Criminology in Art Crime: Some Lessons for the Legislators

Stefano Manacorda

The readers of this book will see progressively how the pieces of a mosaic form
in front of their eyes. At first, the wide variety of the contents and method-
ologies in this book could generate the feeling of seeing a fragmented picture.
However, as the study of this volume progresses, different contributions take a
definite form and reveal an image of what the editors of the volume, Joris Kila
and Marc Balcells, have chosen to label cultural property crime.
First of all, there are common elements in the chapters that shape this vol-
ume. A first, obvious link is the perspective adopted: empirical data on the
studied phenomenon is highlighted, both in its quantitative and qualitative
facets. To describe and measure crime in the art and archaeology world is the
common goal of the contributions collected by the editors. A second link,
though not explicit, is the chosen topic: the scope of the studies presented in
the volume is essentially focused on movable works of art, and omits intan-
gible cultural heritage. This is a commonly shared tendency if one takes into
account the current trends in legislative reforms: internationally, it is the phe-
nomenon of the trafficking of works of art and archaeological heritage that
dominates the criminal policy arena. This commonality also highlights a cer-
tain frustration with the impotence of instruments currently being enforced.
With this common framework, however, the different chapters draw com-
plementary perspectives that allow the reader to capture a kaleidoscopic
image of the crimes in the art and archaeological world, giving the volume
certain originality in this field of study.
First of all, the combination of empirical experience and scientific perspec-
tive can be observed. The reader can see interwoven testimonies obtained from
the practice in the field of art and archeology, but also studies of a scientific
nature, sometimes obtained via participant observation, sometimes obtained
via a particular theoretical framework.
The reader can see analyses of source countries: that is, the countries that
fall prey to the most significant acts of looting. The study of Simon Mackenzie
and Tess Davis on the looting of Cambodian temples; the analysis undertaken
by Donna Yates on the relationship between trafficking in cultural goods and
illicit drug trade in Guatemala; and the chapter by Duncan Chappell and
Damien Huffer, which treats Vietnam, all provide up-to-date evidence on the
worrying extent of cultural property crime in parts of Asia and Latin America.
x Manacorda

The study of Joris Kila, whose analysis is essentially focused on the experience
gained in the course of either conflicts or popular uprisings in Africa, where
cultural goods are subject to systematic attacks, provides similar emphasis.
These chapters confirm the long-stated dictum that the geographical areas
where artistic and archaeological heritage are most at risk are those in which
cultural richness is combined with scarcity of material and legal resources and
those which are frequently engaged in armed conflicts; both are fertile fields
for the pillage and mass destruction.
On the other end of the art crime stands the testimony of John M. Fossey,
who, while reporting on the activities of illegal imports into a traditional desti-
nation country like Canada, ascertains how source countries should take more
responsibility in recovery activities, both through the sharing of costs incurred
for the complex search and return operations, and through the care and man-
agement of cultural heritage once back at home.
Another theme that runs through the book is the examination of the narra-
tive of the art crime phenomenon with a more sociological or even narratolog-
ical approach. The latter is the point of view adopted by Thierry Lenain, who
focuses on the existence of the necessary and other typical (but not essential)
elements in the narrative of the phenomenon of counterfeiting of art objects.
Saskia Hufnagels contribution aims to describe both the German public and
medias perception regarding a particular art crime case: without offering
definitive results, her thesis is that the reputation of these cases is not a vari-
able directly dependent on the extent of the sanctions imposed (and some-
times even the existence of a judicial proceeding), but instead is related to the
symbolic nature of the art piece and the charismatic dimension of the crime.
The studies of Fincham, Lervik and Balcells, and Schutten and Van Duyne fol-
low the same direction. The first two explain from different points of view one
of the best-known legal proceedings in international art crime: the one on the
famous statue of the Victorious Youth found off the Italian coast in 1961 and
now in possession of the Getty Museum. Alongside the recent study by Brodie
and Proulx on crimes perpetrated by museums seen as corporate crime, Lervik
and Balcells demonstrate how the culture of corruption in this sector can
become systemic, sometimes implicating the vertices of cultural institutions.
Finchams chapter, on the other hand, reconstructs in detail the events of
the Gettys Victorious Youth and, while focusing also on the decisions of the
Italian courts, emphasizes the centrality and the difficulty of finding an effec-
tive mechanism for enforcing return of disputed cultural property at the inter-
national level. Lesser-known cases are treated in two contributions: on the one
hand, Schutten and Van Duyne, investigate a Dutch case in which the role of
Preface xi

the victima famous gallery owneris interpreted with possible criminal


dynamics; on the other, Frans Koenraadt writes, in a very analytically detailed
contribution, some personal reflections on the role of insanity in the relation-
ship between art and crime. It is easy to understand that the destruction of
a work of art can find its origin in the mental distress, yet less evident links
between mental illness and criminality in the field of art and antiquities are
explored in the essay.
Finally, a third aspect that runs through the book is relevant to the study
of the relationship between the empirical dimension and the criminal poli-
cies enacted in response. Fincham, in his extended essay, states how criminal
law should prepare to face this phenomenon, transnational in nature, probing
both the possibilities and limitations of the recovery of the goods unlawfully
removed, by using the legal tools offered by litigation and judicial coopera-
tion. Two other contributions, one related to the issue of the statute of limita-
tions for the exercise of civil actions claiming ownership in the case of illicit
traffic of cultural property, and the other to the linksall yet to be proven
that bind the market of art to money laundering, offer useful insights for the
reader. In the first, Duncan Chappell and Kenneth Polk suggest that the short
term (broadly, six years in common law tradition countries) for enacting legal
actions is often stretched in the courts to deal with the particular difficulties
of finding works that remain hidden for a long time. This is doneaccording
to the authorsto ensure that the counting of time begins at the moment in
which the victim of theft can reasonably know where the stolen art piece is
located, rather than from the moment of the left.
Similarly, with care to draw out the links between legal responses and
empirical elements, the study of Petrus C. van Duyne has the merit of ques-
tioning the most popular ides reues in this area; namely, that the art market
is in some way connected with money laundering. The author disputes this
empirical evidence, largely anecdotal, and therefore believes that, once again,
it is linked mostly to the narrative and the representation of the phenomenon
rather than its real naturewhile relying on an examination of the findings in
the reports of the various Dutch authorities. The results of the study temper
the idea that the art market is fertile ground for its money laundering, espe-
cially in view of the small value of many of the suspicious transactions. It is
as the author acknowledgesthe result of inferences drawn from partial data
from one country; further studies in this area are called for.
In conclusion, the data that the reader will find in this book not only
enriches the wealth of empirical knowledge by enabling access to an updated
view of some of the most relevant aspects of crime against art and archeology,
xii Manacorda

but also allows the reader to draw some useful starting points in the field, now-
adays particularly fertile, of the transformation of the legal framework for the
protection of cultural heritage. The initiatives currently underway within the
United Nations also stand out in this area, where guidelines for the prevention
and combating of trafficking in works of art and archaeological sites have been
drafted and are in an advanced stage of discussion (https://www.unodc.org/
unodc/en/organizedcrime/trafficking-in-cultural-propertymandate.html).
The lessons to be learned both for the scholars of the criminal justice system
and national and international organizations who are going to legislate on the
matterwhich also represent the added value of the work that we introduce
hereare numerous and can be briefly stated.
First of all, it is clear that we are in the presence of unique and irreplaceable
property, sometimes an expression of the entire world community and invested
with a high symbolic value, whichin addition to explaining the interest
of scholars and the charm that it exerts on the general publicexcludes its
assimilation from the legal point of view from other forms of property.
Second, white-collar crime, organized crime, and war crimes are related to
the phenomena we are discussing, but it is necessary to avoid improper gen-
eralizations. The United Nations Convention against Corruption (uncac), the
United Nations Convention against Transnational Organized Crime (untoc)
and other conventions related to armed conflicts (international humanitarian
law) certainly show some utility related to the protection of cultural heritage,
yet they cannot solve all cultural property crime problems, nor can address
them all at the same time.
Finally, an increase in focus on these studied phenomena, in addition to
those related to the destruction or theft of works of art and archaeological
artifacts, and the reuse of the proceeds that might arise from these crimes, is
needed. After the phase in which the interest of the international community
focused on forgeries and the destruction of cultural heritage in the strict sense,
and on theft and plunder, today the focus has changed to the conduct of the
illicit trafficking that is the natural outlet for many of the illegal activities that
thrive in the artistic and archaeological sphere, which assumes a greater sig-
nificance in the criminal policies within an empirical point of view.
In sum, the adoption of an ad hoc international instrument to guide inter-
national criminal policy responses of states in order to sanction the conduct
of illicit trafficking in cultural goods (albeit initially in an attenuated form of a
soft law) is extremely appropriate.
The book presented here, as well as providing the reader (whether it is a
scholar in this field, a magistrate, a law enforcement agent, or an administra-
Preface xiii

tive officer) the essential interpretive keys to navigate this complex and fasci-
nating world of crimes against cultural heritage, constitutes also a tool for the
orientation of future work of the United Nations in this field, corroborating the
idea that criminal law is called upon to play a decisive role in the near future.

Napoli, 30 June 2014


List of Contributors

Marc Balcells, ma
is a senior researcher and doctoral candidate at The Graduate Center,
The City University of New York.

Neil Brodie, PhD


is a senior research fellow in the Scottish Centre for Crime and Justice
Research at the University of Glasgow.

Toby Bull
is a senior inspector, Hong Kong Police Force, and an art risk security
consultant at TrackArt.

Duncan Chappell, PhD


is currently an adjunct professor in the Faculty of Law at the University of
Sydney and a conjoint professor in the School of Psychiatry at the University of
New South Wales. He is also the chair of the International Advisory Board of the
Australian Research Councils Center of Excellence in Policing and Security.

Terressa Davis, ma, jd


is an affiliate researcher in the Scottish Centre for Crime and Justice Research
at the University of Glasgow.

Derek Fincham, PhD


is an associate professor of Law at the South Texas College of Law in Houston.

John M. Fossey, PhD


is a professor at the McGill University and an emeritus curator in
Mediterranean Archaeology at the Montreal Museum of Fine Arts.

Stefan Gruber, PhD


is an associate professor at the Hakubi Center for Advanced Research of
Kyoto University and is based at the Graduate School of Human and
Environmental Studies.

Damien Huffer, PhD


is a post-doctoral fellow at the Museum Conservation Institute and
Department of Physical Anthropology, National Museum of Natural History,
Smithsonian Institution.
List Of Contributors xv

Saskia Hufnagel, PhD


is a lecturer in Criminal Law at Queen Mary University of London.

Joris Kila, PhD


is a researcher at the University of Viennas Kompetenzzentrum
Kulturgterschutz and editor in chief of the series Heritage and Identity at
Brill Academic Publishers.

Frans Koenraadt, PhD


is a professor in forensic psychiatry and psychology at the Willem Pompe
Institute for Criminal Law and Criminology, Utrecht University.

Thierry Lenain, PhD


is a professor of art theory at Universit Libre de Bruxelles.

Tanya K. Lervik, ma
is an expert in Global Management and an independent researcher.

Lena Louwe, ma
is a case manager at Slachtofferhulp Nederland.

Simon Mackenzie, PhD


is a professor in the School of Social and Political Sciences at the University of
Glasgow and a member of the criminological research staff at the Scottish
Centre for Crime and Justice Research.

Stefano Manacorda, PhD


is a professor of Criminal Law at the University of Naples (I), and a visiting
professor at the Ecole de Droit de la SorbonneUniversit Paris 1, as well as
at the University of Geneva, member of the umr de Droit Compar de Paris
and the Ecole Doctorale de Droit Compar de la Sorbonne.

Kenneth Polk, PhD


is a professor of Criminology at the University of Melbourne.

Henk Schutten
is a writer and an investigative journalist, working for the Amsterdam
newspaper Het Parool.

Melvin Soudijn, PhD


is a criminological researcher at the Dutch National Police Force.
xvi list of contributors

Petrus C. van Duyne, PhD


is an emeritus professor at the Tilburg Law School, Department of Criminal
Law.

Donna Yates, PhD


is a Leverhulme early career fellow in the Scottish Centre for Crime and
Justice Research at the University of Glasgow.
Part 1
Art Theft


CHAPTER 1

Art Theft and Time Limits for Recovery:


Do the Facts of the Crime Fit the Limits in Law?

Kenneth Polk and Duncan Chappell

For the criminologist, there are a number of distinctive puzzles that arise
regarding the theft of art. The present discussion deals with the issue of the
degree to which the facts of art theft, in particular the time it can take for the
discovery and resolution of the theft, correspond to the time limitations found
in the law when a victim attempts to recover that art. A common approach,
as was established in English law as early as 1623, and as is found currently in
Australia, is to limit the period where a victim of a theft retains title to a work
to a period of six years; after that time, the title of the victim is extinguished. As
we shall see, stolen art may be recovered many years after this six year period,
as in a case decided in a us court in 2014:

A diminutive landscape was brought to an auction house in Virginia in


2009 by a woman who claimed she had purchased the work in a box of
junk. Further investigation revealed that the work (by Renoir) had been
stolen from the Baltimore art museum in 1951. In a court ruling in 2014
it was found that the title of the museum was valid (there was some
question about the conflicting stories told by the woman who found
the object) and accordingly the painting was returned to the museum
(Shapiro, 2014, p. 1).

This account demonstrates how there can be an extensive period before a sto-
len painting resurfaces onto the art market (in this case fifty-eight years), how
the civil law in the United States assures that thieves are not able to provide
valid title, and that any person who comes into possession of a stolen work
must be able to demonstrate that their possession was a result of a good faith
transaction and/or be able to demonstrate due diligence regarding obtaining
the work of art (see in general Gerstenblith, 2008, chapter 8). Thus, jurisdic-
tions differ in their application of time limits and in their laws regarding access
to title after the theft. In this case, while the time limits are long (and certainly
exceed six years, which might provide a cut-off point in Australia), many states
in the United States provide that not only can a thief not gain or give title, the

koninklijke brill nv, leiden, 5|doi .63/9789004280540_002


4 Polk and Chappell

time limits can be affected by when a victim gains knowledge about the loca-
tion of the work.
A case with some similar features involved an object originally taken in
Cyprus:

During the war that raged in Cyprus in the late 1970s, a mosaic was sto-
len from a Christian church. Some ten years later, in 1988, it surfaced on
the art market. An antiquities dealer in the United States purchased the
mosaic from a contact in Cyprus, and then offered it for sale to the Getty
Museum in Los Angeles. When the church learned of these negotiations,
the church sued for the return of the mosaic. An important feature of the
decision of the us court was that the time limitation for the original own-
ers ran from the time that they learned of the whereabouts of the work,
rather than from the date of the theft. As a result, the court ordered the
return of the mosaic to Cyprus. (Webb, 2008, pp. 3942).

In this account, while the time limitations might have appeared to have
expired, given the ten year gap between the theft and the emergence of the
object onto the art market, the court found (as often occurs in the United
States, but as we shall see, not in Australia) that the time limits only started
when the original victims learned of the whereabouts of the work. The next
case is rather different:

An assistant to the well-known film figure Stephen Spielberg discovered


in 2007 that a Norman Rockwell painting purchased by Spielberg in 1989
had, in fact, been stolen in 1973. Spielberg immediately informed the fbi
that he was in possession of the painting, and he shortly thereafter traded
the painting for a comparable work by Rockwell from the dealer from
whom he bought the stolen work (Washington Post, 2007).

In this narrative, we find that not all of the important steps involve legal pro-
cesses. Once again, we see how a number of years can intervene between the
original theft and the discovery that the work has previously been stolen (in
this case, thirty-four years). Of course, it is not always possible for legal pro-
cesses to result in successful return of stolen artwork, as the following case
demonstrates:

The robbery of the National Museum of Fine Arts in Buenos Aires,


Argentina, was one of the many illicit activities organized by the noto-
rious junta that was in control of that country from 1976 to 1983. In all,
Art Theft and Time Limits for Recovery 5

sixteen paintings were stolen on December 24, 1980. The persons who
carried out the theft apparently had a shopping list of items to steal,
that list including works by Cezanne, Degas, Rodin and Matisse. For more
than twenty years these works remained out of sight. The works emerged
some 20 years later, in early 2001. The story at this point becomes com-
plex. It appears that the art objects had travelled over vast distances,
from Argentina, to Brazil and then Surinam in South America, thence to
Hong Kong, finally coming to rest in Taiwan. While a number of people
became involved in the attempt to untangle the web that had been cre-
ated, ultimately what defeated all attempts to arrange for the return of
the works to the original victim were the legal complications that result
from the peculiar political status of Taiwan. As the account by the Art
Loss Register observed: Taiwan is essentially untouchable for most legal
purposes. The reasons for Taiwan being untouchable go well beyond
our concerns with time limits, but have the result nonetheless of render-
ing these important, and obviously stolen, works of art well out of the
reach of either law or diplomacy (Webb, 2008, pp. 4652).

In this narrative, the works involved surfaced some twenty-one years after the
original theft. The attempts to negotiate the paintings were conducted in the
United States, in England, and in France before it became clear that it was not
going to be possible to use legal means to extract the works from Taiwan. In the
complicated story of these objects, three were actually returned when a later
attempt was made to sell them in France, resulting in their seizure and ulti-
mate return to Argentina in 2005. However, thirteen works are still in Taiwan.
At times, the circumstances of the loss of a work will be uncertain, although
theft is a likely factor in the loss, as in the following account:

A Roy Lichtenstein painting, apparently worth 4 million us dollars,


disappeared in 1970, only to re-appear 42 years later in a warehouse in
New York. It was last seen when its owner sent it out to be professionally
cleaned. It was located when its current owner, alleged to be one John
Doe attempted to sell it on the market in New York (apparently it had
travelled a bit, and was said to have been shown in a museum in Bogota).
In 2012, officials from the fbi and the us Attorneys office in Manhattan
handed the work over to Barbara Castelli, widow of the original owner
(New York Post, 2012).

In this account we see that the period of loss was forty-two years, well over
the common six-year limitation period. Despite the lengthy period involved,
6 Polk and Chappell

which might in some circumstances result in the quashing of the claim of the
original victim, the painting in fact was restored to the original owners (in this
case, the heir of the original victim). In the next narrative, again there was a
long period from the theft to the recovery of the art works involved:

The Bakwins originally began their collection of art with a purchase of an


Impressionist painting in 1925. They continued to build their collection
over the years, until they had assembled a museum-class set of works.
Upon their deaths, the collection was distributed to their four children.
One of the four settled in Stockbridge, Massachusetts, where he opened
a restaurant. His house was broken into on Memorial Day, 1978 and seven
valuable paintings were stolen. Many of the accounts suggest that the
thief was probably a man named David T. Colvin. While there were many
leads indicating Colvins involvement, the case went cold when Colvin
was murdered in 1979.
Apparently the stolen objects had been left with an attorney, Robert
Mardirosian, who had represented Colvin in another case. According to
material emerging from the legal proceedings, in 1988 Mardirosian moved
the paintings to a Swiss bank. Mardirosian created a Panamanian shell
company just for the negotiations involving the paintings, and worked
through attorneys and others in Switzerland and England in order to keep
his role a secret. In 1999, Mardirosians representative met in London with
persons thought to be interested in purchasing the paintings, but in fact
were persons connected with the Art Loss Register. From there, negotia-
tions went through a series of steps which included involvement of a Swiss
lawyer (representing Mardirosian). There were a number of complicated
maneuvers (one of which involved the original victim agreeing to give up
six of the works in order to obtain the return of the painting by Cezanne).
Ultimately the authorities arrested Mardirosian in 2007 for handling sto-
len goods. The last two of the remaining paintings, which had been seques-
tered in London in 2005 were eventually returned to the theft victim in
2010 (United States Attorneys Office, 2010, p. 1; Webb, 2008, pp. 5763).

This tale, like the previous one, demonstrates that decades can pass between
the theft and the return of the art to the victim (if that return is successful).
This case demonstrates that at times complications arise in the recovery of
stolen art that are a consequence of the international networks that become
involved, including the legal negotiations. Despite the fact that a number of
maneuvers were undertaken by the possessor of the works, the ultimate result
was the return of the art to the original victim of the theft.
Art Theft and Time Limits for Recovery 7

Some of these narratives are distinctively odd:

One of the most unusual cases of art theft is found in the odd story of
the late William M.V. Kingsland. For openers, his birth name, apparently,
was Melvyn Kohn, but it seemed he thought his new name better fitted
his aspirations of status. In what appeared to be an attempt to elevate his
image, Kingsland falsely had claimed that he lived on Park Avenue (his
small New York apartment was on the East Side on 72nd), that he had
attended Groton and Harvard (he had been to neither) and that he had
previously been married to French royalty (he had not). After his death in
2006 at age 58 (it might have been 62), when public administrators began
to assess the many paintings that were crammed into his small apart-
ment, including works by Copley, Henri, Corot, Lely, Toulouse-Lautrec,
and Picasso, among others, many were found to have been stolen, most
apparently in the 1960s and 1970s. One work, for example, a 1790 portrait
by Copley of the Second Earl of Bessborough, had been stolen in 1971
from the Fogg Art Museum at Harvard University. Unfortunately, that is
about all that is known. In fact, at this point it is not possible to say how
many of the over 300 works actually were stolen (although it is known
that several, such as the Copley, were). Important for present purposes, it
further is not known who actually was responsible for the actual thefts.
There is no mention in the available records of any acquaintance, friend,
or relative ever seeing any of the works in the apartment, so however
they came into his hands, Kingsland was not one who boasted to anyone
about the rare collection of art he has accumulated. There is no record
of him ever placing a work onto the art market, and thereby exposing
himself to the risks of discovery. The work by Copley, for example, was
quickly exposed as previously stolen when the art dealer who acquired it
after Kingslands death checked on its provenance, a simple process that
anyone might have undertaken had the work been placed on the open
market (Konigsberg, 2008).

There are many puzzles that arise in this narrative. For one, while we know
that works, such as the Copley, were stolen, we have no clue as to who actually
committed the theft. What we do know is that the work ended up with several
other stolen art objects that were kept in a small apartment (Kingsland obvi-
ously had taken many of the works out of their frames, since simply storing
300 works of art takes a large amount of space). For our purposes, of course,
we can note that once again there is a long period between the original theft
(1971) and the circumstances that identified the work as stolen (after 2006, so
8 Polk and Chappell

that the time gap was roughly thirty-five years). One feature of this case that
we will see in other accounts is that the works were essentially hidden away
from public view, so that even the most aggressive and arduous victim would
be unable to locate (and then recover through legal process) any of the stolen
works so hidden.
There are similarities between this account and the next case:

Upon his death in 1998, a wealthy American left some valuable paintings
to charity. Upon checking these for appraisal, however, it was established
that in the collection were a number of stolen paintings, including two
by John Frederick Herring, and one by E. Holliday. These three works had
been stolen in Wiltshire, England in 1985. Given that the American had
passed away, it was impossible to probe further to determine how the
works had been moved from England to the United States, and who was
responsible for the thefts. Fortunately, his widow cooperated fully with
authorities, including the Art Loss Register, and the works were success-
fully returned to their original owners (Webb, 2008, p. 53).

We see in this narrative once again the prominent role of the Art Loss Register
(since they were contacted as a part of the appraisal process). As in the previ-
ous Kingsland case, the death of the current owner meant that further inter-
rogation of the matter was closed, so that it is not possible to determine how
the paintings came into the hands of the deceased. The time period in this
tale is somewhat shorter (thirteen years) but still well beyond the common six-
year limitation period. Among other unexplained features was how the three
works had made the move from England to the United States, although given
the cooperation of the widow, this posed no problems for the recovery of the
works to the original owner.
The final of these narratives actually will involve a huge number of cases,
and is a result of the actions by Nazi Germany in World War ii:

The largest art theft ever recorded, by far, was the systematic looting
of art treasures from multiple sites throughout Europe by the German
authorities during World War ii. The consequences of these thefts still
reverberate through the art market, and hundreds of thousands of works
are still untraced. (Nicholas, 1995; Feliciano, 1997) While much public
attention has been focused on Jewish victims of this plunder, and cer-
tainly Jewish families were a major target for German action, actually
the victims include as well major museums and nation states that were
occupied during the war. After the defeat of the Germans, the now well-
Art Theft and Time Limits for Recovery 9

known museums unit of the us military attempted to trace the owners of


works, and were successful in the return of objects in thousands of cases.
Ultimately there were overwhelmed by the task and returned other thou-
sands of works back to what was determined to be their country of ori-
gin. Many of these nations were no more successful in at least the initial
attempts to locate the original victims, and as an alternative, distributed
the works to various museums throughout the country. Unfortunately,
these nations, and the museums involved, have not been swift in their
positive responses to claims by families of Nazi victims. The failure of
many of these suits, frequently because of the imposition of statutes of
limitations, proved frustrating to many who thereby felt they were being
robbed a second time, this time by what often appeared to be prestigious
and ethical state institutions. Finally, in 1998 a meeting was convened
in Washington, d.c., involving 44 participating nations which drew up
a set of principles to guide a more positive response to these claims,
one basic principle being that the parties involved should attempt to
resolve the matter through negotiation and arbitration, rather than seek-
ing a solution through the court process. While considerable attention
has been paid to this 1998 Washington Conference, the principles which
evolved from that meeting, however they might have been endorsed by
the 44 nations, do not address the legal problems involved, including
the time limitations problems. Some nations, mainly those in Western
Europe where this has been a reasonable volume of such claims, have
created (as in The Netherlands) a restitution committee that assumes
responsibility for negotiating a resolution to the claims of those who
argue that they want the return of their property, stolen by the Germans,
that is now in the hands of museums in the given nation. Those seeking
redress today face major barriers in their search for restitution. (Nicholas,
1995; Feliciano, 1997)

This narrative is unusual in many respects. It involves literally hundreds of


thousands of cases of claims, in some cases by families of original victims, in
others claims by nations or prominent museums. The events took place several
decades ago, and far exceed the time limits found in statutes of limitations for
such cases. Often at considerable expense, the claimants will have exhausted
the legal options available to them. It was precisely such a problem that cre-
ated the background for the 1998 Washington Conference, but as noted, that
conference by its very nature could not, and did not, address the law relating
to time limits which poses such an overwhelming difficulty when these cases
are brought before a court of law.
10 Polk and Chappell

The Point?

A consistent theme that runs through these various cases is that the time
between a theft and any possible discovery and action by the victim of that
theft can involve many years, if not decades. In some of these cases, the nature
of the theft has meant that the possessor of the objects, for reasons that may
not be clear, has essentially kept the art hidden away so that it is not viewed by
a public that might note problems in the provenance. Added to this is the fact
that the passage of time in many instances is accompanied by the geographic
movement of both the parties and the objects, so that an object may end up
far from the location of an original theft, and those representing the interests
of the original victim (often the remaining family members) may have been
forced by circumstances over the years to have moved to a new country located
far from the location of the theft.
In her review of time limits laws, Redmond-Cooper (1998, p. 145) points out
that all legal systems constrain the time within which legal redress might be
sought. However, the history of these time limits, and the circumstances dealt
with by courts of law, do not easily fit the circumstances of cases of stolen
art that are brought before the law. In particular, legal systems have tended to
favor relatively short time limit periods which do not recognize the conditions
met in many narratives of art theft (as seen above). One commonly encoun-
ters the imposition of a six-year time limit within which an aggrieved victim
might pursue their stolen works. In English law, the statute of limitations law
which was passed in 1623 provided a statement of this six-year rule that has
tended to be passed onward to the various countries which have adopted the
Common Law. These laws, as should be expected, vary considerably in form as
they have been adopted and changed over the years by different jurisdictions.
In England, for example, changes made in 1980 mean that while the six-year
rule provides the general statement of the time limitations, in the case of theft
of an object, the period can be considered to run from the time that a good
faith purchaser acquires the object (Redmond-Cooper, 1998, p. 147). An impor-
tant corollary which reverberates through the Common Law countries is the
nemo dat principle (the full phrase is: Nemo dat quod non habet, which trans-
lates loosely as no one gives what he doesnt have) that states that not only
is a thief unable to gain title, but also they are not able to give legitimate title
to a stolen work. In England, changes to the statute of limitations have made
it possible for a good faith purchaser in theory to obtain subsequent title to a
work that has been stolen, but such a purchaser, if a case comes to court, may
have to prove their good faith in terms of their due diligence in attempting to
Art Theft and Time Limits for Recovery 11

determine the provenance of the work (see discussions by Redmond-Cooper


on pp. 148149; and Kenyon and Mackenzie, 2002).
The law in Australia, where the present authors reside, tends to be much
more restrictive in its application of the six-year rule. While there are impor-
tant differences in the various jurisdictions within Australia, a general rule, as
stated by Kenyon and Mackenzie is: The owner has six years from the date of
the theft to sue whoever comes into possession of the artwork. There are a
few openings in some jurisdictions for other issues (for example, S. 27 of the
Victorian limitations law provides for an alteration of the time-limit formula
where fraud can be proven). In general, however, the six-year rule in Australia is
absolute and offers no hope at all to victims such as those in the cases reviewed
in many of the narratives above. In the words of Kenyon and Mackenzie:

The Australian position means that a dispossessed owner of a stolen art-


work is unlikely to be able to sue more than six years after the theft. At
that stage the former owner has no title to the artwork.

The situation in us law is quite different. As is the case with other Common
Law countries, throughout the United States there is the general principle that
a thief will not be able to benefit from the crime (as expressed in nemo dat).
As argued by Redmond-Cooper (1998: 154) the states (especially New York and
California) have ...developed limitation of action principles which strongly
favor owners and property rights. In these two states in particular (where most
of the actions regarding art recovery in the United States are lodged), the legal
statues provide that the time limitation clock does not start to run until the
dispossessed owner either comes into possession of knowledge about the
whereabouts of the previously stolen objects (as in California) or takes some
action regarding these objects (as in New York).
In looking at these different approaches, it seems clear that, in jurisdic-
tions such as Australia, the workings of the art market and the theft of art
within that market are such that in many cases the law operates against the
interests of victims and instead favors those who follow on from the theft.
The imposition of a flat, distinct, six-year rule renders many victims without
recourse to the law as a mechanism for redress, regardless of the steps they
may have taken to locate stolen artwork. One might expect that some consid-
eration would be given to victims, as in the Bakwin case cited above, who go
to the expense of even hiring private detectives to search out the stolen works,
but when the time limitation rules are rigid, even sympathetic judges will find
their hands tied.
12 Polk and Chappell

It must be acknowledged early on, of course, that there are valid legal rea-
sons for limiting the time within which claims might be lodged. A classic
defense of such limits can be traced back to an English court decision of 1820,
as illustrated in the following statement:

Limitation of action legislation reflects the policy that lengthy posses-


sion must ultimately operate to preclude a remedy in relation to a title,
however clear and indisputable, when a titleholder comes too late.
The legislation recognises the publics interest in having a certain fixed
period, after which the possessor may know that the title and right can-
not be called in question in order to avoid an opening to interminable
litigation, exposing parties to be harassed by stale demands, after the wit-
nesses of the facts are dead, and the evidence of the title lost (Streeton-
Dodd J, as cited by Habersberger J, in the Victorian case of Levy v Watt
[2012] vsc 539. The original citation being referred to in this quote is to
Sir Thomas Plummer mr in Marquis Cholmondeley v Lord Clinton [1820]
2 Jac & W I, 140; 37 er 527, at 577).

The classic statement in law of the principles involved, found in the 1820 case
cited, is: Vigilantibus et non dormientibus lex succurrit (which can be trans-
lated roughly as: the law assists those that are vigilant with their rights and
not those that sleep thereupon). The problem, of course, is that the time limit
in many jurisdictions runs regardless of whether or not the original victims
sleep upon their rights.

Consideration of Cases Where the Time Limits Questions


Are Relevant

The importance of our concerns can be made a bit clearer by consideration


of cases, the first two of which come from Victoria in Australia. The first of
these involves a case that has proceeded to a judgment involving the recovery
of stolen art:

In 1953, a Mr. James Watt purchased a painting by Rupert Bunny entitled


Girl in Sunlight. In 1991, Watts house was broken into, and the painting,
and a television were stolen (no other art objects were taken). The theft
was reported to the police by the owner, and was widely reported in the
local press. The police investigation was not successful, and four months
after the theft the owner advertised in the local media in an attempt to
Art Theft and Time Limits for Recovery 13

obtain information that would lead to the recovery of the work (photos of
the painting were included in the advertisements). Watt died in 1993, and
his heirs continued the search for the stolen work, again circulating infor-
mation in the local newspapers, offering a reward, and even calling upon
the services of a private investigation agency. None of these steps were
successful. In early 2010, the heirs became aware of a major exhibition
in Melbourne of the works of Rupert Bunny. They used this occasion to
send emails and otherwise contact those connected with this exhibition.
A source came forward with the information that he had seen this paint-
ing two years before, but also saying he would divulge this information
only to competent authorities. The police were contacted, and an inves-
tigation was carried out. Ultimately a search warrant was issued, a house
was searched, and the painting was discovered and seized. A magistrate
ordered that the work temporarily be given back to the heirs of the origi-
nal victim. The matter, however, did not stop there. It transpired that the
possessor of the painting was an attorney who had received the painting
as an inheritance from a client. There was no proof that there was any
wrong-doing on the part of the attorney, or of his client. As a trained law-
yer, he knew, of course, about the six year rule, which had long ago expired.
Since a confident case could be advanced for the return of the painting
to the possessor, rather than the original victims, because of the expiry of
the time limits in this case, the lawyer sued for the return of the painting.
In his judgment Habersberger J found that the person who had made the
bequest of the stolen work ...never had any valid title to the Painting
and therefore could not pass a valid title to [the lawyer making the claim]
adding that ...nemo dat quod non habet. While the reasoning in the judg-
ment is detailed and complex, the ultimate conclusion was that, particu-
larly given s27 or the Limitations Act in Victoria, and the specific provision
of s27(b) of that Act, the heirs of Mr. James Watt were entitled to retain
possession of the painting. This ruling has very recently been affirmed on
appeal (see Levy v Watt & Anos (2014) vsca 60).

In this case, we have a rare example of an Australian civil action which con-
cerns an art theft, and furthermore which hinges on rulings regarding time
limits. When confronted with the facts of this story, most Australians are sur-
prised to find out that the original owners do not have assured title to the work.
As a result of the six-year rule, in many circumstances the only possible result
would be that the title of the theft victims had been extinguished. In his con-
cluding comments that provide the basic supports for his determination, the
judge draws primarily upon the section (s27) of the Victorian Limitation Act
14 Polk and Chappell

that deals with fraud, rather than his earlier comments regarding the nemo
dat principle (although the comments seem to be explicit in this regard since
the Judge found that the person who previously had bequeathed the painting
never had any valid title to the painting and therefore could not pass a valid
title) (Levy v Watt [2012], p. 548).
A second Victorian case has not yet resulted in any formal action:

In 1940, the National Gallery of Victoria (ngv) was successful in obtain-


ing what they thought was a major work by Van Gogh, Head of a Man.
For over 70 years, the work was displayed as one of the gems in the ngvs
European art collection. Questions began to build about its origins, how-
ever, since many claimed that it was not an authentic Van Gogh. Finally,
in 2006 the gallery agreed to send the work to Amsterdam for tests to
determine whether it was genuine. In 2007, ngv was informed that the
various tests indicated the painting had not been done by Van Gogh.
The gallery at that time took great pains to indicate that the work was
an authentic product of the time, and done by a skillful artist possibly
working in Paris at the same time as Van Gogh (ngv, 2007). The trou-
bles for the ngv did not stop there, however. In late 2013, word began to
circulate that the painting might be one of thousands of works looted
in the Nazi period in Europe. It finally emerged that the work had been
owned by a Jewish businessman, Richard Semmel, living in the 1930s in
Germany. While he lost control of the painting through a sale in 1933 in
Amsterdam, he was personally successful in first fleeing to Holland, and
then to the United States. When he died in 1950, he left his interest in the
painting to a family friend who had cared for him in America. In 1958, the
interests of this friend upon her death passed to her daughter who had
also fled Germany, ending up in South Africa. As of late 2013, the current
heirs were considering their options in an attempt to recover the painting
(Chadwick, 2013).

While there is much of interest in this account, it does not concern art theft.
However, it does bring us into the realm of art in the Holocaust, when the Nazi
regimes stole hundreds of thousands of art works. Often Jewish families were
placed in circumstances of economic stress where under duress they were
forced to sell off their possessions (including art works). When the heirs of
individuals caught up in the Holocaust attempt to recover their lost posses-
sions (including what often were clearly false sales), typically they run into
legal rules which state that the time period for lodging recovery actions long
ago has expired. In the case of the ngv work, however, there are many features
Art Theft and Time Limits for Recovery 15

of the account which would serve to provide secure title to the gallery. The
work was purchased some seven years after the original sale in 1933, presum-
ably on the open market (although by then in Europe wwii had begun, and
that would obviously create a distinctive set of conditions upon the market).
It also probably can be assumed that the ngv would be considered a good
faith purchaser. The gallery certainly had open and public possession of the
work, since it was displayed prominently in the European art section of the gal-
lery. Their open and notorious possession of the work for over seventy years
would pose major problems for any claimant. Further, the events of the 2006
and 2007 authentication review were widely known throughout the art world,
since the finding that a work held by a major art gallery was not authentic was
notably newsworthy. In short, that story was widely covered internationally.
Even the period of the finding that the work was not by Van Gogh (2007) to
the present time (2014) exceeds the six year rule, and it could certainly be con-
cluded that the claimants ought to have begun formal action in that period.
In fact, these heirs have brought a total of five claims forward that have been
considered by the Dutch Restitutions Committee, and, in a majority of these
claims (three of the five), the findings have not been favorable to the heirs. To
date, no formal claim has been made by the heirs to the ngv. Whether they
initiate legal proceedings or make an appeal directly either to the ngv or to
the Australian Government, only time will tell if the circumstances warrant
the surrender of title by the ngv (certainly the Australian Government has
indicated its willingness to cooperate with victims of the Holocaust).
The final case is one that has some similar features to the ngv matter:

In November of 2013, authorities in Germany revealed that more than


1400 works of art had been found in the flat in Munich of an 80 year-old
man, Cornelius Gurlitt. There are many distinctive features of this hoard
of art objects. First, the sheer size is overwhelming. At any one time, for
comparison, a gallery such as the Museum of Modern Art in New York
will display 500 works. Any of us who have stored art would know that
the only way that it would be possible to store more than 1400 works in a
small apartment would be to take the works out of their frames. Second,
the artists represented in the collection are major figures in the art world,
including such names as Picasso, Matisse, Chagall, Beckman, Nolde,
Grosz, Dix, and numerous others of the same rank. Third, a large pro-
portion of the works were what the Germans referred to as Degenerate
Art, that is, works of the late 19th and early 20th century that were con-
sidered too modern for the tastes of Hitler (although some works in the
hoard, such as an engraving by Durer, or a work by Canaletto, certainly
16 Polk and Chappell

would not be in this category). Fourth, while collections originally owned


by Jews were prominent in this hoard, many were from national collec-
tions and museums in countries occupied by the Germans, and, as well,
many of the Degenerate artists were German, and their works were
taken down from walls of museums and collections inside of Germany,
often owned by the government. Fifth, the possessor of the works for
the past 60 years or so, Mr. Gurlitt, who has very recently died, had been
fundamentally reclusive, and certainly had not shown the 1400 works
in public. As a consequence, there would be no way that an aggrieved
original theft victim could know where the work was located, so that any
action might be taken. While it might be understood that there is a bias
in law toward those who are vigilant in pursuit of their interests, and
who do not thereby sleep upon their claims, there is no way that the
most informed individual would have the slightest knowledge of where
these art works were located so that action against Mr. Gurlitt might have
been initiated (see in general Central Registry of Information on Looted
Cultural Property 19351945 [2014]: the Gurlitt Case).

At this point it is not possible to say what will happen to this treasure trove
of art. One factor that overrides many others is that in Germany, there is a
thirty-year time limitation that is absolute. If applied, this rule would mean
that all original ownership titles to works held for the lengthy period involved
here would be extinguished. A second factor is that prior to his death the pos-
sessor of these works appeared willing to consider or negotiate a resolution to
the title question using the 1998 Washington principles. A third issue is that
there is no clear pattern of provenance or ownership history to the individual
items in the hoard. It seems quite possible that some of the works might have
been either stolen from the German authorities or that at least the possession
of these paintings by Mr. Gurlitts father (from whom he inherited the hoard)
was problematic. At the same time, it also seems clear that for some objects,
Mr. Gurlitt had clear provenance and title (although there are few details avail-
able in the public media upon which firm conclusions regarding such observa-
tions might be supported).

Conclusions

There are two major observations that can be made on the basis of what has
been reviewed here. First, the accumulating data on art thefts indicates without
question that often thefts of art are not solved within the common time limita-
Art Theft and Time Limits for Recovery 17

tions set in civil laws of many countries, especially those such as Australia that
have a six-year limit. We have observed many instances where the works are
managed in such a way that either they are completely hidden away or have
only limited viewing by individuals not likely to report the existence of the
works. When a short time-limit period is imposed, these circumstances result
in a distinct disadvantage to the victims of the original thefts, even when they
engage in numerous activities in an attempt to find their stolen art (such as
advertizing or hiring of private detectives). Despite such activities by the Watts
family in the Levy v. Watt case reviewed above, had it not been for the specific
provisions of s27 of the Victorian Limitations Act, the six-year rule would have
resulted in their loss of title. While any corrective steps in terms of changes
to relevant law on limitation periods here would require involvement of both
lawyers and politicians, the direction of the necessary changes should be clear.
While maintaining the legal intent of limitation periods (avoidance of stale
claims, for example), the legal alterations would be in the direction of adding
into the limitation periods a provision that the time clock would only begin
to run when the original theft victims (or their heirs) might reasonably be in
possession of the knowledge of the location of the works in question.
Second, a glaring oversight in social policy has emerged in countries such as
Australia where there is no access to a theft register. In other countries, not only
has the vital presence of the Art Loss Register or the Interpol register of stolen
works resulted in the location of previously stolen works (see Webb, 2008), but
it also has come to provide an important step in 1) victims of theft demonstrat-
ing through consulting the alr the fact that they were not sleeping on their
loss, and 2) potential purchasers can consult such registers as a demonstration
of their due diligence in future cases where questions might be raised regard-
ing their pre-purchase care in terms of assuring that a legitimate title to the
work would result with the purchase. For a nation such as Australia, creating
such a register involves some complications. One, to be of any use, theft reg-
isters have to contain information regarding a reasonable number of objects
which have been stolen in the past. Therefore, a period of research prior to
the implementation of the register is necessary to collect information on past
thefts. Two, maintaining such registers involves costs, and these ultimately
involve some form of user pay system, combined perhaps with funding from
either governmental or business bodies. In any case, to date in Australia it has
been the costs involved that have prevented the development of a register of
known art thefts.

These two issues flow out of a criminological analysis of the workings of the
art market and the role of theft in that market. It constitutes an odd p
roblem,
18 Polk and Chappell

because in general theft is not a common occurrence in the secondary art


market. When instances are found, however, it seems clear that the criminal
justice system is poorly prepared to cope. In only a handful of countries (the
United Kingdom, the United States, and Italy, for example) are there avail-
able police with any background or experience to cope with the problems
posed by art theft. Further, as has been demonstrated in the foregoing analysis
(especially that dealing with Australian cases), most often, the case moves in
a justice system where the professionals are not prepared, and the laws are
inappropriate, to deal with the substantive and technical issues presented by
the theft.

References

Central Registry of Information on Looted Cultural Property 19351945 (2014). Germany:


Gurlitt Case. http://www.lootedart.com/QDES2J142461 (accessed 25 May 2014).
Chadwick, Vince (2013). ngv Vincent van Gogh Artwork Embroiled in Global Intrigue
as Sisters Seek Its Return. Sydney Morning Herald (22 December), http://www.smh
.com.au/entertainment/art-and-design/ngv-vincent-van-gogh-artwork-embroiled-
in-global-intrigue-as-sisters-seek-its-return-20131221-2zs4e.html (accessed 22 January
2014).
Feliciano, Hector (1997). The Lost Museum: The Nazi Conspiracy to Steal the Worlds
Greatest Works of Art. New York: Basic Books.
Gerstenblith, Patty (2008, Second Edition). Art, Cultural Heritage, and the Law: Cases
and Materials. Durham, North Carolina: Carolina Academic Press.
Kenyon, Andrew and Simon Mackenzie (2002). Recovering Stolen Art: Australian,
English and us Law on Limitations of Action. University of Western Australian Law
Review 30: 244250.
Konigsberg, Eric (2008). Two Years Later, the F.B.I. Still Seeks the Owners of a Trove of
Artworks. The New York Times (12 August; New York Edition), B3.
National Gallery of Victoria (ngv) (2007). Not a Forgery, But Not a Van Gogh. Gallery
Magazine (September/October), 10.
New York Post (2012). Lichtenstein Painting Missing for 42 Years Turns Up in Manhat
tan Warehouse. New York Post (2 August), http://www.nypost.com/p/news/local/
manhattan/lichtenstein_painting_missing_for_xzvaEZFSIkbGdCN.UE6OMVM
.html (accessed on 18 January 2014).
Nicholas, Lynn H. (1995). The Rape of Europa: The Fate of Europes Treasures in the Third
Reich and the Second World War. New York: Vintage Books.
Redmond-Cooper, Ruth (1998). Time Limits in Actions to Recover Stolen Art. Pages
145162 in Norman Palmer (ed.), The Recovery of Stolen Art. London: Kluwer Law
International.
Art Theft and Time Limits for Recovery 19

Shapiro, Ian (2014). Flea Market Renoir Ordered Back to Baltimore Museum of Art by
Federal Judge. Washington Post (11 January), 1.
United States Attorneys Office (2010). Artwork Stolen Over Three Decades Ago
Returned to Owner. Press Release of the United States Attorneys Office, District of
Massachusetts, Boston, Massachusetts (17 November).
Washington Post (2007). Stolen Rockwell Painting Found in Spielbergs Collection.
Washington Post (4 March), http//www.washingtonpost.com/wp-dyn/content/
article/2007/03/02/AR2007030202133.html (accessed 19 January 2014).
Webb, Jonathan, (2008). Stolen: The Gallery of Missing Masterpieces. Toronto: Madison
Press Books.
Part 2

The Relationship between Cultural Heritage


Crimes and Organized Crime


CHAPTER 2

Displacement, Deforestation, and Drugs:


Antiquities Trafficking and the Narcotics Support
Economies of Guatemala*
Donna Yates

1 Antiquities and Narcotics Trafficking: A Connection?

The possible connection between the illicit traffic in antiquities and the illicit
trafficking of narcotics is often discussed but poorly understood. It is clear that
many of the primary centers of narcotics cultivation and transport have also
experienced endemic looting of archaeological sites (e.g., Afghanistan, the
Andes, Central America, and Southeast Asia) and many of the primary cen-
tres for narcotics demand are also considered to be the demand end of the
illicit antiquities market (e.g., the United States, Europe). The susceptibility of
the market in illicit cultural objects to money laundering has been established
(Bowman 2008; Brodie 1999, 2009; De Sanctis 2013; Christ and von Selle 2012;
Mackenzie 2011; Ulph 2011). Of those organized trafficking groups involved in
a diversified portfolio of illicit activities, most are dealing in drugs as well as
other commodities (Mackenzie 2002: 2). The market prices obtained for antiq-
uities seem too high for such organizations to ignore. It makes sense that
organized criminal groups involved in drug trafficking would also engage in
antiquities trafficking when it was convenient. Yet, for the most part, assertions
that these two illicit markets are connected during sourcing, transit, or sale
remain speculative at best.
In this chapter I will present a preliminary evaluation of existing evidence
for the connection between antiquities trafficking and narcotics trafficking in
Central America, particularly through the Petn department of the Republic of
Guatemala, the heartland of the ancient Maya. I will begin with an overview
of what is known about the historic structure of Central American antiquities
looting and trafficking networks. Two phases of semi-organized and organized

* The author has received funding for this research from the European Research Council under
the European Unions Seventh Framework Programme (FP7/20072013) / erc Grant agree-
ment n 283873 gtico, the Leverhulme Trust, and the Fulbright Program.

koninklijke brill nv, leiden, 5|doi .63/9789004280540_003


24 Yates

looting in the region are identified, the shift occurring due to changes in regu-
lation and enforcement. This is followed by a discussion of the rise of narcotics
trafficking in the region as it relates to post-conflict land distribution: a situ-
ation that brings both narcotics traffickers and the victims of their support
economies closer and closer to archaeological sites. I will then present two
preliminary case studies of archaeological sites exploited, at least in part, as a
result of the activities of narcotics cartels. I will conclude with a short assess-
ment of what evidence exists for antiquities being looted and moved by nar-
cotics traffickers and what realistic connections appear to exist between these
two illicit networks.

2 The Looting of the Petn

Compared with the well-known ancient civilizations of Europe and Western


Asia, archaeological interest in the Maya culture came relatively late, partially
because of the forbidding nature of deep-jungle sites. The outside world was
first exposed to Maya ruins through the writings of John Lloyd Stephens (1841;
1843) and the enchanting drawings of Frederick Catherwood. As a result, for
the next sixty years, the Maya heartland (in what is now Belize, El Salvador,
Guatemala, Honduras, and Mexico) was the stomping ground of adventur-
ers who conducted rudimentary recording of archaeological sites and limited
removals of Maya artifacts. The first truly archaeological excavations in the
region were conducted at the start of the twentieth century (Yates 2013).
The art and antiquities market, primarily in the United States, underwent
a major upheaval in the first half of the twentieth century. As aesthetic taste
in contemporary art shifted to what has been termed modern forms and
degrees of abstraction, a parallel interest arose in what has been erroneously
(and offensively) termed Primitive or Tribal art. Defined, largely, against a
classical Western model, this gross lumping of disparate cultural traditions is
described as including ancient and modern cultural objects originating from
Oceania, Africa, parts of Asia, and the Americas. The appeal of these objects
was their non-Westernness, that they did not conform the familiar Greek and
Roman refined trope, which complemented the oeuvre of the day. Demand
for these antiquities grew as connections were drawn publicly between them
and famous artists (e.g., Picasso, Kahlo, Giacometti, Rivera) and as powerful
collectors began to source them from their countries of origin. The founding
of Nelson Rockefellers Museum of Primitive Art in New York, which opened to
the public in 1957 (its collection was transferred to the Metropolitan Museum
Displacement, Deforestation, and Drugs 25

of Art in 1976), can be seen as a watershed for the collection of Maya and other
Primitive cultural property. The Maya were on the market.
Available evidence, largely gleaned through the recollections of archaeolo-
gists, suggests that what we now see as the endemic looting of nearly every
known Maya site began roughly around 1960 (Coggins 1969). Collectors and
museums, inspired by such collections as Rockefellers and eager to fill the
Maya-shaped gap in their collections, demanded the absolute best that the
Maya had to offer. This meant that the large carved stone stelas that both
depicted the doings of Maya lords and recorded Maya history in a then-
undeciphered script, as well as large decorated architectural elements from
Maya temples, were looted, trafficked, and sold on the market.
Clemency Coggins, in a landmark paper that is often credited with expos-
ing the gravity of the looting situation, characterized the 1960s as a time
when bands of looters moved freely through the Maya region, particularly
the sparsely populated and heavily jungled regions of Guatemalas Petn
department, mutilating large stone monuments with power tools (Coggins
1969: 94). Well-recorded and officially-protected Maya sculptures were traf-
ficked into the United States, often in a heavily damaged state, where they
were bought by collectors and museums. Countless Maya sites, such as
Ixtontn and Site Q (La Corona), were looted before they were even located
by archaeologists. It was a terrible time.
The looting of the Petn in the 1960s and into the 1970s is intimately tied to
two deep-jungle economies: the trade in rare hardwoods and the tapping of
gum trees for chicle. In both instances, the people (usually men) at the bottom
of the supply chain moved through vast tracts of wilderness searching for spe-
cific types of trees. In doing so they encountered recorded but poorly protected
remote sites as well as Maya cities that were unknown to archaeologists.
In the first half of the twentieth-century archaeologists worked closely with
these men, paying them for information about new sites and carved monu-
ments. Chicleros (chicle hunters) are credited with locating many important
sites in the Petn (e.g., Uaxactn, Xultun, Naachtun; even the unesco World
Heritage Site Calakmul was discovered by an American chicle company bot-
anist in 1931). However, by the 1960s and 1970s, the market for Guatemalan
chicle had largely bottomed out, and the financial gains for participating in
the looting and trafficking of antiquities grew. Chicle hunters could expect
to report unknown sites to local trafficking intermediaries for rewards higher
than those archaeologists could pay, and they could participate in the looting
of sites themselves for further gain. For an ethnographic study on the connec-
tion between looting and chicle hunting, see Paredes Maury (1996).
26 Yates

Very little academic research has been conducted on the organization of


these historic antiquities trafficking networks, but available evidence indicates
that the operations were top-down, specialized, and large-scale. Two distinct
phases of looting can be seen in the looting of the Petn, with focus shift-
ing based partially due to shifting tastes in the art market but mostly due to
changes in the law and its enforcement.

2.1 Phase 1: The Stela Period


During the 1960s and into the 1970s, much looting was focused on stone ste-
las and heavy architectural elements. These stelas were broken or thinned,
meaning that the carved faces were sawed from the larger monuments by
power tools to ease transport. The movement of such large objects out of the
jungle, across land or sea, and into the United States or Europe required at least
some degree of criminal organization, although the trafficking routes associ-
ated with the movement of these objects are poorly defined.
One exception is the case of the looting and trafficking of Stela 2 from the
Guatemalan site of Machaquil (Graham 2010: 436438). In 1971 this stela was
thinned and then cut to pieces by Guatemalan looters who sold it to a Belizean
national; Guatemalan officials were bribed at this point. It was then passed
on to three Americans, one of whom was the brother-in-law of a Petn-based
lumber company owner; another had a shrimp-export business in Belize. The
stela was concealed in a shipment of shrimp and moved to Miami; the box that
held the sculpture was labelled personal effects. A California-based restorer
was brought in to restore the sculpture, which was then placed in a car and
driven to various locations to be shown to potential buyers including New York,
Georgia, North Carolina, and Wisconsin before finally arriving in California,
where it was purchased by the man who restored it via financing from a Texas-
based oil businessman who expected a cut of the profits from sale.
Working off a tip from archaeologist Ian Graham, the fbi seized the stela
in California. In 1973 both the restorer and one of the traffickers were found
guilty on charges of conspiracy to transport stolen goods in interstate and for-
eign commerce and causing the transportation of stolen property in interstate
commerce (Hughes 1977: 1949). The stela was returned to Guatemala.
The Stela Period came to an end largely because of the passing of us
Public Law No. 92-587 9 U.S.C. 2091 in 1972: Regulation of Importation of
Pre-Columbian Monumental or Architectural Sculpture or Murals. This law
states quite clearly that No pre-Columbian monumental or architectural
sculpture or mural which is exported (whether or not such exportation is to
the United States) from the country of origin after the effective date of the
regulation...may be imported into the United States unless the government
Displacement, Deforestation, and Drugs 27

of the country of origin of such sculpture or mural issues a certificate...which


certifies that such exportation was not in violation of the laws of that country.
Any piece of pre-Columbian monumental sculpture must have satisfactory
evidence that such sculpture...was exported from the country of origin on
or before the effective date of the regulation. In other words, any Maya sculp-
ture entering the United States was to be considered suspect, and newly looted
pieces would be nearly impossible to openly sell.

2.2 Phase 2: The Vase Period


Although the market for looted Maya sculptural pieces appears to have abated,
interest in collecting Maya art did not. Focus shifted to smaller Maya pieces:
eccentric flints and jades, figurines, and, most notably, exquisitely painted
Maya vases. Although these small items had been popular on the market for a
while, in the mid-1970s traffickers found that they were not only relatively easy
to transport, but were also not covered by the regulations against the import of
monumental architectural elements into the United States.
Maya vases are most commonly found in tombs and tombs are most com-
monly found in mounds, the remains of Maya buildings and temples. Thus to
locate vases, these structures must be tunnelled into at great risk to the looters
because of the possibility of building collapse. This phase of looting may have
been more destructive than the first at many sites because of these tunnel-
ling operations. At the Guatemalan site of Naranjo, for example, more than
270 tunnels and trenches have been documented (Fialko 2005). Over 45% of
the mounds and 75% of the building groups at Ixtontn (now in a hot region
for narcotics smuggling) were already cut with looters trenches, causing great
damage and collapse, before the site was even located by archaeologists in 1985
(Laporte and Torres 1988: 53).
A moderately well-documented example of an organized network operating
in this period of looting can be seen in the amassing of the so-called November
Collection of Maya pottery that is now in the possession of the Museum of
Fine Arts, Boston (see Yates 2012). Through the mid-1970s and into the 1980s,
Maya sites in the eastern Petn were systematically targeted for the looting of
polychrome pottery. The looting gang(s), probably composed of chicleros and
the likes working outside of the gum-collecting season, used dynamite and dug
massive trenches through thousands of Maya buildings in search of ceramic-
filled tombs. Ancient buildings collapsed and lives were likely lost.1 Sites
targeted include, but are certainly not limited to, Tintal, Nakbe, and Narajo.

1 A common rumor at archaeological sites in the Petn is that looters trenches are filled with
both ancient and modern burials.
28 Yates

This large-scale venture was apparently at the behest of a United States-based


entity that, to some degree, directed it (Yemma and Robinson 1997).
Investigative reporting and a review of business registration records show
that in 1981 a Florida-based collector named John B. Fulling created Art
Collectors of November, Inc., registered on 7 April 1981, as a domestic for-
profit corporation in Fort Lauderdale (Florida State Reference id: F28816). It
appears as if this corporation was created specifically to finance the trafficking
of Maya vases into the United States and to sell them to collectors and muse-
ums. In 1987, Landon T. Clay, former chair of the Eaton Vance Corporation
and founder of the Clay Mathematics Institute in Cambridge Massachusetts,
bought the November Collection from Art Collectors of November, Inc. and
donated it to the Museum of Fine Arts the following year. Academics urged the
museum to decline the donation but were ignored (Slayman 1998; Yemma and
Robinson 1997).

3 Continued Conflict and the Rise of Narcotics Trafficking

In the wake of the Guatemalan Civil War (peace accords were signed in
December 1996 ending the thirty-six year conflict), the Petn region has
become a major international center for narcotics trafficking and related illicit
activities. Because of its isolation and status at the periphery of Guatemalan
society and governmental control, the Petn has become a favoured route
for the smuggling of cocaine, migrants, and other commodities across borders
(Briscoe 2008). This route became particularly important in 2006/2007 when
Mexican narcotics cartels moved much of their operations into the region
(Dudley 2011: 3; McSweeney et al. 2014: 489).
The territories directly corresponding to Guatemalas frontiers with Mexico
and Belize have seen the progressive encampment of armed groups, or heav-
ily armed criminal networks (Briscoe 2008: 5). These groups have consoli-
dated regional control with violence and by harnessing regional traditions of
quasi-legal or illegal but uncontrolled economic practices for their own gain.
Negligent and distant control from the central government has led to decades of
unauthorized logging, poaching, clearance of protected land, antiquities loot-
ing, and other illicit behaviour. However, the growth of narcotics cartels in the
Petn in recent years, particularly through the influence of controlled munici-
palities, has optimized and organized existing Guatemalan illicit economies
(Briscoe 2008: 5).
Government corruption has played a major role in the build up of these
networks in Guatemala. Organized crime permeates nearly all of Guatemalas
Displacement, Deforestation, and Drugs 29

government institutions (Zander and Drr 2011). Briscoe (2008: 7) records that
Guatemalas first major mafia network, Grupo Salvavidas, was an offshoot of a
group of corrupt customs officials. At the close of the civil war, large numbers
of Guatemalas terrifying Kaibiles, jungle-based troops trained in guerrilla and
counter-guerrilla operations, were purged and subsequently hired by the car-
tels (Briscoe 2008). Regular purges of Guatemalan military and police forces
result in former military personal joining narco-trafficking groups and com-
pleting training in Guatemala-based narcotics camps (Dudley 2011: 7).
One of the lasting issues of post civil war Guatemala has been contin-
ued dispute over land claims in, among other locations, the Petn. The 1996
peace accord sought to solve the countrys 40 years of violent, racially-based
land access discrimination with market based land reform aimed at giving
campesios (a difficult term to translate but usually rendered in English as
rural peasants) access to credit rather than effect reparations or land redis-
tribution (Ybarra 2009: 48; Zander and Drr 2011). This has since become an
unfunded mandate. Many indigenous and campesio communities were tar-
geted and displaced during the Civil War, the army having burned their [land]
titles along with their homes and, at times, their loved ones (Ybarra 2009: 48).
These people often moved north to the Petn seeking unsettled land. The larg-
est parcels of land in that region were awarded to generals and government
allies who still retain formidable power. At times these officers were able to
drop markers from helicopters to officially claim lands for themselves (Zander
and Drr 2011). Much of this land has been converted into cattle ranches, often
held by absentee owners.
Displaced campesios migrated to the Petn and moved from village to
village, often in family or village groups, in search of land that had not been
claimed by anyone else (Zander and Drr 2011). Upon finding an area that
appeared to have no other claims, they would work to register title, a process
that is both opaque and complicated. Educational and linguistic barriers have
prevented rural and indigenous access to required paperwork to make land
claims. Also, as it was nearly impossible to tell if land had been claimed by
others, migrants often had to move several times before successfully gaining
title to a tract of land (Zander and Drr 2011).
At present, all of the territory of the Petn has either been declared a nature
reserve (roughly 58% of the department) or has become official private prop-
erty. This means that competing stakeholders and groups are left scrambling
for what is already claimed. Once land claims are awarded to locals by the gov-
ernment, many campesios transfer title to that land to another entity and
then move on (Ybarra 2009: 49). These title transfers are extra-legal in that
this land is meant to be kept under the tutelage of the Guatemalan state for
30 Yates

twenty years (Zander and Drr 2011), but there is little or no enforcement of
this rule (McSweeney 2014: 490). There are a number of recorded reasons for
why campesios sell their newly awarded land. Some are economic, but most
relate to corruption and pressure from the powerful, often through threats of
extreme violence (Zander and Drr 2011).
Guatemalans stereotype inhabitants of the Petn as poor, ignorant, hav[ing]
never before seen large amounts of cash, or [as] incapable of permanent agri-
culture and the Maya in particular as barely above the level of beasts (Ybarra
2009: 49). They are regularly placed under duress to sell by, among others,
cattle ranchers associated with narcotics trafficking (called narco-ganaderos)
who use ranching as a front for narcotics-related money laundering and drug
plane landing and support (Ybarra 2009: 51; Zander and Drr 2011). The Petn
has been deemed an ideal location for planes transporting drugs from South
America to refuel and transfer drugs into trucks (oas 2013: 49). Numerous
landing strips have been built in cleared areas, including one with three run-
ways nicknamed the international airport (oas 2013: 49). In Southeastern
Petn in 2011, Zander and Drr recorded that just eight land owners own more
than 1000 ha of land, and five out of these eight were publicly known to be
involved in narcotics trafficking. In the municipality of Poptn (near the previ-
ously discussed site of Machaquil and its associated reserve), six percent of
land was held by three drug cartels.
Once their land titles are transferred, campesios who were pushed off
their land in Petn are likely to resettle in core areas of the [Maya Biosphere]
Reserve (which houses such sites as Tintal and Nakbe, looted to form the
November Collection) where they are labelled invaders by the government
(Ybarra 2009: 50). Some campesios erroneously believe that they may even-
tually be granted title to these protected lands as they were after their previ-
ous land grabs (Zander and Drr 2011). There is evidence that as campesios
push further into protected lands, the narcotics trafficking front organizations
follow close behind. Zander and Drr (2011) record that cattle farmers associ-
ated with illegal activities take campesio families up to the protected areas
to clear forest for their milpas [agricultural fields], in order to later convert
them into pastoral land. This pastoral land is, in turn, used for narcotics traf-
ficking activities. In Laguna del Tigre National Park (where the heavily looted
site of El Per-Waka and many other sites are located) and in protected areas
near Sayaxch (a municipality known to be largely in the control of narcotics
traffickers and located near the heavily looted site of Ceibal), the intensifica-
tion of drug trafficking has been concurrent with annual forest loss rates of
5% and 10%, respectively (McSweeney et al. 2014: 489). Thus protected land
Displacement, Deforestation, and Drugs 31

is deforested, and those engaged in narcotics trafficking support come closer


and closer to Maya cities.

4 Archaeological Sites as Points in the Illicit Drug


Trafficking Economy?

The question is, then, do narcotics traffickers also traffic in the looted cul-
tural objects of the Petn? A preliminary review of available information has
resulted in no obvious case study of Maya objects moving alongside drugs.
However, some interesting stories have emerged that hint at a degree of con-
nectedness that, in light of the past pattern of organized looting in the region
and the recent rise of the narcotics trade, requires a closer look. The following
are two of those stories.

4.1 Piedras Negras


Piedras Negras, now located in Guatemalas Sierra del Lacandn National Park
near the Mexico border, is the modern name of the Classic Maya polity of Yokib
or Great Gateway. It was an independent city-state for most of the Classic
Period and was allied with the polity of Yaxchiln (now in Mexico). Various
scholars visited the site to record monuments and inscriptions throughout
the years, laying the foundation for the decipherment of Maya hieroglyphs.
For example, while working with monuments from Piedras Negras, Tatiana
Proskouriakoff made the first decipherment of the names and dates of a Maya
dynasty, a groundbreaking step which proved that history was recorded in
Maya text (Proskouriakoff 1960).
In the early 1960s, looters, reportedly from the town of Tenosique de Pino
Surez across the Mexican border, descended upon Piedras Negras (Stuart and
Graham 2003). Stelas and architectural elements were sawn into pieces, car-
ried across the border to Tenosique, and then sold into private collections in
Mexico, the United States, and Europe (Stuart and Graham 2003). Stela stubs
and other scarred remains from this looting period are visible at the site, and
the current locations of many of the monuments documented by early archae-
ologists are unknown (Stuart and Graham 2003).
The Mexico/Guatemala border in the Usumacinta region is both his-
torically and currently volatile: it is an area at the limits of state authority,
where local and national governments struggle to maintain order and law
(Golden & Scherer, 2006: 2). In 2005 archaeologist Stephen Houston reported
that drug traffickers had basically encamped at Piedras Negras itself (quoted
32 Yates

in Daniel 2005). Sources within Guatemala stated that the traffickers were
heavily armed and linked to Mexicos Sinaloa cartel (Daniel 2005). Guillermo
Gonzlez, then head of Guatemalas drug police, stated that the site is essen-
tially only accessible by the river, making it difficult for police to approach, and
that whenever authorities did come near the site, the drug traffickers would
flee across the border into Mexico (Daniel 2005). In a post to the Mesoamerican
archaeology email list Aztlan, archaeologist Charles Golden emphasized that
the situation at Piedras Negras was dire: This could be the moment in which
Piedras Negras is lost to the looters for good...the Usumacinta is now a free
trade zone for looters, loggers, and narcos (Golden 2006). In 2008, reports con-
tinued to emerge of at least six groups of squatters occupying Piedras Negras
(Ramrez Espada 2008).

4.2 Cancun
Cancun is a Classic Maya site located in the Pasin region of the Petn that
was discovered at the start of the twentieth century. In 1967 an archaeological
team from Harvard discovered the remains of a palace at Cancun that, upon
subsequent excavation, turned out to be the largest known palace structure in
the Maya world, with over 170 rooms and 11 patios covering more than 25,000
square metres (Bower 2000).
Archaeologist Sylvanus G. Morley recorded several of Cancuns stone mon-
uments in 1915, including a ballcourt marker (Morley 1937), one of three that
would have been placed within each of the citys ritual ballcourts. Another of
the three ballcourt markers was located in 2004 by a team of archaeologists
from Vanderbilt University, the Universidd del Valle, and the Guatemalan
Ministry of Culture led by Arthur Demarest (Zender 2004). The third and final
ballcourt marker was looted from the site in 2001.
Reports indicate that heavy rains in October of 2001 exposed the marker
at a time when archaeologists were not present at the site (Maugh 2003). The
son of a local looter spotted the 600-pound piece. Looters removed it from the
ground and took it by boat down the Pasin River (Vanderbilt University 2003).
Photographs were taken of the marker in an effort to find a buyer, and local
narcotics traffickers eventually offered $4,000 usd for it. The looters held out
for more money (Maugh 2003; Vanderbilt University 2003).
In December 2002, the looters had a falling out, and four of them covertly
moved the piece across the river and buried it. However, the leader of the gang
retrieved the ballcourt marker after a gun battle that was heard by residents
of the nearby village (Maugh 2003; Vanderbilt University 2003). Eventually the
drugs traffickers became involved again: in January of 2003 a group of men in
balaclavas carrying submachine guns raided the village where they thought the
Displacement, Deforestation, and Drugs 33

ballcourt marker was hidden and savagely beat a woman who was not involved
with the looters (Maugh 2003). In February 2003 concerned village elders con-
tacted Demarest asking for help (Vanderbilt University 2003). Demarest met
with the district governor, who allegedly was also the head of drug trafficking
in the region, asking him to not prevent the recovery of the ballcourt marker.
The district governor was shot to death only hours later, allegedly by rival drug
traffickers (Maugh 2003; Vanderbilt University 2003).2
In March 2003 the theft was reported to Guatemalas Servcios de Investi
gacin Criminal (S.I.C.). In April, the S.I.C., Demarest, and archaeologist Marc
Wolf raided the looters camp, making several arrests, but the ballcourt marker
had already been sold to an unnamed antiquities dealer, who had moved it
about twenty miles south (Vanderbilt University 2003). A photo of the marker
was recovered and widely publicized in an effort to make the piece unsellable
(Vanderbilt University 2003).
By August, the antiquities dealer in possession of the ballcourt marker
changed his mind after moving it to the border town of Melchor de Mencos
with the intention of smuggling it into Belize. He sent the marker back to the
Pasin River region to be buried in the ground for a few years, planning to sell
it when the publicity surrounding the piece died down (Maugh 2003). Villagers
informed authorities that the piece was back in the area, and it was recovered
in September 2003. According to Guatemalan officials, this may have been the
first time that an entire looting and dealing network was exposed in the coun-
try (Vanderbilt University 2003).

5 But are Antiquities Moving with Drugs? Unanswered Questions

Preliminary discussions with archaeologists3 who work at sites in the region


indicate that they do not believe that drug cartels are looting sites, nor do they
think that narcotics gangs are dealing in antiquities. Several believe that large-
scale looting in the region is a thing of the past due to the increased difficulty of
selling looted Maya material on the international market. The archaeologists
that work at sites known for their stelas but without desirable pottery styles

2 I have not been able to verify this. It seems that the source may have meant Guillermo Segura
de la Cruz, who was killed in Sayaxch on 2 April 2003. He was the ex-mayor of the city and
was heavily involved in narcotics trafficking. According to several archaeologists consulted
during this research, his family has some connections to archaeology in the region.
3 The archaeologists wish to remain anonymous because of the dangers associated with the
narcotics trafficking groups.
34 Yates

felt that contemporary looting likely took place at sites with sellable pottery.
While these archaeologists believe that sites were still being looted, they feel
that the reasons were far more complex than organized drug gangs expand-
ing into a single alternative illicit commodity. Most of the archaeologists feel
that the story, here, was the multiple and diverse illicit economies that have
descended upon the Petn. Not just drugs, not just antiquities, but wildlife and
plant poaching; the previously mentioned illegal cattle ranching; deforestation
of reserves for agriculture and logging; and the illegal trafficking of persons.
Thus, based on the available evidence, it seems most likely that the actual
cartels are not actively or specifically engaging in the looting of Maya sites or
the trafficking of Maya antiquities. To put it simply, when these groups diver-
sify in the Petn, they do so in ways that help clean money. They invest in
licit businesses and consolidate power by extending their influence beyond
the criminal realm. Trafficking illicit antiquities simply cannot offer them the
type of laundering that they are looking for.
That is not to say that the booming narcotics economy in the Petn does
not lead to the looting of Maya sites. As the narcotics traffickers push poor, dis-
placed campesios further into protected areas, and as these people engage in
their traditional forms of swidden agriculture, they come closer and closer to
known archaeological sites and no doubt discover unrecorded ones. Yet, how-
ever logical it may seem for cartels to be involved in this other illicit market, the
evidence for a direct connection simply is not there, at least not yet.

References

Bower, Bruce (2000). Maya Palace Suddenly Expands. Science News 158: 184.
Bowman, Blythe A. (2008). Transnational Crimes Against Culture: Looting at
Archaeological Sites and the Grey Market in Antiquities. Journal of Contemporary
Criminal Justice 24: 225242.
Briscoe, Ivan (2008). Trouble on the Borders: Latin Americas New Conflict Zones.
Fride (July 2008).
Brodie, Neil (1999). The Concept of Due Diligence and the Antiquities Trade. Culture
Without Context 5.
(2009). Consensual Relations? Academic Involvement in the Illegal Trade in
Ancient Manuscripts. Pages 4158 in Penny Green and Simon Mackenzie (eds.),
Criminology and Archaeology: Studies in Looted Antiquities. Oxford: Hart, 4158.
Christ, Thomas and Claudia von Selle (2012). Basal Art Trade Guideline: Intermediary
Report of a Self-Regulation Initiative. Working Paper. Basel Institute on Governance,
http://obs-traffic.museum/sites/default/files/ressources/files/Basel_Art_Trade_
Guidelines.pdf (accessed 11 May 2014).
Displacement, Deforestation, and Drugs 35

Coggins, Clemency C. (1969). Illicit Traffic of Pre-Columbian Antiquities. Art Journal


29: 94, 96, 98, 114.
Daniel, Frank Jack (2005). Drug Traffickers Invade Mayan City in Guatemala. Reuters
23 (February).
De Sanctis, Fausto Martin (2013). Money Laundering Through Art. New York: Springer.
Dudley, Steven (2011). The Zetas in Guatemala. Insight Crime Report 8 (September).
Fialko, Vilma (2005). Archaeological Research and Rescue Project at Naranjo: Emerging
Documentation in Naranjos Palacio de la Realeza, Petn, Guatemala. famsi, http://
www.famsi.org/reports/05005/05005Fialko01.pdf (accessed 8 May 2014).
Golden, Charles (2006). Letters Needed: Crisis on the Usumacinta. Aztlan Listserv,
http://www.famsi.org/pipermail/aztlan/2006-August/000951.html (accessed 7 April
2012).
Golden, Charles and Andrew Scherer (2006). Border Problems: Recent Archaeological
Research along the Usumacinta River. The pari Journal 7(2): 116.
Graham, Ian (2010). The Road to Ruins. Albuquerque: University of New Mexico Press.
Hughes, William J. (1977). United Stated V. Hollinshead: A New Leap in Extraterritorial
Application of Criminal Laws. Hastings International and Comparative Law Review:
149173; http://heinonline.org/hol/Page?handle=hein.journals/hasint1&div=13&g
_sent=1&collection=journals#167 (accessed 5 November 2013).
Laporte, Juan Pedro and Carlos Rolando Torres (1988). Reconocimiento en Ixtonton,
Dolores. Reporte 1, Atlas Arqueolgico de Guatemala. Guatemala: Instituto de
Antropologa e Historia, 52113.
Mackenzie, Simon (2002). Organised Crime and Common Transit Networks. Trends &
Issues in Crime and Criminal Justice 233: 16.
(2011). The Market as Criminal and Criminals in the Market: Reducing
Opportunities for Organised Crime in the International Antiquities Market. Pages
6986 in Stefano Manacorda and Duncan Chappell (eds.), Crime in the Art and
Antiquities World: Illegal Trafficking in Cultural Property. New York: Springer.
Maugh, Thomas H. (2003). Looted Maya Altar Is Recovered. The Los Angeles Times
(15 February).
McSweeney, Kendra et al. (2014). Drug Policy as Conservation Policy: Narco-
Deforestation. Science 343: 489490.
Morley, Sylvanus G. (1937). Inscriptions of Peten Volume 5. Washington D.C.: Carnegie
Institute of Washington Publication, 437.
Organization of American States (oas) (2013). The Drug Problem in the Americas.
Report by the oas General Secretariat.
Paredes Maury, Sofia (1996). Surviving in the Rainforest: The Realities of Looting
in the Rural Villages of El Petn, Guatemala. famsi Reports, http://www.famsi.org/
reports/95096/95096ParedesMaury01.pdf (accessed 11 May 2014).
Proskouriakoff, Tatiana (1960). Historical Implications of a Pattern of Dates at Piedras
Negras, Guatemala. American Archaeology 25: 45475.
36 Yates

Ramrez Espada, Alberto (2008). Usurpaciones ponen en peligro reservas naturales.


Prensa Libre (16 December).
Slayman, Andrew L. (1998). Antiquities Scandal. Archaeology 51(2): 18.
Stephens, John Lloyd (1841). Incidents of Travel in Central America, Chiapas and Yucatn,
Vols 1 and 2. New York: Harper & Brothers.
(1843). Incidents of Travel in Yucatn, Vols 1 and 2. New York: Harper & Brothers.
Stuart, David and Ian Graham (2003). Piedras-Negras. Corpus of Maya Hieroglyphic
Inscriptions, http://peabody.harvard.edu/cmhi/site.php?site=Piedras-Negras (accessed
on 12 April 2012).
Ulph, Janet (2011). The Impact of the Criminal Law and Money Laundering Measures
upon the Illicit Trade in Art and Antiquities. Art Antiquity and Law 16(1): 3952.
Vanderbilt University (2003). Ancient Maya Stone Altar Recovered in Guatemala.
Exploration, http://exploration.vanderbilt.edu/print/pdfs/news/news_mayaaltar.pdf
(accessed 19 May 2014).
Yates, Donna (2012). November Collection of Maya Pottery. Trafficking Culture Encyclo
pedia (16 August), http://traffickingculture.org/case_note/november-collection-
of-maya-pottery/ (accessed 13 May 2014).
(2013). Publication as Preservation: A Remote Maya Site in the Early 20th
Century. Pages 217239 in Astrid Swenson and Peter Mandler (eds.), From Plunder
to Preservation: Britain and the Heritage of Empire, 18001950. Proceedings of the
British Academy; Oxford: Oxford University Press.
Ybarra, Megan (2009). Violent Visions of an Ownership Society: The Land
Administration Project in Petn, Guatemala. Land Use Policy 26(1): 4454.
Yemma, John and Walter V. Robinson (1997). Questionable Collection: mfa pre-
Colombian Exhibit Faces Acquisition Queries. The Boston Globe (12 April).
Zander, Markus and Jochen Drr (2011). Dynamics in Land Tenure, Local Power and
the Peasant Economy: the Case of Petn, Guatemala. Paper presented at the
International Conference on Global Land Grabbing.
Zender, Marc (2004). New Discoveries at Cancun. Mesoweb Reports, http://www
.mesoweb.com/reports/cancuen_new.html (accessed 30 April 2012).
Part 3
Fakes and Forgeries


CHAPTER 3

The Narrative Structure of Forgery Tales

Thierry Lenain

1 De-Objectifying the Approach to Art forgery

When addressing the issue of art forgery, we spontaneously tend to focus on


objects: paintings, drawings or sculptures imitating the style and age of authen-
tic artworks so as to pass for their models. There is, of course, no denying the
importance of a careful study of those artifacts themselves both in art-histor-
ical and criminological terms. Much can be learnt about their real nature and
the conditions in which they were made through a careful scrutiny of their
objective properties as they are perceived by the naked eye or one armed with
scientific devices. But there are several good reasons not to be fixated on this
side of the issue.
The first reason is that the notion of forgery pertains to an intrinsically
intentional quality. This notion does not refer directly to any given characteris-
tic of an artifact as such but to the aim or purpose for which it was circulated
even though the pursuit of that aim may generate more or less telling con-
sequences in the object itself. Even the most fastidious examination of those
consequences, provided they can be made apparent at all, is not sufficient to
determine the makers intention. Sure, establishing that an art-work is not the
original it imitates can be done by studying its objective properties. But this
is not enough to know whether or not it was intended to actually deceive as
forgeries are meant to do. There is no strictly objective way of distinguishing
between an innocent pastiche, a copy, an imitation used as a means to a hoax
or an art forgery in the proper sense. Ultimately, the status of the object
spurious or authenticcan only be decided through the examination of its
context and of the way in which it was inserted into it. Only so can observa-
tions regarding its characteristics as an object make sense.
Context must always be taken into account when interpreting human facts.
This is why the interpretation process of any given art-work, among others, can
never be reduced to a strictly object-oriented approach. But, as a general rule,
the interpretation should pay at least as much attention to the signifying object
itself as to its context. Yet, however sound and un-polemical this methodological

koninklijke brill nv, leiden, 5|doi .63/9789004280540_004


40 Lenain

bias may be, the case of art forgeries is special in that regard. Here the mean-
ings that the work is susceptible of conveying must be regarded as strictly sec-
ondary with respect to its intentional context, which itself is dependent on
the specific cultural horizon within which the object is put into motion. This
is because, unlike art-works in the proper sense, forgeries are meant to deceive
as to their very identity. They are made so as to conceal, as completely as pos-
sible, the intentional drive that has caused them to be there. Their real origin is
supposed to remain hidden behind a screen of signs, forms and material prop-
erties whose only aim consists in triggering the recognition of another origin.
This entails that, no matter how closely you look at it, an art forgery as an object
will not tell you much about the intentions of its maker. It will tell you even less
about the way it is supposed to function as a simulacrum, about the particular
notion of authenticity lying in the background of the attempt to pass for an
original and, last but not least, about the criteria that experts will apply in judg-
ing the works status. What should, first and foremost, be observed with the
greatest attention is the behavior of the forger as embodied in his interactions
with other agents within a given context. The object as such should certainly
not be overlooked, but it comes only second because its objective properties,
including its aesthetic features, however remarkable they may be, are essen-
tially, if not only, the result of the forgers duplicitous behavior.
This leads us right to a second reason not to focus too much on the objects
themselves. Forgeries should be described as chains of actions rather than
as things. What is really significant is the global operative schema through
which an object will be made to pass for something it is not. What we are deal-
ing with in every case of art forgery is, at base, a set of lies about the identity of
a hitherto unknown art-work. Since those lies must remain undetected as long
as possible (ideally forever) and, since art-works are prestigious goods com-
manding high prices and esteem, forgeries will have to withstand the scrutiny
of experts eager not to let anyone be fooled. In most cases, achieving this dis-
simulation involves different actors and means put together within the frame-
work of a carefully elaborated organizational schema.
The same holds for other types of forgery. In the last years of nineteenth
century, the American detective Robert A. Pinkerton provided a vivid descrip-
tion of the way in which forgers of checks, bonds, bills of exchange and similar
banking documents operate.1 His account shows that those forgeries are always
perpetrated by teams of criminals. These bands are unvaryingly directed by

1 Robert A. Pinkerton, Forgery as a Profession, The North American Review, vol. 158, n 449
(April 1894), pp.454463 (http://www.jstor.org/stable/25103313). Thanks to Ilsen About for
having drawn my attention on this article.
The Narrative Structure of Forgery Tales 41

someone who conceives the whole operation in all detail, hires the operators,
attributes the roles, covers the expenses and makes sure that the members of
the team remain unknown to one another. The other members are the actual
forger (i.e. the maker), the go-between (or middle-man) and the layer-
down (or presenter). The maker of the false documents, or scratcher in
appropriate language, is but one of several specialized agentsand not nec-
essarily the most important one among them. To detectives and justice offi-
cers, what really matters is the organizational structure and the global mode
of operating, including the technical tricks resorted to by the scratcher but
only as a part of the whole. What is more, Pinkertons study suggests that the
fight against forgers will not be won through the examination of the forged
documents, one possible reason being that this requires an expertise that can
hardly be expected from the average bank clerk. Success on the side of law
enforcers, Pinkerton argues, will rather depend on the understanding of the
operational schemas adopted by forgers and on the coordinated cooperation
of financial firms and institutions that should agree to systematically file suit
whenever a case occurs.
Affairs of art forgery do not reveal the same level of organizational sophis-
tication that is typical of full-fledged professional criminals such as money
counterfeiters or drug traffickers.2 Teams involved in cases of art forgery may
seem to operate somewhat more amateurishly by comparison. But this does
not make the issue basically different. Art forgery too should be looked at glob-
ally. What is relevant is, above all, chains of actions involving different agents
along with an object that is both ostensibly central (because the deceit is about
it) and essentially peripheral (because what counts is the act of deceit itself,
with respect to which the object is but a means to an end).

2 The Narratological Perspective

The prominence to be given to the operational structure and intentional con-


text over the object itself makes it especially interesting to approach cases of art
forgery as essentially narratives of a kind. In saying this, I do not just mean that
speaking of chains of actions summons the very idea of a narrative account. It
does, of course. But more than that: most cases of art forgery make for excellent
stories. This they have in common with other species of criminal activity. For

2 On the complexity and operational efficiency of the drug trafficking industry, see Michael
Kenny, When Criminals Out-smart the State: Understanding the learning Capacity of
Colombian Drug Trafficking Organizations, Transnational Organized Crime, 5, 1, 1999, 97119.
42 Lenain

this much is true about crime, as everyone knows: it is an inexhaustible source


of entertaining stories whose protagonist is, by definition, an enemy of society.
In that respect, we could even venture so far as considering that the noxious
deeds of criminals possess quite a few benefic after-effects; think of the rev-
enues and employment generated by the constant recycling of the narrative
substance of criminal affairs in literature, cinema and television, etc. Here is a
fact that should certainly not be downplayed if we want to describe crime in
general, and art forgery in particular, from a historical, sociological and even
anthropological point of view. As a matter of fact, art forgery has been a source
of inspiration for authors of countless stories of many different genres, fictions
included. A number of novels might be mentioned here,3 while for its part the
cinema industry does not seem to have realized the potential of stories such
as Han van Meegerens or Fernand Legross, even though brilliant movies have
been made on other types of high-flying swindlers.4
So narrative attractiveness ranks among the most striking aspects of art forg-
ery, and this certainly is a good reason to look at the topic in terms of literary
analysis. But, still more importantly, this approach can also allow us to better
identify and characterize the roles, movements and operative schemas involved
in cases of art forgery. It may be an interesting way to shed light on their generic
structure and on the many variations that occur in the broad historical and
typological spectrum of these stories. As an added benefit it might also help us
debunk the manipulative conduct involved in the rhetorical devices which forg-
ers resort to when recounting their own stories, as they often do. Last but not
least, the narratological analysis may lead to a better assessment of the cultural
status of the activity by situating narratives in a literary history of forgery.

3 See, among others, Barbara A. Schapiro, The Art Forger: a Novel, Algonquin Books, Chapel Hill
NC, 2012; Guy des Cars, Un faussaire, Flammarion, Paris, 1967; Georges Perec, Le Condottiere,
Editions du Seuil, Paris, 2012; William Gaddis, The Recognitions, Harcourt Brace & Co, San
Diego, 1955. More than forty fiction works involving art forgery could be mentioned here. A
website on the topic lists 41 titles but is incomplete (http://www.themodernnovel.com/lists/
mine/artforge.htm, visited November 2, 2013).
4 Steven Spielberg, Catch me if you can (2002, a biography of Frank Abagnale Jr); Lasse Hallstrm,
The Hoax (2006, about Clifford Irvings fake autobiography of Howard Hughes). There is a
funny figure of an art forger in William Wylers How to Steal a Million (1966), but it is a second-
ary character. Of course there is also Orson Welless classic film essay featuring Elmyr de Hory
(F for Fake, 1974). Peter Greenaways A Zed & Two Noughts (1985) introduces the viewer to a
Han van Meegeren only very partially inspired by the historical Van Meegeren. Let us also
mention three completely fictional movies: Wim Wenders, The American Friend (1977, based
on a novel by Patricia Highsmith, Ripleys Game, 1974; as in Greeneways film, the theme of art
forgery is peripheral); Alan Rudolph, The Moderns (1988); John Badham, Icognito (1998).
The Narrative Structure of Forgery Tales 43

Be that as it may, the most important sources available to so reconstruct the


cultural background of forgeries and the intentions of those involved happen
to be texts rather than any other type of document. That was the starting point
of what I attempted to do in my book on the topic.5 That book deals mainly
with stories and anecdotes that blossomed in the art literature from the 15th
century on. In a first step, the main components, or basic features, of the most
complete and characteristic forgery tales were listed. Then I sort of swam
upstream, following the literary tradition in reverse, to determine when and
how these features appear, where they come from, which transformations they
undergo in the course of time and how they combine to finally compose those
stories which we are all familiar with.
In this paper, I would like to focus on the general narrative structure of forg-
ery tales. These stories share a common core of recurrent features composing
a consistent schema. The close examination of this structural framework may
serve as a guide for inquiries into the history of literary representations of forg-
ery. But it might also be of some use in the study of real-life cases.

3 Two Points of Method

While the most developed and explicit forms of art forgery as a motif are to
be found in the domain of narratives, this very motif materializes in the field
of facts as well. In one way or another, most cultural facts occur in anticipa-
tion of their narrative description: they happen as stories in-the-waiting, so to
speak, and they tend to reproduce patterns first found in literature. So, with
respect to the historiographical approach at least, facts must be treated as a
subset of narrativeseven when perfectly evidenced. Moreover, the lack of
hard evidence behind a story given as true does not make it irrelevant because
any story of that kind is at least an instance of what the narrator holds as possi-
bly true, and should be treated exactly as such.6 The distinction between differ-
ent discursive regimeslegend, fiction, anecdote, chronicle, historycomes
only second. This is why, as used here the phrase forgery tale does not pertain
only to more or less invented or embellished stories but also to strictly rigorous
factual accounts.

5 Thierry Lenain, Art Forgery. The History of a Modern Obsession, Reaktion Books, London, 2011.
6 This way of reading literary stories and anecdotes about art and artists was recommended
by Ernst Kris and Otto Kurz in their pioneering book of 1934, Die Legende vom Knstler:
ein geschichtlicher Versuch (Legend, Myth, and Magic in the Image of the Artist. A Historical
Experiment, Yale University Press, 1981).
44 Lenain

However, approaching art-forgery affairs as stories should not lead us to


overemphasize their literary cultivation. What is of interest here is, first and
foremost, the immanent logic of these stories, which has to be distinguished
from their possible or actual literary uses and potential. This distinction comes
with another one. We should always be aware of the difference between typical
and essential elements. The latter depend on the inner logic of all forgery tales
while the former are just selected by storytellers as especially characteristic or
striking and, thus, as the most easily exploitable features; but some of those
typical components are, in fact, non-essential.

4 The General Structure of Forgery Tales: actants and sub-actants

Typically, art forgery consists in the production of an object imitating the


style, signs of age and other detectable properties of a supposed original, and
in the presentation of this imitation as being the original itself.7 More essen-
tially, the notion pertains to strings of actions making it possible to present, in
delusory manner, an art object as stemming from another origin and possess-
ing another history as its own. This elementary definition provides us with
several basic components of the motif. Two main first-level actants, meaning
action-roles, are necessarily involved, namely: the forger and the dupe. Two
accessory first-level actants are also part of the structure: the opponent and a
set of means. The schema also posits at least three phases which are the prep-
aration (which, in most cases, corresponds to the making of the object), the
presentation of the fake leading to its erroneous authentication and, finally,
the unmasking.
In speaking of actants, I loosely draw from the central concept of struc-
tural analysis of narratives according to the French semiologist Algirdas
Julien Greimas.8 This concept deals with generic roles belonging to the

7 The original need not actually exist; the model can be generic or even completely invented.
But when there is no existing original corresponding to the deceptive imitation, the forger
must pretend that there is one (and that the imitation is precisely it). A forgery made to usurp
the identity of an existing original amounts to a copy meant (to be used) as a forgery. On the
distinction between referential and inventive forgery, see Jerrold Levinson, Autographic and
Allographic Art Revisited, Philosophical Studies, 38, 4 (November 1980), pp. 367-383 (http://
www.jstor.org/stable/4319427).
8 Algirdas Julien Greimas, Smantique structurale : recherche et mthode, Paris, 1966 (Structural
Semantics. an Attempt at Method, trans. Daniele McDowell, Ronald Schleifer and Alan Velie,
University of Nebraska Press, Lincoln and London, 1983); Actants, Actors, and Figures., in:
On Meaning: Selected Writings in Semiotic Theory, trans. Paul J. Perron and Frank H, Collins,
The Narrative Structure of Forgery Tales 45

underlying structure of a story. Each of these basic roles is endowed with


an array of possible reactions and specific constraints, and is susceptible of
being embodied by one or several characters (or actors, in Greimass termi-
nology). They can combine, and their various combinations also involve sys-
tems of definite possibilities, impossibilities and constraints. Besides, they
can be divided into secondary actants which, though more narrowly defined
than their first-level counterparts, should also be distinguished from char-
acters or persons. As for constraints and possibilities, it is worth stressing
that the immanent logic of forgery tales does not exclude inconsistencies and
contradictions. This is because actors can combine roles that can be mutu-
ally incompatible in certain respects. The narratological approach makes it
possible to spot those inconsistencies but does not preclude them, of course.
Incoherence is an important working component in forgery cases just as in
all human affairs.

4.1 The forger


The forger, considered as the principal first-level actant of a forgery tale,
can be split into different specialized roles. Depending on the way these sub-
actants are distinguished, they may number three, four or five. The most com-
plete schema comprises the initiator, the pilot, the maker, the object and the
presenter, plus a variable number of acolytes (who help the forger achieve his
goal by, for instance, providing information, acquiring materials, concealing
objects, etc.).
To begin with, all forgery tales necessarily involve an initiator. This is the role
played by the one who plans and starts the process of falsification. Also always
involved is a pilot, whose role consists in orienting this process and controlling
its course according to the circumstances. While the initiator and the pilot cor-
respond to two different functions, they are usually fused in one single actor or
character; but in all cases these two functions must perforce be fulfilled for an
affair of art forgery to occur.
This, however, is not the case of the makerdespite the fact that, when con-
sidered from a non-theoretical point of view, a forger usually means a maker
of a forged artwork. This, in fact, amounts to identifying the principal first-level
actant with a secondary (and optional) one. It is easy to see why. Though cer-
tainly typical, the maker is not a necessary component of all forgery tales since
it is in fact quite possible to act as a forger without ever making an imitation.

Minneapolis, University of Minnesota Press, 1987, p. 106-120. Following the usage in English
translations, the word actant is used here despite its sounding somewhat odd (it is a neolo-
gism in French too).
46 Lenain

Many honest copies and altered objects have been turned into forgeries by just
re-labelling them as originals. Moreover, it may also turn out that the maker,
when there is one, does not belong to the group of secondary actants whose
combination constitutes the forger. A con man may very well have an arti-
fact made by someone who will remain ignorant of the way in which it will
be used later on. No matter how precise the instructions given by the pilot to
the maker, it is always possible to conceal the label that will be attached to the
artifact afterwards. This is what happened in the case of the so-called Tiara
of Saitapharnes, a fake antique piece of gold work that made the headlines in
the last years of 19th century9. Another problem with the usual identification
of forger and maker is that it tends to overlook the fact that forgeries often
involve not only the making of the art object but also peripheral yet instru-
mental artifacts such as fake certificates or archive documents constituting
what Noah Charney calls a provenance trap.10
Similarly, when the pilot decides to exert a very tight control on the opera-
tive chain, the maker tends to retreat to the inner margin of the principal actant
group and should then be defined as an acolyte. This genre of cases is well illus-
trated by the operating schema adopted by Fernand Legros, the French swin-
dler who, in the sixties and seventies, managed a whole workshop of painters
producing fake modern masterpieces. And when it so happens that the maker
actually is deceived, he cannot be considered as belonging to the main actant
group but must be affiliated to the category of mere passive means.
So, despite the fact that the maker has the lions share of the narrative inter-
est in most forgery tales, from a structural point of view this role is not neces-
sarily as crucial as the initiators and presenters. Then again, forgers often take
advantage of the tendency to exaggerate the importance of the production of
the object as opposed to other operations. When unmasked, they do their best
to present themselves mostly, if not exclusively, as makers, thus defining what
they have done strictly by what they have made.
The object itself can also rank among the forgers sub-actants. Each and
every forgery tale necessarily revolves around an artifact, be it purposely made
or not. Given the central position of this object, it may in some cases be

9 See Mark Jones, Fake? The Art of Deception, exh. cat., British Museum, London, 1990, p.
33; Andr Vayson de Pradenne, Les fraudes en archeology prhistorique, Grenoble, 1993
(original ed. 1933), pp. 399-437.
10 Noah Charney, The Book of Forgery, Phaidon (to appear). On the Myatt and Drewe affair,
a case involving the forgers special attention paid to archive documents, see Laney
Salisbury and Aly Sujo, Provenance. How a Con Man and a Forger Rewrote the History of
Modern Art, The Penguin Press, New York, 2009.
The Narrative Structure of Forgery Tales 47

interesting to treat it as a secondary actant of the forger. There is nothing


strange about that from a narratological point of view, since objects sometimes
behave almost like subjects in the system of a story. In Alfred Gells terms,
this possibility could be seen as an example of transferring the agency from
human agents to an inanimate object. In all cases, however, the object remains
essentially a means to an end. It amounts to but one among several elements
used to articulate a set of lies about itself. It is possible to have the account of
facts vary in interesting ways depending on the choice to treat the object either
as one of the forgers sub-actants or else as a means (in which case it will not be
depicted as a character but as a passive component).
Another sub-actant of paramount importance, virtually equal to the ini-
tiator and the pilot, and certainly more structurally pivotal than the maker, is
the presenter. This role is crucial indeed. It belongs to the person in charge of
introducing the object to the certifier, who will decide of its authenticity label.
In other words, the presenter is the role of the actor through whom the object
makes its stage entrance after an initial phase of secrecyfrom the darkness
of the forgers workplace to the broad daylight of its very first public appear-
ance under the guise of an authentic work. This certainly is no straightforward
matter. No matter how convincing the imitation of the model may be, there
needs to be a plausible explanation of its sudden presence in the world. So a
forger must also forge a narrative accounting for that objects emergence out
of nowhere, and someone has to perform this legend in front of the certifier, in
the theatrical sense of the term. For obvious reasons, it may be a good idea for
the pilot to delegate this function, especially so when the chief actor also hap-
pens to be the maker. Ideally, the presenter should not be someone susceptible
of being able to hold a brush or a chisel. But on the other hand, the presenter
should be fully aware of the true nature of the operation because it would be
quite uncomfortable for the pilot to have to conceal the truth from such an
instrumental figure. Three observations must be made regarding the presenter.
Firstly, the complete elision of the presenter is virtually unconceivable,
because this would mean throwing the object into the world at random with-
out any staging of its first appearance. Secondly, even though the presenters
function is essentially rhetorical in naturetelling a story in the most con-
vincing way possiblea more sophisticated practice may very well consist in
keeping mum or expressing ones ignorance or even ones suspicion regarding
the objects real nature. The British forger Eric Hebborn usually did the pre-
sentation himself, carefully avoiding useless volubility and confining himself
to just displaying his own drawings among perfectly authentic pieces spread
on a table. Anyway, this certainly qualifies as a presentation strategy in its own
right (and a rather wise one, as it avoids active misrepresentation of the works
48 Lenain

origin, thus limiting the risks of being accused of wrongdoing). The third obser-
vation is that, according to my proposed terminology, the presenter is defined
by the fact that he or she shares the knowledge of the truth with the initiator
and the pilot. Should this not be the case, we will call the mediator an interme-
diary, meaning someone who functions as a mere instrument in the forgers
hands, thus not counting among the acolytes; this is also why the intermediary
is not a dupe either; while being ignorant of the real nature of the object, he or
she is not marked as a prey of the forgery scheme.
Han van Meegeren went down in history as a forger who devoted extreme
care to the presentation strategy. He had good reason to do so since he had
chosen to introduce his most important forgery himself, thus dangerously
combining the functions of initiator, pilot, maker and presenter. This was a
risky choice indeed, which had him resort to a first-class intermediary: a mem-
ber of the Dutch Parliament who was also a well-known patriot and a lover of
Dutch art. Having decided to do without a separate presenter, the forger had
to elaborate a complex and fine-tuned strategy involving two distinct layers of
lies, the first one being aimed at the intermediary and the second one tailored
for the expert.11
To sum up, all forgery tales structurally involve a main first-level actant split
into several sub-actantsthe initiator, the pilot, the maker, the object and the
presenter. These functions may be fulfilled either by one or by a number of dis-
tinct characters following different operative schemas. Note that the inherent
possibility of a casting call can be easily exploited by the suspects after the
unmasking as is the case in most criminal affairs (each member of the team can
deny that he or she was aware of what the others were doing). It should also be
highlighted that the forgers actant schema is asymmetrical. While the initiator,
pilot and presenter are necessarily part of it, the maker is not. Moreover, the
makers position within the structure can be located either at the very core of
the main actant group or at its outer margin, along with other means, or else
somewhere in between, with the acolytes.

4.2 The dupe


At the other end of the first-level set of actants entailed by all forgery tales
stands the dupe. Exactly as with the forger, the dupe as a narrative function

11 See John Raymond Godley, aka Lord Kilbracken, Van Meegeren: A Case History, Thomas
Nelson and Sons, Ltd., London, 1967; on Han van Meegeren, also see Edward Dolnick; The
Forgers Spell: a True Story of Vermeer, Nazis, and the Greatest Art Hoax of the Twentieth
Century, Harper, New York, 2008; Jonathan Lopez, The Man Who Made Vermeers:
Unvarnishing the Legend of Master Forger Han van Meegeren, Harcourt, New York, 2008.
The Narrative Structure of Forgery Tales 49

may be divided into several sub-actants which, in turn, can be embodied by


different characters. But in the case of the dupe, another distinction should be
introduced. It is worth considering a difference between agents and statuses.
Agent refers to a function defined from the inside of the structure while sta-
tus corresponds to social roles determined from the outside of the actant sys-
tem. At the forgers end, there are only agents. On the dupes side, by contrast,
we may spot not only two main agents but also a number of different statuses.
The agents are, on the one hand, the certifier who provides the certificate of
authenticity, usually an art expert (but this part can also be played by a lab
scientist or even the artists heir) and, on the other hand, the acquirer, usu-
ally a buyer, who makes this verdict a reality in terms of economic value. The
certifier is both an agent and a status, while the acquirer as an agent can be
related to several statuses such as amateur, connoisseur, official, speculator etc.
The certifier and the acquirer constitute the dupes principal sub-actants since
there could be no forgery tale without them.
Now statuses as well as agents come with definite possibilities and con-
straints. Let us consider, for instance, the scenario in which the acquirer is an
art-lover. This particular status might be called a mixed blessing. On the one
hand, it makes the actor particularly sensitive but, on the other, it offers the
possibility of a shock-absorbing reaction that no other type of dupe could have.
The behavior of art-lovers is determined by their nearly spiritual commitment
and the emotional nature of their investment in the object. On their part
unless they also act as art-lovers, of courseconnoisseurs, museum directors
and experts are not bound to suffer the same kind of deeply personal loss if they
realize that they have been cheated. For them, the narcissistic injury apart, the
damage is mostly financial or limited to the professional sphere (loss of credibil-
ity). Even though the burden of responsibility rests mostly on the experts shoul-
ders, this especially exposed actor may remain emotionally unscathed provided
he or she adopts a strictly professional attitude in the eye of the storm. Cheated
art lovers, for their part, will feel the bite of treason deep in their hearts and
souls, pretty much like all disappointed lovers. Yet by the very nature of their
involvement, they can also decide to ignore the damage and say: Yes Ive been
cheated, lost quite a lot of money and certainly felt a shock when they told me
my cherished treasure was a fakebut Ill continue to love it anyway. After all,
has the object itself not remained exactly the same as it was before in aesthetic
terms? Before I knew its real origin, I loved it precisely because of its aesthetic
qualities, so why should I now reject it just because the label has changed? This
reasoning, resting on an implicit art theory that might be called radical aesthet-
icism, certainly strains the art lovers mind. It amounts to a rather desperate
attempt to completely disconnect the purely formal qualities of the object from
50 Lenain

what makes it attractive as a sort of relic and historically resonant artifactand


this does not go without some serious mental contortion. But it remains a pos-
sible reaction for those who define themselves as art-lovers. It is plain to see
that neither the connoisseur nor the expert nor any of the other sub-actants of
the dupe may legitimately adopt this sublimely disinterested attitude because,
for them all, and as a matter of principle, authenticity is everything. Besides,
let us also notice that if radical aestheticism was explicitly endorsed by narra-
tors of forgery tales in the early modern times (from the Renaissance to the 18th
century), it can also be found in the late-modern period, albeit quite rarely and
under much more discreet expressions.12
The definition of the dupe as an actant involving several sub-actants that,
according to specific circumstances, can be embodied by one or several actors
(either simultaneously or successively) is of paramount importance in the
forgers perspective too. Part of the forgers operation often consists in trigger-
ing an art-lovers kind of response on the part of the certifier who, in principle,
should react in a cold, professional way. This is exactly what Han van Meegeren
managed to do. Abraham Brediuss 1937 Burlington Magazine article,13 through
which the attribution of the Christ at Emmas to Vermeer was certified urbi
et orbi, overflows with appreciative and emotional tones. The old scholar even
expresses his deep personal joy to have recognized one of the best Vermeers
that ever existed, if not the very best. This is how the intellectual process of
authentication gave way to a judgment of value that diluted any shadow of
doubt in the blinding light of sheer enthusiasm.

4.3 The Opponent


The narratological approach to art forgery comes with a schema that, on some
points, departs from the structure involved in the standard general theory of
narratives. One of the main differences concerns the message that is deliv-
ered through the process leading the hero to the achievement of his or her
quest. In forgery tales, there is, strictly speaking, no messageat least no
message emanating from the hero (i.e. the forger). Of course the narrator
will almost always introduce a more or less explicit maxim corresponding to
the moral of the story. But this maxim, aimed at the reader, is different from
the message delivered through the actions of the hero to other actants within
the world of the narrative. To put it differently, if there is a message in this stan-
dard sense, it is one that the hero sends to himself onlybecause, as a matter

12 See Guy Isnard, Vrai ou faux? Les enqutes du Sherlock Holmes de la peinture, Robert
Laffont, Paris, 1974, p. 171.
13 Abraham Bredius, A New Vermeer, Burlington Magazine, LXXI (November 1937), p. 211.
The Narrative Structure of Forgery Tales 51

of principle, the very existence of the forgers acts are supposed to remain con-
cealed to everyone but the initiator, presenter and acolytes. An exception can
be made when, after the unmasking, the defeated forger seizes the opportunity
to make a point about his neglected talent, the incompetence of experts, the
greed of amateurs and something rotten in the realm of art.
Another difference with the standard schema is the relative unimportance
of the opponent. Being the role of the one who confronts the hero and sets
obstacles on the path of his quest, the opponent is the second major actant in
most narratives. The popular saying according to which a good action movie
mostly needs a good villain is an application of this structural principle. Now in
forgery tales it so happens that the hero is the villain, whose tribulations form
the very core of the story. So much so that the opponent often appears to be a
strangely subdued figure, dwarfed and eclipsed by the protagonists radiance.
It is even quite frequent that, while the dupe usually receives much attention
on the narrators part, no character at all represents a sizable active counter-
part to the forger. This might be due to the fact that many cases of forgery come
to be solved through the convergence of minor clues noticed by several actors
with little prominenceand, more often than not, brought forth by chance. In
other words, it seldom if ever occurs that the opponent as an actant position
is occupied by a true discoverer, i.e. someone who may be credited with the
unmasking process. It can also happen that alarm bells rung by more clear-
sighted actors are not heard at all and count for nothing in the forgers final
defeat. This outcome is usually much less the result of a valiant resistance of
some white knight fighting on the side of truthfulness than the consequence
of an improbable string of accidents which, paradoxically, tends to enhance
the forgers stature. It goes without saying that forgers are masters in the art
of describing their unmasking as another demonstration of their superiority.
From their point of view, it is easy to maintain that their defeat by sheer luck
on the part of the opponents amounts to a victory of sorts. Be that as it may,
forgery tales are peculiar in that they tend to treat the opponent almost as a
non-actant.

5 Interactions

Such are the positions that can be occupied on the highly polarized checker-
board of forgery. Now, different interactions will occur between the forger and
the dupe. But the stream of interactions always obeys a dominant direction. It
mostly flows from the forger to the dupe. This means that the former manipu-
lates the latter much as he would an object. The dupe is in fact not exactly
52 Lenain

an active role in the usual sense of the word. Without even realizing it, dupes
behave like passive preys manipulated so as to do what the predator expects
them to, much more than as opponents capable of standing up to the enemy;
only very rarely does the unmasking occur thanks to the dupes own alertness.
To put it more accurately, the dupes action amounts to an unconscious form
of cooperation with the forger who, as a general rule, makes sure that the dupe
self-convinces of the objects authenticity. This loop-like interaction going from
the dupe to the dupe under the covert control of the pilot is not only an excel-
lent stratagem of whose efficacy there can be no doubt; it also generates highly
colorful situations with maximum narrative interest.
Another chief characteristic of forgery tales is that they can only be told
after the forgers failure. As long as the fake remains operative, it cannot be
revealed as such or, for that matter, become the subject of a story in the first
place. This is why the immense majority of forgery tales revolve around a key-
moment comprising the discovery of the fake and the subsequent unmasking
of the forger. Although partial exceptions might perhaps be mentioned, this is
nonetheless an iron rule rooted in the very structure of art forgery in general.
As for the unmasking itself, it proceeds either from the observation of anoma-
lies in the object, leading to the forger, or from clues in the forgers behavior,
leading to a revealing re-examination of the object.
The fact that forgery tales depend on the unmasking distinguishes art forg-
ery from other types of swindle. In most frauds, deceit works as a temporary
means to an enda scaffolding of sorts. When the truth finally comes to be
revealed, the evil is done and the culprit long gone. The dupe realizing his or
her misfortune can only witness the swindlers victory in dismay. In cases of art
forgery, by contrast, deceit as such must be regarded as the final goal or, at the
very least, the lasting backbone of the whole process. It has to keep working
as long as the fake achieves its specific goali.e. having an imitation take the
place of an original. Forgeries, as a general rule, are meant to avoid detection
if possible indefinitely and an art forgers dupe soldiers on in blissful delusion
as long as the fakery remains effective. If not, the case belongs to the category
of mere swindles.
In other words, the unmasking of an art forger almost always results from
causes outside the field occupied by the two main actants. This is also why forg-
ers can only savor their success in isolation, condemning themselves to remain
unknown until defeated. This constitutes the chief difference between forger-
ies and artistic mystifications or hoaxes.14 In these the deceit as to who made

14 On literary mystifications, see Jean-Franois Jeandillou, Esthtique de la mystification.


Tactique et stratgie littraires, Editions de Minuit, Paris, 1994.
The Narrative Structure of Forgery Tales 53

what is meant to be only temporary. The discovery of the truth is programmed


from the very start and from the inside of the whole project. Discovering the
truth at some point constitutes in fact a necessary condition of the achieve-
ment of the goalwhich is to reveal something, to deliver a public message,
using a first phase of deception as a rhetorical lever to maximize the impact of
this message. Deception may also be, of itself, part and parcel of the message
when, as it often is, the hoax is about denouncing delusion and ignorance. In
forgeries, as we have seen above, there is no messageexcept maybe from the
forger to himselfand the revelation of the truth sounds the end of the game
and the destruction of the goal. Of course the discovered forger can try to pres-
ent himself as a witty hoaxer who intended to uncover the truth eventually
anyway. As a matter of principle, however, this defensive tactics does not prove
to be very successful (at least not in the court-room) for it is always quite hard
to persuade someone of a persons good intentions when no evidence of its
prior existence can be made available. But some try it anyway, as did Han van
Meegeren.
The important point here is that the way to tell the story is very different
according to whether it is about artistic mystification or about art forgery. A
case of mystification should be described as a process entirely aimed at the
discovery of the truth, which will be the hoaxers moment of triumph allowing
him to make his point with a bang. Recounting a case of forgery, by contrast,
starts with the description of a failure engulfing the forger as well as the dupes.
The narrator has to depict the tremor caused by a revelation taking everyone
by surprise and to explain the course of events having led to iteither as
a result of the opponents superiority or due to more or less accidental cir-
cumstances. This second possibility, which happens quite frequently indeed,
offers the forger the occasion of an ultimate if desperate move. Adding insult
to injury, he can now point out that, since the fake was discovered by sheer
luck, it might just as well have never been discovered at all, which amounts to
saying that it is exactly as if it had not been uncovered. The forgers enemies
having vanquished only by chance, they failed even more than the exposed
forger himselfwhich certainly makes for the perfect unhappy ending. This
is how a forger finally finds a way to savor a publicity that, up until then, was
structurally closed to him. The theatrical outbursts that were observed during
the trials of van Meegeren or Beltracchi, to only cite these two, certainly testify
to this consequence of the forgers public defeat.
Also to be mentioned is the dramatic impact of the discovery on the object.
Of all the actants or components of a forgery tale, it is perhaps the one that
undergoes the most spectacular transformation, passing from the rank of a
true work of art (usually by a famous artist) to the status of a weird simulacrum
54 Lenain

made for despicable purposes at the initiative of a crook (usually a failed


artist). What ensues could be defined as a case of negative anagnorisis, to
speak in Aristotelian termsmeaning: a moment of recognition when some-
one suddenly appears to be an entirely different individual than he or she had
pretended to be. Always highly emotional, this kind of revelation is therefore
a classic device in narratives playing on dramatic tension. In forgery tales,
the object that everyone admired one moment ago all of a sudden proves to
be nothing more than a morally repugnant imitation, losing all its material
and spiritual value overnight. Last but not least, the story will also include
the reactions of the parties involved, taken as a multifaceted mirror of what
was at stake. A sort of structural cruelty on the part of the narrator requires a
special focus on the dupes dismay, on the certifiers shameful retreat and, by
and large, on the foolish (or malignant) laissez-faire of the art world taken as
a whole.

6 Aftermaths

Saying that the unmasking corresponds to the end of the story is only partly
true, though. Not only is it quite rare that all the forgeries perpetrated by a
convicted swindler are brought under the light of truth,15 but forgers do not
always vanish from the scene after their defeat. They rather re-enter the stage
with some well-studied panache. As a general rule, they will do what is neces-
sary to capitalize on their stories. A prison term does not hurt, in that respect,
when it comes to selling the story to a publisher and trading interviews.
Wolfgang Beltracchi was seen handing out smiles, waves and business cards to
the journalists present in the courtroom during his trial.16 Some, like Thomas
Keating and John Myatt, were crowned with a TV series and almost all of them
wrote memoirs17 if not how-to manuals for apprentice forgers.18 As a matter
of fact, an art forgers future lies more in the glittery world of celebrities than

15 In the Beltracchi case, the arrangement immediately concluded between the accusation
and the culprit blocked any further investigation in the obviously important number of
fakes that were outside the charge of indictment; see Stefan Koldehoff and Tobias Timm,
LAffaire Beltracchi. Enqute sur lun des plus grands scandales de faux tableaux du sicle et
sur ceux qui en ont profit, Editions Jacqueline Chambon, Arles, 2013 (original German ed.
2012).
16 Ibid., p. 13.
17 To name some: Icilio Federico Joni, Hans Malskat, David Stein, Elmyr de Hory, Ral
Lessard, Tom Keating, Andr Mailfert, Eric Hebborn.
18 Eric Hebborn, The Art Forgers Handbook, Cassell, Londres, 1997.
The Narrative Structure of Forgery Tales 55

in the more ethereal firmament of Art, whatever their attempts to reinvent


themselves as genuine artists. Some of them go on producing non-deceptive
imitations in a manner close to their previous oeuvre, which they market as
works from a famous former forger (think, for instance, of Ral Lessard, the
Canadian-born painter who worked for Fernand Legros, or Geert Jan Jansen).
But these products have little chance of making it to the upper tiers of the art
market. Instead they tend to appeal to a public keen on owning decorative
objects with a mass-media equivalent of the artistic aura sought from truly
original creations. Another, mostly theoretical possibility19 would be that the
forger becomes an expert in authentication, helping dealers, insurance com-
panies or the police to discover spurious works.

7 Tropes

This last particular case leads me to mention another important source of lit-
erary attraction: reversals that have actors play a role that is opposed to their
original stance. These rhetorical figures, or tropes, amount to second-level
operations on elements of the structure. They generate paradoxical inver-
sions or conversions that only enhance the interest of the story. Apart from
the forger becoming an expert, we have already met one of those figures in
passinga very important and recurring one. It is the figure in which the dupe
functions for the forger without in the least realizing hes doing soa direct
consequence of the manipulative nature of forgery, involving what Erving
Goffman calls fabrications.20 But there are several others.
For instance, every forger worth the name must learn from the experts and,
more generally, from the specialists who unknowingly provide him with essen-
tial knowledge. What the forger will learn through the existing art historical or
technical literature, or even through his personal contacts with connoisseurs,

19 I do not know of many examples of this sort of outcome in the field of art forgery, though
it has been instantiated in other related domains such as the counterfeiting of official
documents (see the above-mentioned story of Frank AbagnaleJr.). One example might
be Brigdo Lara. This Mexican artist made hundreds of fake Pre-Columbian artifacts sold
as genuine in the 1970s. He was convicted of smuggling antiquities but was released from
prison after having demonstrated that the objects were in fact his imitations. He was then
hired by the University of Veracruz in Mexico as a restorer and copyist of archaeologi-
cal objects. See Tom D. Bazley, Crimes in the Art World, Praeger, Santa Barbara Ca, 2010,
pp.71-72.
20 Erving Goffman, Frame Analysis. An Essay on the Organization of Experience, Harper &
Row, London, 1974.
56 Lenain

does not only pertain to artistic technique but also to methods of detection,
criteria of authenticity and the experts social as well as intellectual behavior.
Eric Hebborn stressed that a good expert is always to be treated as the forgers
best ally. This is because the experts very competence involves predictable
expectations that can be fulfilled. There is nothing worse, Hebborn added,
than the specialist with a sketchy knowledge and a fuzzy way of thinkingwho
will not even recognize what youve been trying to forge.21
The inherent necessity for the forger to appropriate some of the experts
knowledge can make for entertaining situations. Should the occasion arise, in
a court-room for example, the forger may engage in cerebral exchanges with
experts. He may even go with the flow and cooperate with the prosecution
just to show off his command of the matter. Caught up in his own narcissistic
game, an indicted Van Meegeren accused himself of being responsible for sev-
eral forgeries no one ever suspected and about which he certainly could have
kept silent.
Another way for the forger to self-redefine is to pretend to be a trouble-
maker whose intention was to confront the forces of corruption and deceit
that taint the art world at large. This amusing reversal, having the forger play
the role of the ultimate truth-teller, can be witnessed, among others, in Geert
Jan Jansens personal website:

All by himself he has denounced the whole international art-world. He


has unmasked snobbism, greed and hypocrisynot just once, but dozens
of times over years. The connoisseurs and tax collectors may well drink
his blood. Auctioneers would rather see him gone and museum directors
do not want to be seen in his company. But there is a double moral stan-
dard here, especially among art dealers. They all declare him a pariah, but
in reality they have made quite a lot of money with his workwillingly
and knowingly. There were even some who directly placed orders with
him.22

Still other figures can exist. An expert can pass intentionally to the side of the
forger (or be his acolyte right from the start). So can intermediaries. This can
be done without even becoming an acolyte in the proper sense but instead an

21 Hebborn, Op. cit., p. 176. Also see his Confessions of a Master Forger, Cassell, London, 1997,
p. 234.
22 http://www.geertjanjansen.nl/biografie.html (visited November 3rd, 2013); my translation
from the Dutch.
The Narrative Structure of Forgery Tales 57

objective ally of the forgeras when a dealer with no connections with the
pilot conceals signs of counterfeiting to avoid losing a lucrative transaction.
So can the acquirer, in multiple ways. A forgers dupe may play the victim on
the public scene while secretly downplaying his role when he half-knowingly
endorsed the fake for such and such motive. Victims of art forgers can very well
wait a few years after the discovery and then sell their object as the genuine arti-
cle again, through complacent or ignorant intermediariesbetting that no one
will remember the unmasking and resultant scandal. Among other interesting
specificities of our way of dealing with art forgery, the Beltracchi affair turned
the spotlight on the fact that dupes may officially reclaim their fakes after the
closure of the case. This is how once discovered forgeries have been witnessed
to pop up again on the marketplace, possibly several times, and sometimes
quite successfully. The acquirer may also be part of the forger from the start,
acting as the initiatorhis agency as the dupe thus being a complete fabrica-
tion from the get-go. This might happen more frequently than one would imag-
ine because money laundering (possibly in relation with more serious criminal
activities) or insurance fraud rank high among the outlets for art forgeries.
Last but not least, it could also be pointed out, in a more general kind of
way,that the actors supposed to be interested in the uncovering of forgeries
contribute more or less passively to the forgers success. The art market being
a market, there should be no minimizing the grey zone between good prac-
tice on the part of dealers and experts, on the one hand, and blatant crooked-
ness, on the other. The collusion between forgers and their adversaries may
be malignant, passive or even systemic. As journalists Stefan Koldehoff and
Tobias Timm suggested in their account of the Beltracchi affair, even the judi-
cial system could, in some respects, be counted among the forgers objective
allies by default. The same could be said of more or less dubious ways that are
typical of the post-modern art world, such as the tacit social agreement allow-
ing experts to be paid a percentage of the selling price of works they them-
selves have authenticated. What better invitation to malpractice on the part of
the certifier? The result isor should bea suspicion that in such a case the
expert acts as one of the forgers means or intermediaries. Here again, narrato-
logical-oriented approaches may yield interesting results through the accurate
description of the actors, action-roles and interactions involved.

Many thanks to Dunja Hersak and Jerrold Levinson for having read the manuscript of this
article and made most useful suggestions regarding form and content.
58 Lenain

The narrative structure of forgery tales

1.actants (Greimas 1966)


the forger vs the dupe
* initiator *~certifier (also typically an
* pilot intermediary)
* object (also a means) heir
* presenter art expert
* maker art dealer, auction house
* acolytes scholar / scientist

(*~certifier) *~acquirer (buyer)


(*intermediary) ~art lover
(*~acquirer : money laundering) ~connoisseur
(~lawyer, counsel) ~museum official
etc. ~speculator
etc.

~general public
* agent / ~status
bold : necessarily part of the structure

+ means
object
forged documents
lies, staging
intermediaries, incl. expert, art dealer, auction house etc.
innocent maker
innocent helper
materials, tools, elements of stage-setting
etc.

+ opponents
main opponent: the discoverer (credited with the unmasking)
skeptics, dissenters
(lawyers, experts committed to the court etc.)
The Narrative Structure of Forgery Tales 59

2.Interactions

Preparation : initiator + pilot + acolytes maker object (+ means)


(incl. the making)

Presentation : pilot + acolytes object presenter intermediaries dupe

Piloting : pilot + acolytes intermediaries dupe

Unmasking : opponents object initiator + pilot + maker + acolytes


or :
opponents initiator + pilot + maker + acolytes object

collapsing of the objects value


breaking up of the forger as a group
one or several of the forgers sub-actants may help the
unmasking (typically: partial cooperation with the accuser)

Retaliation of the forger : attempt to redefine the forgery as mystification or


as full-fledged artistic creation
nasty exacerbation of the dupes dismay (by
stressing the accidental circumstances of the
unmasking or by pointing out to yet undiscovered
fakes)

Epilogue : reaction of the dupe / reaction of the forger / narrators maxim

: fabrication (Goffman 1974)

3.Aftermaths

Conversion of the forger into a celebrity : autobiography, memoirs, interviews,


TV show, lectures, participation in
documentaries
Attempt to re-define the forgery as
full-fledged artistic creation : recycling the makers know-how to
produce non-deceptive imitations while
capitalizing on the fame earned with the
unmasking

Conversion of the forger into an expert in art restoration or authentication


60 Lenain

4.Tropes

= second-level operations on elements of the actant schema

The certifier passes to the forgers side.

An intermediary passes to the forgers side.

The acquirer fabricates his position as the dupe (either as the initiator or
as an acolyte).

Agents who are supposed to be interested in the unmasking contribute


more or less knowingly to the success of the forgery (malignant or systemic
collusion of dealers, auction houses, experts, buyers, judicial system).

The forger passes to the side of the opponents (by cooperating with the
accusation / becoming an expert).

The forger self-redefines as the ultimate truth-teller.


CHAPTER 4

Forge and Export: The Trade in Fake Antiquities


from China

Toby Bull and Stefan Gruber

This chapter explores aspects of the manufacturing, smuggling, trading, and


identification of fake Chinese antiques, while focusing mostly on items origi-
nating from the region of South China. Art forgery is one of the most com-
mon forms of art crime committed to satisfy the never-decreasing demand
for new antiques by the constantly growing and overheated international
art market. South China plays a central role in those operations, as it not only
hosts numerous workshops solely dedicated to producing high numbers of
fake Chinese antiques of varying quality, but its location also provides multiple
transportation routes for shipping the contraband abroad, for example via the
Pearl River Delta or Hong Kong. In many cases, the forgers operate in organized
manners and often produce fakes following precise instructions. While most
copies of antiques are produced as replicas and sold as such, a high number of
items is nevertheless produced with the sole purpose of cheating purchasers.1
Besides copies of less known or entirely fabricated pieces, copies of famous
Chinese antiques can also be found on the market. For example, a Ming
Dynasty chicken cup that was sold for $38.5 million at an auction in Hong
Kong in April 2014,2 setting a new record for the most expensive Chinese por-
celain, is at the same time one of the most reproduced pieces of Chinese art
ever.3 Copies can be found for sale at countless Chinese antique shops, some
of which attempt to convince customers that they stumbled across a bargain.
Demand and increasing prices in the art market combined with greed provide

1 Stefan Gruber (2014), Perspectives on the Investigation, Prosecution and Prevention of Art
Crime in Asia, in Saskia Hufnagel and Duncan Chappell (eds.), Contemporary Perspectives on
the Detection, Investigation and Prosecution of Art Crime (Ashgate).
2 Chinese Ming-era Chicken Cup Sells for Record $38.5 Million, Australia Network News
(9 April 2014), <http://www.abc.net.au/news/2014-04-09/an-chinese-ming-era-chicken-cup-
sells-for-record-2436-mi/5376638>.
3 Rare Ming Dynasty Wine Cup Expected to Fetch $38m at Auction, Australia Network News
(13 March 2014), <http://www.abc.net.au/news/2014-03-13/an-china-rare-tea-cup-goes-to-
auction/5317948>.

koninklijke brill nv, leiden, 5|doi .63/9789004280540_005


62 Bull and Gruber

excellent opportunities for forgers and fraudulent antique dealers alike, which
leads to more fraud overall as a result. Either an irresistibly low price or the
desire of a collector for a particular piece can help criminals to convince buy-
ers that they are buying genuine pieces despite their suspicions that they are
being offered a fake.4

Mere Copies or Fake Antiques?

This chapter recognizes that there are many different interpretations of the
term fake in relation to pieces that are not genuine. The concept of a genuine
work and an imitation is by no means as clear-cut in China, and, as a result,
art forgery in China has never carried the dark connotations that it does in
the West.5 In fact, the conservation of cultural heritage through copying and
rebuilding has a long tradition in Chinese and other Asian cultures, which also
reflects a different perception of originals and copies.6 To copy masterpieces
was, and remains, widely practiced to train artists and to pay homage to artists
from previous generations. Historically, copying was as a stage in the learn-
ing process, giving value to the copyist; there was no demeaning the act of
copying for a lack of imagination thereby making any copy a forgery. A forgery
begins with the intention to deceive; of course, further problems arise when
the copies made for the purpose of study and practice merge with the ones
that intended to deceive.7
Striving for a definitive etymological definition of this term is beyond the
scope and purpose of this work. Nevertheless, fake may be synonymous with
forgery, but the word is also sometimes used to describe a copy or a reproduc-
tion. For the purpose of this chapter, the term fake is understood in the con-
text of counterfeitwhich implies that a piece is manufactured or altered
deliberately to be later used as a tool for deception. One example of a defini-
tion of counterfeit as used in the international art market can be found in the
conditions of sale by Sothebys:

4 Kimberly Alderman (2014), Art Crime, in Gerben Bruinsma and David Weisburd (eds.),
Encyclopedia of Criminology and Criminal Justice (Springer).
5 H.C. Luce (2000), Copying Chinese Paintings: Flattery or Forgery? ifar Journal (Spring): 10.
6 Stefan Gruber (2007), Protecting Chinas Cultural Heritage Sites in Times of Rapid Change:
Current Developments, Practice and Law, Asia Pacific Journal of Environmental Law 10: 253.
7 Toby Bull (2009), Lack of Due Diligence and Unregulated Markets: Trade in Illicit Antiquities
and Fakes in Hong Kong in Noah Charney (ed.), Art and Crime: Exploring the Dark Side of the
Art World (Praeger), 26, 28.
Forge and Export 63

For these purposes, counterfeit means a lot that in Sothebys reasonable


opinion is an imitation created to deceive as to authorship, origin, date, age,
period, culture or source, where the correct description of such matters is not
reflected by the description in the catalogue (taking into account any Glossary
of Terms). No lot shall be considered a counterfeit by reason only of any
damage and/or restoration and/or modification work of any kind (including
repainting or over-painting).8

Demand for Affordable Chinese Antiquities

Chinese antiques have increased in popularity on the international art market


in recent decades and are often highly sought after by collectors and inves-
tors alike. Prices seem to be racing from one record to another. For example, a
Qianlong porcelain bowl was sold at an auction in Hong Kong in 2006 for $19.5
million, which was unprecedented for Asian porcelain.9 However, this price
was soon eclipsed at another auction in Hong Kong in 2010 with the sale of a
Qianlong porcelain vase for $32.4 million, and, most recently, by the above-
mentioned sale of the Ming Dynasty Chicken Cup. While these are examples
of extraordinary expensive art, the value of more reasonably priced Chinese
antiquities is generally rising at a similar pace.
Regarding the international market for cultural heritage items generally
and antiquities in particular, source nations and market nations are typi-
cally distinguished.10 In this context, source nations are seen as countries
rich in cultural artifacts beyond any conceivable local use, while richer mar-
ket nations are countries where the demand for such items usually exceeds
the supply, which encourages the export of cultural property from the
usually poorersource nation.11 While China has been a classic example of
a source country since the opening of the trade routes to the West, it is also

8 This definition can be found in the conditions of sale in Sothebys catalogue for the auc-
tion Collections, held on 29 April 2014 in London, available at <http://www.sothebys
.com/content/dam/sothebys/PDFs/cob/L14304-cos.pdf>.
9  Christies, Auction Results, Imperial Chinese Ceramics from the Robert Chang
CollectionJade Shears and Shimmering Feathers, Lot 1309 (28 November 2006),
<http://www.christies.com/lotfinder/lot/a-fine-and-highly-important-imperial-famille-
4823606-details.aspx?intObjectID=4823606>.
10 Simon Mackenzie (2005), Going, Going, Gone: Regulating the Market in Illicit Antiquities
(Institute of Art and Law), 8.
11 John Henry Merryman (1986), Two Ways of Thinking about Cultural Property, American
Journal of International Law 80: 831.
64 Bull and Gruber

now becoming a market nation as many wealthy Chinese collectors and busi-
nessmen are involved in the repatriation of items that were once looted, thus
reclaiming the cultural heritage of their country. The ongoing export of cul-
tural items from China, particularly over the last 150 years, through looting and
legal export, and the loss of items through destruction, most notably during
the Cultural Revolution, has created an increasing shortage in items available
to the art market.
Generally, antiquities sold on the open market fall into the three categories
of licit, grey area, and illicit items.12 This chapter focuses on fakes as a fourth
category, which includes modern creations or reproductions of Chinese art,
which masquerade as antiquities. Fakes might masquerade as artifacts from all
the other three categories, as they are not exclusively sold on the open market.
In fact, it might in many cases be easier to sell fakes to buyers of potentially
illegally exported items, or at least artifacts with dubious provenance, as they
might hope to have encountered a once-in-a-lifetime chance or bargain, and
they cannot check the authenticity of the item as thoroughly as they could a
licit artifact.

Chinese Fake Antiquities in the International Art Market

Unsurprisingly, the high profits and prices achieved through the sale of Chinese
antiquities also attract criminals who try to take their share of the market.
While the most destructive forms of crime related to antiquities relates to loot-
ing and the illegal export of cultural artifacts, this chapter focuses exclusively
on the manufacture and sale of fakes. However, they are inexorably linked, as
they are in many cases committed by the same groups of criminals and are usu-
ally targeted at the same group of potential purchasers constantly competing
with others on the search for a bargain in the ever-growing Chinese art market.
Looted antiquities and fakes emanating from China both serve the same pur-
pose of sating a seemingly incessant demand for Chinese cultural artifacts: the
former type illegally excavated, whilst the latter created to deceive.
Several factors are aggravating the situation. Amongst them is a lack of
due diligence and in some cases fraudulent conduct by some auctioneers and
antique dealers. One recent example that highlights the level of unscrupulous-
ness of some involved in the market relates to the sale of a set of two pieces
labelled as a stool and dressing table carved from jade during the Han dynasty.13

12 For definitions of these categories, see Mackenzie, supra note 10, at 4.


13 206 bc to 220 ad.
Forge and Export 65

Both items were sold at auction in Beijing for $33 million in 2011. Once histori-
ans questioned the authenticity of the pieces by pointing out that the Chinese
sat on the floor and did not use chairs during that era, representatives from
the jade industry in Pizhou in Jiangsu Province confirmed that they had been
manufactured by local craftsmen in 2010, but stressed that it was only the art
dealers who decided to offer them as antiquities on the Chinese art market.14
Fakes of various quality have been flooding the market for Chinese art and
antiquities for years, which is also damaging the general faith of customers
in the authenticity of objects and potentially harming the market long-term.
While buyers can generally demand compensation under the Auction Law of
the Peoples Republic of China of 1996 if items turn out to be fakes after the
auction15 and most of the large Western auction houses offer a buy-back guar-
anty in such cases, buyers nevertheless risk a significant financial loss if they
accidentally purchase an expensive fake item.16 Many auctioneers will usually
rather invest resources in proving that the item was genuine than acknowledg-
ing own faults and refunding the customer.
As one of the major players in Chinas art market, the president and director
of the auction house China Guardian, Wang Yannan, was quoted stating [t]his
is the challenge right now...in the mind of every Chinese, the first question
is whether its fake.17 Such concerns coincide with an increasing number of
failed transactions, where the buyer refuses to pay. This is a problem not exclu-
sive to China, although it is occurring there much more frequently. A porcelain
vase allegedly made for the Qianlong Emperor during the eighteenth century
was auctioned by Bainbridges in London in 2010 for a record price of $83 mil-
lion. However, the Beijing-based bidder refused to pay, and, after a settlement
could not be reached, the vase was sold in a private transaction to another
Asian collector for slightly less than half the original bid in early 2013.18 It is

14 David Barboza, Graham Bowley and Amanda Cox (2013), A Culture of Bidding: Forging
an Art Market in China, The New York Times (28 October), <http://www.nytimes.com/
projects/2013/china-art-fraud/>.
15 Auction Law of the Peoples Republic of China of 1996, Article 61.
16 Generally regarding the protection of buyers and authenticity of art, see Carolyn Olsburgh
(2005), Authenticity in the Art Market: A Comparative Study of Swiss, French and English
Contract Law (Institute of Art and Law).
17 Ibid.
18 Scott Reyburn (2013), Chinese Vase Resold for Less Than Half $83 Million Record,
Bloomberg (15 January), <http://www.bloomberg.com/news/2013-01-14/chinese-vase-
resold-for-less-than-half-83-million-record.html>.
66 Bull and Gruber

interesting to note that a bbc expert had reportedly declared the vase a very
clever reproduction forty years ago.19
Closely connected to the issue of authenticity is that of provenance, which
is of great importance when selling pieces as genuine. Impeccable provenance
along with a solid and verifiable sales record history will also ensure higher
prices as such pieces are much less likely fakes. However, provenance can also
be faked.20 For example, in 2013, an item was sold as an eighteenth-century
Chinese vase for $1.7 million by an auctioneer in Norwood, ma. However, the
same vase had been sold by a different auctioneer in Iowa as a twentieth-
century replica for only $3,840 in 2012.21 The seller of the vase claimed that it
had last been auctioned by Christies in England in 1989 and even attached a
sticker from Christies with an auction number on the bottom of the vase as
proof. None of these claims were checked by the auctioneer before the sale.22
While records of previous sales generally increase the price of an item as they
provide provenance, such records should be examined thoroughly. This par-
ticularly applies to records from overseas that cannot easily be verified, as, for
example, some reports suggest that many reported sales in China did actually
not take place at all.23
Faking and forgery is hardly a new phenomenon in the art world, and China
has a rich history in this area. This has been going on for so long that some
experts suggest that 7080 percent of the antiquities sold in China are fake.24
While such claims are very difficult to prove due to a lack of sufficient data,
one of the authors of this chapter carried out an experiment in 2013 to test the
hypothesis. He purchased an antiquity for sale from a gallery on Hollywood
Road in Hong Kongchosen for its location in one of the citys hot spots for

19 Peter Dominiczak (2010), bbc Antiques Expert Said 53Million Chinese Vase Was a Very
Clever Fake, London Evening Standard (12 November), <http://www.standard.co.uk/
news/bbc-antiques-expert-said-53million-chinese-vase-was-a-very-clever-fake-6535652.
html>.
20 Kenneth Polk and Duncan Chappell (2009), Fakes and Deception: Examining Fraud in
the Art Market, in Noah Charney (ed.), Art and Crime: Exploring the Dark Side of the Art
World (Praeger), 74, 76.
21 Sean P. Murphy and Andrea Estes (2013), Vase that Drew $1.7m Bid also Drawing Federal
Scrutiny: Antique and Invaluable or New and suspect? Boston Globe (12 May), available at
<http://www.bostonglobe.com/metro/massachusetts/2013/05/11/real-replica-norwood-
art-auctioneers-defend-value-chinese-sold-for-stunning-million/GXyFnnL5BatTu
DPRE4OzhP/story.html>.
22 Ibid.
23 Barboza, Bowley, and Cox, supra note 14.
24 Ibid.; Murphy and Estes, supra note 21.
Forge and Export 67

the trade in Chinese antiquities, its average size, and ceramic items on display
for saleand then subjected the piece to forensic testing. The authors were
able to compare the sales patter of the dealer and the provided gallery certifi-
cate with the actual results from an independent testing laboratory. Although
such random samples are not necessarily representative of the overall num-
bers of fake antiquities being in circulation, the experiment provided some
interesting insights.
The item was sold with a Certificate of Guaranty (sic) with the following
description: One pc. of very fine quality antique painted pottery figure of a
warrior horse. Circa: 618906 A.D. 10th Century. Tang Dynasty. From: Luoyang,
China. We hereby certify to the best of our knowledge that the one piece of
painted pottery figure is a genuine antique. The certificate contains a photo-
graph of the antiquity purchased and is signed by the gallery owner. The object
is aesthetically pleasing, looks old, and has a cold, clammy feel to it. There are
even some bits of dirt stuck within the small nooks and crannies. Its stylistic
features certainly made it look like a Tang Dynasty horse, although its long
caparisoned saddle can also sometimes be seen on pieces from the Northern
Qi period (550557). All this made it an ideal item for independent testing.
The horse was taken to the Hong Kong agent of Oxford Authentication Ltd
(uk), one of the worlds leading testing facilities, for a Thermolumonescence
(tl) Analysis. This test measures the radiation level emitted by a tiny sample
(weighing about 100 milligrams) drilled from the object. When heated, the
powder emits a faint light signal, which can indicate when the pottery was
last fired in a kiln. If the measurements are consistent with the reported age
of the antique, a certificate of authentication will be issued. Evidently, the test
itself is a destructive one, as it requires the samples (usually at least two) to
be extracted from the object. However, most owners will not want a sample
drilled from an area that would be clearly seen on the object and might spoil
its aesthetic and monetary value. Consequently, owners often only ask for sam-
ples to be taken from the base of the piece, or inside a rim, or near the blow-
ing hole in order to leave no marks visible when on display. But this is a fact
the manufacturers of fakes know only too well and use to their advantage. In
many cases, they work old shards, usually collected from around the area of the
old imperial kiln sites, such as those at Jingdezhen, into the objects during the
manufacturing stage. For the purpose of the experiment, the two samples were
deliberately taken from under the head of the horse and from the left buttock
area. The samples were taken under laboratory conditionsin red light,
placed in a vial, sealed in an envelope, and couriered to the main testing labo-
ratory in Oxford in Great Britain. The results were delivered one month later.
The one-page report stated what the object was presumed to be (a painted
68 Bull and Gruber

pottery horse from the Tang dynasty), where the samples were taken from, by
whom, and included a statement concluding [u]sing standard methods and
techniques it was estimated that the date of last firing was: Less than 100 years
ago. Note: Both samples yielded a similar result. INCONSISTENT with the sug-
gested period of manufacture. The report is signed by the owner and founder
of Oxford Authentication.
Similar fakes can also be found in well-known public collections. For exam-
ple, it was revealed in early 2014 more than three quarters of the Chinese paint-
ings from the Ming and Qing dynasties owned the Victoria and Albert Museum
in London have been identified as not genuine and are therefore not on public
display.25 An even more dramatic case led to the closure of a private museum
in Hebei province in 2013 after it was found that almost all of the 40,000 pieces
on exhibit were in fact fakes.26

The Manufacturing of Chinese Fake Art

Southern China is amongst the worlds hotspots for mass-produced works of


art. For example, a large part of the international supply of cheap oil paintings
are produced in Dafen Village at Shenzhen. Its hundreds of galleries and work-
shops export millions of paintings each year. Most of the paintings produced
in that city are copies of famous masterpieces; the most experienced painters
can produce thirty such copies per day.27 While the majority of those paintings
could never be mistaken for genuine masterpieces, this industry affords oppor-
tunities for unscrupulous fakers to use the services of some of the most skilled
painters in Dafen, who earn meager salaries despite some being graduates
from Chinas most renowned art schools.28 And copying is not just for classical
painting; modern art from China and other Asian countries is being copied
the most frequently. For every authentic work on display in the citys galleries,

25 Richard Brooks (2014), Merciless Ming Swamps V&A with Forgeries, The Sunday Times
(2 February), <http://www.thesundaytimes.co.uk/sto/news/uk_news/Arts/article1370672
.ece>.
26 Chris Luo (2013), Hebei Museum Mocked Online over Fake National Treasures, South
China Morning Post (9 July), <http://www.scmp.com/news/china/article/1278836/hebei-
museum-mocked-online-over-fake-national-treasures>.
27 Martin Praetsch (2006), Van Gogh from the Sweatshop, Spiegel Online (23 August),
<http://www.spiegel.de/international/0,1518,433134,00.html>.
28 Ibid.
Forge and Export 69

hundreds of reproductions are being churned out by artists who have almost
perfected the centuries-old Asian tradition of faithfully copying their masters.29
For example, Dao Hai Phong (born 1965) is a Vietnamese contemporary art-
ist who graduated from the Hanoi College of Fine Art in 1987. He specializes
in village scenes and depictions of Hanoi streets, which are executed in oils
in his trademark primary colours. He has held exhibits across Asia, Europe,
and the United States. His work is sold for thousands of dollars. As an estab-
lished Asian contemporary artist, his style is being copied and peddled at the
street stalls of Dafen as well in Hong Kong. Fishing Boats, which was painted
in 2002 and is one of his most seminal works, is also one of the most-copied
ones. Almost before the paint had dried on the original, renditions of this
work were already readily available. Indeed, one version of itsigned by the
copyists own handwas seen by one of the authors on sale for less than $50
soon after the original was painted. Notwithstanding the intellectual property
issues involved in this subterfuge, it would not be too difficult for an art dealer
or gallery worker of less than perfect repute to offer such a copy as an original
to a nave art buyer just starting a collection. The situation has worsened since
then, with even more replicas and forgeries of better quality copying many of
the regions most famous contemporary artists available on the market.
Meanwhile, the Chinese authorities are attempting to tackle the most bla-
tant of cases of art piracy and copyright infringements with establishment
of the Dafen Intellectual Property (ip) Office in 2007,30 whose area of respon-
sibility is to investigate and prosecute copyright violations. Despite efforts to
obtain data, the authors have been unable to verify the number of cases it has
flagged which led to prosecutions. Nevertheless, the mere existence of such an
organization shows the intentions to at least attempt to alleviate the problem.
Modern technology has enabled objects to be reproduced with far greater
accuracy. For the last twenty years, copies of various art forms have appeared
from China of a previously unseen quality, particularly in porcelain and
pottery.31 However, while the top forgers seemingly master many stylistic traits,
know how to fool a wide range of potential buyers, and produce antique items
to pass a tl test in the way described above, it is nevertheless very difficult to

29 Bull, supra note 7, 29.


30 Evan Osnos (2007), Chinese Village Paints by Incredible Numbers, Chicago Tribune
(13 February), <http://articles.chicagotribune.com/2007-02-13/news/0702130004_1_oil-
paintings-chinese-village-mao-tse-tung>.
31 Bull, supra note 7, 29.
70 Bull and Gruber

produce pieces of such detail to fool the experts working in the top auction
houses or galleries with their years of academic training and experience.32
Jingdezhen, a leading centre of pottery, where Ming porcelain was pro-
duced in the fourteenth and seventeenth centuries,33 has now developed into
an international art centre similar to Dafen Village. In addition to well-known
Chinese artists, such as the controversial Ai Wei Wei, creating, firing, and glaz-
ing their works,34 many forgers are producing thousands upon thousands of
copies of seemingly genuine pottery items with great skill and sophistication.35
However, it is the modern pieces designed to deceive and made to order, with
potters copying pieces straight out of the auction catalogues, which pose dan-
ger to the art market. These items not only look convincing, but can pass the
industry standard scientific tl test (as described above), which is the most
commonly used method in dating porcelain and pottery. Another method for
testing items, though not an industry norm and much more expensive than
a tl test, is the use of Computed Tomography (ct) scans. This is a medical
imaging method using special x-ray equipment to obtain cross-sectional and
three-dimensional pictures of an object, allowing better visualization of the
inner state of the piece.36 This is not a dating test, but can show how a work of
art was made, giving vital clues as to the various stages of manufacture. This
is a very expensive test and therefore hardly used; the testing of a 50cm piece
or smaller costing around $1350, increasing by $250 for each additional 30cm
to be tested. Neither the tl test nor the ct scan option are widely offered by
galleries to those purchasing artifacts, as enlarging the knowledge of a pro-
spective buyer might in some cases be rather counter-productive. Certainly,
no possibility of any type of forensic testing was mentioned during the buying
process of the authors Tang-dynasty horse. Nevertheless, many art galleries
on Hollywood Road in Hong Kong have tl certificates attached to some of
their pieces on sale and give great prominence in the display.37 However, it
should be noted that all the tl test pertains to is that the sample examined is
of a certain age and not that the piece itself is genuine. It may well be genuine,
but buyers are advised to be cautious about the validity of such certificates.

32 Ron Gluckman (2002), Remade in China, Destinasian (June), <http://www.gluckman


.com/ChinaFraud.html>.
33 Bull, supra note 7, 29.
34 Kristina Kleutghen (2010), Ai Wei Wei, Sun Flower Seeds, Modern Art Asia 5: <http://
modernartasia.com/ai-wei-wei-sunflower-seeds-5/>.
35 See further, Gluckman, supra note 32.
36 See, e.g., the website of Antique Authentication Ltd., <http://www.antiqueauthentication
.com/home_eng.html>.
37 Bull, supra note 7, 29.
Forge and Export 71

Fake Antiques, Organized Crime and the Role of Hong Kong

The issues related to the manufacture, movement, and sale of fake Chinese
antiques should not be looked at in isolation from other forms of art crime,
as these pieces are created to satisfy the international demand for Chinese
antiquities and art in a similar way as the trade in illicitly exported items. It is
generally fair to claim that the trade in and production of fake antiquities on
a industrial scale is tied to organized crime in a similar way as the large-scale
trade in illicitly exported antiquities. There are many similarities between both
criminal activities in terms of their modi operandi, transportation, organiza-
tion, and the ways in which the items are introduced into the art market. Hong
Kong, as an ideally located transit hub and free port, has been playing a central
role in the smuggling and sale of genuine, illicitly looted antiquities and their
modern-day doppelgangers. Looted antiquities are typically smuggled across
the porous borders between Mainland China and its Special Administrative
Region, often acquiring fictitious provenance along the way. Documents claim-
ing false authenticity and providing assurances that the items have not been
looted are also common practice.
Organized criminals have been increasingly diversifying their operations
and are often involved in several criminal activities simultaneously. A recent
report by the Australian Crime Commission confirmed that [o]rganised crim-
inals who may once have been involved in traditional illicit markets, such as
drugs, are now expanding their interestsoften across a range of illicit activi-
ties or sectorsin order to maximize their profits.38 The same applies to orga-
nized structures in art crime, which has been an increasing focus of research
generally39 and of research in Asia.40 Illicit art trafficking and the trade in looted
antiquities is often used for laundering profits from other illegal activities due

38 Australian Crime Commission, Organised Crime in Australia 2013 (Commonwealth


of Australia: 2013), 7; https://www.crimecommission.gov.au/sites/default/files/acc%20
OCA%202013-1.pdf.
39 Duncan Chappell and Kenneth Polk (2011), Unraveling the Cordata: Just How Organized
is the International Traffic in Cultural Objects? in Stefano Manacorda and Duncan
Chappell (eds.), Crime in the Art and Antiquities World (Springer), 99; Simon Mackenzie
(2011), The Market as Criminal and Criminals in the Market: Reducing Opportunities
for Organised Crime in the International Antiquities Market, in: Stefano Manacorda
and Duncan Chappell (eds.), Crime in the Art and Antiquities World (Springer) 69; Jessica
Dietzler (2013), On Organized Crime in the Illicit Antiquities Trade: Moving beyond the
Definitional Debate, Trends in Organized Crime 16: 329.
40 Christine Alder, Duncan Chappell and Kenneth Polk (2009), Perspectives on the
Organization and Control of the Illicit Traffic in Antiquities in South East Asia, in Stefano
Manacorda (ed.), Organized Crime in Art and Antiquities (International Scientific and
72 Bull and Gruber

to the high profits from organized crime.41 Also, the transportation routes used
for smuggling one particular kind of illegal good can usually also be utilized
for moving other contraband once the mechanisms for bribing officials at the
port of call and border crossings, falsifying documents, and modes of transpor-
tation are in place. This also applies to smuggling operations across the Hong
Kong border, which have become increasingly efficient and sophisticated due
to the long experience of drug trafficking and smuggling of other goods by the
local criminal organizations. In December 2013, Chinese customs officers dis-
covered a forty-meter underground tunnel with a rail track and wagon crossing
the border between Shenzhen and Hong Kong, which could be used for smug-
gling an unlimited variety of contraband.42
On 18 June 2011, a 20 container bound for Taiwan arrived at the River
Trade Terminal in Tuen Mun, Hong Kong. It had been loaded in Huangpu in
the Pearl River Delta, and its cargo was described as Tupperware and plastic
items. However, a random check disclosed that the container was packed with
thousands of fake Chinese antiques, including ceramics, paintings, scrolls,
and stoneware. The fakers even developed false provenance for the items and
placed them in artificially aged crates bearing labels identifying them as part
of a shipment of treasures taken from the Palace Museum in Beijing by the
Kuomintang forces. Some of those shipments were reportedly lost when the
Kuomintang fled Mainland China in 1949. Experts would have been able to
notice the difference from the real crates, boxes, and packaging that were
used to transport treasures from the Forbidden City to Taiwan, as they were
manufactured with an impressive quality of craftsmanship with cushioned silk
linings inside and cutouts of perfect proportions to house the revered and trea-
sured antiquities. However, the items intercepted in Tuen Mun were manu-
factured for the quick sale, to produce large margins, and above all to exploit
the greed of the purchaser. The fake provenance was aimed at adding to the
mystery surrounding the items and convincing prospective collectors that they
had the once-in-a-lifetime opportunity to get their hands on the bargain of the
century. If the container had not been selected for random inspection, these

Professional Advisory Council of the United Nations Crime Prevention and Criminal
Justice Programme), 119.
41 Stefan Gruber (2013), The Fight against the Illicit Trade in Asian Cultural Artefacts:
Connecting Domestic Strategies, Regional Cooperation, and International Agreements,
Asian Journal of International Law 3: 341, 347.
42 Smugglers Built Secret Tunnel Leading to Hong Kong, Border Official Discovers, South
China Morning Post (25 December 2013), <http://www.scmp.com/news/hong-kong/
article/1389781/smugglers-built-secret-tunnel-leading-hong-kong-border-officials>.
Forge and Export 73

items would then have acquired their export certificates and been shipped
to Taiwan and beyond, with many of the best pieces entering the art market
with their provenance showing that they had come from a private collection in
Hong Kong. The amount of items, sophisticated fake provenance, and method
of smuggling clearly indicates that this was not the work of a small group of
perpetrators, but clearly links it to organized crime.
In fact, the trade in antiquities, be they real or fake, is part of highly orga-
nized criminal enterprise structures. For example, tomb robbing in China
involving diggers, equipment, and middleman to sell the objects requires a
multi-layered network, just as the manufacture and movement of fakes. Unlike
other type of trafficking, the criminals involved face far less harsh penalties
if caught than those with drugs, for example, while those orchestrating those
operations are hardly ever caught or prosecuted at all.43 The problem is exac-
erbated by a lack of awareness and resources assigned by the authorities to
combatting illegal trade via Hong Kong. For example, the officers of the Hong
Kong Customs and Excise Department (hk C&E) can only carry out random
checks on 1% of the containers shipped via the Port of Hong Kong. According
to information provided by the authorities to the authors on request, the value
of antiquities seized by hk C&E and returned to China between 1992 and 1996,
approaching the end of British rule on 1 July 1997, was hk$15 million. In the
following ten years (19972006) the value decreased to hk$2.3 million, and
between 2007 and 2012 there were no recorded cases at all.
In 1997, many art dealers fled Hong Kong fearing the change of sovereignty,
believing the harsh and strict export embargos of the Chinese system would be
applied to Hong Kong and kill the trade in Hong Kong.44 Once the announce-
ment was made that Chinese laws on the protection of cultural relics would not
be applied to Hong Kong, business carried on unabated, and the reputation of
Hong Kong as the place to buy Chinese artifacts and antiquities solidified. Of
particular importance in this context is Hong Kongs status as a transport hub,
and particularly as a free port. If a cultural artifact is not proven to be stolen, it
can be legally exported, changing the status from illicit to licit. Once entered
into auction catalogues, the object is often described as part of a private collec-
tion in Hong Kong. That is certainly the story for many illicitly smuggledand
poorly provenancedantiquities, with the best fakes often passing muster and
following this same path. However, as the due diligence provided by Western
auction houses is generally significantly higher than in China, where more and

43 Gruber, supra note 6, 296.


44 Todd Crowell (1997), A Farewell to Antiques, Asiaweek, <http://www-cgi.cnn.com/
ASIANOW/asiaweek/97/0509/nat4.html>.
74 Bull and Gruber

more auction houses are opening for business. It is therefore far easier for a
fake to gain a record of sale and, therefore, a provenance through a local sale.
The question needs to be asked whether or not greater due diligence or
some form of regulation amongst the local art dealers in Hong Kong could
be introduced to help diminish and eventually stop the trade in illicit antiq-
uities and their modern equivalent pieces, recently manufactured to defraud
buyers and sate the ever-increasing demand. The authors conducted their own
original research on the success of a self-regulatory approach for the Hong
Kong market: twenty-five mainstream art galleries in the main antiques area of
Hollywood Road in Hong Kong were asked to complete a questionnaire with
fourteen questions about the level of fakes in the market, as well as questions
about looting and whether greater due diligence and a degree of self-regulation
could help quell the problems experienced in the market. Only four galleries
returned the questionnaire, and even those four that did answer did so with
rather spurious replies. These results seem to indicate that there is little inter-
est from the art trade to self-regulate, nor is there any lead from the govern-
ment to tackle, or even recognize, the problem. It appears that there is simply
too much money at stake. The Hong Kong Government is planning to make
the city an art hub, as seen in the recent arrival of the mega Art Basel exhibi-
tion in May 2013. The acknowledgment of a high number of fakes being traded
in Hong Kong is seen as jeopardizing this plan. Nevertheless, there is a real
danger that more genuine smuggled pieces and the fakes that always follow
will find their way into Hong Kong and from there into the international art
market. This is a very dangerous path, as the high amount of fakes and illegally
exported items in circulation does not only cause serious damage to Chinas
cultural heritage, but also destroys trust and confidence in the art market.

References

Alder, Christine, Duncan Chappell, and Kenneth Polk (2009). Perspectives on the
Organization and Control of the Illicit Traffic in Antiquities in South East Asia.
Page 119 in Stefano Manacorda (ed.), Organized Crime in Art and Antiquities.
International Scientific and Professional Advisory Council of the United Nations
Crime Prevention and Criminal Justice Programme.
Alderman, Kimberly (2014). Art Crime. In Gerben Bruinsma and David Weisburd
(eds.), Encyclopedia of Criminology and Criminal Justice. Springer.
Australian Crime Commission (2013). Organised Crime in Australia 2013.
Commonwealth of Australia, https://www.crimecommission.gov.au/sites/default/
files/acc%20OCA%202013-1.pdf. Australia Network News (2014). Rare Ming
Dynasty Wine Cup Expected to Fetch $38m at Auction, Australia Network News
Forge and Export 75

(13 March), available at http://www.abc.net.au/news/2014-03-13/an-china-rare-tea-


cup-goes-to-auction/5317948.
(2014). Chinese Ming-era Chicken Cup Sells for Record $38.5 Million,
Australia Network News (9 April), available at <http://www.abc.net.au/news/2014-
04-09/an-chinese-ming-era-chicken-cup-sells-for-record-2436-mi/5376638>.
Barboza, David, Graham Bowley, and Amanda Cox (2013). A Culture of Bidding:
Forging an Art Market in China. The New York Times (28 October), http://www
.nytimes.com/projects/2013/china-art-fraud/.
Brooks, Richard. (2014). Merciless Ming Swamps V&A with Forgeries. The Sunday
Times (2 February), <http://www.thesundaytimes.co.uk/sto/news/uk_news/Arts/
article1370672.ece>.
Bull, Toby (2009). Lack of Due Diligence and Unregulated Markets: Trade in Illicit
Antiquities and Fakes in Hong Kong. Page 26 in Noah Charney (ed.), Art and Crime:
Exploring the Dark Side of the Art World. Praeger.
Chappell, Duncan and Kenneth Polk (2011). Unraveling the Cordata: Just How
Organized is the International Traffic in Cultural Objects? Page 99 in Stefano
Manacorda and Duncan Chappell (eds.), Crime in the Art and Antiquities World.
Springer.
Christies (2006). Auction Results, Imperial Chinese Ceramics from the Robert Chang
CollectionJade Shears and Shimmering Feathers, Lot 1309 (28 November),
http://www.christies.com/lotfinder/lot/a-fine-and-highly-important-imperial-
famille-4823606-details.aspx?intObjectID=4823606.
Crowell, Todd (1997). A Farewell to Antiques. Asiaweek, http://www-cgi.cnn.com/
ASIANOW/asiaweek/97/0509/nat4.html.
Dietzler, Jessica (2013). On Organized Crime in the Illicit Antiquities Trade: Moving
beyond the Definitional Debate. Trends in Organized Crime 16: 329.
Dominiczak, Peter (2010). bbc Antiques Expert Said 53Million Chinese Vase Was a
Very Clever Fake. London Evening Standard (12 November), http://www.standard
.co.uk/news/bbc-antiques-expert-said-53million-chinese-vase-was-a-very-clever-
fake-6535652.html.
Gluckman, Ron (2002). Remade in China. Destinasian (June), http://www.gluckman
.com/ChinaFraud.html.
Gruber, Stefan (2007). Protecting Chinas Cultural Heritage Sites in Times of Rapid
Change: Current Developments, Practice and Law. Asia Pacific Journal of
Environmental Law 10: 253.
(2013). The Fight against the Illicit Trade in Asian Cultural Artefacts:
Connecting Domestic Strategies, Regional Cooperation, and International
Agreements. Asian Journal of International Law 3: 341.
(2014). Perspectives on the Investigation, Prosecution and Prevention of Art
Crime in Asia. In Saskia Hufnagel and Duncan Chappell (eds.), Contemporary
Perspectives on the Detection, Investigation and Prosecution of Art Crime. Ashgate.
76 Bull and Gruber

Kleutghen, Kristina (2010). Ai Wei Wei, Sun Flower Seeds. Modern Art Asia 5, http://
modernartasia.com/ai-wei-wei-sunflower-seeds-5/.
Luce, H.C. (2000). Copying Chinese Paintings: Flattery or Forgery? ifar Journal 10
(Spring).
Luo, Chris (2013). Hebei Museum Mocked Online over Fake National Treasures.
South China Morning Post (9 July), http://www.scmp.com/news/china/article/
1278836/hebei-museum-mocked-online-over-fake-national-treasures.
Murphy Sean P. and Andrea Estes (2013). Vase that Drew $1.7m Bid also Drawing
Federal Scrutiny: Antique and Invaluable or New and Suspect? Boston Globe
(12 May), http://www.bostonglobe.com/metro/massachusetts/2013/05/11/real-replica-
norwood-art-auctioneers-defend-value-chinese-sold-for-stunning-million/
GXyFnnL5BatTuDPRE4OzhP/story.html.
Mackenzie, Simon (2005). Going, Going, Gone: Regulating the Market in Illicit Antiquities.
Institute of Art and Law 8.
(2011). The Market as Criminal and Criminals in the Market: Reducing
Opportunities for Organised Crime in the International Antiquities Market. Page 69
in Stefano Manacorda and Duncan Chappell (eds.), Crime in the Art and Antiquities
World. Springer.
Merryman, John Henry (1986). Two Ways of Thinking about Cultural Property.
American Journal of International Law 80: 831.
Olsburgh, Carolyn (2005). Authenticity in the Art Market: A Comparative Study of Swiss,
French and English Contract Law. Institute of Art and Law.
Osnos, Evan (2007). Chinese Village Paints by Incredible Numbers. Chicago Tribune
(13 February), http://articles.chicagotribune.com/2007-02-13/news/0702130004_1_
oil-paintings-chinese-village-mao-tse-tung.
Polk Kenneth and Duncan Chappell (2009). Fakes and Deception: Examining Fraud
in the Art Market. Page 74 in Noah Charney (ed.), Art and Crime: Exploring the Dark
Side of the Art World. Praeger.
Praetsch, Martin (2006). Van Gogh from the Sweatshop. Spiegel Online (23 August),
http://www.spiegel.de/international/0,1518,433134,00.html.
Reyburn, Scott (2013). Chinese Vase Resold for Less Than Half $83 Million Record.
Bloomberg (15 January), http://www.bloomberg.com/news/2013-01-14/chinese-vase-
resold-for-less-than-half-83-million-record.html.
Sothebys (2014). Catalogue for the Auction Collections. London (29 April), http://
www.sothebys.com/content/dam/sothebys/PDFs/cob/L14304-cos.pdf.
South China Morning Post (2013). Smugglers Built Secret Tunnel Leading to Hong
Kong, Border Official Discovers. South China Morning Post (25 December), http://
www.scmp.com/news/hong-kong/article/1389781/smugglers-built-secret-tunnel-
leading-hong-kong-border-officials.
Part 4
Art and White-Collar Crime


CHAPTER 5

Money, Art, and Laundering: Coming to


Grips with the Risks

Petrus C. van Duyne, Lena Louwe, and Melvin Soudijn

Art and (Criminal) Money

In a very obvious way art and money are strongly connected: art is a coveted
commodity which has its price. Psychologically we may not want to see them
as overly connected since they are experienced as at a different mental or spiri-
tual level. Nevertheless the earthly and the elevated meet in every transaction
and artistic occupation. Art is for sale, and being a professional artist is a job
for money whether one is a composer at the court of Esterhazy, a painter in
the service of the Vatican, or a free artist depending on the local Maecenas.
Given this commodified facet, art is subject to all varieties of human conduct:
adoration, inflation and speculation, greed, and even crimenot an aberra-
tion, but the logical consequence of coveted objects of value. Motivated by
greed, art crime has diverse manifestations, but common themes can be found.
First, since time immemorial, objects of art have been stolen by individuals
as well as by states (Charney, 2009). Western museums exhibit the historical
loot of the erstwhile colonial powers or audacious generals such as Napoleon,
still to the regret of the dispossessed nations. The most recent massive art
plunder took place after the occupation of Baghdad in 2003, when under the
eyes of the us troops the Baghdad museum was systematically stripped of its
assets.1 Other forms of art theft include illegal excavations yielding such trea-
sures as the Nok statues from Nigeria or artifacts from the Cambodian Angkor
Wat Temple.
Second, forgery of objects of art is as old as art itself. For example, in
fifteenth-century China, pottery was made to look older to fool contemporary
collectors. Forgery requires a high degree of craftsmanship and a feeling for
how the product can radiate genuineness. It is art crime, but not destructive
or predatory. However, it undermines the very important principle of authen-
ticity and thereby the trust of the public (buyers and museum visitors) that an
object of art is what it pretends to be. Not all forgers cheat for money alone: a

1 Archaeology (April 2003).

koninklijke brill nv, leiden, 5|doi .63/9789004280540_006


80 van Duyne et al.

craving for recognition plays a motivating role too, as has been the case with
Van Meegeren (Kreuger, 2007).
Third, there are direct, destructive threats to objects of art: revenge, patho-
logical urge of destruction, or politically driven rational motives to destroy
objects of art which are strongly connected to the opponents national identity.
Religion-driven destruction, such as occurred in Mali (2013) and Afghanistan
(2001), can be considered as sub-category of political, willful art crimes, which
have no relationship with our theme: art, crime, and money. This facet of art
crime, serious by its nature, will not be the subject of this chapter, which deals
with art and finances.
Fourth, a new relationship between art, crime, and money has come into
being with the criminalization of money laundering, or, in more neutral terms,
criminal money management. Objects of art may be of interest to criminals with
a surplus of criminal income they want to invest. Naturally, criminals buying art
is not a threat to art itself. However, paying for objects of art with criminally
earned money goes against the basic principle that crime should not pay. In
addition, buying art with illicit money implies another criminal offence: money
laundering. This has various meanings. In the first place, it refers to the very act
of buying with tainted money, and in the second place, it refers to cleaning the
tainted money (implied in the meaning of laundering) through an art deal.

Money Laundering and Art: A Question

The latter art-crime interaction has raised concern among the authorities.
The world of art could be exploited by money-launderers for their criminal
purposes: either it is an outlet for the illegal proceeds of rich criminals or
worseit is a component in a laundering construction. It is even rumoured
that organized crime specifically makes use of art to launder part of their crim-
inal proceeds. According to Nelson (2009), examples of art used for laundering
abound, though he refers to only two cases in 2002 and 2008. At least these
cases underline its existence.
Once criminal proceeds are transformed into art, it is thought that its price
is manipulated to make an even bigger profit and leave less of an audit trail
(fatf, 2010).2 For these reasons, the fatf recommended including the art and
antique sector in a short list of enterprises that can be vulnerable to money

2 This observation misses the point that for laundering purposes (whitening of tainted
money), one actually needs a (fraudulent) audit trail for proving a licit origin. Otherwise one
has only converted an unexplainable token of wealth into another unexplainable one.
Money, Art, and Laundering 81

laundering or terrorist financing (fatf 2013). Consequently, the art sector


now belongs to the regulated sectors for which the traders are obliged to sub-
mit unusual or suspicious activity reports (SARs) to their national Financial
Intelligence Unit. In this regard, they are put in line with other traders of valu-
able objects such as jewellers and car dealers.
Though such concerns may have some ground, it is unknown what empirical
evidence justifies the decision to convert such a worry into the recommenda-
tion to regulate an entire sector. Is it commensurate to the size of the problem?
At present there are no data to answer this question affirmatively, which
should therefore not exclude the possibility that the fatf jumped to a rash
recommendation. Therefore, in this study we will survey what is known in this
sector about its relationship with criminal proceeds. By using the Netherlands
as a case study, the question at the heart of this article is for this reason: Is the
art sector regularly used to launder criminal proceeds, whether as an outlet or
for the designing of laundering operations?
Before discussing the methodology of this study, we examine some general
problems regarding the research on art, crime, and money laundering. A better
understanding of these problems helps to put our results in perspective.

Research on Art in Relation to Money Laundering

In the literature on organized crime and money laundering, art hardly plays
a role. Those examples that do mention a connection are usually not more
than anecdotal evidence or semi-political statements without substantiation
(Calvani, 2009). In fact, they are little more than examples of affluent crimi-
nals dabbling in arts, such as the notorious Dutch drug wholesaler Bruinsma,
who invested in unprofitable art gallery (Van Duyne, 1995). Investment in art is
also put forward as an illustration of a foolproof way to invest money in that it
would be difficult for the authorities to detect. Such anecdotes and theoretical
examples, however, do not give an indication of how big or serious this prob-
lem is because empirical data, especially quantitative data, are absent. Even
though Nelson noted that examples of art used to launder money abound, he
does not present any figures and mentions just two examples in 2002 and 2008
(Nelson, 2009; 199200). This scarcity is probably due to several factors.
First of all, compared to other criminological fields, research on organized
crime is of relative minor interest to criminologists, despite the high-level
political interest. This is probably due to the fact that it is hard to gain access
to offenders involved in criminal organizations or, in most countries, relevant
police data. Researching the intersection of organized crime and art is also
82 van Duyne et al.

hampered by the conceptual vagueness and stereotyping of organized crime


(Bowman, 2010; Dietzler, 2012). Money laundering is even less well researched
as it is often a subcategory of organized crime research itself, while also the
broader subject of criminal finances is under-researched in criminology.
As a consequence, not much empirical data is generated on the connection
between organized crime and investments in art.
Second, databases that register art in connection to crime often deal with
stolen objects (e.g., Art Loss Register, Interpol database on stolen art, and spe-
cialist police databases on art crime in specific countries). Obviously, stealing
art is the opposite of investing money in art. The objects of art included in
these databases may have found their way to a collectionneur or to the insur-
ance company for a ransom, an outcome which is not disclosed by the insur-
ance industry. Also, anecdotal evidence on the backgrounds of art thieves is
too diverse and small in number for generalizations. Tijhuis (2008) provides
a rough typology of art thieves based on thirty-eight identified art criminals,
widely spread over time and space. The most prevalent types concerned ordi-
nary theft and artnapping for ransom (10 and 11 cases), followed by cases
related to narcotics and organized crime (7 cases) and six international thieves
(Tijhuis, 2008; 48). Given this data shortfall, follow-up laundering activities
remain unknown as well.
Third, the concepts of art and money laundering give rise to misunderstand-
ings, as their definitions are anything but unambiguous. The concept of art can
be quite encompassing. It ranges from pre-civilization artifacts (and thus is
more connected to archaeology), seventeenth-century masters (fine art) to
modern objects (that could be produced even as we speak). It can encompass
objects that have a household utility, a religious function, or a purely decora-
tive purposeall of which is in the eye of the beholder. Art can be found any-
wherein Asia, Africa, Australia, South-America, Europe, etc. In other words,
when we talk about art, we talk about a myriad of things. Money laundering
itself can also be interpreted in various ways. Busuioc (in Unger, 2006) mention
eighteen different definitions, some broad, others narrow. This implies that we
deal with two basically non-delineated concepts.
An important distinction can also be made between an empirical and a
juristic interpretation of money laundering. The empirical interpretation
of laundering is about financial conduct: how law breakers manage their ill-
gotten advantages, which may range from cash hording (under the proverbial
mattress) to illegal savings in off-shore tax havens as a result of tax evasion.
Basically it concerns criminal money management.
The usual description of handling cash money includes three different
phases (fatf, 1991; Dean, Fahsing and Gottschalk, 2010). The phases change
Money, Art, and Laundering 83

from placement (getting crime money in the financial system) to layering


(concealing the source of the money) to integration (money is returned to the
criminal from seemingly legitimate sources so that he can spend it without
raising suspicions). As the first two phases are supposed to be instrumental
to reaching the last phase of clean money, the destination can be considered
of more importance than the road towards it. That is a simplification: most
income from crime gets into the financial system by spending on daily living
and an exorbitant lifestyle. Spending on art may be a part of that lifestyle but,
as we will demonstrate, more by way of exception.
From a legal angle, such criminal money management can be construed
within the legal framework of the criminal code and classified as laundering.
Laws and regulations generally define an individual guilty of money launder-
ing if he or she hides or conceals the true nature, origins, place it can be found,
or its disposition; or if he or she relocates an illegally obtained object, uses it,
or possesses it while knowing that such object has been obtaineddirectly or
indirectlyby means of a criminal offense. These laws are based on the un
Vienna Convention (1988) and the Palermo Convention (2000), propagated by
the fatf; all of which in turn are derived from the us 1986 Money Laundering
Act (Gelemerova, 2011). In a judicial context, it is not important how or even
if the ill-gotten object or money ends up in the legal economy. What counts is
the question: did someone carry out some kind of activity with money or an
object (knowingly) acquired from crime? (We leave aside abetting or advising
in such matters.)
The (legal) construction of laundering in relation to art crime is as under-
researched as its empirical counterpart. Cases of forgery, such as committed
by the master forger Geert Jansen,3 are not investigated from a laundering
perspective: is the product of forgery a criminal, launderable object? Or is
a smuggler handling illegally excavated archaeological objects not also a sus-
pect of laundering? The same question can be raised when an auction house
auctions such illegal objects or a gallery displays them when it should have
known. Such questions are usually not raised: the attention is mainly directed
to offences and the art instead of criminal money management.
The legal and empirical angles do not need to be opposed since each has
its own concepts and research although they are quite similar: money laun-
dering is a legal construction for prosecution and sentencing; criminal money
management is the underlying actual behaviour concerning all aspects of the
illegally acquired monies, objects, or advantages.

3 Volkskrant (2000).
84 van Duyne et al.

Keeping these difficulties in mind, we take a closer look at the data sources
on crime and money that were available to us.

Methodology

Data Sources
As mentioned in the previous section, there are no suitable databases on
money laundering and art, at least not in the Netherlands. Therefore we turned
to five different official sources that can be tentatively used to approach this
subject. The first three of these sources were fully accessible to us. The remain-
ing two were checked by a close reading of their yearly and other reports,
and by accessing their websites. In addition, we held several interviews. The
sources are the following.
The first data source is the central database of the Public Prosecution Office
that records all assets seized by the Dutch authorities: in short, the confisca-
tion database. This database in our possession covers the period from 1994
2007. It is an extensive database with over 30.000 entries,4 covering all kinds
of confiscated criminal assets like houses, cars, cash, credit cards, and all other
possessions as trivial as guitars, lamps, bicycles, fishing rods, and cd-players.
In an earlier research (Van Duyne et al., 2009), we categorized the objects
under common denominators like house, apartment, car, cash, jewelry, and art.
The total amount of confiscated assets in euros is unclear because not every
object had a monetary value attached. For example, of the 717 houses registered,
only 170 had a money value mentioned (totalling over 31 million). In addition,
the database was polluted by manual data-entry mistakes. For example, entries
of confiscated cash were mentioned in detail, but in conversion from another
currency many manual mistakes were discovered. In the end we could deter-
mine that over 100 million euros were confiscated from 30.043 offenders.
A second source we used is a database of the Central Recovery Agency. This
is a database that tracks the amount of money convicted offenders owe or paid
to the Dutch state. It also records the crimes for which the offenders were con-
victed. We used this database to check for a possible bias in the first database,
e.g., an over-reliance on drug crimes as compared to fraud.
A third database consists of the records that are kept by a special police
team on art and antiquities crime. The records were used to identify incidents
in which criminal proceeds were used to buy art. From these records, eighteen

4 All figures in this chapter are in standard European writing: the commas stand for the deci-
mals and the dots for the thousands.
Money, Art, and Laundering 85

cases were selected for more in-depth analysis. The statements of all people
involved were carefully screened for background information on object cat-
egories, value, process of purchase, and relation to the crime. The full database
was not disclosed, however, because of restrictions applied to outsiders. As a
result, information was not gathered on high profile cases, pending investiga-
tions, or cases with possible sensitive information, e.g., corruption cases.
The fourth database with potential information on art and crime can be
found in the public records of the fiu. We scrutinized the yearly reports and
public tables of this organization to find indications of art and crime. In the
Netherlands, art dealers are obliged to inform the fiu of dubious transactions
of over 25.000. Furthermore, art dealers are also encouraged (but not obliged)
to inform the fiu of what they feel to be suspicious transactions between
15.00025.000.
A fifth source of information is the Heritage Inspection Board (Erfgoe
dinspectie). This is a governmental organization that keeps oversight on a
national level of an important part of Dutch historical heritage. We used their
yearly reports and searched their website to look for evidence of a link between
art and money laundering.
It should be stressed that the databases are not designed to shed light on the
relationship between art and money laundering. However, they are available
and can be used to extract indications of such a relationship.
In addition to these databases, in-depth interviews have been carried out
with interviewees in the know, like art and antique dealers or traders and
other stakeholders. In the beginning, the respondent group of dealers was
extremely hard to access, and people were hesitant to talk about crime, even
when anonymity was guaranteed. Thanks to the help of a family friend with
contacts in the art dealing scene and reliance on a snowballing effect, five art
and antique dealers or traders were willing to be interviewed. In addition, con-
versations of about an hour-and-a-half were held with two private detectives,
four law enforcement officers specializing in art and antique crime, and an art
insurance agent. In this way, information given by one respondent could be
put into a different light by statements of other interviewees. The interviews
were semi-structured to maintain an open conversation where interviewees
could feel free to give any information they felt to be relevant.

Results

The results can be divided in a quantitative and a qualitative part. The quan-
titative part shows that criminal proceeds and art do not form a predominant
86 van Duyne et al.

combination in the databases. The majority of art descriptions point at


objects of low value and could be dubbed a submarket. This is particularly
apparent in the confiscation database. A stock-taking from this database of
valuables and their categorization according to the nature of supposed art
shows the following findings.


Tableware45 entries
The highest recorded amount of money is 394 for an unknown piece of
Versace crockery. In several cases in which the court handed the convict
a recovery order of millions of euros, complete sets of Versace, Rosenthal,
and Royal Albert tableware were confiscated, apparently insufficient to
cover the recovery order.


Tapestry14 entries
The most interesting entries concern six Persian tapestries. Their mon-
etary values were not entered. These tapestries were confiscated in cases
with high recovery sums to cover part of the debt in case the criminal
debtor would default. In these cases the recovery orders were in rising
order: 18.151; 402.251; 13.000.000; and 24.957.912.

Paintings314 entries
In this category the highest recorded figure is a lot consisting of fifty-nine
paintings with a total value of 45.000 euro. Descriptions of the contents
were not entered. The next most expensive item in another case is a
painting by Herman Brood (a Dutch singer annex painter) worth 4200.
Apparently he is a popular artist among our targeted criminals; his paint-
ings and silk-screen prints were mentioned twenty-one other times. Next
are Peter Donkersloots paintings of the movie Scarface; they were listed
nine times.5 One offender collected paintings like Woman with Dinosaur,

5 Other names of painters are J.Sap (2x), A. Vrolijk; J. Verbruggen; Corneille (four times); Carla
Raadsveld; Ton van Ee (four times); Oscar Coller; Rousseau (two times); Van der Zander
(etching, painting, aquarelle); Nico Vrielink (two items); Anton Heijboer (four items, three
with chicken); twenty-three Paul Bodifee (description: etching from 1891, sixteen found
with the same person); M. Brouwer (two items); flower still life of M. van Regteren-Altena
(18681958). Jan van Loon from 1906yellow painting with certificate; Josien Broeren (two
items); O. Eertman (two items); Lemair; B. Herkelman; R. Faeber collection, Fruit June 1732;
Hiakdie; J. Koeman; W. Smits; E. Le Mair; Meyrink from 1986; Arno Huitinga (two items); Bob
Verstraeten from 1986; Wessels from 1985; Yneke Petriet Visser; Karel Appel; Fernandito; tem-
mino (two items); C. Leickert; F. Leger; Andre Verlein; A. ten Oever; J. Frederiks; I. Dubois;
A. Clein, reproduction of the Nachtwacht; L. Donsaert.
Money, Art, and Laundering 87

Woman with Unicorn, Naked Women with Pig, etc.; these descriptions do
not immediately suggest a high artistic value, let alone taste.


Other wall decorations9 entries
A couple of wall clocks (one dated 1972, one with the note clock is bro-
ken), two mirrors, and a brown, round wall decoration were listed with-
out further description or recorded monetary value.


Jewelry6,163 entries
The entries are related to 665 criminal owners. The largest amount
of monetary value related to one convicted person is an entry labelled
jewelry and watches worth 190.780.6 The single most expensive item
entered is a golden necklace worth 68.000, and a mans chain with a
cross worth 45.000.

Crystal collections639 entries


These collections were spread indiscriminately over a large number of
cases, irrespective of the amount of money involved. They are mostly
Swarovski crystal. Whole collections were entered in the system, some-
times consisting of over 100 pieces separately identified. In connection
with two offenders, 177 and 175 crystal objects were entered (without
entry of the monetary value).

Coins and other (historical) collections283 entries


The most expensive collection is a stamp collection worth over 34,000.
Other entries deal with coin collections or special coins although these
are often hardly worth mentioning: a set of eurocents, a set of euro coins
from Finland, two Kruger rands, ducats from 1915, a gold fifty-dollar coin,
and numerous commemorative coins. One special collection consists of
music boxes.

Ceramics and other artistic household objects68 entries


This category consists mostly of vases, Chinese plates, a ceramic, porcelain,
tiger with woman and smaller clocks. The entries provide almost no infor-
mation. Monetary values are often missing or relatively small except one
case in which 128 Chinese vases were confiscated with a value of 26.000.

6 It should be noted that this person was suspected of laundering only 21.547, which makes
the size of confiscation look disproportional, though we cannot rule out typing errors.
88 van Duyne et al.


Sculptures83 entries
This category is connected with only sixteen defendants and contains
several African wood carvings and Buddha statues. One offender was
registered for thirty-nine sculptures, including woman on barstool
with glass in hand, woman lying on a cushion, lamp with three naked
women, female bronze Samurai, woman lying down (five times), and
Indian in canoe. Again, the descriptions do not directly hint at objects
of higher-level art. It is most likely the authorities acted very thoroughly
in their confiscation procedure because these sixteen defendants were
suspected of laundering on average over 1,5 million euros.

The results in the confiscation database clearly show that the quality, number,
and monetary value of confiscated objects dart are negligible.
Other available sources provide the same result. For example, the fiu reports
hardly mention the art and antique sector as an important player. From 2010
2012, only ten unusual transactions were reported by art and antique dealers, of
which the fiu considered two as suspicious (fiu Netherlands, 2013).
The reports of the Heritage Inspection Board also do not reflect the opinion
that crime-money infiltrates the art and antique sector. It even publishes on its
website a synopsis of a study (Tijhuis 2006) that likewise found no evidence of a
connection between organized criminals and money laundering in the art sec-
tor. It is important to note that Tijhuis in his research project had access to all
the raw data (files) of the Heritage Inspection Board. To quote a part of Tijhuis
thesis that is published on the website of the Heritage Inspection Board:

No leads were found, except a few isolated incidents, for the often sup-
posed connection between illegal art and drugs. Not a single shred of evi-
dence was found for the often supposed role of stolen art as vehicle to
launder criminal money.

To strengthen this view, the Heritage Inspection Board also referred to the
results of a later study (Bieleman et al., 2007) that also found hardly any evi-
dence of such connections. Again, the study concludes that it is not very likely
that the art and antiquities market in the Netherlands is used to launder money
on a large scale.
Our own qualitative sources also seem to support the view that organized
crime and the art sector are not particularly interwoven. This does not exclude
the incidental connections that we found in several police files. These files
concerned illicit narcotics traffic investigations and connections to antique deal-
ers who were aware of, or even heavily involved in, money laundering schemes.
Money, Art, and Laundering 89

In one case, the art gallery was even in the same premises as an amphetamine
laboratory, separated only by a plasterboard wall. A typical example would be a
case in which non-existent art was used to fake a sale for which the dealer paid
the seller approximately 40.000. Instead of giving the dealer a real piece of art,
the seller gave the dealer 50.000 in cash; this was recorded in the books as the
purchase of a Chagall. Thus it cost the seller 10.000 to launder 50.000. The art
dealer performed this kind of money-laundering various times. In the report he
was described as being the go-to-guy when someone needed to find a way to
convert illicit money into legal wealth.
Furthermore, the police files generally show that although art can some-
times be found in the houses of criminals, it was generally of a recent date and
not very expensive. As a result, such items could not be interpreted as demon-
strating a connection between organized crime and art.
Interviews with art and antique dealers go some way to explain these find-
ings. According to the interviewees, it is in the Netherlands very unusual to
pay large amounts of cash for art, allowing of course for exceptions illustrated
above. In general, dealers do not want to be paid in cash as it creates all kinds
of hassles for them. First, they are afraid to get robbed when carrying large
amounts of money. Second, when they deposit so much cash, they feel embar-
rassed when a bank official raises questions about its origin. For example,
one interviewee mentions that one, eighty-seven-year-old client is a bit old-
fashioned and preferred to pay in cash. After the dealer deposited the money
in his bank account, he got a telephone call from his bank asking him where
the money came from. Third, their accountants advise against cash transaction
as they create all kinds of control uncertainties. Art and antique dealers are
subject (in theory) to control by external accountants, and cash always raises
eyebrows in the financial and accountancy sector. After all, these sectors are
submitted to regulations and laws themselves and do not want to run risks of
losing their reputation, let alone their licenses.7
Dealers are also protective of their business reputation and are well aware
that they may lose it all by accepting bad clients. This reputation is crucial as
the art and antique business in the Netherlands is a small world, and dealers
often refer items to each other. As part of their service, they also introduce
their wealthy clients to other people (during soirees or in committees) with
similar interests. Introducing the wrong people would be economic suicide.
Established dealers therefore have social ways and methods to screen cli-
ents. For instance, one interviewee states that he talks about new clients with
other dealers in order to find out background information.

7 Such accountants rather belong to small offices than to the big firms.
90 van Duyne et al.

The interviewees also stated that, although bona fide dealers would not
report their mala fide colleagues to the police, the latter would slowly find
themselves shunned and without any opportunity to rebuild their business
network. It is generally felt that a bad reputation of one art dealer radiates to
respectable dealers as well because it is a small business environment.
One dealer in precious prints even thinks that most organized criminals are
not interested in his type of objects. He thinks of them as a kind of nouveau
riche who are more interested in extravagant possessions. It has to sparkle and
glitter; where else does criminal money come from?
Of course, the interviewees acknowledge that their business is not immune
to criminal proceeds. They admit that a lot of transactions can be done with-
out a formal contract, and they would not object to handing over an expen-
sive painting without obtaining payment first. One of the reasons, as they
explained, is that buying art is supposed to be a hobby, something to indulge
in without giving a client the feeling that he is doing a business transaction.
This sometimes makes the art business a business that does not follow overly
formal procedures. The interviewees who were not involved in dealing art
emphasized that exactly this informal trading style may serve as a cover for
cash transactions and money-laundering schemes. One interviewee even
deemed the tefaf art fair in Maastricht as the biggest money-laundering
event in the world.
But then again, according to the interviewed dealers, important transac-
tions are done by using bank accounts. And if a bank account holds criminal
gains in the first place, it is not the art sector that is to be blamed for that.

Limitations

The tentative conclusion based on the material above is, of course, that crimi-
nal proceeds are hardly ever laundered by using art and antiquities. However,
there are (as always) some limitations to the data that prevents a definitive
judgement.
An important caveat that should be mentioned first is that the data and
findings all pertain to the situation in the Netherlands. Maybe art and laun-
dering are not a good combination in the Netherlands because of too much
supervision on the art market or because of cash thresholds. The situation in
other countries might simply be different and might make laundering criminal
funds with art objects much more attractive.
Second, what you see is what you get. It is possible that the Dutch authori-
ties are not well-skilled in recognizing expensive art or detecting laundering
Money, Art, and Laundering 91

constructions that use art when investigating a case. They may confiscate the
obvious assets like expensive cars and watches but overlook the painting on
the wall or the Ming vase on the cupboard. On the other hand, judging from
the asset-forfeiture database, it seems that police investigators can sometimes
also be overzealous and strip a whole house bare. Otherwise, how is it possible
to explain the cheap paintings or furniture of naked women in the database?
Third, the selection of the interviewees can be biased, they could not tell the
truth, or they could have a biased memory.
Fourth, it is possible that art and money laundering occur in specific subsets
of crime that are less-often investigated. For instance, the police give priority
to drug crimes, not fraud. Maybe fraud offenders tend to launder more money
via art than drug criminals.
Fifth, the data dealt with established art. Factious constructions, in which
worthless paintings suddenly became millions of euros on paper, were not
included.

Regulating Sectors: A Balanced Policy?

In our research on the Dutch art and antiquities market, we did not find much
evidence of criminal proceeds being laundered. Nevertheless, the art sector
has been brought within the orbit of regulated business obliged to comply with
Anti-Money-Laundering regime. This is not surprising: the development of the
anti-laundering regime has been characterized by a continuous expansion of
predicate crimes as well as commercial sectors that were considered relevant
for preventing crime-money flowing into the financial system. This expansion
started quite early: first the financial industry was targeted and then gaming
houses were mentioned (1985) in the preparation of the us anti-laundering
law. Subsequently, all private commercial sectors dealing with objects of value,
real estate agents, and dealers of cars and boats were included in the regulated
sector. Eventually also the art and antique sector were brought within the orbit
of obliged institutions.
This is a logical outcome of a line of reasoning, starting with the us Bank
Secrecy Act of 1970, namely that the private sector had to assist law enforce-
ment to fight organized crime by informing on financial transaction. It is a
rational law enforcement line of reasoning: catching criminal fishes requires an
ever widening andat the same timetightening of the legal net. However,
are the results of this widening and tightening balanced by the costs imposed
on the regulated sectors? For the institutions functioning as stakeholders in
the anti-laundering policy, there is no doubt that the benefits outweigh the
92 van Duyne et al.

costs. But what is the underlying evidence of this conviction? To address this
question we should look at the evidence at macro-economic level where most
sweeping statements and assumptions have been put forward.

The Balance of Proportionality and Evidence

The last sentences of the previous section point to an important principle in


criminal law philosophy: proportionality. Criminal law measures and regula-
tions should not be heavier than the importance of the legal goods and inter-
ests they intend to protect. For that reason, we have a scale of maximum
sentences for criminal offences and also a kind of scale of investigative intru-
siveness: more intrusive investigative methods in the sense of infringements
of civil rights are permitted when criminal offences are rated as more serious.
This is usually measured by the maximum punishment. Does such a propor-
tionality approach also apply to the anti-laundering regime?
In principle it does, but not in same way as criminal law since this regime
does not concern actual criminal offences but only potential ones as far as the
regulated sectors are concerned. The anti-laundering regime intends to pre-
vent laundering or report suspicions of laundering by professional citizens in
the execution of their commercial dealings. That reporting is the task of the
regulated commercial sector to be carried out without police powers. If the
proportionality principle also applies in relation to this task, we must deter-
mine the compliance effort (expenses) by the regulated sector on the one hand
and the averted dangers of the (laundered) crime-money on the other.
The attempt to delineate the variables at both sides of this equation soon
runs into methodological measurement problems. How can one determine
the costs of compliance incurred by the regulated sectors in a comparable
way, differentiated by sector and jurisdiction? There are various approaches to
assess these costs (Vettori, 2013), but the underlying methodologies are either
debatable, not properly accounted for, or incomparable because of differences
in focus on a certain subjects connected to laundering. For example, assess-
ing the costs of beneficial owner disclosure is a different matter than vetting
unusual payments.
An example of the difficulties one faces in assessing compliance costs is the
investigation carried out by the consultancy firm Europe Economics (2009),
which had a broader spectrum than the eu Directives only: some subjects
were outside the eu laundering directive (e.g., concerning transparency, finan-
cial instruments directives, or capital requirement directives, among others).
This investigation concerned financial service institutions, leaving the non-
Money, Art, and Laundering 93

financial service sectors out. The methodology was based on seventy-eight


interviews during which percentage estimations of costs were asked (on an
ordinal perception scale); subsequently these subjective statistics were used
on a higher (ration) scale level, which may not lead to the most reliable and
valid outcomes.
While the cost side of our equation remains mostly filled with debatable
estimates, the averted danger side (benefits) remains equally unspecified.
Since the imf declared itself a major stakeholder of the still-young interna-
tional political laundering portfolio, it regularly depicted the purported dan-
gers stemming from criminal proceeds and money laundering in stark colors
(Tanzi, 1996; Quirke, 1996). By political weight and repeat-quoting these state-
ments have attained the status of canonized truth. But have these threats
come true? Reuter (2013) is clear about this question: no. Instead, given the
on-going expressions of concern by the fatf, imf, oecd, and the eu during
the past two decades, there is still the same constant high threat level. This lack
of threat reduction does not point to a highly successful policy. But this fact is
not taken as an indication to reduce investment in the anti-laundering policy.
Instead, lack of success may have become a driving force (among others) of
the ever-broadening action radius of the anti-laundering regime: if we do not
succeed we must step up our efforts.
In 2013, Ferwerda (2013) took the long-overdue initiative of lining up the
depicted dangers of laundering. The long list he composed contains twenty-
five dangerous economic, social, or political effects, long or short term.
However, he could not find empirical evidence confirming that any of these
threats ever happened, which after a timespan of more than twenty years
of anti-laundering policy sheds doubts on the validity of many official state-
ments. Even if there is some anecdotal evidence, such as inflation in the local
real estate market (Medellin and North Morocco, both in the 198090s), it is
difficult to make generalizations. It is also difficult to differentiate criminal and
non-criminal monies within international criminal cash flow. For example, it is
difficult to distinguish cash flow related to migrant work, speculation, or gen-
eral flight capital due to political instability or fiscally more stringent policies
from criminal cash flow. As far as money-laundering-induced macro-financial
instability is concerned, Reuter (2013) pointed to two historical instances:
Latvia (1991) and the Dominican Republic (2002). These were the only exam-
ples identified in an imf survey (2011). However, according to Reuter, it is still
difficult to determine whether mismanagement (bad banking) or laundering
were the root of the problems.
Returning from this short reconnaissance of the proportionality principle to
our small private sector of arts and antiquities, we arrive at a key observation.
94 van Duyne et al.

We conclude that irrespective the prevalent imf dogma, there is little evidence
to fill the cost variable versus the crime result variable with empirical data.
Put simply, the question what do all these efforts accomplish? cannot be
answered from the data underlying the imf-consensus. Lacking empirical sub-
stance, we have to admit that there is only one simple answer: crime should
not pay. When we then put forward the principle of proportionality, we have
serious reasons to doubt the rationality of imposing a heavy burden on the
non-financial sector of valuables to contribute to the hunt of criminal money.

References

Bieleman, B., R. van der Stoep, and H. Naayer (2007). Schone kunsten. Preventieve doorli-
chting kunst- en antiekhandel. Groningen: Intraval.
Busuioc, E.M. (2009). Defining Money Laundering. In B. Unger (ed.), The Scale and
Impacts of Money Laundering. Cheltenham: Edward Elgar.
Calvani, S. (2009). Frequency and Figures of Organised Crime in Art and Antiquities.
In S. Manacorda (ed.), Organised Crime in Art and Antiquities. Milan: Ispac.
Charney, N. (2009). Art and Crime: Exploring the Dark Side of the Art World. Santa
Barbara: Praeger.
Dietzler, J. (2012). On Organised Crime in the Illegal Antiquities Trade: Moving beyond
the Definitional Debate. Trends in Organised Crime 15.
Duyne, P.C. van, M. Soudijn, and T. Kint (2009). Bricks Dont Talk: Searching for Crime
Money in Real Estate. In P.C. van Duyne, S. Donati, J. Harvey, A. Maljevic, and K. von
Lampe (eds.), Crime, Money and Criminal Mobility in Europe. Nijmegen: Wolf Legal
Publishers.
Dean, G., I. Fahsing and P. Gottschalk (2010). Organised Crime: Policing Illegal Business
Entrepreneurialism. Oxford, Oxford University Press.
Europe Economics (2009). Study on the Costs of Compliance with Selective fsap
Measures. London.
fatf (2010). Global Money Laundering & Terrorist Financing Threat Assessment: A
View of How and Why Criminals and Terrorists Abuse Finance, the Effects of This
Abuse and the Steps to Mitigate These Threats. Paris: Financial Action Task Force.
(2013). National Money Laundering and Terrorist Risk Assessment. Paris:
Financial Action Task Force.
Ferwerda, J. (2013). The Effects of Money Laundering. In B. Unger, Research Handbook
on Money Laundering. Cheltenham: Edward Elgar.
Gelemerova, L. (2011). The Anti-Money Laundering System in the Context of Globalisation.
Wolf Legal Publishers. Kreuger, F.H. (2007). A New Vermeer, Life and Work of Han van
Meegeren. Rijswijk.
Money, Art, and Laundering 95

Nelson, D. (2009). Economic Woe, Art Theft and Laundering: A Perfect Recipe. In
N. Charney (ed.), Art and Crime: Exploring the Dark Side of the Art World. Santa
Barbara: Praeger.
Quirke, P.J. (1996). Macro-Economic Implications of Money Laundering. imf work-
ing paper. Washington.
Reuter, P. (2013). Are Estimates of the Volume of Money Laundering Either Feasible or
Useful? In B. Unger, Research Handbook on Money Laundering. Cheltenham:
Edward Elgar.
Tanzi, V. (1996). Money Laundering and the International Financial System. imf work-
ing paper. Washington.
Tijhuis, A.J.G. (2006). Transnational Crime and the Interface between Legal and Illegal
Actors. Wolf Legal Publishers.
CHAPTER 6

Art Crime as White-Collar Crime


Marc Balcells

Introduction

Art crime is often understood as crime committed by organized criminals


or by other usual suspects like petty thieves.1 Some exceptions can be found
with fakes and forgeries where more aberrant characters seem to be found.
What is often overlooked is the role of so called white-collar criminals or,
more precisely, the way many art crimes can be interpreted as white-collar
crimes, in part due to the difficulties of researching this particular field within
criminology.
This chapter will specifically focus on white-collar crime and the role it
plays in the field of art crime. The next section will first discuss the concept of
white-collar crime and its history. The different subdivisions within this field of
crime will also be described. Explanations for white-collar crime will then be
discussed. The subdivisions mentioned above will be applied to known cases,
and further clarifications will be used in an attempt to analyze a number of
well-known art crimes. Finally, a number of conclusions will be drawn on the
basis of the findings in this chapter.

The Concept of White-Collar Crime

The criminologist Edwin H. Sutherland introduced the term white-collar


crime in 1939 in a famous speech to the annual meeting of the American
Sociological Society in Philadelphia (Geis, 2007). He defined this type of crime

1 For a critical discussion of the role of organized crime see, for example, K. Alderman (2012),
Honour among Thieves: Organized Crime and the Illicit Antiquities Trade, Indiana Law
Review (45): 602627; M. Soudijn & E. Tijhuis (2004), AnalyseDe transnationale illegale
handel in kunst en drugs, Ciroc Nieuwsbrief 4: <http://www.ciroc.nl/nieuwsbrieven/nieuws
brief%20aug04.html> [12 juni 2014]. A.J.G. Tijhuis (2006), Transnational Crime and the
Interface Between Legal and Illegal Actors: The Case of the Illicit Art and Antiquities Trade
(Nijmegen: Wolf Legal Publishers).

koninklijke brill nv, leiden, 5|doi .63/9789004280540_007


Art Crime as White-Collar Crime 97

as a crime committed by a person of respectability and high social status in


the course of his occupation (p. 2). As Friedrichs (2010) points out in his well-
known handbook on white-collar crime, recognition of this term extends well
back in history. Friedrichs (2010) mentions the work of Cesare Beccaria as well
as Karl Marx and Friedrich Engels, who shed light on the crimes of the pow-
erful and rich. Furthermore, the American muckrakers of the early twentieth
century inveighed against the exploitative crimes of the robber barons and
their confederates. However, among the scholars studying crime, the type of
crime addressed here has been largely overlooked. As Simpson and Weisburd
(2009) argue, Sutherlands argument was that analysis and review of crime
without the white-collar crime category would lead to serious mistakes in how
we described crime, how we understood its causes, and how we evaluated its
treatment in the criminal justice system (pp. 34).
Since the introduction of the term white-collar crime, its meaning has been
discussed and one clear-cut definition has not been agreed on.2 However, as
Friedrichs (2010) points out, most criminologists agree that white-collar crime
(1) occurs in a legitimate occupational context, (2) is motivated by the objec-
tive of economic gain or occupational success, and (3) is not characterized by
direct, intentional violence.
Besides this consensus on a couple of broad criteria, much discussion
involves all kind of specific types of crime. For example, white-collar crime
committed by states may or may not be included. And occupational success
may be very broadly or more narrowly defined. Finally, it may not always be
clear where to draw the line between white-collar crime and organized crime.
When legitimate organizations are primarily used for illicit activities, or are
even founded to do so, they may be interpreted as variations of organized
crime or understood as an interface between legal and illegal actors (Smith,
1980; Tijhuis, 2006).

Subdivisions of White-Collar Crime

As pointed out above, consensus on a clear-cut definition of white-collar crime


does not exist. However, a number of different (sub)types of crimes are often
interpreted as variations of white-collar crime and seem to be useful for the
study of art crime. This section will discuss the meaning of these (sub)types of
crime and subsequently apply them to examples of art crimes.

2 For an overview of this discussion see Geis (2007), 221258.


98 Balcells

The most common variation is corporate crime. According to one of the


most popular definitions by Clinard and Quinney (1973) this involves offenses
committed by corporate officials for their corporation and the offenses of the
corporation itself (p. 188). In many cases, actions of corporations are not
illegal but are nevertheless very harmful. Friedrichs (2010) describes them as
corporate transgressions: examples can include particular corporate cultures
(more will be explained in the next section about this particular topic) or how
particular multinational corporations operate in developing countries. Highly
hazardous working conditions, exportation of unsafe products, dumping of
toxic waste, massive tax evasion, and complicity in a range of human rights vio-
lations, including torture and assassinations, are among the many examples.3
Whereas corporate crime is aimed at the interests of the corporation, occu-
pational crime is aimed at the interests of an individual and consists of crimes
committed in the context of a legitimate occupation. It is often thought to be
limited to social elites, but it can be applied to employees working at any level
within an organization. However, as Friedrichs (2010) points out, white col-
lar offenders are significantly more likely to be middle and upper class than
are conventional crime offenders (p. 15). Furthermore, following Friedrichs
(2010), occupational crime is restricted here to financially oriented offenses
committed by individuals within the context of a legitimate occupation and
specifically made possible by that occupation (p. 96). It is thus set apart from
occupational deviance and workplace crime like malingering, sexual harass-
ment, robbery, or corporate espionage, among others.
When legitimate businesses and organized crime engage in cooperative
enterprises, it is called enterprise crime (Friedrichs, 2010). A number of mod-
els have been developed for specific variations of situations where legitimate
organizations (business as well as government agencies) cooperate with (orga-
nized) criminals (Tijhuis, 2006). The Ambrosiano Model involves legitimate
organizations that were set up for legitimate purposes and continue to pur-
sue legitimate activities while becoming involved in various criminal activities
and cooperating with (organized) criminals outside the organization (Tijhuis,
2006). Certain intelligence agencies, banks, and cigarette producers can be
seen as examples.
Whereas enterprise crime aims at legitimate businesses that were set up for
legitimate purposes in the first place, entrepreneurial crime refers to swindles,
scams, and frauds that assume the guise of legitimate businesses (Friedrichs,
2010).

3 See also: N. Passas & N. Goodwin (2004), Its Legal but It Aint Right: Harmful Social
Consequences of Legal Industries (Ann Arbor: University of Michigan Press).
Art Crime as White-Collar Crime 99

Even though white-collar crime is often restricted to corporations and the


people working there, crimes committed by governments can also be placed
under the wider concept of white-collar crime. Governmental crime refers to
a whole range of crimes committed in a governmental context. The term state
crime denotes harmful activities carried out by the state or on behalf of some
state agencies, whereas political white-collar crime refers to illegal activities car-
ried out by officials and politicians for direct personal benefit (Friedrichs, 2010).
Finally, corporate and state crime can merge into so-called state-corporate
crime. According to Aulette and Michalowski (cited in Kramer et al., 2002),
state-corporate crimes are illegal or socially injurious actions that result from
a mutually reinforcing interaction between the (1) policies and/or practices
in pursuit of the goals of one or more institutions of political governance and
(2) policies and/or practices in pursuit of the goals of one or more institutions
or economic production and distribution (p. 271). State-corporate crime can
take the form of state-initiated corporate crime as well as state-facilitated cor-
porate crime. The first occurs when corporations act at the direction of, or with
the tacit approval of, the government. The latter occurs when the government
fails to restrain deviant activities by corporations (Kramer et al., 2002).

Theoretical Explanations of White-Collar Crime

Criminology is understood as the body of knowledge regarding crime as a


social phenomenon. It includes within its scope the process of making laws,
of breaking laws, and of reacting towards the breaking of laws...The objec-
tive of criminology is the development of a body of general and verified prin-
ciples and of other types of knowledge regarding this process of law, crime
and treatment or prevention (Sutherland, 1934: p. 3). As such, criminology is
the best-suited discipline to give a scientific, theoretical explanation to white-
collar crimes.
As a discipline, criminology offers a wide range of theories that can give
a viable explanation to white-collar crimes more or less successfully. These
theories cluster around three frames of reference. The first is classical crimi-
nology, where crime is seen as a product of free choice of the individual, who
first weights the potential benefits of perpetrating a crime against its costs. The
second is positivist criminology, where the causes of criminal behavior lie in
factors beyond the control of an individual: these factors are most frequently
biological, psychological, or sociological (or sometimes multifactorial). The
third frame of reference is critical: taking a critical stance against the previ-
ous frame of references, criminologists from this frame try to assess why some
100 Balcells

behaviors are defined as legal while similar ones are not. In that sense, it has an
impact on why people are defined as criminals while others are not (Bernard,
Snipes & Gerould, 2010).
These three frames of references can be divided in two bigger perspectives:
the consensual perspective clusters theories from the classical and positivist
tradition as they assume that practically everyone is in agreement of the laws
and there is no conflict in attitudes regarding the laws and rules of society
(Akers, 1997; Barkan, 2012). The conflict perspective, however, argues that most
people disagree on what the law should be and that the law is used as a tool by
those in power to subdue other, less-favored groups (Akers, 1997).
Criminology has offered a growing body of research related to white-collar
crimes. Recently, Schoepfer and Tibbets (2012) conducted a review of the
potential explanatory capability of several criminological theories: the theories
that best explain this form of crime, based on previous research, were learn-
ing theories and neutralization techniques. The first are a set of theories that
assume that the criminal behavior of individuals is due to a process of learn-
ing from others the motivations and techniques for engaging in such behavior;
the second is a theory that explains how individuals, especially in their teen-
age years and early adulthood, make excuses to alleviate guilt over committing
certain criminal acts. With regard to white-collar crimes, supervisors and col-
leagues are likely to affect decisions that prompt a person to act illegally in the
business world, and neutralizing excuses are likely to follow.
Cultural and subcultural theoriesa set of theories that assume that
offenders believe in a normative system different from the one accepted by
most of ushelp explain motivations to commit crime. The (sub)culture of
helping the company to generate profits is an ultimate goal. As such, other
value systems will not be enforced as much as the one that backs up the loyalty
to the business as the person starts working there and shapes their ways of act-
ing to the ones of the company that provides for their livelihood.
A final theory from the positivist cluster that has also potential explana-
tory power is institutional anomiethe American Dream generates a cultural
ethos that produces intense cultural pressures for monetary success, trumping
other important social factors like families or education, the strain for suc-
cessfully making it and the greed for more money (Messner & Rosenfeld, 2012).
Within the classical frame of reference, two particular theories give an
explanation for white-collar crime. The first is rational choice theory, which
considers how potential offenders weigh the costs and benefits of committing
a crime in order to determine how those situations may be changed so that
potential offenders will decide not to commit crimes. This theory explains how
violating ethical business conduct has a high yield in terms of financial profit
Art Crime as White-Collar Crime 101

or employment recognition (Newman, Clarke & Shoham, 1997). The second


is routine activities theory, which assumes that both crime and victimization
spike in the presence of a motivated offender, a suitable target, and the lack
of a capable guardian, converging in time and place. This theory takes into
account not only how unlikely are arrests, prosecutions, and convictions for
white-collar crime, but also the benefits that might be gained. If we combine
both theoretical perspectives, we can see that white-collar is a unique form of
crime in terms of deterrence. After all, companies get caught, but might not be
heavily penalized or show remorse for their actions, and they may even com-
mit a particular crime for a long period of time without being caught. In sum,
economically speaking, the potential benefits from white-collar crime might
outweigh potential sanctions. Except for a minority of cases, convicted white-
collar criminals rarely spend time in prison, and when they are imprisoned,
their circumstances are easier than offenders who serve time for other crimes.
Additionally, informal pressures and controls in companies might override
the deterrence effect. In sum, it still pays to engage in white-collar criminal
activities.
The critical framework labels these illicit actions as crimes of the powerful.
The conflict perspective has taken into account political and economic ideolo-
gies of countries and companies; Schoepfer and Tibbetts (2012) have shown,
however, that as long as the main goal of a company is profit, there are no polit-
ical or geographical differences between communist and capitalist countries.
They refer to studies that show how white-collar crimes are quite prevalent
in socialist and communist countries since enforcement against white-collar
crime is also practically nonexistent.

The Quantification of White-Collar Crime Worldwide

Because of the secretive nature of criminal actions or omissions, some crimes


do not come to the attention of those who have the responsibility of collecting
this sort of data: in other words, there is a hidden figure of crime (Biderman &
Reiss, 1967; Skogan, 1977). To put it differently, trying to assess how much crime
happens in a particular zone it is outright impossible, let alone trying to estab-
lish international comparisons.
This tenet is particularly true for white-collar crime because of the above-
mentioned problems of detection, prosecution, and conviction. As such, these
actions are not properly measured worldwide and at this moment, it is impos-
sible to estimate the amount of this form of crime. Institutions gathering
data sources that present a partial picture of how much of these crimes are
102 Balcells

committed throughout the world are the International Crime Victimization


Survey (icvs), the Corruption Perception Index, and the reports issued by
Transparency International. Nationally, it must be mentioned that many agen-
cies might compile data regarding white-collar crime, both in law-enforcement
and noncriminal communitiesfor example, regulatory forums. The resulting
lack of consolidated and linked databases gives an unclear picture of white-
collar crime rates as there is no continuity in the data (Bazley, 2010). However,
it is possible that more detailed data that allow for experts to analyze the prev-
alence, incidence, and levels of victimization of white-collar crimes worldwide
will emerge in the near future.

Art Crime as White-Collar Crime

The concepts discussed in the two previous sections provide a useful tool to
label and explain particular art crimes as white-collar crimes. At the same
time, it enables comparisons with similar crimes in other fields, which can also
help in finding explanations for the art crimes discussed.
When cases of corporate crime are handled in the criminological litera-
ture, they usually involve lager companies where, incidentally or structurally,
crimes are committed. These crimes generally take place besides regular, legiti-
mate, business activities. Many examples of corporate or related types of crime
may be found in the art trade. However, in at least two respects many of these
cases do not fit the standard definitions of corporate types of crime. First of all,
the corporation will in general not be more than an art or antiquities dealer
surrounded by a small staff or nobody at all. For this reason, crimes commit-
ted by these corporations, or the people working for them, will come closer to
occupational crime. Corporate crime, enterprise crime, and entrepreneurial
crime also cannot always be separated in these cases as it is unclear (1) who is
involved in the crime (besides the dealer) and (2) whether the dealer started
his business for criminal purposes or whether the crimes are committed along-
side a legitimate trade. Finally, depending on the specific jurisdictions involved
and its applicable laws and regulations, it may not always be clear whether one
should speak of crimes or so-called corporate transgressions.
Given the lack of empirical studies into art crime, and the worldwide varia-
tion of applicable regulations, laws, and treaties, differing in almost every
country, achieving a systematic catalogue is simply impossible. Until now
there has not been much literature devoted to analyzing and classifying the
possible criminal actions perpetrated in the art world: after all, conducting
research in the secretive environment that is the art market it is nothing short
Art Crime as White-Collar Crime 103

of challenging.4 Possibly one of the most exhaustive classifications was the


chapter that Conklin (1994) wrote in his seminal work in the field. However,
two critiques must be addressed: one is that the chapter is outdated and needs
further updating; another is that the author classifies all these illicit conducts
under the label fraud, which attests to the difficulty in contextualizing and
defining this criminal phenomenon.
Dividing illicit actions by subjects, the taxonomy established by Conklin
(1994) can be divided into the following catalogue:

1. Collectors
a. Passing bad checks
b. Insurance fraud
c. Tax fraud
d. Investment fraud
e. Fraud by corporate collectors
2. Dealers
a. Fraud against artists
b. Fraud against other dealers
c. Fraud against auction houses
d. Fraud against collectors
e. Fraud against museums
f. Fraud against insurance companies
3. Auction houses
a. Bidding practices
i. Bidding off the chandelier
ii. Secret reserves
iii. Announcing sales
b. Insider trading
c. Erroneous appraisals
d. Selling stolen and counterfeit art
e. Consignment fraud
4. Museums
a. Customs violations
b. Buying stolen art
c. Abuse of collectors
d. Collusion in tax fraud
e. Inflation of attendance figures

4 For a discussion of the problems facing art crime scholars, see Tijhuis (2006).
104 Balcells

In the present chapter I have opted for classifying a number of cases after
the subdivisions used in the preceding section as a catalogue of subtypes of
white-collar crime, adapted to the art world. This discussion is by no means
complete and does not pretend to be representative of the whole field of
art crime.
To begin with, an example of a case that may be understood either as cor-
porate crime or as a mixture of the other types is the Fredrick Schultz case.
Schultz was an antiquities dealer from New York and former president of the
National Association of Dealers in Ancient, Oriental, and Primitive Art. A us
court found him guilty of conspiring to receive and handle stolen Egyptian
antiquities.5 He bought antiquities that were smuggled out of Egypt. An antiq-
uities restorer from the uk, Jonathan Tokeley-Parry, organized the smuggling.
They smuggled more than 2000 items out of the country until Tokeley-Parry
was caught and prosecuted in the uk (Tijhuis, 2006; Watson, 2002). According
to Watson (2002), Schultz had been found handling stolen antiquities before
in 1991. In this case, it is clear that a legitimate art dealer was involved in art
crimes, but it remains to be seen what crime type best explains this case.
The case of Frederick Schultz has been tremendously important for the
trade in illicit antiquities. It ruled on the issue of the ownership of antiqui-
ties vested in a nation, in this case Egypt. According to the court, antiquities
that are excavated and removed from a country with this kind of legislation,
without permission, are stolen property as defined in the us National Stolen
Property Act (Gerstenblith, 2003). As Gerstenblith (2003) points out, in con-
cluding that such antiquities are stolen, the Second Circuit reiterated that
this rule of law applies in the New York area, the heart of the antiquities mar-
ket in the United States. This is an important step away from the widely held
belief that state-property legislation should be seen as a kind of hidden export
restriction which does not have to be respected abroad, or, more specifically, in
the market countries for these antiquities. In fact the Schultz decision follows
on a much older case, United States v. McClain, which dealt with objects from
Mexico.6

5 United States Court of Appeals, Second Circuit. No. 02-1357, see <http://caselaw.findlaw
.com/us-2nd-circuit/1456261.html> [12 June 2014].
6 And besides this case there is still an older decision of the Ninth Circuit located in California,
United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974). As Gerstenblith points out: the
regions with the most active markets in antiquities are now clearly encompassed with the
McClain / Schultz doctrine interpretation of the National Stolen Property Act (Gerstenblith
2003).
Art Crime as White-Collar Crime 105

Another important case regarding corporate crime within the environment


of two auction houses is the price-fixing scandal involving both Sothebys and
Christies. These two major auction houses had been commercially competing
for a long period of time. However, after the art-market bubble burst in the
1990s (due mainly to the economic climate in Japan, a primary market for both
auction houses until then), both auction houses started cutting commission
rates and extending non-recourse loans that amounted to financial guaran-
tees to sellers or making donations to a sellers designated charity if an item
sold over a specified amount. But suddenly, in March 1995, the competition
stopped, which raised suspicions of a price-fixing scheme, and eventually high
executives from both auction houses admitted to this (Christopher Davidge,
Diana Brooks, Sir Anthony Tenant and A. Alfred Taubman). Both criminal and
civil suits were brought in the United States and the United Kingdom, and
the outcomes ranged from amnesties and cooperation with the prosecution
to guilty pleas and convictions (Stewart, 2001; Mason, 2004; Ashenfelter &
Graddy, 2005).
With regard to occupational crime, two cases illustrate this particular form
of white-collar crime. The first case involves the Army Museum in Delft, where,
in April of 2003, some employees of the museum discovered the theft of a
number of items, and insider theft (that is, theft committed by someone work-
ing at the museum) suspicions were raised. Three months later two persons
were arrested, among them the main suspect: a curator of the museum. In the
course of several years he stole hundreds of books, prints, drawings, and paint-
ings. Sadly, the thefts in many instances resulted in major damage or destruc-
tion of unique books. The stolen items were sold to dealers and collectors in
the Netherlands and abroad (Tijhuis, 2006). These type of illegal activities are
unfortunately a reality in many museums; therefore, as Tijhuis (2009) states, it
is an important phenomenon to pay attention to.
Another interesting case regarding occupational crime involves another
auction house, Htel Drouot, an auction house inaugurated in 1852 and located
on the famous 9th arrondissement in Paris. Only once did Htel Drouot leave
these premises, when they were being restructured: for four years, from 1976
to 1980, all their activities temporarily moved to the Gare dOrsay. Nowadays,
Drouot occupies four more venues, depending on the object being auction-
eered (Guillaumin, 1986; see also Drouots webpage for more recent history on
the htel).7
It all started on 16 February 2009 with an anonymous phone call to the Office
Central de lutte contre le traffic des biens culturels. Also known as the ocbc,

7 http://www.drouot.com.
106 Balcells

Frances art police report to one of the branches of the Police Nationale, the
Judiciary Police. This office is linked to the Gendarmerie, Customs and the
Ministries of Culture, Justice and Foreign Affairs (Ministre de la Culture, 2010).
The agents at the ocbc in Nanterre received an anonymous phone call report-
ing that a painting by Courbet, Paysage de mer au ciel dorage (A Seascape with
a Stormy Sky,) was stolen in 2003 and could be found in the possession of a
col rouge,8 also known as a Savoyard.9 Col rouges or Savoyards are colloquial
names referring to the team of porters at Drouot, whose duties include the
transportation and custody of the works of art. The police, following the lead,
discovered on 24 February that indeed the painting had an ownera wealthy
surgeon by then deceased. The owners nephew (and only heir), however, was
able to confirm that the Courbet disappeared after his uncles death, along with
a drawing by Picasso and other artworks (Delan, 2011). After more investiga-
tive work, the Courbet was found in the hands of one of Drouots porters, who
made quite a shocking confession in front of the investigative team: all auc-
tioneers participated in the trafficking of first stolen, and then resold, works
of art (Delan, 2011). What initially looked like a one-man operation involving
art theft led to an entire official investigation of occupational crime within an
auction house.
For researchers interested in antiquities looting, the case of Giacomo Medici
is well known. However, this case, involving two Italian antiquities dealers and
a later conspiracy that involved other international dealers, galleries, collec-
tors, and museums, can be seen as a case of enterprise crime.
Giacomo Medici was an Italian antique dealer convicted of receiving stolen
goods, illegal export of goods, and conspiracy to traffic; for these crimes he was
sentenced in 2004 to ten years in prison (the court of appeals later reduced
this sentence to eight years) and a fine of ten million euros (close to $14 mil-
lion). For four decades he had been involved in the traffic of illicitly obtained
Italian antiquities that he sold mostly in Europe and North America to muse-
ums, auction houses, dealers, and private patrons. One of the most important
elements in the case was what it is called in Italian a cordata: in other words,
Giacomo Medici, along with another dealer, Gianfranco Becchina, devised
a network of tomb raiders and middlemen that provided the goods to their
clients (Watson and Todeschini, 2007; Silver, 2009). A joint operation between
Swiss and Italian police led both forces to the free port in the city of Geneva.
In a storage room belonging to Giacomo Medici, they found not only a trove
of antiquities (most of them with dirt still on them, implying that they were

8 Literally, red collar.


9 The French term that refers to an inhabitant of the Savoy.
Art Crime as White-Collar Crime 107

excavated recently), but also invoices linking the selling of these antiquities to
art dealers and museums in Europe and America. Further investigations led to
a piece of paper depicting a diagram of the whole organization (the cordata):
the diagram ranged from the lowest echelons (the tombaroli, or tomb rob-
bers) to the biggest clients. In what was called the Medici conspiracy, Italian
prosecutor Paolo Ferri charged Medici along with art dealer Robert Hecht and
curator of the Getty Museum in Malibu, Marion True, of smuggling (Watson
and Todeschini, 2007; Isman, 2009). As Chappell and Polk (2011) indicate on the
Medici case, it is perhaps the most compelling evidence to surface to date of
the manner in which looted antiquities are routed through labyrinthine chan-
nels and across international borders to the high demand markets centered in
places like London, Paris, and New York. The market, with an insatiable appe-
tite for antiquities which is seemingly oblivious to the questionable origins of
the artifacts on display, at present represents a highly organized but largely
unregulated multibillion dollar transnational industry. (p. 101)
With regard to the last category of state and state-corporate crimes, a very
interesting case was analyzed by Tijhuis (2006) involving an organization cre-
ated in the 1970s that combined the opportunities of white-collar crime, the
secret service, state control of the economy, and secrecy jurisdictions in Europe
(Von Blow, 2003). This organization, called Kommerzielle Koordinierung10
(shortened to KoKo), was set up by Schalck-Golodkowski, a senior state-
intelligence officer. He wrote a doctoral dissertation about ways to earn foreign
currency by imports and exports from East Germany. The result was a range
of organizations that were involved in illicit trade in arms, waste, metals, and
other commodities. To enable the illicit activities and to keep them out of sight
from domestic and foreign observers, an intricate web of companies was used
in places like Liechtenstein, Luxemburg, and Switzerland, countries not par-
ticularly known for their role in the global trade of raw materials. One of the
organizations was aimed at the sale of works of art that were confiscated from
East German citizens and museums during the 1970s and 1980s.
KoKo had developed an efficient way to confiscate art and antiquities
from its citizens and institutions. The first step was a burglary carried out by
members of the organization targeting homes of an undetermined number of
wealthy citizens from the German Democratic Republic and taking jewelry,
works of art, stamp collections, and other valuables. A second phase involved
art experts from the state intelligence agency, who made an estimate of the
value of the works of art. Thereafter, the owners received a notice that they
were due to pay taxes. Coincidently the amount of taxes was equal to the value

10 Commercial coordination.
108 Balcells

of the works of art that were seized. Large quantities of works of art were
thus sold abroad, while the authorities told the victims that the items would
go to museums in the German Democratic Republic. In the end, Schalck-
Golodkowski was to funnel more than dm50 million out of the beleaguered
East German economy each year. Almost all of the property, the value of which
historians have been unable to determine, was first sold to KoKos holding
firm Art-and-Antiquities-GmbH before flowing into West-Germany (Bischof,
2003; Blutke, 1990).

Conclusions

A number of conclusions can be drawn on the basis of the findings in this


chapter, mostly transformed into research and policy recommendations.
First of all, after many decades of being ignored by researchers, white-col-
lar crime is receiving much-deserved attention. As many definitions of other
forms of crime, there are pointed criticisms and disagreements between schol-
ars in the field of criminology. Also, there are several ways of organizing and
classifying existing taxonomies of white-collar crime that work well with illicit
activities perpetrated in the art world. Even though there is not enough data to
quantify these different criminal phenomena (prevalence or incidence-wise),
the existence of white-collar crime cases within the art world confirms that
there is a need for more research, as will be discussed below, and crimino-
logical theories can have strong explanatory value when doing this research.
However, as stated before, the world of art it is a complicated, secretive envi-
ronment, making research difficult.
Policy-wise, there are a plethora of challenges to address: to begin with,
there are many responses at different levels (individual or governmental,
among others), and not all of them are related to a given criminal justice
system. Multilateral information exchange and mutual legal assistance is
much-needed step in addressing the challenges of globalization. More rigor-
ous policing of this field is also essential; white-collar crime is not generally
a priority of law-enforcement agencies compared to more pressing concerns
like terrorism or organized crime. In order to be able to assess the power of
deterrence, data concerning offending levels and, more importantly, reoffend-
ing levels should be collected and shared. Since it is case that in many criminal
justice systems worldwide, offenders perceive low chances of apprehension
and light sentences when criminals are caught (by comparison to other forms
of crime), there is a clear gap in the enforcement, prosecution, and conviction
of this form of crime that urgently needs to be addressed.
Art Crime as White-Collar Crime 109

There are also important research priorities: to begin with, as stated through-
out this chapter, there is a need for more focused and up-to-date research about
the intersection of white-collar crime and art crime. The impact of the regula-
tion of the art market and its opacity as a catalyst for the perpetration of these
forms of crimes needs to be researched. The study of laws and other legislative
instruments in order to see if the existing legislation suffices or requires a bet-
ter interpretation or combination with more effective laws is also pressing.

References

Akers, R.L. (1997). Criminological Theories: Introduction and Evaluation. Los Angeles:
Roxbury.
Ashenfelter, O. & K. Graddy (2005). Anatomy of the Rise and Fall of a Price-Fixing
Conspiracy: Auctions at Sothebys and Christies. Journal of Competition Law and
Economics 1: 320.
Barkan, S.E. (2012). Criminology: A Sociological Understanding. Boston: Prentice Hall.
Bazley, T.D. (2010). Crimes of the Art World. Santa Barbara: Praeger.
Bernard, T.J., J.B. Snipes, & A.L. Gerould (2010). Volds Theoretical Criminology. Oxford:
Oxford University Press.
Biderman, A.D. & A.J. Reiss (1967). On Exploring the Dark Figure of Crime. Annals of
the American Academy of Political and Social Science 374: 115.
Bischof, U. (2003). Die Kunst und Antiquitaten Gmbh in Bereich Kommerzielle
KoordinierungSchriften zum Kulturguterschutz. Berlin: de Gruyter Recht.
Blutke, G. (1990). Obskure Geschfte mit Kunst und AntiquittenEin Kriminalreport.
Berlin: Links Verlag.
Chappell, D. & K. Polk (2011). Unraveling the Cordata: Just How Organized is the
International Traffic in Cultural Objects? In S. Manacorda & D. Chappell (eds.),
Crime in the Art and Antiquities World. New York: Springer.
Clinard, M.B. & Quinney, R. (1973). Criminal Behavior Systems: A Typology. New York:
Holt, Rinehart & Winston.
Conklin, J.E. (1994). Art Crime. Wesport: Praeger.
Delan, M. (2011). Adjug, vol: chronique dun traffic a Drouot. Paris: Max Milo.
Friedrichs, D.O. (2010). Trusted Criminals: White-Collar Crime in Contemporary Society.
Belmont: Wadsworth.
Geis, G. (2007). White-Collar and Corporate Crime. New Jersey: Pearson Prentice Hall.
Gerstenblith, P. (2003). The McClain/Schultz Doctrine: Another Step against Trade in
Stolen Antiquities. Culture Without Context 13, <http://www2.mcdonald.cam.ac
.uk/projects/iarc/culturewithoutcontext/issue%2013/gerstenblith.htm> [date last
opened].
110 Balcells

Guillaumin, P. (1986). Drouot, hier et aujourdhui. Paris: Les ditions de lAmateur.


Isman, F. (2009). I predatori dellarte perduta. Milan: Skira.
Kramer, R.C., R.J. Michalowski, & D. Kauzlarich (2002). The Origins and Development
of the Concept and Theory of State-Corporate Crime. Crime & Delinquency 48:
26382.
Mason, C. (2004). The Art of the Steal: Inside the Sothebys-Christies Auction House
Scandal. New York: Putnam.
Messner, S.F. & R. Rosenfeld (2012). Crime and the American Dream. Belmont, ca:
Wadsworth.
Ministre de la Culture (2010). Scurit des biens culturels. Paris: Ministre de la Culture.
Newman, G., R.V. Clarke, & S.G. Shoham (1997). Rational Choice and Situational Crime
Prevention: Theoretical Foundations. Dartmouth: Ashgate.
Schoepfer, A. & S.G. Tibbets (2012). From Early White-Collar Bandits and Robber
Barons to Modern-Day White-Collar Criminals: A Review of the Conceptual and
Theoretical Research. In D. Schicor, L. Gaines & A. Schoepfer (eds.), Reflecting on
White-Collar and Corporate Crimes: Discerning Readings. Long Grove: Waveland.
Silver, V. (2009). The Lost Chalice. New York: Harper.
Simpson, S.S. & D. Weisburd (2009). The Criminology of White-Collar Crime. New York:
Springer.
Skogan, W.G. (1977). Dimensions of the Dark Figure of Unreported Crime. Crime and
delinquency, 23, 4150.
Smith, D.C. (1980). Paragons, Pariahs and PiratesA Spectrum-based Theory of
Enterprise Crime. Crime and Delinquency 26: 358386.
Stewart, J.B. (2001). Bidding War: How an Antitrust Investigation into Christies and
Sothebys Became a Race to See Who Could Betray Whom. The New Yorker
(15 October), 158.
Sutherland, E.H. (1934). Principles of Criminology. Philadelphia: Lipincott.
Tijhuis, A.J.G. (2006). Transnational Crime and the Interface between Legal and Illegal
Actorsthe Case of the Illicit Art and Antiquities Trade. Nijmegen: Wolf Legal
Publishers.
Tijhuis, A. J. G. (2009). Trafficking in Cultural Artifacts. In Tonry, M. (Ed.). The Oxford
Handbook of Crime and Public Policy (pp. 455474). Oxford: Oxford University Press.
Von Blow, A. (2003). In Names des Staatescia, bnd und die Kriminellen
Machenschaften der Geheimdienste. Mnchen: Piper.
Watson, P. (2002). The Investigation of Frederich Schultz. Culture Without Context 10,
<http://www2.mcdonald.cam.ac.uk/projects/iarc/culturewithoutcontext/issue10/
watson.htm> [date last opened].
Watson, P. & C. Todeschini (2007). The Medici Conspiracy. New York: Public Affairs.
CHAPTER 7

Art Fraud in Germany: Lessons Learned or the


Fast Falling into Oblivion?

Saskia Hufnagel

1 Introduction

Art Crime is today more prominent in the German media than ever before. The
major reasons for this development were mainly cases of art fraud that have
surfaced in the last five years. However, many other incidents, ranging from
criminal damage of paintings in museums to recent World War ii restitution
cases have contributed even more to a significant popular focus on this area.
Art crime, and in particular art fraud, is not a new area of crime in Germany.
Many prominent art forgers have come from Germany or committed their
crimes in Germany. Lothar Malskat, for example, fooled the German art world
with his forgeries in the 1940s and 50s. Edgar Mrugalla, a prominent German
forger in the 1970s and 1980s, forged everything from Rembrandt to Franz Marc.
Wolfgang Lmmle and Rdiger Faller worked throughout the same period and
distributed a significant number of forgeries throughout the world before
being caught by German police. Forty years later, Tom Sack invented names
of painters for his works and gave each a very impressive vita to sell the paint-
ings for more money than his own work would draw. However, none of these
cases reached the popularity of the more recent art crime cases such as the
Beltracchi case or triggered the media hype of the currently debated Gurlitt case.
This article will give an overview of a significant number of German art
fraud cases throughout history. The most popular cases are discussed in more
depth to determine why they received such prominent public attention. The
two most popular cases are the rather recent Beltracchi Case and the 1980s
scandal of Hitlers forged diaries. The question is what makes such cases
appear and reappear in the media and whether this has in any way influenced
the art market (buyers, experts, galleries, museums, etc.) or the criminal justice
system in its approach to preventing, detecting, investigating, and prosecuting
art fraud. The chapter finishes by providing a discussion of the popular and
forgotten cases in comparative perspective to determine how the portrayal
in the media and ensuing public attention can potentially help or hinder the
fight against art fraud.

koninklijke brill nv, leiden, 5|doi .63/9789004280540_008


112 Hufnagel

2 Art Fraud in Germany: A Brief Historical Overview

Art fraud has not received prominent attention in Germanys legal system.
There is no criminal law prohibiting and punishing art fraud as its own legal
offence. The offences that are potentially applicable are fraud ( 263 German
Criminal CodeStrafgesetzbuch or StGB), falsification of documents ( 267
StGB), and infringement of copyright laws ( 106 ff. German Copyright
CodeUrheberrechtsgesetz or UrhG). The maximum penalty for fraud is five
years imprisonment or the equivalent fine, but for serious cases of fraud the
penalty is ten years imprisonment. Serious cases entail that the fraud is com-
mitted by the offender as part of an art crime gang and for commercial gain.
A major differences between the unknown and well-known German art fraud
cases could be that the latter fall under the definition of serious fraud and are
therefore more significantly punished by the courts and interesting to the gen-
eral public. However, as the analysis will show, severity of punishment is not
correlated with public interest in these cases. The low sentences given in the
two most famous German art fraud cases disappointed police and prosecution
involved in the investigation and trial. In fact, the low art fraud sentences have
led academics and practitioners to criticize the German criminal legal system
as incomplete with a view to art crime (Lffler: 1993).
Light sentences in recent cases of art fraud in Germany have been particu-
larly criticized, especially by those prosecuting them. The most significant of
these recent cases is the Beltracchi case, which resulted in very low sentences.
Wolfgang Beltracchi received a maximum of six years imprisonment; his wife,
Helene Beltracchi, received four years; her sister, Jeanette Spurzem, received
a one-year-and-nine-month suspended sentence; and the logistical expert
Otto Schulte-Kellinghaus received five years imprisonment. Considering that
the damage caused was estimated around the sixteen million Euro mark, these
sentences are still minimal (Deutsches Presse Amt: 2011). With a view to the
efforts of the police investigators and prosecutors involved, these sentences
are simply dissatisfactory. Compared to other cases that occurred at the same
time (and received much less public attention), the Beltracchi sentences are
also very low. In the 2009 Count of Waldstein case, a dealer of fake Alberto
Giacometti sculptures received a nine-year jail term; the damage caused was a
fraction of that in the Beltracchi case (Rbel and Sontheimer: 2011).
In the other famous German art fraud case, the Hitler diary forgeries, the
sentences were even lower. Konrad Kujau, the forger of the diaries, received a
two-year-and-six-month imprisonment sentence and his accomplice, the jour-
nalist Gerd Heinemann, was convicted to two years and eight months impris-
onment (Vensky: 2010).
Art Fraud in Germany 113

Hence the puzzle of the stardom of some art forgers cannot be explained by
differences in prison sentence severity. Explaining the creation of the myth of
the art forger in Germany requires an overview of art fraud cases in German
history. The protagonists in many of these cases did attempt to create their per-
sonal myth or legend and some acquired a certain amount of national fame;
however, most of them, even those who committed crimes fairly recently, are
now forgotten by the general public.
The oldest known case involves Albrecht Drer (14711528). He lived at a
time when the copying of art was not considered to be forgery as such; many
artists welcomed copying of their works for wider distribution. The master
allowed the copying of his works, but did not permit the reproduction of his
signature. The woodcut The Apocalyptic Woman, for example, is displayed in
the original in the National Museum in Nuremberg, Germany. Its legal repro-
duction can be seen in the City History Museum in Nuremberg, but is signed
ad ivf (Iheronimus von Frankfurt). Iheronimus was allowed to create the
reproduction, but had to mark it with his own name. Drer had created this
process to ensure that his original works would retain a higher value than the
reproductions (Schreiber: 2009).
One of the oldest German legends of a Drer forgery, however, can still
be found in art-history literature. The legend involves his Self-Portrait (in a
Fur Jacket), which was created in 1500. 300 years later, the painter Abraham
Wolfgang Kfner was commissioned to create a copy. There are several differ-
ent versions of what happened next. In the first legend, Kfner split the 2cm-
thick wooden plank on which the portrait was painted and sold the original
painting without the seal of authenticity on the back. On the part of the plank
that retained the seal, he then painted the copy. Another story is that he did not
split the plank, but separated the seal from the original and attached it to the
copy. The front and probable original of the portrait is today one of the main
attractions in the Old Pinakothek in Munich. The back with the remains of
the seal is still in Nuremberg, and the museum is eager to keep the myth alive;
averring on the museum website that the original is not actually in Munich.1
In this case, it is the museum that keeps the legend alive to raise the value of
its probably fake Drer. So forgeries do not always have a detrimental impact
on the art market and their buyers: in this case, the forger legend made both
the fake and the original much more mythical. The buyer of the fake 200 years
ago, however, is very unlikely to have benefited from receiving the forgery. This

1 See the museums website at http://www.museen.nuernberg.de/fileadmin/mdsn/pdf/Duerer-


Haus/Schaustueck/2012/schaustueck_201203_duerer_kopie.pdf.
114 Hufnagel

shows that the meaning of a fake can change over time and in different con-
texts. What might have been a significant loss 200 years ago is an asset today.
Another, more recent, German forgery story revolves around the Cranach
painting Madonna under the Fir Tree. This painting, circa 1510 ad, was painted
for the Breslau Cathedral (at that time Breslau was in Germany; today it is in
Poland). The painting remained in the cathedral for about 430 years. In 1961
it was discovered that the Cranach in Breslau was no longer the original. The
odyssey of the painting probably began in 1943 when it together with other
Breslau art treasures was hidden in a Cistercian cloister in the countryside.
Three years laterthe story goesthe chaplain of the Breslau Cathedral
commissioned the painter Georg Kupke to make a copy of it, which he did,
though poorly. It is alleged that the chaplain wanted to save the original from
the Russians and to take it with him to the West. Until 2012 the original kept
resurfacing on different occasions, usually in an offer for sale. It only made its
way back to Breslau in 2012. The heir of the Swiss collector who had last owned
it returned it to the Polish Government, which in turn gave it back to the cathe-
dral. The identity of the final owner is still unknown. Apparently the disclosure
of the identity would infringe on confessional confidentiality. Whether or not
the Madonna is the original has also not yet been confirmed (Schmitter: 2012).
While this story is an interesting criminology puzzle that could tell a reveal-
ing story about the art market (once it is fully uncovered), the odyssey of the
painting was not a major news item until it was actually returned. Additionally,
the forger, Georg Kupke, was not a charismatic personality who could serve as
the center of a scandal like, for example, Wolfgang Beltracchi today. Experts
want to find out more about the authenticity of the returned Madonna, and
there is a growing interest in its journey before finding back home. However,
it is unlikely that the Madonna will resurface in the news. The full story will
remain interesting only to researchers and art crime enthusiasts. But an impor-
tant aspect of the case is that an original was replaced by a forgery to keep it
safe from theft and damage. The forgery appears yet in another context: it is
not a criminal act as such but a means to save the original. The criminal energy
is much lower if not non-existent in such cases.
Another German forgery scandal relatively unknown to the general public
(although more than 700 articles and papers were published on it) involves the
Bode Museum in Berlin. The wax bust of Flora had been acquired by the then-
director of the Berlin Museum, Wilhelm Bode, in 1909. Bode was convinced
that the bust, which had only shortly before surfaced on the English art mar-
ket, was an original Leonardo da Vinci. He stuck to this belief although there
were clear warning signs that the bust had actually been created by the English
artist Richard Cockle Lucas and his son, Albert Drer Lucas, had confirmed
Art Fraud in Germany 115

this. Ulrike Wolff-Thomsen, in her in-depth analysis of the case published in


2006, calls this the Bode System (a term coined by Karl Voll in 1910), as it
shows that a strong-willed and powerful director of a museum can in fact make
a fake come true. Today the bust can be admired in the Bode Museum, but it
is labeled England? 19th Century? The true story isprobablythat Lucas
created the bust with broken remains of a similar one created in the workshop
of C. Domenico in eighteenth-century Rome. He joined the pieces together
and used a painting by da Vinci to model missing pieces off it (Wolff-Thomsen:
2006). Again, while this is an interesting story for art lovers, few daily news-
readers in Germany will remember it. The case is nevertheless important as it
shows that art fraud is often covered by its victims. The fear of losing credibil-
ity, but also the fear of losing a significant amount of money led in this case to
a forgery remaining in a museum despite the evidence of it being fake.
Another potentially large-scale case that was featured mostly in local,
southern German media involved a real-estate agent in Bavaria. Between 2003
and 2008, he attempted to deal in a significant number of paintings includ-
ing (allegedly) paintings by Manet, Matisse, Dali, Chagall, Picasso, and Schiele.
Several of them were declared to be forgeries by forensic experts involved in
his court case for attempted fraud charges before the local criminal court of
Rosenheim.2 He was sentenced to only three years imprisonment in 2010. He
appealed, but the district court in Traunstein upheld the decision a year later.
Interestingly, he never sold a single picture. The only time he did make a deal
was with an undercover operative of the Bavarian police, which marked the
end of his career as an art dealer. He never revealed the source of the pictures.
The judge in the appeal court intimated that he would reduce the sentence
if the defendant admitted the crimes. He refused: the paintings were real, he
claimed until the end. Despite the very entertaining aspects of this case, it
never achieved major public attention. The defendant invented brilliant sto-
ries as to why the paintings were real, and his lawyer had to frequently stop
him, but beyond Rosenheim the media was silent on the case until the appeal
judgment became legally binding (Effern: 2011). It is astonishing that this case
did not make the news nationally or internationally. Two explanations can be
given. First, there was no successful operation. The defendant never managed
to sell one of the forgeries. Second, the defendant did not reveal his name to
the media, nor did he inform about the source of the paintings or, more gener-
ally, about the modus operandi with regard to the attempted crimes. It follows

2 See http://www.rosenheim24.de/rosenhsim/Ik-rosenheim/paul-gaugin-echt-oder-gefaelscht-
ro24-502694.html.
116 Hufnagel

Figure 7.1 The wax bust of Flora Staatliche Museen zu BerlinPreuischer Kulturbesitz,
Skulpturensammlung und Museum fr Byzantinische Kunst. Photo: Jrg P. Anders,
Berlin.

that for art fraud to receive public attention, police must be unsuccessful in
preventing it and the defendant needs to be open about his crimes to the media.
A German art fraud case from the start of the twentieth century only made it
to the attention of some researchers as it involved, very peripherally, the prom-
inent non-German art forger Elmyr de Hory. In the newsletter of the German
Museums Association to its members of 24 July 1911,3 the editors write that
the German art dealer Max Heimann and his accomplice Viktor Batteux of
Brussels were each sentenced to one year in prison for fraud and attempted

3 http://digiview.gbv.de/viewer/fulltext/PPN616534280_191108/8/.
Art Fraud in Germany 117

fraud. Heimann apparently employed a whole group of artists and artisans


to create forgeries, mainly of sculptures from the Romantic era up to the late
German Gothic period. He used the forgeries to replace real artifacts, mainly
from churches, and then sold the originals. In 1909 these offences were discov-
ered and in 1911 the forgers were put on trial. Some claim that Elmyr de Hory
learned his trade in Heimanns forger workshop (Partsch: 2010, 132). Without
this incident, nobody would remember this major organized art fraud ring in
German history. Here, another kind of art fraud procedure can be observed:
forging replacements for the originals in order to sell the originals rather than
the fakes. In these cases there are two potential victims: the unsuspecting
buyer (if they were in fact unsuspecting) and the owner of the stolen original.
This type of art crime requires much criminal energy and encompasses three
crimes: theft, fraud, and fencing. The accused in the present case were only
convicted of fraud. Considering the high complexity of these crimes, it is sur-
prising that the public attention on them is not greater.
A German forger relatively well known in Germany is Lothar Malskat. He
became (in)famous in German art history not because his forgeries or person-
ality were exceptional, but because one of the best-known German contempo-
rary authors, Gnther Grass, incorporated him in his novel The Rat. Malskats
first known forgery was the wall painting in the cathedral of Schleswig, the
St. Petri-Dom. According to Keats, this was not actually his forgery, but the
forgery of the original painter restoring the cathedral, August Olbers. When
restoring its wall paintings, Olbers had started to invent motifs for the cathe-
dral since the originals were so badly destroyed that they could not be recon-
structed. Malskat then simply followed his example and continued his work.
He famously included turkeys in the painting; turkeys had not yet been intro-
duced to Germany at the time the cathedral had been decorated. This anach-
ronism was not interpreted by experts as a sign that the paintings were fake,
but was instead used for German propaganda during World War ii. The inde-
pendent historian Freerk Haye Schirrmann-Hamkens asserted in 1938 that the
turkeys in the painting meant that when the Spanish had discovered the New
World in the 1550s, they were not the first; the Vikings had discovered America
earlier. The turkeys therefore became emblematic for the skills of Aryan sea-
farers. Though they should have been a clear indication of a forgery, nobody at
the timeor long afterwanted to believe that the murals were a fake.
Malskats story can be taken as a good example as to why forgeries are so
often not detected: because people identify with them regionally or nationally
and want them to be genuine and protect this belief long after the pieces of
art have proven to be fake. A similar fate befell Malskats second great coup.
After World War ii, Malskat started to paint forgeries of Barlach, Beckmann,
118 Hufnagel

Chagall, Munch, Pechstein, and Utrillo. His friend Dietrich Fey sold them, and
it is possible that Malskat at first did not know they were sold as real works of
the artists. The enormous amounts of money Fey made with them should have
indicated this, however. After the German currency reform the sales became
more difficult. Malskat and Fey were then commissioned to restore murals in
the Marienkirche in Lbeck. They restored what they could, but some remains
were so badly buried under plaster that they would have been destroyed in
the process of uncovering them. Malskat therefore painted twenty-one new
figures instead of revealing the old remains. When the church was reopened in
1951, Fey received much praise for the restorations, but Malskat was not signifi-
cantly acknowledged. Angry about the lack of acknowledgement for his art, he
demanded that Fey reveal the secret of the twenty-one figures in the church,
but Fey refused. Malskat then turned to the press in an attempt to become
famous for his art. Since Fey kept denying the crimes and the church and jour-
nalists did not believe Malskat, he turned himself and Fey in to the police in
1952. Even the police did initially not believe Malskat, and he had to hire a
lawyer to substantiate his case. Both Malskat and Fey were finally arrested and
tried and received minor jail sentences of eighteen and twenty months respec-
tively. Malskat first fled to Sweden, but later returned to Germany and went
to prison. When he was released, he settled down in Lbeck and became a
relatively well-known German painter, at least regionally. Malskat was never
really a prominent forger. He never received a significant jail sentence. He was
also never the only culprit in reinventing church decorations. His name is not
known to the general public today. Some art experts still claim that he was one
of the main forgers of the last century, but closer research reveals that he was
nothing but a very good painter who, unfortunately, was never internationally
recognized except through a couple of unfortunate blunders in his early career
(Keats: 2012). The reason why this case is important for the present chapter is
again the behavior of the victim. Had Malskat not vehemently pushed for his
own conviction and recognition as major forger, the church and state would
have happily continued to believe in the authenticity of the paintings, despite
the obvious turkeys.
Another forger who was relatively well-known to the German public was
the son of a scrap metal merchant who first took on his fathers trade and
later dealt rather unsuccessfully with paintings and antiques; this was Edgar
Mrugalla. He is still alive today, and several of his paintings, his biography,
and articles written about him can be accessed on his website (www.mrugalla
.de). His biography is rather unspectacular, and, unlike modern forgers such as
Beltracchi or the Count of Waldstein, there is no embellishment or sensational
element to be found. However, the website appears to be rather inaccurate,
Art Fraud in Germany 119

seeing that even the sentence he once received for fraud is listed incorrectly (it
must have been two rather than three years, as was claimed on the website).
In his biography, which appeared in 1993, he claims that he was forced to forge
paintings and never really wanted to be a criminal. Nevertheless, he titled his
book King of Forgers, which might be seen as a stark contrast to his rather hum-
ble curriculum vitae (Mrugalla: 1993). It is assumed that he made about 3000
forgeries, many of which are claimed to still be part of important museum col-
lections, and so he was again briefly mentioned in the media when the inves-
tigations around the Beltracchi case started to come to light (Hlsmeier: 2010).
Mrugalla painted nearly everything, from Picasso to Lesser Ury. There is no
evidence that he made a fortune with his sales, but an interesting observation
in comparison to the very famous German art fraud scandals is that he sold
far more paintings than, for example, Beltracchi, many of which are probably
still in museum collections. He, like Beltracchi, wrote a book about his life and
work, and yet very few people not involved in art research have ever heard
about him. A simple answer to this enigma could be that the German media
today has a much stronger position and is much more accessible than in 1993.
However, every average English person knows John Myatt. No average German
knows Edgar Mrugalla.
Four other German forgers of the nineteenth, twentieth, and twenty-first
century will be mentioned as they might be known to the expert reader. The
first is Wolfgang Lmmle, a forger of the 1970s and 80s who forged southern
German painters of the nineteenth and twentieth centuries. Police tracked
him down in 1988 and he received a suspended sentence but little fame. In
2007 he emigrated to Australia. While his Wikipedia entry compares him to
Mrugalla, none of the current websites on his work and life point out any link
to his previous occupation as a forger. In Australia he is known as a painter and
teacher of arts and no reference is made to his shady past.
The other painter of note is Rdiger Faller. He specialized in paintings by
Otto Dix, which he composed according to the real drafts of the painters art-
work. This method made them appear very realistic while saving the forger the
hassle of being overly precisea painting is rarely executed exactly like the
draft. In 1983 the police seized twenty Dix paintings in his house, but returned
them after they were examined by experts who were convinced that they were
genuine. However, in 1986 he was arrested and sentenced to a three-year jail
term. Despite his initial success in fooling the police experts, he said in an
interview in 2002 that he was not a great painter. Nevertheless he does today
live on his own art, which is displayed on his personal website (Rossner: 2002).
The youngest forger discussed in this chapterand probably the young-
est known in the history of German art forgery more generallyis the now
120 Hufnagel

thirty-one year old law student Tom Sack. According to his website, he was
born in 1982 and, unlike his forger compatriots mentioned so far, he did not
only copy known artists, but also specialized in creating paintings along with
the vita of invented artists. The latter cannot, however, be called fraud; his
works could be acknowledged as concept art. He was apparently sentenced
to a minor fine for painting the prosecutor responsible for his case without
his consent and trying to sell the painting and a video of the police search of
his house over the Internet. He allegedly also received a suspended sentence
of one year in 2011 for selling forgeries of known artists over the Internet. It
has been claimed that the sentence was deliberately mild as to enable him
to finish his law degree and gain admission to the bar, which is not possible if
the sentence is higher.4 Tom Sack is a curious person to write about as there
is not much information available on him. The main source of information is
his website, which needs to be treated with extreme caution. He is a relatively
unknown (potential) forger who seems to self-promote more than he receives
media attention. Unless one is really looking hard for German forgers in his-
tory, he will probably not be noticed.
Reinhold Vasters (18271909) should also be mentioned here. He is not well
known, but he is a major German forger of metal works. He worked in the nine-
teenth century and was known then for his forgeries rather than his own pieces.
Vasters lived as a metal smith in Aachen, Germany and restored several pieces
in the Aachen Cathedral. After the significant destruction and dislocation of
works of art by the Napoleonic conquests, there was a new interest in arts and
antiques in Europe. Vasters specialized in restoring damaged works of art, in
particular metal works, but prevaricated about their provenance, adding inac-
curate descriptions and pedigrees when selling them. The wealthy buyers were
happy to shut their eyes to the discrepancies in provenance, and Vasters works
became very popular (Krautwurst: 2008). Apart from the museums with a spe-
cialized interest in these objects, few people and certainly no Germans know
his name. However, some New Yorkers will remember that, in the early 1980s,
one of the Metropolitan Museums admired Renaissance treasures was discov-
ered to be fake. The Rospigliosi Cup turned out to be the invention of Vasters.
The object had been bought in 1913 as a work of Benvenuto Cellini. Several
years after the Rospigliosi Cup entered the Metropolitan, a significant amount
of Vasters drawings were handed over to the Victoria and Albert Museum in
London, but not analyzed. Only in 1975 did experts discover among the drawings
the Rospigliosi Cup. After that dozens more purportedly Renaissance jewels in
distinguished private and public collections the world over were determined

4 See http://tomsack.com/ for an overview of articles on his work.


Art Fraud in Germany 121

to be created in Vasters workshop (Grassi: 2013). From his own records it can
be concluded that there are still many pieces under names like Celllini that
were in fact created by him. Museum collections are still wary about renais-
sance metal works for this reason. This case therefore had a significant impact
on the practice of museums with regard to artisan renaissance metal work.
Two of the most recent art fraud scandals discussed here were prominent in
the media in 2011 and 2013 respectively and have since not reappeared in the
public attention. The first was the Count of Waldstein case and the second the
case of the Russian avant-garde. In the first matter a self-proclaimed Count,
also known under the name of Lothar Senke, had, together with his business
partner Herbert Schulte and two other accomplices, sold Giacometti sculp-
tures over a period of seven years, amounting to an estimated damage of eight
million Euros. During the search of a storeroom in Mainz, police found 1,000
sculptures. To their surprise, each of them was different, indicating sophisti-
cated and efficient work on the part of the forgers. Although it was later claimed
by experts that the pieces were easily recognizable as forgeries, the amount of
the damage and significance of the stock show that many buyers did not see
through the scam. Der Spiegel5 claimed that this was the largest art fraud case
in the history of the German art market. However, many of the cases discussed
above would belie this assertion; in both the Mrugalla and the Beltracchi cases,
e.g., many more pieces of art were sold for higher amounts of money. The case
is, however, outstanding in that, in 2009, Lothar Senke received the highest
known jail sentence for art fraud in Germany: nine years. Another intriguing
fact is that the workshop where the sculptures were created has never been
found (Rbel and Sontheimer: 2011). Following the logic established above as
to why a case becomes prominent, the fact that Senke never admitted to the
crimes (he consistently claimed the sculptures were real Giacomettis), and
the fact that the modus operandi was never fully uncovered is probably also the
reason why the media have not held on to the story and it is, only several years
later, nearly forgotten.
The last case that needs to be mentioned as it is, at least volume-wise, by far
the greatest art fraud affair occupying police, prosecutors, museums, and gal-
leries in Germany, is the case of the Russian avant-garde. In Germany alone this
international art forger ring is alleged to have sold 1000 paintings of Russian
avant-garde artists, such as Malewitsch, Popowa, Puni, El Lissitzky, and many
more. In Russia, Spain, France, and Switzerland there are further cases that
have been uncovered. The forgery ring is said to have operated from Israel. In

5 Source: <http://www.spiegel.de/international/germany/art-forgery-scandal-ringleader-reveals-
he-faked-many-more-works-a-819409.html> [24 July 2014].
122 Hufnagel

June 2013 two suspects were arrested in Wiesbaden (Germany) for allegedly
selling forgeries from their gallery between 2006 and 2010. It is claimed that the
gallery was only established to enable the sale of fake works of art. However,
after the defendants had to close the gallery down in 2010, they continued sell-
ing their forgeries to collectors for an estimated two million euros (Timm: 2013;
Kurianowicz: 2013; Koldehoff: 2013). This forgery ring focused on the Russian
avant-garde as these works of art are relatively easy to forge and introduce to
the market due to the often very patchy provenance and lack of documenta-
tion for this art. It is very difficult to determine provenance for genuine works
of the Russian avant-garde since many of them have never been catalogued
and/or had vanished during World War ii. This was a major case, so it is very
surprising that this scandal was not more prominent in the news. Beyond June
2013, there are very few reports that discuss the issue. Like the cases above,
therefore, this case illustrates that unless the entire story is narrated by the
perpetrators, media interest dies very quickly.
This is the end of the historical overview on German cases that are known to
the expert reader but have never made it to the wider German public attention.
This is somewhat surprising as the forgeries of Mrugalla and Vasters, though
from significantly different time periods, are still circulating in museums today
under names like Picasso or Cellini. However, their fame was fleeting. In the
next part we will examine two cases that are currently debated in a media on a
regular basis and that the German Public knows inside out.

3 Modern Forgers and Their Cult

When addressing the most famous and still-remembered forgers in German


history, the first name that comes to mind is Konrad Kujau. Perhaps not as well
known beyond Germany, he acquired significant fame in his home country for
faking Hitlers diaries and selling them to the prominent German news maga-
zine Der Stern. Kujau was investigated in 1983 for forging the diaries, which
Der Stern had bought despite being advised against it by the German Federal
Criminal Police Office (Bundeskriminalamt or bka). The magazine had bought
the sixty-two volumes of diaries, claiming to chronicle Hitlers life between
1933 and 1945, for 2.5 million (although reporting on this amount varies in dif-
ferent sources). The acquisition of the diaries seems completely unreasonable
given that Der Stern was warned by the police about the inauthenticity of the
diaries. Two weeks after Der Stern bought the diaries, the West German Federal
Archives announced that tests had proven the paper, the binding thread, and
the ink to be of post-war manufacture; the diaries were obviously fake. The
Art Fraud in Germany 123

story was a disaster for Der Stern. It lost a significant sum of money and some
of its highest-ranking staff. This case proves again that more than the criminal
energy of the forgers, it is the will to believe (beyond reason) of the buyers that
makes offences possible. Here it was the significant historical value that led
to the acquisition of the blatant forgeries by a German prominent magazine
(Vensky: 2010).
The forger, Konrad Kujau, who like Wolfgang Beltracchi was formerly
known by the surname Fischer, was born in 1938 and worked as a dealer in
Nazi mementoes during the 1970s. Throughout his career as a dealer he had
occasionally supplemented genuine artifacts with forgeries. In the late 1970s
he offered to supply a client with a Hitler diary. A Der Stern reporter, Gerd
Heidemann, found out about this and wanted to close the deal for the maga-
zine. He was aware that the diaries were not authentic, but wanted to go ahead
regardlessfor a significant commission. Kujau started to work on forging a
significant number of volumes of diaries. His knowledge in forging artifacts
from the era helped him to make the diaries appear old, but they contained
major historical and technical flaws; for example, when Kujau ran out of the
letter A for Hitlers initials on the cover of the diaries, he replaced it with F.
Even that did not attract Der Sterns attention. He even managed to convince
handwriting experts of the authenticity of the books by providing forged
examples of Hitlers handwriting (ibid.).
After the fraud was discovered in 1983, Kujau confessed to the crime and, dur-
ing a search of his home, police found further evidence of his fraudulent activi-
ties, such as forged works by Drer, Rembrandt, and Goya. In 1985 Kujau was
convicted of fraud and given a four-and-a- half-year jail sentence. Heidemann
was sentenced to four years and eight months imprisonment (ibid.).
After his release from prison, Kujau opened a gallery in Stuttgart special-
izing in fakes of works by famous artists. He became extremely popular in the
German media and appeared regularly on the most well-established tv shows.
However, his case received the most publicity when the famous German direc-
tor Helmut Dietl converted the real life farce into a movie titled Schtonk (after
Charlie Chaplins The Great Dictator in which the dictator frequently utters
this invented word). Dietl gathered a number of very well-known and popular
actors to represent the main characters and the movie became a cult hit of the
1990s (ibid.).
The popularity of this case can be explained by three factors. First, the forged
items were items of historical interest for the German people at the time. The
trauma and fascination with the recent past were the main reasons why even a
serious political magazine such as Der Stern shut its eyes to clear evidence that
the diaries were fake. Second, the forger was a charismatic personality who
124 Hufnagel

became prominent in the German media and knew how to put himself into
the limelight. Third, the case itself was immensely entertaining (as evidenced
by the success of the comedy movie portraying the story), and the psychology
of it made the Germans, perhaps for the first time after the war, laugh about
their own World War ii trauma. The main reason for the importance of this
forger story is hence the historical context in which the crime was committed.
However, these reasons do not explain the second case that reached vast
popularity in German post-war history, the Beltracchi case. In 2011, Wolfgang
Beltracchi (born 1951), his wife Helene, her sister Jeanette Spurzem, and Otto
Schulte-Kellinghaus were accused of fourteen counts of fraud in conjunction
with forgery of documents. Wolfgang Beltracchi was born Wolfgang Fischer in
Germany. He was expelled from school at the age of seventeen and went to art
school but never completed his studies. Between 1972 and 1983 he travelled
as a hippie and sold some of his (original) paintings. In 1992 he met his wife
and future co-defendant while working on a documentary movie. The couple
had a daughter; Beltracchi also had a son from a previous relationship. The
family ultimately settled in the south of France in 2000. They also bought and
renovated another home in Freiburg, Germany, for about 5,000,000 in 2007.
Beltracchi had no criminal record at the time of his arrest in Freiburg in 2010.6
Some reasons can already be given here as to why this case has enjoyed
popularity since 2011. First, Beltracchi has a very charismatic personal-
ity. Throughout the reporting on his criminal trial, he became a memorable
figure. He has long hair and a cheerful and flamboyant style. He repeatedly
claimed that he did not forge paintings for the money, but as a prank to fool
the art world, which made him a likeable character to the media, so much so
that he was given the nickname Robin Hood. More cynical voices, however,
claim that Beltracchi might have felt frustrated with the lack of recognition
of his own original pieces and therefore wanted to get back at the art world
(Hammer: 2012).
Since his trial, Beltracchi has been a prominent figure in the popular media,
and, even though he received a six-year jail sentence, he is already work-
ingand has completeda number of new projects that are hotly debated
in the press and on tv shows. With his colleague, Manfred Esser, he has pro-
duced composite paintingsphotographic works by Esser painted over by
Beltracchi. He also published two books with his wife Helene. The first book
is about his story as a forger; the second about his relationship with his wife
while in prison. Also soon to come out is a movie on his life BeltracchiThe
Art of Forgery.

6 See the facts of the judgement: Urteil Landgericht Kln vom 27/10/2011, Az. 110 kls 17/11.
Art Fraud in Germany 125

During his time as a forger, Beltracchi created twentieth-century works of


art by respected artists including Max Pechstein, Heinrich Campendonk, Kees
van Dongen, and Max Ernst. The cover stories given for the forged paintings
were so convincing that his crimes remained undetected for a long time. The
forgeries were often paintings that had gone missing during World War ii or
that had been displayed in old catalogues without a photograph (Friedrichsen:
2011). Additionally, the Beltracchis faked photographs to demonstrate the
authenticity of the paintings. Wolfgang photographed his wife Helene dis-
guised as her own grandmother in their house in France sitting in front of sev-
eral forged paintings which were later sold as originals (Koldehoff and Timm:
2012, 6970). Another factor that prevented Beltracchis conviction for a long
time was that his name had been changed from Fischer to Beltracchi when
he married his wife Helene, and it was difficult for police to establish a link
between the different perpetrators bringing the forgeries onto the art market.7

Figure 7.2 Helene Beltracchi, posing as her grandmother, in a pseudo-antique photo staged to
lend credibility to the fictional provenances of Wolfgang Beltracchis forgeries. ddp
images.

7 Interview with lead investigator at the Landeskriminalamt Berlin on 23 March 2012.


126 Hufnagel

It was alleged by investigators that the sum earned by the group totaled 35 mil-
lion, but there is every reason to believe that the real income was significantly
higher (Huth: 2012). Considering the damage, the sentences were surprisingly
low. Beltracchi was sentenced to six years in jail; his wife Helene received a
four-year term; her sister Jeanette was given a suspended twenty-one-month
sentence; and the accomplice Otto Schulte-Kellinghaus was sentenced to five
years. A total of fifty-three cases of suspected fake paintings by Beltracchi were
investigated, but only fourteen could ultimately be established as forgeries in
order to bring criminal charges (Sontheimer: 2011).
Another reason why the case was and still is very popular is that many of
the victims and experts were well known, and there are still civil claims before
the courts against galleries and experts. Also, the prices for the paintings were
exorbitant, attracting significant public attention. One of Beltracchis paint-
ings was, for example, purchased by an ex-publisher and art collector, Daniel
Filipacchi in New York, for 5.5 million. The prominent German Max Ernst
expert Werner Spies said that he had been amazed by the quality of the paint-
ings and even pointed to one of them as being a masterpiece in the artists
oeuvre (Koldehoff and Timm: 2012, 113115).
Along with the Hitler diaries, the Beltracchi case seems to have elicited con-
siderable alarm in the art market regarding the risks associated with purchas-
ing high value art and has prompted fresh searches for technological devices
that might minimize these risks. It has been reported, for instance, that the
German auction house caught up in the Beltracchi affair, Kunsthaus Lempertz,
has invested in an expensive Thermo Scientific Niton X ray fluorescence
analytic machine, which may be used in the future on a routine basis to exam-
ine the types of pigments used in a painting and to match them with those
known to have been used by a particular artist. However, such testing will only
be of assistance if the forger did not use the correct pigment.
It can be concluded from the two very prominent cases that there is no cor-
relation between popularity and impact on the art market or police attention.
While the Beltracchi case set a number of important developments in action
and was a fantastic vehicle for the German art crime unit to promote their
work, no such movements can be determined after the forgery scandal of the
Hitler diaries.

4 Conclusion

What can be concluded from the numerous cases discussed above? First, there
is no correlation between the sentence and the popularity of a case. There is
also no correlation between the sentence and the impact on the art market. The
Art Fraud in Germany 127

sentence in the Beltracchi case was very low, as was the sentence in the Vasters
(metal smith) case. Nevertheless, these two cases can be said to have had a
significant impact on the art market. The main reason for this is the damage
that these cases caused to the art market. The higher the damage, therefore,
the more likely a case is to impact art market practices. Changes in criminal
law could not be detected as a result of any of the cases, not even the very
popular ones.
A reason for the popularity of a case is a charismatic forger. This has no
impact on practices in the art market, though. It also seems that criminal moti-
vation has no impact on either art market practices or the popularity of a case.
Whether a work of art is forged to save it from war crimes or to sell the original
does not seem to matter.
Victims also play an important role. The more prominent the victim, the
more likely it is that practices will change. If the Metropolitan Museum in
New York or the art dealer Filipacchi are the victims, the art world and police
seem to take notice. Victims, however, also play a major role in covering up
the crimes. They do not want to admit their mistakes and want to believe in
certain myths created by the forgeries. This psychology has been exploited by
a number of forgers in this chapter.
What seems to make an art crime case popular is first and foremost the
openness of the forger. A forger who reveals his modus operandi and takes his
sentence good-humoredly seems to have a high chance of being remembered
by the German public. Also, the forger must be successful. Mere attempts at
selling forgeries do not seem to interest the media.
An interesting point that can be made is that while the financial damage
seems to be important, the total number of forgeries brought onto the market
does not seem to be a deciding factor for popularity and impact on the art mar-
ket. Although Mrugalla sold about 3000 forged paintings, the impact of his case
on the market could not be seen. The skill of the forger also does not seem to mat-
ter. Although Fallers case seems extraordinary as he even fooled police experts,
this has not led to changes in police procedure or to the popularity of his case.
Finally, that a case has a vast response in the media does not mean that it
will change investigative or art market practices. I would welcome analysis of
more unknown cases in order to determine potential problems and solutions
for the art market and police investigators.

References

Deutsches Presse Amt (2011). Prozess um millionenschwere Flschungen beginnt in


Kln. Monopol Magazin (31 August).
128 Hufnagel

Effern, Heiner (2011). Die geflschten Bilder des Herrn S. Sddeutsche Zeitung
(7 September).
Friedrichsen, Gisela (2011). Eulenspiegel oder Knstler. Der Spiegel 43: 148, 149.
Grassi, Mario (2013). Nothing More Than Weeds: A Review of Caveat Emptor: The
Secret Life of an American Art Forger by Ken Perenyi. The New Criterion (February).
Hammer, Joshua (2012). The Greatest Fake Art Scam in History. Vanity Fair
(10 October), <http://www.vanityfair.com/culture/2012/10/wolfgang-beltracchi-helene-
art-scam?currentPage=all> (accessed 10 March 2014).
Hlsmeier, Dorothea (2010). Knig der Kunstflscher. Frankfurter Rundschau
(24 October).
Huth, Markus (2012). 35 Millionen Euro Schaden. Mz-web.de (27 January).
Keats, Jonathon (2012). Art Forgery: Lothar Malskat was a Master at Forging
Restaurations, Old Master and Modern Paintings. Art and Antiques (February).
Koldehoff, Stefan (2013). Die Leinwand ist alt, das Kunstwerk nicht. Frankfurter
Allgemeine Zeitung (16 June).
Koldehoff, Stefan and Tobias Timms (2012). Falsche BilderEchtes Geld (Galiani
Berlin).
Krautwurst, Miriam (2008). Reinhold Vasters (18271909) an Aachen Catholic and
ForgerEcclesiastical and Sacred Goldsmiths Art for Church and Commerce. In
Wolfgang Cortjaens, Jan de Maeyer, and Tom Verschaffel (eds.), Historism and
Cultural Identity in the Rhine-Meuse Region. Leuven University Press.
Kurianowicz, Tomasz (2013). Massenweise Malewitschs. Der Tagesspiegel (21 June).
Lffler, Joachim (1993). Knstlersignatur und KunstflschungEin Beitrag zur
Funktion des107 UrhG. Neue Juristische Wochenschrift 22: 1421.
Mrugalla, Edgar (1993). Knig der Kunstflscher. Ullstein.
Partsch, Susanna (2010). Tatort Kunstber Flschungen, Betrger und Betrogene.
Verlag C.H. Beck.
Rbel, Sven and Michael Sontheimer (2011). Sculptures in a Suitcase: The Fake Count
Who Flogged Giacometti Forgeries. Spiegel Online (18 May) <http://www.spiegel.de/
international/sculptures-in-a-suitcase-the-fake-count-who-flogged-giacometti-
forgeries-a-763170.html> (accessed 11 March 2014).
Rossner, Christel (2002). Otto Dix hat mich verfhrt. Sdkurier (6 December).
Schmitter, Elke (2009). Besoffen vor BegeisterungDie berhmte Madonna unter
den Tannen von Lucas Cranach d. ., seit Jahrzehnten verschollen, ist wiederaufge-
taucht: unter mysterisen Umstnden. Der Spiegel 36: 133.
Schreiber, Susanne (2009). Andere Disziplinen, andere Sitten: Flschung, Kopie und
Aneignung in der Kunst. Churer Schriften zur Informationswissenschaft 33: 21.
Sontheimer, Michael (2011). A Cheerful Prisoner: Art Forger All Smiles after Guilty Plea
Seals the Deal. Spiegel Online (27 October), <http://www.spiegel.de/international/
germany/0,1518,794454,00.html> (accessed 3 March 2014).
Art Fraud in Germany 129

Timm, Tobias (2013). Radikal erfindungsreich. Die Zeit (20 June).


Vensky, Hellmuth (2010). Von der Sensation zum Alptraum. Die Zeit (8 July).
Wolff-Thomsen, Ulrike (2006). Die Wachsbste einer Flora in der Berliner
Skulpturensammlung und das System Wilhelm BodeLeonardo da Vinci oder
Richard Cockle Lucas? Verlag Ludwig.
CHAPTER 8

Corruption from the Top: The Getty and


Caligulas Legacy

Tanya K. Lervik and Marc Balcells

1 Introduction

Much has been said and written about Marion True, the Getty Museums
ill-fated curator. Charged with conspiracy to receive illegally excavated and
exported Italian antiquities, True was on trial for five years in an Italian court
until the case expired due to the statute of limitations in late 2010. Though
not convicted, the damage to her reputation and career was devastating. The
Getty and other prominent museums were compelled to repatriate several
important objects to their home countries, and a chilling message reverber-
ated throughout the world of antiquities collecting (True 2011).
But the bulk of the Gettys problems began with J. Paul Getty himself. He
set the stage by creating an environment of favouritism that eroded account-
ability and encouraged corruption to flourish under a succession of unethical
managers. It was precisely in that environment that True allowed herself to be
corrupted; while in public she was one of the strongest proponents of mea-
sures to curtail illicit antiquities trafficking, privately she was acquiring looted
items for the museum.
This may explain why she was targeted; but Trues sins pale in comparison
with those of others who, as is demonstrated below, were guilty of offences
including the extensive misuse of Getty resources, blatant cronyism, accept-
ing kick-backs for acquisitions, and tax fraudnot to mention facilitating (or
tacitly enabling) the purchase of looted antiquities.
The Getty Museum is the poster child of an organization burdened with a
legacy of clientelism that survived its progenitor. In spite of Gettys death in
1976, the institution still battles with the repercussions of his bequest. As a
relatively young organization, the Getty is a particularly attractive case study
because such an important amount of contemporary resources are available.
These two accounts based on extensive research, review of internal docu-
ments, and interviews with most of the relevant players in this drama are used
to provide a window into the Getty organization, its culture, and the events
surrounding the True case.

koninklijke brill nv, leiden, 5|doi .63/9789004280540_009


Corruption from the Top 131

Possibly the most intriguing question not only for a scholarly but also for a
general audience is what went wrong at this bastion of philanthropy, educa-
tion, and supposedly enlightened collecting? The present chapter seeks to gain
further insight into how the Getty became an incubator for unethical behav-
iour and to evaluate the effectiveness of the Van Duyne model in describing
this process.

2 Corruption in the Museum Community

There is no shortage of literature describing the origins of corruption in the


Getty (Baucus 1994; Brass et al. 1998; Coleman 1998; Finney & Lesieur 1982;
Geis & Salinger 1998; Geis & Salinger 1998; Poveda 1994; or Yeager 1986, among
others). In this literature, here is a consensus on which activities constitute the
basis of corruption: Graycar (2011) lists exhaustively bribery, theft, embezzle-
ment, fraud, extortion, abuse of discretion, nepotism, clientelism, and favou-
ritism, among others. The common thread in all of these forms of corruption
is the abuse of a formal position involving trust. It is often said by scholars
that, in particular geographical areas, corruption is a logical response to need
and survival; however, need is no excuse for corrupt behaviours, and often this
excuse directs attention away the real motivationgreed (Graycar 2011). Like
any other criminal behaviour, corruption has a deep impact on many levels
within civil society, leaving many victims behind, especially when it is per-
vasive throughout every geographical area of the globe and in every sphere
of activity.
Museums and other cultural institutions like auction houses have been
tarnished by corruption and scandals, which are widely publicized in the
media since they are very appealing to readers. Most of the time, these scan-
dals involve cases of trafficked antiquities. This form of trafficking has been
pervasive precisely because it was invested with a laissez faire, laissez passer
patina by the museum community: museums not only disregarded and jus-
tified the harm caused to cultural heritage (by fuelling this illicit trade) but
also disregarded the existing legislation, mostly unescos 1970 Convention
on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property (Brodie, Doole and Watson 2000;
Renfrew 2000).
Museums are filled with dedicated, sometimes underappreciated, profes-
sionals heroically striving to educate visitors and protect cultural heritage.
However, they are not immune to economic pressures or the drive for prestige.
As such, museums are vulnerable to corruption and other unethical behaviour.
132 Lervik and Balcells

Two of the most paradigmatic cases involve two American museums: the
present chapter will analyze in-depth the wrongdoings committed by the Getty
officials. However, the Metropolitan Museum of Art, in New York City, was
also embroiled in what is known as The Medici Affair, referring to convicted
Italian antiquities dealer Giacomo Medici. In 1972, the museum announced
the acquisition of a Greek vase by Euxitheos painted by the famed artist
Euphronios. The dealer Robert Hecht offered the vase to curator Dietrich von
Bothmer; the sum paid was one million dollars. Some suspected that the vase
was illicitly excavated from a tomb and smuggled out of Italy. They were right:
the vase was indeed plundered by Italian tomb raiders from the necropolis of
Cerveteri (Watson and Todeschini 2006; Chappell and Polk 2011).
In addition, museums have a lengthy history of interaction with auction
houses, which may influence their ethical standards of acceptable behav-
iour. Many scholarly and journalistic accounts have addressed the innumer-
able forms of crime associated with auction houses. For example, Burnhams
account (1975) describes how auction houses sometimes publicize inaccurate
figures for annual sales and seasonal turnover in order to encourage more
buying/investing. Conklin (1994) and Naylor (2008) refer to several scenarios
in which an auction house may participate in fraudulent activities: bidding
practices, erroneous appraisals, and consignment fraud, among others. These
authors cite several examples in their books and articles.
Another major case was the price fixing scandal between Sothebys and
Christies. It involved both chairmen (A. Alfred Taubman for Sothebys and Sir
Anthony Tennant for Christies) meeting a dozen times between 1993 and 1996
to agree not to negotiate the seller commissions they charged to their respec-
tive clients. The case ended in a settlement regarding their respective us and
European class-action and antitrust suits: both houses jointly agreed to pay 512
million dollars in penalties to those clients who had consigned or purchased
art during the established period.
Perhaps most importantly, Watson (1997, 2006) concentrated on Sothebys
as an example of wrongdoing through the selling of looted art. In 1995, a tip
to the author by a former employee convicted of stealing two antiquities (and
false accounting) revealed a mountain of documents exposing how thou-
sands of antiquities were funnelled to the London branch for auction without
legitimate provenance or import/export permission. All these examples of art-
world misconduct involve high-ranking officials working in these institutions
who likely maintained persistent links with museum colleagues. This may well
have influenced the development of a corporate museum culture exemplifying
the theory of differential associationit was tolerant of behaviour not accept-
able outside the art-world professional sphere.
Corruption from the Top 133

3 The Van Duyne Model

In the present chapter, we have decided to use the model on corruption used
by Petrus Van Duyne (2001). This theoretical perspective offers a model of
five stages of corruption. By analyzing the progression of Getty staff behav-
iour within the rubric of this model, we have a real-world example of this
phenomenon.
The definition of corruption as outlined by the author is as follows:

Corruption is an improbity or decay in the decision-making process in which


a decision-maker (in a private corporation or in a public service) consents
or demands to deviate from the criterion, which should rule his decision
making, in exchange for a reward, the promise or expectation of it.

As described by Van Duyne (2001), corruption frequently, though not exclu-


sively, begins with top leadership. He identifies five phases of corruption as
quoted from his paper below. We will compare these phases to the actions of
Getty staff to see how effectively this model describes what happened there.

1. The phase of extravagance: This is typified by wasteful and unnecessary


spending, ostensibly while pursuing the business of the organization.
2. Erosion of accountability: The more successful a leader, the more trust he
engenders, and the more likely subordinates are to make allowances for
transgressions, whims and oversights. Differences of opinion will be
quashed, and anyone leaving the organization will be replaced by those
more likely to maintain the status quo.
3. The ownership phase: The leader of the organization begins to act as if he
literally owns it and a blurring of the use of assets for both private and
organizational demands ensues.
4. Court building and Caligula-appointments: A court-like inner circle of
yes-men builds around the leader. Dissention is discouraged, and privi-
leges are assigned, not on the basis of merit, but according to favouritism
and political wrangling. A Caligula-appointment refers to the story of
Roman emperor Caligula appointing his horse as a consul in the govern-
ment. Obviously, his horse would not be broaching any disagreements.
Similarly, corrupt leaders hire and promote those who back and support
their actions without question.
5. From favouritism to clientelism: Caligula-appointees often serve as the
leaders proverbial right hand and are expected to actively promote his
agenda. They are likely to recruit their own circle of supporters and
134 Lervik and Balcells

e ventually this can evolve into a system of clientelismaccording to the


Oxford dictionary, this is a social order, which depends on relations of
patronage. Therefore, decisions are no longer made considering the good
of the organization, but only relative to the interests of ones patron.

Why the Van Duyne model? Brodie and Proulxs recent article (2013) addressing
the Getty debacle argues compellingly that the criminological theories of dif-
ferential association and anomie explain why unethical practices were allowed
to flourish at the Getty. Differential association fostered the supremacy of a
corporate culture that was tolerant of deviant practices beyond the norms of
acceptable behaviour in a non-work environment. Meanwhile, anomie theory
describes how the disconnect between corporate goals and the realistic means
to achieve them lead to deviancy. While these are both excellent explanations
for why the Getty veered off course, the Van Duyne model describes behaviour
that often accompanies corruption. By identifying the symptomatic stages of
corrupt behaviour, organizations can be empowered to take counter-measures
to terminate its progression.
In reading Felch & Frammolinos Chasing Aphrodite (2011), the parallels
between the Van Duyne model and staff behaviour at the Getty are striking.
This chapter proposes that the model merits additional study to be added to
the arsenal of tools to identify and prevent corruption in other organizations.
Though the Getty example takes place in the art world, other institutions, be
they corporate or government, are vulnerable to a similar fateespecially
when valuable resources are involved.
However, it must be noted that in gathering information for this analysis,
and trying to allocate various examples of behaviour to van Duynes five cate-
gories, the first category (the phase of extravagance) quickly became problem-
atic. It seems clear that erosion of accountability should come first, and only
then would such extravagance be tolerated. Also, it duplicates the behaviour
described in the ownership phase, where organizational assets are considered
possessions. Therefore, this chapter abandons the phase of extravagance as a
separate category.

4 Methodology

The data used in the present chapter is based on information obtained from
journalistic accounts. Research on criminal issues in general (such as orga-
nized crime, for example) has also relied mainly on journalistic sources. The
argument for this method is an alternative approach involving direct access
to hidden or inaccessible populations is outright impossible since successful
Corruption from the Top 135

substantial criminals are by definition inaccessible (Mack and Kerner 1975).


Therefore, journalistic accounts represent an important window into criminal
behavior.
The accounts comprising this chapter mostly come from American journal-
ists Jason Felch and Ralph Frammolino, who were able to access numerous
internal Getty documents and to conduct insider interviews in several pieces,
which would eventually form the basis for their book Chasing Aphrodite.
Another important source has been Peter Watsons investigative work: he is
a former journalist for the London Sunday Times and author of several other
exposs of art-world scandals. The Medici conspiracy, which he co-authored
with Cecilia Todeschini, provides an in-depth account of the investigation that
led to Marion Trues trial as well as important insight into the Gettys practices.
This category of sources offers both benefits and methodological limitations.
The lack of reliable and comprehensive data regarding art crime is well known.
Criminologists like Tijhuis (2009) pinpoint several methodological issues such
as the problem in defining art, and, most importantly, the lack of sufficient and
comparable empirical data available to scholars, police, or governments (also
see Bazley 2010, for more on methodological problems when researching this
form of criminality). Hence, these journalistic accounts written in such consis-
tent detail remain valuable sources of information for pursuing such matters.
However, the use of these sources is not exempt from methodological limi-
tations. As Galliher and Cain (1974) explain, scholarly literature on organized
crime relies too heavily on journalistic sources, which tend towards the sensa-
tional, or government documents which politicize the facts since they are not
bound by the canons of scientific investigations as the social scientists. The
situation becomes even worse if we consider that writers (whether working
in newspapers articles, books and lightweight academic publications) might
unquestioningly accept poor empirical data. Sensationalist reporting has also
helped generate a widespread fascination in particular forms of crime, includ-
ing art crimes, which affects serious research still further.

5 Disciples of Caligula

Since the Van Duyne (2001) model focuses on the importance of the individual
decision maker, let us now examine some of the most influential figures whose
actions shaped the Getty culture.

5.1 J. Paul Getty


J. Paul Getty (18921976) set the tone for the organization and laid the founda-
tion of corporate culture based on cronyism that led to later abuses. Having
136 Lervik and Balcells

made his fortune in the oil industry, he was wily and parsimonious both with
his money and his favours. He alienated his family and rotated through a suc-
cession of wives and young mistresses. The museum itself started as a tax
shelter. Rather than donating pieces of his collection to other museums, his
accountant suggested Getty start his own non-profit museum in his home and
take bigger deductions for operating expenses, purchase of art, etc. (Felch and
Frammolino 2011). When building what would become known as the Getty
Villa, the oil magnate questioned the need to include air conditioning, consid-
ered adding electronic bugs to listen to patrons conversations, and scrutinized
every expense, down to the cost of pencil sharpeners. His frugality led to some
unintended consequences.
Getty was also stingy in his purchase of artleaving at his death what was,
at best, a mediocre collection and a staff that had endured twenty-five years of
pent-up frustrations. After his death, armed with Gettys bequest of the bulk
of his oil wealth, the Getty became richest art museum in the world with the
means and a sense of entitlement to achieve all that had been denied them in
the past. The first thing they did, in complete disregard of their founders con-
cerns about price and permission from Italy, was proceed with the purchase
of the Getty Bronze (The bronze was an important Greek sculpture found by
fisherman off the coast of Italy and allegedly illegally exported). Thus began
the museums string of questionable purchases (Felch and Frammolino 2011).
J. Paul Getty also openly played favourites with family and staffsetting
people against each other. From the time he joined the Getty as its first antiq-
uities curator, Jiri Frel enjoyed a closer relationship with J. Paul Getty than
most of his colleagues. He was allowed free reign and is described as parad-
ing around the museum like an emperor (Felch and Frammolino 2011). After
the death of his benefactor and the enormous endowment, he was left as one
of the few experienced museum professionals to guide a board of trustees
with little knowledge of art in building a world-class institution (Felch and
Frammolino 2011).
The scene was set. J. Paul Getty left the museum with an emperor in place
with little accountability, an entire management determined to acquire what
they were owed, and the means to do it.

5.2 Jiri Frel


In order to change the Getty from a backwater to the behemoth it is today, Frel
needed to acquire, not only blockbuster pieces, but also an extensive study
collection of lesser works that would not be popular with the unsophisticated
museum board (Felch and Frammolino 2011). To that end, he began to solicit
donations and set up a donation tax scheme cooperating with the Summa
Corruption from the Top 137

Gallerya front for the illicit antiquities dealer, Bob Hecht. The gallery was
able to move its backlog of lesser works, its clients made money on the tax
donation, and Frel built his study collection. He also appeared to benefit per-
sonally via kickbacks as evidenced by $25,000 cash loan from the gallery to
build a swimming pool and his unexplained acquisition of a new bmw around
the same time that the owner of the dealership made a $761,000 donation to
the Getty (Felch and Frammolino 2011).
Frel had established a cozy position for himself and could operate with
impunity. He was seen arriving and departing the museum with his pockets
crammed with artifacts. He demanded ever-higher appraisals for donations
from the antiquities expert the Getty worked with in New York to the point
that the appraiser refused to sign the forms; Frel began to forge the signature. A
suspicious number of donations began to be funnelled through Frels young
wife and her family (Felch and Frammolino 2011).
Meanwhile, Stephen Garrett, the museum director, applauded Frel for his
ingenuity in securing donations. Frels immediate boss, Burton Fredericksen,
expressed concern, but received no support from the board. Fredericksen felt
so strongly about Frel that he requested a demotion so as not to be held liable
for Frels actions should he ever be investigated (Felch and Frammolino 2011).
Here we see that Frel was operating with little or no accountability; he acted
as if he owned the organization, so that use of its funds and assets blurred
with those of his own; and any dissention was quashed. The transition to court
building had begun.
Having overcome his previous boss, Burton Fredericksen, Frel faced a new
challenge in 1981. The Getty Endowment had grown so large that the board
decided to replace the current museum director with someone experienced
in managing massive sums of money and to establish an umbrella trust that
would fund other arts-related institutes in addition to the museum. Harold M.
Williams was hired to head the trust. He then hired John Walsh to be the new
director of the museum.
Frel decided he needed a buffer between himself and the new management.
He hired an East Coast blue-blood, Arthur Houghton iii, to act as his deputy.
Marion True started as a deputy around the same time. Frel hoped to build
his own court, but Houghton was no yes-man. Almost immediately the scale
of the tax fraud and other improprieties became evident. Frel brushed aside
Houghtons concerns, so he felt compelled to bring them to the attention of
the new director, John Walsh. An internal investigation was made and all alle-
gations were substantiated, but Frel was not fired. He was put on paid leave
and fled the country for Europeabandoning his wife and children in the
process.
138 Lervik and Balcells

5.3 Arthur Houghton iii


Up to this point, Houghton had been a white knight compared to Frel. In the
aftermath, Houghton was tasked not only with damage control from the tax
scam, but also with handling the controversy surrounding the acquisition of
the Getty kouros, a statue which was either looted or fake. Regardless of the
statues authenticity, it was determined that Frel had faked the kouros prov-
enance. In handling this new difficulty, Houghton left the moral high ground.
He proposed a policy of optical due diligence to limit the Gettys legal lia-
bilitythat is, to make a show of vetting acquisitions while avoiding certain
knowledge of the objects origin. For example, they would accept a given
provenance without investigating it too closely. This strategy held sway for
many years (Felch and Frammolino 2011). The instigation of such a cynical
policy may have been an attempt to make the best of a bad situation given that
many of the works owned by the museum were likely to have been looted, or it
may have been rationalized by the idea that everyone was doing it. Regardless,
it laid the groundwork for Marion Trues controversial acquisitions.
In spite of all this, a year later, in 1985, John Walsh announced the Getty was
planning to bring Frel back from sabbatical as Senior Research Curator. This
was the last straw for Houghton. He had expected to succeed Frel as curator
of antiquities. He resigned in protest, and Marion True was appointed instead
(Felch and Frammolino 2011).
More than other Getty managers discussed thus far, Houghton seems to have
done his best to combat corruption and increase accountability. However, in
the end he left a legacy that decreased accountability required for the acquisi-
tion of antiquities via the optical due diligence policy and ultimately length-
ened the corrupt shadow cast by Jiri Frel.

5.4 Barry Munitz


Before we discuss Marion True, we need to consider the role of Barry Munitz.
In 1998, Munitz succeeded Harold M. Williams on his retirement as president
of the Getty Trust. The Getty Trust is the umbrella organization operating the
J. Paul Getty Museum, the Getty Foundation, the Getty Research institute, and
the Getty Conservation Institute. Munitz was recruited from his position as
chancellor of California State University to revamp the Getty and build part-
nerships with the community and other organizations. He was initially suc-
cessful and popular with the board for the high-power connections he was able
to bring the Getty. However, it was under Munitz that the Getty made the com-
plete transition from favouritism to clientelism.
From the beginning, Munitz could do no wrong as far as the board was
concerned. He became another Getty manager acting with little or no
Corruption from the Top 139

a ccountability. There are numerous examples of Munitzs extravagant use of


Getty resources and the blurring of personal and organizational resources,
which we will discuss below.
Munitz felt threatened by the residual loyalty employees had for his prede-
cessor Williams. To make matters worse, Williams continued to receive a large
pension and kept an office at the Getty Center, a new campus opened in Los
Angeles in 1997 to house the Getty collection of Western art as well the Getty
Research Institute, the Getty Conservation Institute, the Getty Foundation, and
the administrative offices of the J. Paul Getty Trust; the collection of ancient
artifacts remained at the Villa. Since Williams would not go away, Munitz had
to build his own court of supporters (Felch and Frammolino 2011).
Importantly, he brought in a young woman, Jill Murphy, one of his most
loyal staffers at Cal State, to be his chief of staff. She quickly became the second
most powerful figure at the Gettyacting as Munitzs eyes, ears, and even his
voice (Felch and Frammolino 2011). Murphy was the quintessential Caligula-
appointee and was representative of the fiefdoms that were being built within
the organization.
Munitz also tried to garner support by making use of existing animosities
between John Walsh and Williams by reorganizing. Munitz allowed Walsh
to coast to retirement in the newly created post of trust vice president, and
then supported Walshs deputy and confidante, Debbie Gribbon, to take over
as museum director. He also wooed Barbara Fleischman to serve as a board
trustee to consolidate his support there (Felch and Frammolino 2011).
However, after his first years at the Getty, Munitz became complacent. He
began spending more time at home by the pool and managed the trust via
voice mail. The bulk of his time was spent travelling. Munitz argued that is
what he had been hired to do, to act as the Gettys ambassador to the world, to
woo big donors and build partnerships (Felch and Frammolino 2011).
Munitz took his wife and friends on lavish cultural tours around the world.
Many were thinly disguised vacations billed to the Getty. He would justify this
by including quick cultural stops he had his secretaries add at the last minute
(Felch and Frammolino 2011). He also arranged grants and expensed travel
related to at least two women with whom he was having or pursuing a per-
sonal relationship, which the Getty basically covered up after the fact (Felch
and Frammolino 2011). Munitz was openly spending with impunity and with
little regard for the good of the organization.
In the meanwhile, the running of the Getty fell to his protge, Jill Murphy.
Armed with an astute mind, she was skilled at setting people against one
another and playing favourites. Getty staffers began focusing their rising anger
on her (Felch and Frammolino 2011).
140 Lervik and Balcells

Things came to a head because Munitz continued these practices in the


midst of organization-wide cost-cuts implemented in response to major stock
losses in the Getty Trusts endowment. For example, days after laying off seven
popular security managers, Munitz drove past their remaining colleagues in
a new silver Porsche Cayenne. He had ordered the $72,000 suv at the trusts
expense supposedly for transporting board members. In actuality, his full-time
Getty driver used it to crisscross the city on personal errands. For example,
once a week the driver would make the one-hour trek to Long Beach to pick
up copies of Munitzs favourite tv shows. Munitz had them specially taped
because he couldnt figure out how to use his vcr. The non-profit Getty paid
for all these expenses (Felch and Frammolino 2011).
Even as Italian investigators began closing in on Marion True in 2003,
Munitz had other things on his mind. He wanted a raise. At more than $1 mil-
lion a year in total compensation, Munitz was already being paid more than
any other museum director, university president, or foundation chief in the
United States. This income was essentially tax-free because the Getty reim-
bursed him for all the state and federal taxes he paid. He had an suv at his
disposal, a personal driver, and a pool of five secretaries. But none of this was
enough for Munitz (Felch and Frammolino 2011).
He felt cheated when comparing himself with his predecessor, Harold
Williams. For the rest of his life, Williams was to receive more than 100 percent
of his final Getty salary of $600,000, along with secretarial support and office
space at Getty Center. Meanwhile, the Board had put a cap on Munitzs retire-
ment package. Williams had also received a completion bonus for the Getty
Center (in spite of being over budget and behind schedule), while Munitz
received nothing for fast-tracking the completion of the Getty Villa. He felt it
was unfair (Felch and Frammolino 2011).
Munitz had been lobbying for a raise, but Bernard, head of the boards
compensation committee, was concerned that would send the wrong mes-
sage since they were in the midst of making major cuts. Munitz argued that he
deserved a reward because his job was more demanding now that times were
hard. The Board did vote to give him a 4.5% raise, but, although he was the only
person to get a performance raise that year, Munitz was livid that it was not
more (Felch and Frammolino 2011).
Eventually Munitzs actions became too much. The Getty Trust hired an out-
side law firm to spearhead an internal investigation of allegations that senior
managers had misspent the non-profits funds and acquired illicit antiquities.
The results of this investigation eventually led to his ouster in 2006 (Felch &
Frammolino 2006). This was the environment of clientelism and excess in
which our next subject, Marion True, was operating.
Corruption from the Top 141

5.5 Marion True


As mentioned above, True had been brought in as a curatorial assistant under
Jiri Frel, the original controversial curator who had perpetrated numerous
questionable acquisitions including acquiring items via a tax fraud scheme.
She had been a witness both to his transgressions and to those of all that
followed. Once she was named curator and was given the responsibility
of renovating the Getty Villa, she is described as having undergone a trans-
formation. True relished her newfound prestige. Insiders began to refer to
her as the Mayor of Malibu or the White Goddess of the Villa (Felch and
Frammolino 2011).
True also displayed the same sense of entitlement running rampant among
the Getty staff. She flew the Concorde to Paris and spent extravagantly on
luxury hotels, chauffeured trips around Europe, and gourmet dinners with
foreign dignitaries. The name of her new husband, French architectural pro-
fessor Patrick de Maison-neuve, featured prominently in her Getty expense
reports. When she went to visit him in Paris, the Getty often paid (Felch and
Frammolino 2011).
The desire to live beyond her means and to keep pace with the jet-setting
friends she had made while in her new role as curator pushed her to make
two critically poor decisions. True became determined to purchase a home
in Greece neighbouring friends who were also dealers and donors to the
Getty. True couldnt afford to buy the house outright on her curators salary of
$80,000/year. American banks would not loan the money for a foreign house,
and Greek banks wouldnt approve a mortgage to a non-citizen. Additionally,
True had to maintain monthly payments on her Santa Monica condo. For a
time she had even taken a housemate to help make the payments. The only
alternative would be a private loan on generous terms.
True turned to her friend, Christo Michaelides, for advice. Christo and his
partner, Robin Symes, were important British antiquities dealers (later linked
to the Medici antiquities trafficking case). Michaelides referred her to a lawyer,
Dimitrios Peppas, through whom True obtained a four-year loan of $400,000
with a balloon payment due at the end. This allowed True to buy the house
and gave her four years to find other financing. It is unclear whether she was
aware, but Michaelides later told a relative that his family was the source of
the money. As a dealer doing business with the Getty, this represented a huge
conflict of interest (Felch and Frammolino 2011).
Compounding this initial error in judgement, True refinanced by taking
another personal loanthis time from Lawrence and Barbara Fleischman who
were major donors to the Getty. This was in 1996, shortly after the Fleischmans
had donated and sold more than three hundred important a rtifacts to the
142 Lervik and Balcells

museum worth tens of millions of dollars. Although organizational proto-


col demanded that such conflicts be disclosed annually, True and Barbara
Fleischman (who later joined the Getty board in 2000) conspired to keep this
secret. When these relationships were discovered in the midst of the Medici
antiquities trafficking investigation, both denied any ill intent. Fleischman
rationalized the loan as a benign attempt to help a dear friend. But True was
forced into retirement from the Getty and Fleischman into resignation from
the board as a result (Felch and Frammolino 2011).
From these examples we get a picture of True following the example set
by a series of authority figures within the Getty. True was setting up her own
fiefdom at the villa and claiming the benefits of her new status. If Barry Munitz
could fly himself and his wife around the world first class, why shouldnt she
take the Concorde to Paris to visit her husband? True wanted and felt she
deserved such benefitsnever mind that the us taxpayer was effectively sub-
sidizing it all.
According to the tax code, resources of non-profits must be used for the
public good. Excessive pay, travel, and perks are considered by the Internal
Revenue Service to be self-dealingthat is, the illegal use of tax-exempt
resources for private benefit (Felch, Fields and Roug 2005). But that seems to
have been of little concern to Getty management. It can hardly be surprising,
then, that Marion True followed in the footsteps of her colleagues.

6 Explaining the Spread of Corruption at the Getty

Having come to this point in the Gettys history, corruption had indeed taken
on a life of its own. The seeds of favouritism planted by J. Paul Getty had born
fruit in the form of an organization where individuals are more concerned
about establishing their personal fiefdoms and making decisions to benefit
themselves rather than the organization. Entrenched rationalizations justify
such behaviourIf they could, why shouldnt I? I deserve it. The sense of
entitlement continues.
The question of the Gettys historically questionable acquisition practices is
more of an amalgam of influences. They were under pressure as a new organi-
zation to build an important collection in an era of limited supply. They could
argue that many of their competitor organizations were doing the same thing.
And again, as the wealthiest of these competitors they felt entitled to acquire
the best. Early staff members whose hands had been tied for so long under
founder J. Paul Getty intensified this sense of entitlement. Additionally, and
perhaps most importantly, their personal prestige and success was tied to suc-
cessful acquisitions.
Corruption from the Top 143

The idea that the Getty is the richest museum and deserves the best seems
to have translated into the individual staffers feeling that they deserved the
best as well. When the goals of society at large clashed with those of the orga-
nization, the tendency was to side with the organization (as with Houghtons
optical due diligence policy). But when personal goals collided with the best
interest of the organization, the tendency was to favour personal interest (as
with Munitz and his raise during a period of cutbacks). Lack of accountability
due to the establishment of Caligula courts allowed such unethical decision-
making and broader corruption to flourish.

7 Conclusion

In his 2001 article published in the Forum on Crime and Society, Van Duyne
proposed that corruption within an organization often spreads from top lead-
ership down within the general ranks. He described five phases of this pro-
gression. In applying this framework to an analysis of the Getty Trust and
Museums, this chapter found that one phase, the phase of extravagance to be
redundant, but that the other four were extremely apt in describing peoples
behaviour and the development of Getty corporate culture.
Additionally, the Getty case demonstrates that this process is not limited by
the departure of an original corrupt individual. Once begun, corruption seems
to be self-propagating. This raises the question: what can be done to stop it?
Numerous examples exist, such as the Enron scandal or the irregularities sur-
rounding Blackwaters activities in Iraq. Politics is notoriously rife with crony-
ism and corruption (see former French President Jacques Chiracs on-going
case dating back to his time as mayor of Paris).
Surely the first step is to be able to identify and describe the process, and
the Van Duyne model does that well. Accountability, or rather the lack thereof,
is key as it is the main counterbalance to self-interest. A next step would be
to see how accountability could be strengthened or effectively reintroduced
into organizations where it is lacking. For example, Brodie and Proulx (2013)
highlight the importance of maintaining a clear separation of responsibili-
ties between those identifying potential objects to acquire and those approv-
ing acquisitions based on their legality. Such a measure can only be positive,
though it does not preclude the possibility of collusion between those respon-
sible or complacency on one half of the equation.
Meanwhile, the Van Duyne model serves as an effective tool to identify orga-
nizations at risk or wrestling with dysfunctional, corrupt behaviour. By recog-
nizing the symptoms, steps can be taken to reestablish controls and rebuild an
ethical structure.
144 Lervik and Balcells

References

Anand, V., B.E. Ashforth, & M. Joshi (2005). Business as Usual: The Acceptance and
Perpetuation of Corruption in Organizations. Academy of Management Executive
19(4): 923.
Ashforth, B.E., & V. Anand (2003). The Normalization of Corruption in Organizations.
In R.M. Kramer & B.M. Staw (eds.), Research in Organizational Behavior. Oxford, uk:
Elsevier.
Baucus, M.S. (1994). Pressure, Opportunity and Predisposition: A Multivariate Model
of Corporate Illegality. Journal of Management 20: 699721.
Bazley, T.D. (2010). Crimes of the Art World. Santa Barbara: Praeger.
Brass, D.J., K.D. Butterfield, & B.C. Skaggs (1998). Relationships and unethical behav-
iour: A social Network perspective. Academy of Management Review, 23(1), 1431.
Brodie, Neil and B.B. Proulx (2013). Museum malpractice as corporate crime? The case
of the J. Paul Getty Museum. Journal of Crime and Justice, doi: 10.1080/0735648X.
2013.819785.
Brodie, N., J. Doole, & P. Watson (2000). Stealing History: The Illicit Trade in Cultural
Material. Cambridge: The McDonald Institute for Archaeological Research.
Burnham, B. (1975). The Art Crisis. New York: Collins.
Chappell, D. & K. Polk (2011). Unraveling the Cordata: Just How Organized is the
International Traffic in Cultural Objects? In S. Manacorda & D. Chappell (eds.),
Crime in the Art and Antiquities World. New York: Springer.
Coleman, J.W. (1998). The Criminal Elite: Understanding White Collar Crime. New York:
St. Martins Press.
Conklin, J.E. (1994). Art Crime. Wesport: Praeger.
van Duyne, P.C. (2001). Will Caligula Go Transparent? Corruption in Acts & Attitudes.
Forum on Crime and Society 1: 7398. un Centre for Crime Prevention.
Felch, J. (2005). The Munitz Collection (6 June). The Los Angeles Times.
Felch, J. & R. Frammolino (2011). Chasing Aphrodite. New York: Houghton Mifflin
Harcourt.
(2006). Investigators Secretly Mined Munitzs Records. The Los Angeles Times
(2 September), http://www.latimes.com/news/printedition/la-me-getty2sep02,0,
1253623,full.story (accessed 15 August 2011).
Finney, H.C. & H.R. Lesieur (1982). A Contingency Theory of Organizational Crime. In
S.B. Bacharach (ed.), Research in the Sociology of Organizations. Greenwich: jai.
Galliher, J.F. & J.A. Cain (1974). Citation Support for the Mafia Myth in Criminology
Textbooks. American Sociology 9: 6874.
Geis, G. & L.S. Salinger (1998). Antitrust and Organizational Deviance. Research in the
Sociology of Organizations 15: 71110.
Graycar, A. (2011). Corruption. In M. Natarajan (ed.), International Crime and Justice.
Cambridge: Cambridge University Press.
Corruption from the Top 145

Mack, J.A. & H-J Kerner (1975). The Crime Industry. Lanham: Lexington.
Pontell, H.N. & G. Geis (eds.) (2007). International Handbook of White-Collar and Cor-
porate Crime. New York: Springer.
Poveda, T.G. (1994). Rethinking White-Collar Crime. Westport: Praeger.
Renfrew, C. (2000). Loot, Legitimacy and Ownership. London: Duckworth.
Tijhuis, A.J.G. (2009). Trafficking in Cultural Artifacts. In M. Tonry (ed.), The Oxford
Handbook of Crime and Public Policy. Oxford: Oxford University Press.
True, M. (2011). Neither Condemned Nor Vindicated. The Art Newspaper (5 January).
Watson, P. (1997). Sothebys: Inside Story. New York: Random House.
Watson, P. & C. Todeschini (2007). The Medici Conspiracy. New York: PublicAffairs.
Yeager, P. (1986). Analyzing Illegal Corporate Behavior: Progress and Prospects. In
J.E. Post (ed.), Research in Corporate Social Performance and Policy. Greenwich:
jai Press.
CHAPTER 9

An Inside Job? The Case of Robert Noortman


Henk Schutten and Petrus van Duyne

Foreword by Marc Balcells

This chapter, written by journalist Henk Schutten and criminologist Petrus van
Duyne, presents two very interesting points. On one hand, there is the con-
cept of white-collar crime; on the other, the usage of journalistic accounts
serving as sources and, simultaneously, as a way to overcome the difficulties of
researching the secretive and closed environment of the art world.
The case presented in this chapter about art dealer Robert Noortman is
an example of what criminologists label white-collar crime. Defining a social
construction like crime is always complicated: particular crimes, such as orga-
nized crime, looting, or terrorism, can be difficult to define. One can have an
abstract image or a socially influenced idea of what these crimes are and entail,
but constructing a scholarly and legally sound definition is much more of a
challenge.
White-collar crime was not properly studied until 1940, when sociologist/
criminologist Edwin Sutherland published about the subject under the
title White-Collar Criminality in a short article for the journal American
Sociological Review. In short, Sutherland unified under this label a series of
illicit behaviours as conducted by the business community. More importantly,
Sutherland (1940) called attention upon the fact that, until that point in time,
crimes committed by the upper class in relation to their businesses were not
being subjected to scrutiny by criminologists. Because of this omission, the
criminological image presented to that point was biased and skewed towards
lower-class criminals. As this case and the chapter by Balcells (2014) in this
volume proves, the current situation has not changed much, and this includes
white-collar crimes in the art world. Following the common perception of
the art market as a secretive and little-regulated environment (described fre-
quently by the trust required in a gentlemens agreement), this secrecy allows
for the occultation of criminal activities. Bazley (2010) makes a legitimate com-
parison between cultural property crimes and white-collar crimes when he
states Sutherlands framework for reorienting attention to upper class offend-
ing can be similarly applied when arguing for a greater recognition of miscon-
duct in the art world.

koninklijke brill nv, leiden, 5|doi .63/9789004280540_010


An Inside Job ? 147

But the question remains: what we do consider white-collar crime?


Sutherland, in his 1949 book White-Collar Crime, used the term as an umbrella
that included issues like patents, trademarks, and copyright violations, unfair
labor practices, and financial manipulations, among others. However, there
are many definitions, and they are not all universally accepted, as they change
depending who is defining the phenomenon, whether it is a scholar, a govern-
ment official, or a law-enforcing agency.
The upper class in the art world includes museum officials, art dealers, gal-
lery owners, collectors, and auction houses; these are the major players that
conduct their activities within this social-economic network. The case that is
analyzed in this chapter is that of a reputed dealer in the Netherlands, Robert
Noortman. If we examine the existing literature on the topic, we see that deal-
ers can defraud other artists, other dealers, auction houses, collectors, muse-
ums and, regarding the specifics of the studied case, insurance companies
(Conklin 1994). There have been pre-existing cases for every category of fraud
listed; however, most of them are identified in journalistic accounts that rarely
have made it into a criminological analysis, as most other forms of crime do.
Fraud against insurance companies is not at all rare if poorly detected
and researched. According to Conklin (1994), this kind of crime happens
since dealers are obliged to insure merchandise, yet they alienate their insur-
ance companies by defrauding them. A notorious case was the incident that
involved London dealer Houshang Mahboubian: the dealer insured his col-
lection of silver vases, bowls, and jewelry as a fast way of converting it into
cash. After contacting insurance company Lloyds of London, the collection
was insured by a total of $23 million. Mahboubian then travelled to New York
City in order to make contact with a gang of thieves (a contact facilitated by
fellow dealer Nedjatollah Sakhai). Once back in London he shipped part of
the collection in two crates marked with his initials to make it easy for the
thieves to target the objective. Had the plan succeeded, Mahboubian would
have collected $18.5 million; however, the operation was thwarted by the New
York Police Department because the thieves were breaking into the warehouse
where the crates were stored. Later, during the trial, it was proven that many of
the pieces were fakes, adding extra charges to the one of attempted insurance
fraud (Rohter 1986; Johnson 1987).
In sum, it cannot be denied that all these white-collar crimes perpetrated
by these collectives within the art world fit perfectly Sutherlands definition.
Having studied these examples, there is one common denominator: journal-
ists first reported the crimes before they had been analysed by scholars. This
trait is not exclusive to this chapter; practically every chapter from this book
draws contemporary cases from media reports (see, for example, Lervik &
148 Schutten and van Duyne

Balcells) that are easily accessible via the Internet; journalistic accounts are
swiftly becoming a data source for the criminologist alongside sources deriv-
ing from the new social media and networks. Another consideration to take
into account is that relevant case studies have to be published to provide schol-
ars with the needed caseload to analyze and study new types of crime as well
as keep track of developments in known criminal activities.
In fact, an entire field of research within criminology has been devoted to
media and crime, since, as Newburn (2007) states, what we know about crime
is hugely influenced by what we see on television and film and what we read
in newspapers and magazines. In that sense, journalistic sources have been an
ally when trying to reach hidden populations such as criminals, and indeed it
has worked for art criminals. If one examines the books written on the topic,
most of them come from journalists, not criminologists. And as von Lampe
(2008) states regarding organized crime, research in that field (as in many other
fields within criminology) has, in the past, primarily relied both on official and
journalistic sources. In some instances, this is out of mere convenience; at
other times, the justification has been that direct access to organized criminals
is outright impossible. Furthermore, it is the position of some authors (Kraska
and Neuman 2008) that journalists also conduct crime and justice research
using multiple field research or collecting and analyzing quantitative data,
noting that oftentimes they even manage to obtain sensitive documents from
government officials thanks to the available legislation.
However, researchers must not forget about potential pitfalls of journalistic
accounts: summarizing these, Galliher and Cain (1974) refer to the tendency of
journalistic accounts to lean towards the sensational (in other words, sensa-
tionalist reporting has also helped generate a vast fascination with crime that
has led to fantasy depictions of it); or as Arsovska (2008) puts it, writers looking
to sell newspapers, books, and lightweight academic publications unquestion-
ingly accept poor empirical data.
Of course, these opinions do not mean that journalistic accounts are bad
data sources per se, only that scholars must be aware of their pitfalls and be
cautious when using them. That is why a chapter written by a journalist and a
professor makes it the holiest of all alliances.

M.B. 15 June 2014

The Noortman Case: Introduction

On the 17th of February 1987, an art theft was reported at the police station
in Maastricht, a large city located in the southern part of the Netherlands.
An Inside Job ? 149

Nine paintings were reported missing from the gallery of 40-year-old art
dealer Robert Noortman. The list of assumed stolen objects included works by
renowned artists such as Meindert Hobbema, Pierre-Auguste Renoir, Camille
Pissarro, David Teniers, Willem van de Velde, Jan Brueghel the Younger, Pierre-
Auguste Renoir, Paul Desire Trouillebert, and Eva Gonzales. The estimated total
value at the time of the alleged theft was about 5.2 million Dutch guilders.1
The owner of the stolen object was Robert Noortman, a former carpet sales-
man, who established himself, in less than twenty years, as a very successful
art dealer. In 1968 he started his first art gallery in the Netherlands, which was
followed by a branch in London in 1974 and, a few years later, by another in
New York. Noortman was also the founder and chairman of The European Fine
Art Fair (tefaf) in Maastricht, an event that took place for the first time a few
months after the theft and has developed into one of the worlds leading art fairs.

The Case and Its Investigation

If an actual break-in happened, the burglars left no traces at all.


Police investigator Wim Vermazen, assigned to the case together with three
other officers, noted that the alarm did not go off, although Noortman per-
sisted in his statement that it was switched on. In addition, the vault in the cel-
lar, where the paintings were always stored, was found unlocked. To Vermazen
it looked like an inside job.2
All missing objects were well-insured. The loss adjuster, Lloyds, in London,
immediately expressed some doubts.3 The alleged theft seemed to be carried
out with inside knowledge from one of the gallerys staff or principles.4
According to the Maastricht police, Noortman was not very cooperative.
For example, the investigators wanted to know more about the provenance
of the stolen paintings and about the original price he paid for them, but the
gallery owner left within a week after the break-in for a winter sports holiday
to Switzerland.5 From his holiday address, Noortman sent for Ben Zuidema, a
private investigator specializing in art theft.

1 Todays estimated value would be approximately four million euros.


2 Testimony Zuidema, Statements Julian Radcliffe, kro Reporter, 7 June 2007, <http://www
.uitzendinggemist.net/aflevering/57983/Kro_Reporter.html> (accessed 13 March 2014), Statements
W. Vermazen, Art Loss Register R1067, 24 November 2009.
3 Statements Julian Radcliffe in kro Reporter, 7 June 2007, <http://www.uitzendinggemist.net/
aflevering/57983/Kro_Reporter.html> (accessed 13 March 2014).
4 Ibid.
5 See De Limburger, 8 February 2011.
150 Schutten and van Duyne

figure 9.1 Ben Zuidema.

Zuidema started his own investigation. He found that the paintings were too
well-insured. Normally works of art are insured at the owners purchase price.
This time the objects were insured at the anticipated and estimated selling
price of 5.2 million guilders.6
According to Zuidema, during his investigation, something strange hap-
pened. He received a phone call from an employee of Lloyds, who introduced
himself by the name of Davis. The man told the detective that Noortman paid
$200,000 for the Hobbema painting, but insured it for more than ten times that
amount, almost 2.1 million guilders. Lloyds suspected Noortman had concealed
important information in his application, which could be a reason to reject the
claim. Davis even promised to pay Zuidema 500,000 guilders if he was willing
to testify against his client, but the private detective ignored the offer.

6 Statements from Zuidema in kro Profiel 5 March 2007, <http://www.uitzendinggemist.nl/


afleveringen/1144648> (accessed 13 March 2014).
An Inside Job ? 151

When Zuidema informed Noortman about the telephone conversation,


the gallery owner suddenly became very talkative.7 According to Zuidema,
Noortman mentioned the names of several clients such as influential busi-
ness men, royals, and other celebrities, who all insured their paintings with
money from secret bank accounts. Damages were reimbursed likewisein
black money. Thats why Noortman was so confident Lloyds would pay, he told
Zuidema: Ive got them all in my pocket.8
Zuidema started to ask around in the Maastricht underworld and quickly
made progress. One of his informers told him the thieves were paid 30,000
guilders to make the paintings disappear. When he confronted Noortman
with this, the gallery owner became very angry and even threatened him. He
ordered Zuidema to stand behind him or else something bad would happen
to his (Zuidemas) son.9 Zuidema immediately ended his cooperation with
Noortman and broke off his investigation.
Meanwhile, the Maastricht police investigators decided to focus on
Noortmans personal affairs and background instead of just the theft. Five of
his phone lines were tapped continuously. To follow his footsteps turned out
much more difficult because Noortman moved around nonstop with his pri-
vate plane.10
During a phone conversation with his gallery, overheard by the police,
Noortman apparently said he wanted to bring something (under the radar)
to London. When Noortmans plane approached Maastricht airport from
Germany, the police instructed customs to search it thoroughly. But when the
plane continued its journey to London Heathrow, it turned out that the Dutch
customs had ignored this order.11 It seems that during his travels, the gallery
owner created close ties with the customs department at Maastricht Airport.
Several customs officers even obtained a gold card membership of the gym
that Noortman owned in Maastricht.
The investigators also started fiscal inquiries about Noortman. This did not
shed new light on the whereabouts of the lost paintings, but it raised a lot
of questions regarding his financial administration. The Maastricht gallery
appeared to keep all its administrative paperwork in London. Unfortunately,

7 Statement from Zuidema, 30 January 2009.


8 Personal notes, written by Zuidema in 1987, private file.
9 Statement from Zuidema, 30 January 2009.
10 Statement Wim Vermazen, Art Loss register, R1067, file note 24 November 2009.
11 Ibid.
152 Schutten and van Duyne

a request to obtain international permission to check this London administra-


tion was denied.12
The police investigators wanted to shift the subject of their investigation
to tax evasion. But then, completely out of the blue, British insurer Lloyds
decided to reimburse Noortman. Though the underwriters still had major res-
ervations concerning the theft, they did not feel able to reject the claim. In
June 1987, four months after the paintings disappeared, Noortman settled for
1.1 million pound sterling. Lloyds paid less than Noortman claimed because the
insurer still had its doubts concerning the value of the paintings, especially of
the Hobbema piece.13
Once the Chief of the Maastricht police heard about the settlement, he
closed the case. His officers had spent enough time and resources already,
he said.14

Case Closed?

Robert Noortman was not going to be prosecuted, nor was there going to be a
tax evasion investigation. Soon the art theft was forgotten.
In the following years Noortmans reputation in the art world kept rising.
He became one of the most respected art dealers in the world. For ten years
he was the chairman of tefaf, an event that established an unrivalled reputa-
tion as the worlds leading fair for art and antiques.15 He also became a bene-
factor to some of the most important museums in the world, including the
Metropolitan in New York, the Rijksmuseum in Amsterdam, and the National
Gallery in London, which still has a Noortman Room of Dutch paintings.
The gallery owner made international headlines in December 2000 when he
paid $28.6 million for Rembrandts Portrait of a Lady, Aged 62, at Christies in
London, a record price for the Dutch master.16 And if that was not enough, he
bought Rembrandts 1633 Man in a Red Doublet in January 2001 for $12.6 million
at Christies in New York.

12 Ibid.
13 Julian Radcliffe (2007), kro Reporter (7 June), <http://tvblik.nl/reporter/het-noortman-
imperium> (accessed 5 May 2014).
14 Statements Wim Vermazen, Art Loss register, R1067, file note 24 November 2009.
15 Acronym for the The European Fine Art Fair.
16 See <http://www.forbes.com/2007/01/23/robert-noortman-sotheby-face-lead-cx_avb_0123
autofacescan01.html> (accessed 15 March 2014).
An Inside Job ? 153

For nearly twenty years, Noortman held the most coveted position at the
tefafthe front corner boothwhere he could usually be found shrouded
in a plume of cigar smoke. Colleagues and collectors considered him one of
the most impressive power brokers in the art world. Julian Radcliffe noted
that from an international perspective he is the most renowned dealer for
Old Masters and has established himself, not only in terms of the number and
value of pieces he sells but also as a major influencer in circles of top level
international art dealers.17
In June 2006, Noortman surprised the entire art world by selling his gallery
to Sothebys.18 The assets of Noortman Master Paintings were acquired by the
auction house for $56.5 million in stock, or 1.95 million shares at $29.01 per
share. Under the terms of the deal, the auction house assumed about $26 million
of debt from the gallery and Noortman received 3.2 percent of Sothebys stock.19
He also was appointed a member of Sothebys international advisory board.
Six months later the situation changed radically. On 14 January, Noortman
died at his castle in Kuttekoven in the Belgian countryside. The sixty-year-
old art dealer had been suffering from pancreatic cancer. Two days before his
death, he received an award from the city of Maastricht for his positive influ-
ence on Maastricht and its area. Earlier in his life he was bestowed with the
titles of Honorary Liveryman of the City of London and Chevalier de lOrdre
des Arts et des Lettres in France.
In a short statement, Sothebys expressed its confidence that the gallery
would survive under the leadership of Noortmans twenty-five-year-old son
William. But two years later the reputation of Robert Noortman was shattered
to pieces.

Shadows from the Past

In March 2009, more than twenty-two years after they were stolen from the
Noortman Gallery in Maastricht, eight paintings were recovered after a sting
operation by the Dutch police. Three people were held in custody. The suspects
were a forty-five-year-old German man who lived in Dubai, his sixty-two-year-old
mother, and a sixty-six-year-old man. Two of the arrests took place in the town
of Valkenburg, located in the south of the Netherlands. The suspects carried six

17 Julian Radcliffe, as quoted in kro Reporter 7 June 2007.


18 <http://www.artnews.com/2006/06/20/sothebys-acquires-noortman-master-paintings/>
(accessed 15 March 2014).
19 Forbes, 23 January 2007.
154 Schutten and van Duyne

Figure 9.2 The Water Mill by Meindert Hobbema (16381709).

of the paintings in a suitcase. The other two works were found in the house of
the sixty-six-year old suspect in Walem, a village in the south of the Netherlands.
All the objects were badly damaged by being folded. One painting, The
Water Mill by Meindert Hobbema, was still missing. The police succeeded in
tracking down the pieces after an attempt was made to sell them to an insur-
ance company. A sting operation was set up in cooperation with Ben Zuidema,
the private detective who was initially hired by Noortman immediately after
the theft in 1987.
According to Zuidema, Jo Meex, the sixty-six-year-old suspect, had watched
a Dutch television documentary about Robert Noortman two years earlier.
In the program the gallery owner was portrayed as a generous family man
obsessed with art. The only person in the documentary who was critical of
Noortman was private investigator Zuidema. Meex was very annoyed by the
flattering portrait of Noortman and decided to contact Zuidema. He also wrote
down all his memories of what happened in the Maastricht gallery 22 years ago:

Friday 13 before closing the gallery. Alarm is off, Robbie Noortman cuts
one painting from the frame. The other eight paintings are removed from
their frames by Robbie and put in two garbage bags. Two paintings on
canvas are folded by Robbie and damaged put in garbage bag 1. Painting
An Inside Job ? 155

wooden panel broken in 10 pieces by Robbie also put in garbage bag 1.


The other 6 paintings, the smaller ones, are undamaged in garbage bag 2.
Ordered by Robbie to burn them immediately. Robbie turns the alarm
on, goes outside, gives the two garbage bags by the door to accomplice 1.
Accomplice 2 takes the garbage bags and brings them to accomplice 3,
who is waiting by the car. Accomplice 2 and 3 transport the paintings as
ordered by Robbie to burn them immediately in the stove. In the evening
Robbie arrives to size up the situation. One painting in garbage bag 1,
assumes the others are destroyed. Painting Hobbema burnt by Robbie
himself in the stove in the presence of three witnesses
If Lloyds hears this, it will reclaim the amount paid plus interest over
twenty years. This will mean the end of the gallery....Private detective
Ben Zuidema claims to know gallery owner Noortman very well. This is
true, we three accomplices of Robbie, as he was called in Heerlen, can
confirm this....We knew Robbie as an unreliable, arrogant, selfish per-
son who spared no one and was obsessed with money. He didnt have any
real friends but as long as he could do business he pretended to be one.
All that mattered to him was money.20

Meex showed his written testimony, forty sheets of paper with incriminating
information about Noortman, to Eckart Pruy, the son of his female friend, and
told him the paintings had been hidden on his attic since the theft. The two
of them decided that after twenty-two years the time had come to sell them.
Zuidema claims he was contacted in November 2008 by someone using the
name Khan, who wanted to speak to him about the Noortman case. A meeting
was arranged for the fifth of December in a hotel in Roermond. When Zuidema
arrived, there was also a lady present who called herself Frau Berger. Kahn
told Zuidema he had a client who knew everything about the criminal past of
Robert Noortman. According to this client, Noortman himself had ordered the
theft in 1987 and he personally took care of burning the Hobbema painting,
planning to destroy the others later.21 Later that same day, Zuidema informed
the police that Kahn wanted to extort 5 million euros from the Noortman
family in exchange for the paintings and silence about Noortmans criminal
past. Kahn and his companion wanted the detective to act as an intermedi-
ary. According to Zuidema, the suspects believed that he would be prepared to
help them. Immediately after hearing this new information the detective not

20 Source: handwritten statement, undated, in possession of Ben Zuidema, supposedly writ-


ten by Meex.
21 Statement Zuidema, 30 January 2009.
156 Schutten and van Duyne

only alerted the police, but also the Art Loss Register (alr), the worlds larg-
est international private database of stolen art. The alr represents the insur-
ance companies that paid Noortman 1.1 million pounds. On the 31 December
2008, Zuidema travelled to London to meet alr-director Julian Radcliffe and
Antonia Kimbell, an alr-manager who also happened to be a special agent for
Scotland Yard.22
The alr got the go-ahead from the insurance companies. If the firm suc-
ceeded in bringing back the paintings, it would receive thirty percent of a max-
imum amount of 1.5 million pounds. If the paintings were worth more, the alr
would get on top of that another twenty percent of amounts between 1.5 mil-
lion en 5 million pounds. One third of the fee had to be shared with Zuidema.23
On 5 January 2009, Zuidema met Kahn again in a hotel in the German
town of Aachen. Kahn told Zuidema that his client was willing to sell the
painting for one million euros. He was even prepared to testify to the police
about Noortmans activities, as long as he could remain anonymous. Kahn told
Zuidema that his client was under the impression that the crime was too old to
be prosecuted. At the occasion Kahn also showed an identification card with
his real name: Ekhard Pruy.24 The police began to tap Pruys phone and quickly
discovered the names of the two other accomplices. They were his sixty-two-
year-old mother, Caterine Drooghaag, and the sixty-six-year-old Jo Meex.
On 26 February 2009 in Hamburg (Germany), Pruy met an undercover police
officer, who pretended to be a representative of Lloyds Insurance. According
to this undercover agent, Pruy demanded ten percent of the paintings auction
value. The police officer said that he was willing to negotiate if Pruy could pro-
vide evidence that he really was in possession of the eight paintings.25
On 5 March, another meeting was arranged in a hotel room in Valkenburg. A
team of police officers was standby. Shortly after they displayed the paintings,
Pruy and Drooghaag were taken in custody. Meex was arrested at his home
in the nearby village of Walem. When officers brought him to the police sta-
tion, Meex complained that he should have left the paintings where they were:
That would have saved me a lot of worries. Meex also asked the police officers
if they searched his home: Did you see the wooden chest in the attic? Thats
where the paintings were hidden all those years.26

22 Statement Julian Radcliffe, 12 February 2009, Dutch newspaper Het Parool.


23 Ibid.
24 Statement by Zuidema 30 January 2009.
25 Statement undercover agent, 26 February 2009.
26 Requisitory prosecutor Mr. I.C.M.E. Meissen.
An Inside Job ? 157

The discovery of the paintings was announced just a few days before the
tefaf opened its doors for the twenty-second time in Maastricht. A spokes-
woman of the tefaf expressed her sympathy with William Noortman, the sec-
ond-born of seven children, who had taken over Noortman Master Paintings
after his father passed away.27
The Noortman family refused to comment on the emerging scandal.
But managing director Peter Paul Guthman of Noortman Master Paintings
released a short statement: We havent seen any proof regarding events that
took place more than twenty years ago.28 Friends of Robert Noortman, among
them museum directors, collectors, and ceos, responded with utter disbelief.
Its really outrageous to damage someones reputation like this after his death.
For the family this is unacceptable, said real estate agent Cor van Zadelhoff.
Noortman part of a conspiracy about the theft of his own paintings? I can-
not imagine something like that at all. The evil in this story is that he cannot
defend himself anymore. The dead dont answer. As his friends we will defend
him.29 When journalists asked the mayor of Maastricht, Gerd Leers, about the
possibility of the withdrawal of the city medal awarded to Noortman, he found
the evidence insufficient. Maastricht University needed more information
to decide on whether or not to continue the Chair dedicated to the art dealer.30
Nevertheless, it soon became clear that many people had been aware of the
shady past of one of the worlds most prominent dealers in Old Masters for
some time.

Rise

Robert Noortman, the son of a local policeman, grew up in the town of


Assendelft; he had one brother who was fourteen years older than him.
Noortman had an unhappy childhood, his friends recounted later.31 When he
was sixteen, his mother killed herself with her husbands pistol. After leaving
school, Noortman ran away from home and ended up in France. He returned to
the Netherlands to live in Heerlen, a city in the south where he managed to talk
his way into a series of odd jobs, selling everything from refrigerators and cars

27 Dutch newspaper de Telegraaf, 8 March 2009.


28 Dutch newspaper de Limburger, 10 March 2009.
29 de Telegraaf, 8 March 2009.
30 Dutch newspaper nrc Handelsblad, 9 March 2009.
31 kro Profiel, 5 March 2007.
158 Schutten and van Duyne

figure 9.3 Robert Noorman.

to carpets, washing machines, and oranges.32 At that time, a notorious gang


of safe crackers was active in Heerlen. One of the gang members was Robert
Noortman, according to Jos Janssen, who in 1969 became a police inspector in
Heerlen. Many years later, when Janssen completed a law degree in Tilburg and
Amsterdam, he wrote a thesis about this gang.33
It was common knowledge within Heerlen police circles that Noortman was
a member of the gang, but he was never convicted for this. Most likely, accord-
ing to Janssen, this was because he acted as an informer for the police.34 Wim
Vermazen, the police officer in charge of the investigation against Noortman,
confirmed this. On 24 November 2009, he told Antonia Kimbell of the Art Loss
Register: Noortman had a criminal record, he was also an informer and had
been involved in thefts and burglaries of tapestries and carpets. He was well

32 Ibid.
33 Janssen 2001.
34 De Limburger, 8 February 2011.
An Inside Job ? 159

connected because of these activities that were well-known to the police at


the time of the burglary. According to Vermazen no one from the insurance
side had asked the police about Noortmans criminal record.35 Noortman got
involved in art commerce by pure chance. One of his business partners wanted
to sell some paintings, and Noortman suggested putting them on display in his
carpet shop. They were sold for a good price and Noortman found himself a
new career.36
In 1969 he opened his first gallery in Hulsberg, near Maastricht. After five
years, he expanded to London and a year later to New York. Noortman had
a vision of starting an art fair run by dealers, led by a collective ownership
structure. In 1975 he helped to found Pictura, an art fair that would merge in
1985 with De Antiquairs International, and later became The European Fine
Art Fair.37 Noortman was the chairman of this tefaf for ten years.
Noormans gallery flourished, but sometimes there were setbacks. After
seven years he had to close his gallery, Noortman & Brod, in New York because
the American art market suffered from the second oil crisis. When in 1999
his London director got ill, Noortman decided to concentrate all his business
activities in Maastricht.38
Nevertheless he was not afraid to take large risks. On occasion this worked
out rather well; e.g., he sold the portrait of Aeltje Pietersdochter Uylenburgh by
Rembrandt for 45 million euro. But sometimes it did not; Noortman could not
get rid of another Rembrandt painting, Man in a Red Doublet that he bought
in 2001 for 12.6 million dollar at Christies in New York.
His most expensive purchases were financed by two Dutch banks, abn
amro and Artesia. He only dealt directly with chief executives, and they never
dared to interfere with his choices.39 But sometimes, as he confided to his
friend Benoit Wesley, he lay awake at night because of the ticking of the inter-
est when he failed to sell a painting in time.40

The Trial

The criminal case against the three theft suspects was unique in many ways.
Dutch prosecutors were not willing to investigate the role of Noortman because

35 Statement Vermazen, Art Loss Register, R1067, file note 24 November 2009.
36 kro Profiel, 5 March 2007.
37 Forbes, 23 January 2007.
38 nrc Handelsblad, 24 November 2000.
39 Dutch newspaper Het Financieele Dagblad, 3 March 2001.
40 kro Profiel, 5 March 2007.
160 Schutten and van Duyne

he had passed away. A lot of crucial questionsfor instance, if Noortman


really ordered the destruction of the paintingsremained unanswered.
Within a year after his arrest, defendant Jo Meex suddenly came up with an
unexpected twist. He claimed to be the rightful owner of the eight paintings.
After all, it was his attic where the paintings were hidden all the time. And even
if a judge concluded that the paintings were stolen, prosecution is precluded
by lapse of time under Dutch law after twenty years.
To make things even more bizarre, the Art Loss Register, who represented
the insurers, may have had to litigate against one of its own shareholders,
Sothebys, since Noortman Master Paintings was now owned by the auction
house, and Sothebys also possessed ten percent of the Art Loss Register.
Julian Radcliffe never experienced anything remotely as strange as this in
the history of the Art Loss Register, he told a reporter. This can only happen in
the Netherlands, according to Radcliffenowhere else in the world it is pos-
sible for a criminal to claim stolen art. Dutch law makes the Netherlands a
paradise for art criminals: The law was probably meant for bike thieves, but
not for stolen art.41
Several experts issued warnings that the paintings were stuck in a legal
limbo, and it could take quite a while to sort things out. After all, Noortman
did not steal the paintings. Nobody did. It was even questionable whether the
insurers were the rightful owners.42 The Art Loss Register was not willing to
wait for a criminal-law resolution; the firm filed a civil lawsuit to get the paint-
ings back. On 27 April 2010, a Rotterdam Judge decided that the insurers, and
not defendant Meex, were the rightful owners. The insurers paid Noortman
compensation after the paintings disappeared. Consequently, Meex merely
held the paintings in custody; he never really owned them.
The Rotterdam court did not have much doubt about the role Noortman
played in the case. In the civil verdict, the court stated: From referred state-
ments can be derived that Meex kept the paintings to burn them as Noortman
ordered.43 The paintings, which were stored during the trials in the depository
of the Amsterdam Rijksmuseum, were brought to the insurers in the uk.
Meanwhile, the trial against the three suspects was postponed repeatedly.
The prosecutors decided to bring in charges for money laundering and receiv-
ing stolen goods. But the lawyers kept filing requests to hear more witnesses.
For instance: former police officer Wim Vermazen had to testify because,
according to private investigator Zuidema, he had called off the investigation
against Noortman in 1987 under heavy pressure from former Maastricht mayor

41 Het Parool, 3 June 2011.


42 Ibid.
43 Verdict civil lawsuit, ljn: bm4631, Court of Rotterdam, 27 of April 2010.
An Inside Job ? 161

Philip Houben and Dutch business tycoon Leon Melchior. In court, Vermazen
denied that he ever said something like this, but in an interview by Antonia
Kimbell of the Art Loss Register, the former police officer is quoted: Noortman
was in bed with the Mayor, the local horse racing syndicates, everyone who
could protect him. Noortman had every angle covered.44
The lawyers also wanted to hear Houben and Melchior as witnesses, but
their request was denied; the judges did not find these testimonies to be rel-
evant for the trial.
The defence went at great length to incriminate Ben Zuidema, the private
detective who played a key role in solving the crime. According to the defence,
Zuidema was unreliable because he had a criminal record. Former police offi-
cer Vermazen was willing to confirm this. He testified that Zuidema had a bad
reputation with the Heerlen police and was known as a compulsive liar.45 On
Tuesday 8 February 2012, almost four years after they were arrested, the sus-
pects finally stood trial. Only Pruy was present since Meex and Drooghaag
failed to appear.
The suspects had withdrawn many of their statements. Meex, who in his
handwritten statement spoke of we three accomplices, now denied being
involved in the scam in 1987. It was his wife, he claimed, who had passed away
a few years before.
The lawyers questioned the reliability of key witness Zuidema, who alleg-
edly was only interested in the finders fee. According to the defence, Zuidema
came up with the idea to contact the insurers and he even prevented the defen-
dants from contacting the police.
Nevertheless, district attorney Mr. I.C.M.E Meissen thought that there was
sufficient evidence to confirm that the suspects had tried to profit from works
of art they did not rightfully own. In addition, they did not use their real names,
and their initial statements largely corresponded with Zuidemas testimony.
Meissen considered three years jail to be an appropriate sentence for the three
of them. But the Court decided otherwise: the defendants did not have to go to
jail, but got away with a fine.

Fall

After the scandal, Noortman Master Paintings quickly moved from Maastricht
to Amsterdam, where business turned out not to be as good as before.

44 Art Loss Register, R1067, file note of meeting Vermazen, 24 November 2009.
45 Statements W. Vermazen, Art Loss Register R1067, 24th November 2009.
162 Schutten and van Duyne

Immediately after the death of Robert Noortman, his gallery lost the prime
booth on the Maastricht fair to London rival Richard Green. In an interview,
William Noortman admitted that it was difficult to step in his fathers shoes.
Even though having been groomed to assume the family business, he was not
yet confident in his new role. I always knew that Id be taking over. Ive just
taken over five to ten years earlier than expected, which is a pity.46
In 2011, five years after the acquisition by Sothebys, the gallery suffered an
$8.3 million loss. According to Sothebys, William Noortman did not achieve
the minimum level of financial performance. Under the terms of the original
deal, up to twenty percent of the initial consideration must be transferred back
to the auction house in case the dealership fails to reach the agreed objec-
tives. Following the five-year review, the gallery had to transfer 147,352 shares,
or seven-and-a-half percent of the original amount, back to Sothebys by the
fourth quarter of 2011.47 In order to meet this obligation, Noortman needed
to sell off a large collection of lower value works at various auction houses.
Sothebys itself did not want to sell the bulk of the work. Its not all the sort of
material we handle, its not our brief and its not what we do best, said chief
executive Bill Ruprecht.48 The Noortman gallery also shifted its focus to art
from the first half of the twentieth century, and possibly even some classic
contemporary artworks, according to Anthony Crichton-Stuart, director of
Noortman Master Paintings in London.49
In 2012, the Amsterdam office closed, and the gallery moved to London.
A year later, on 31 December 2013, the London office also closed. William
Noortman informed his clients: This is a significant decision and it brings to
an end the life of an illustrious gallery that has occupied a pivotal position in
the global art market for almost a half century.50

Endgame

Until the London office closed, the Art Loss Register negotiated with the
Noortman family and Sothebys to no avail. There is still no legal proof that
Noortman orchestrated the theft, and there probably never will be. Nevertheless,

46 Nina Siegal (2008), Young Master, W Magazine (March), <www.wmagazine.com/


culture/art-and-design/2008/03/william_noortman/> (accessed 25 March 2014).
47 The Art Newspaper 230, December 2011.
48 Ibid.
49 Ibid.
50 As quoted in press statement from Sothebys, 9 November 2013.
An Inside Job ? 163

Julian Radcliffe thinks theres very strong evidence that Noortman was behind
the theft and its highly likely that the insurance companies expect that their
claims will be awarded.51 If the pictures can be restored adequately, they will
be worth somewhere between 2 and 3 million British pounds, according to
Radcliff. He emphasizes that this really regrettable incident should not affect
the long-term nature and value of Noortmans or Sothebys position in the art
market. Provided of course, he adds, that the Noortman-family and Sothebys
cooperate with the underwriters. If they refuse to return the money, legal
actions will be unavoidable. And that could be very damaging because in a
legal action a lot of publicity and a lot of further information will come out in
the open.52

References

Cited in the Foreword


Arsovska, J. (2008). Interviewing Serious Offenders: Ms. Egghead Meets Mr. Gumshoe.
Trends in Organized Crime 11: 4258.
Balcells, M. (2014). Art and White-Collar Crime. In J. Kila & M. Balcells (eds). Cultural
Property Crime: An Overview and Analysis on Contemporary Perspectives and Trends.
The Netherlands: Brill.
Bazley, T.D. (2010). Crimes of the Art World. Santa Barbara: Praeger.
Conklin, J.E. (1994). Art Crime. Wesport: Praeger.
Galliher j.f., Cain j.a. (1974). Citation Support for the Mafia Myth in Criminology
Textbooks. Am social 9: 6874.
Johnson, K. (1987). 2 Are Convicted of Art Thefts at Warehouse. The New York Times
(April), F13.
Kraska, P.B. & W.L. Neuman (2008). Criminal Justice and Criminology Research Methods.
Boston: Pearson.
Lervik, T. & Balcells, M. (2014). Corruption from the Top: the Getty and Caligulas
Legacy. In J. Kila & M. Balcells (eds)., Cultural Property Crime: An Overview and
Analysis on Contemporary Perspectives and Trends. The Netherlands: Brill.
Newburn, T. (2008). Criminology. Devon: Willan Publishing.
Rohter, L. (1986). Police Foil $18 Million Art Theft; Manhattan Dealer among 3 Held.
The New York Times (January), A1, B3.
Sutherland, E. (1940). White-Collar Criminality. American Sociological Review 5: 112.
(1949). White-Collar Crime. New York: Dryden.

51 kro Reporter, 7 June 2007.


52 Ibid.
164 Schutten and van Duyne

Von Lampe, K. (2008). Introduction to the Special Issue on Interviewing Organized


Criminals. Trends in Organized Crime 11: 14.

Cited in the Chapter


Personal archive of Ben Zuidema.
Internal memos and documents of the Art Loss Register.
Dutch Television documentaries kro Reporter, kro Profiel
The Artnewspaper
Dutch newspapers
Janssen, Jos (2010). Boris en Grijs, een misdaadonderneming in de wisselwerking met
het landschap. Master thesis, Universiteit van Amsterdam, Faculteit der
Rechtsgeleerdheid. 17 May 2001.
Part 5
Armed Conflicts and Cultural Property


CHAPTER 10

From Crimes against Art to Crimes against Cultural


Property: New Perspectives and Dimensions in
Art Crime*
Joris D. Kila

1 Introduction

This chapter focuses on cultural property crimes in the context of conflict


and intermingled identity aspects. It should be noted that in the last decades
there have been important developments concerning the nature and format of
armed conflicts, the nature and shifting status of cultural property, and the legal
aspects that constitute national and international frameworks that restrain
abuse and destruction of cultural property. These legalities, combined with
other developments, serve as a directive and a repository of definitions and
actions that touch upon the position and status of cultural heritage in diverse
circumstances. They also mark out the relationship between criminality and
cultural heritageand other disciplines such as the natural environment. For
example: a still-developing legal instrument that will increasingly prove to be
useful to fight cultural property destruction in the context of armed conflict is
international criminal law. The main trend concerning military operations is
the transition from symmetric warfare into asymmetric warfare, often intra-
state conflicts; another term used is unconventional warfare.1 In the context
of contemporary conflicts, crimes against art, or more broadly defined, against
(material) cultural property, are transformed into a wider variety of offenses
when compared to symmetric conflicts. The analysis in this chapter focuses
on material cultural objects. The identity aspect of material goods is always

* The author wants to thank Karl von Habsburg-Lothringen for his help to make the research
for this chapter possible.
1 Symmetric warfare is conventional warfare against an opponent of comparable might,
using similar weapons on a known battlefield. See http://www.worldwidewords.org/turn-
sofphrase/tp-asy2.htm (accessed 6 June 2012). In asymmetric warfare, defenders fight on
their own terms not those of the enemy all guerrilla activity, especially urban terrorism,
falls within this definition. See Michael Quinion <http://www.worldwidewords.org/turnsof
phrase/tp-asy2.htm> (16 August 2013).

koninklijke brill nv, leiden, 5|doi .63/9789004280540_011


168 Kila

present in the background; one can wonder if identity is not a resilient form of
intangible heritage.
Immaterial or intangible heritage, e.g., national hymns, languages, music,
etc., which can also be subject to attack and abuse, is to certain extent pro-
tected by author rights and international agreements such as the Convention
for the Safeguarding of the Intangible Cultural Heritage from 2003.2 Conflicts
outside the Western hemisphere, such as in Africa, can involve types of heri-
tage that are a mix of cultural, natural, and intangible heritage; an example that
comes in mind is Ayers Rock or Uluru located in central Australia. This cultural
property is a natural heritage, a sacred place for the Aboriginals, a source of
legends (narratives as intangible heritage), and contains both archaeological
sites and works of Aboriginal art.
The scope of objects subject to cultural property crimes in the event of con-
flict widened from typical works of art like paintings, drawings, sculptures,
and archeological artifacts to the broader construct of cultural properties.
Therefore it seems useful to give an overview of current categories and illus-
trate this, where possible and appropriate, with examples. It must be men-
tioned that overlap can occur; for instance, a statue can be a work of art and at
the same time a memento or even a religious object. Still, we can distinguish
between classifications such as natural monuments, historic sites, cultural
objects, historical objects, and memorials. While doing this, semantic conno-
tations, sometimes containing potential legal consequences brought about by
the use of such terms as cultural property and cultural heritage, will be signaled
and discussed briefly, hopefully triggering more research by legal experts.
Not all cases of cultural property damage and devastation in the event of
conflict qualify officially as crimes; this depends on military circumstances,
their legal interpretations, and implications such as the possible application
of the principle of military necessity, which will be discussed in the paragraph
about legal considerations, justifications, and obligations for military in con-
flict situations that include cultural property.

2 Cultural Property Crime as a Specialism

The term art crime is well known,3 but it does not cover todays situation and
perception. There are multiple reasons for this; first is the term art; what is
art? This is an ongoing debate. Some even consider works of art they do not

2 <http://www.unesco.org/culture/ich/doc/src/18440-en.pdf> (17 November 2013).


3 See John E. Conklin (1994), Art Crime (Westport, ct).
From Crimes against Art to Crimes against Cultural Property 169

like or understand a form of art crime; furthermore there is discussion about


different forms of graffiti being vandalism, art by itself, political writing, or
iconoclasm.4 Today there seems to be a wider construct of the types of objects
that are being attacked and stolen. Especially in the context of armed conflict,
these objects do not necessarily have to be what we consider works of art. Au
contraire, items can vary from statues and paintings to manuscripts, trophies,
antique pieces, architectural monuments, and books, to mention a few types of
objects. What they have in common is their sensitive connection with identity,
uniqueness, and authenticity.5
In addition, there is a certain semantic confusion surrounding the term
cultural property, which is in fact the legal term in accordance with the 1954
Hague Convention. Cultural property refers to physical entities and is defined
in Article 1 of the 1954 Convention. It is not an ideal name because property
suggests a form of ownership and, as we know ownership is often contested,
especially during and in the aftermath of conflict. Cultural heritage, on the
other hand, has a broader meaning that includes intangible cultural heritage;
in other words, aspects of human expression that go beyond physical objects
but still imply a claim of ownership. The term cultural resources is free of
such connotations and is already used in military contexts of, e.g., natural
resources, and it is currently not explicitly used in legal contexts. As it is at
times paired with natural resources in military environmental guidance docu-
ments, the military is already receptive to the protection of resources. As art
and cultural property can be two different things, the latter does not has to
classify as art but can be any object, even a tree or an animal, loaded with
a certain historic significance, value, or symbolism.6 In addition, there are
conceptual approaches based on the idea or notion of heritage; this method
includes studying aspects like the idea of heritage and how heritage is con-
structed as well as comparing particular heritage to world heritage.7 The per-
ception of heritage is subject to change and can be influenced by societal and
geographical aspects. The same is true for related notions of identity and status
as well as for social, philosophical, and economic values. And then there is a

4 See <http://www.graffiti.org/index/story.html> (accessed 15 August 2013).


5 See Kila (2012), Heritage under Siege, 10.
6 For instance the Dugong (sometimes referred to as a Seacow) is a mammal and a protected
species. The Dugong was subject in the so-called Dugong vs. Rumsfeld case; see Kila (2013),
3840. In the so-called Anne Frank tree incident in 2007, there were big protests when the
municipality of Amsterdam wanted to cut down a sick tree that was mentioned in Anne
Franks Diary.
7 Gillman (2010).
170 Kila

tendency to attach different meanings to the term culture including often-


sensitive religious connotations.
Simon Gunn puts it clearly in his book History and Cultural Theory: the
term culture creates immediate difficulties. It is notoriously vague and slippery
possessing several different meanings.8 This makes it difficult to create a body
of legislation aiming at defining, prosecuting, and sanctioning cultural crimes.
Still, there is at least one common denominator that is not disputed; namely,
culture as a resource, or as the French sociologist Pierre Bourdieu interpreted
it, cultural capital.9 The related term crime as in cultural property crime,
the topic of this book, also takes on a wider meaning when we consider, for
instance, damaging objects, monuments, and resources not only for financial
gain but sometimes for unlawful political and strategic purposes in the con-
text of conflict, which is a form of crime. This misconduct can be punished by
(national) criminal law or, in the case of armed conflicts when specific national
criminal legislation cannot be enforced because the host state is unwilling or
unable to investigate or prosecute crimes or there is no local government, via
international law. The latter takes place following the principle of comple-
mentarity by which a particular treaty can be invoked such as the 1998 Rome
Statute of the International Criminal Court (icc) that generates individual
criminal responsibility.10

2.1 Iconoclasm
Iconoclasm is an atypical example of misconduct in the event of conflict that
can be difficult to prosecute under legislation designed for the protection of
cultural property in the event of conflict. First it is important to establish what
is meant by iconoclasm and in addition what construct or interpretation of
this term is relevant for the scope of this chapter. The literature shows dif-
ferent perspectives on the term iconoclasm; literally it means image break-
ing and refers to a recurring historical impulse to break or destroy images for
religious or political reasons.11 Another description considers iconoclasm as
strongly opposing generally accepted beliefs and traditions.12 In general the

8 Gunn (2006).
9 See Pierre Bourdieu and Jean-Claude Passeron (1979), The Inheritors: French Students and
their Relation to Culture, Chicago.
10 Article 25, individual criminal responsibility.
11 See Sarah Brooks, http://www.metmuseum.org/toah/hd/icon/hd_icon.htm (accessed
18 October 2013).
12 See http://dictionary.cambridge.org/dictionary/british/iconoclastic (accessed 21 October
2013).
From Crimes against Art to Crimes against Cultural Property 171

term is used in case of the destruction of religious iconography perceived as


idolatrous by the iconoclasts. Contemporary iconoclasm, however, is taking
place in an increasingly secular world. It is therefore preferrable to redefine
or fine-tune the term as an act of attacking material manifestations of certain
ideas and beliefsnot restricted to religious representations. In contemporary
literature, this wider construct of iconoclasm is in play when acknowledging
that certain images are dangerous or become dangerous when the power they
possess is bigger than certain groups can tolerate.13
Second, it is essential to establish what caused a certain act of iconoclasm.
Morgan in his publication The Sacred Gaze (2005) quotes Freedberg who argues
that the motivating force behind destructive reactions to images is typically
fear.14 Freedberg raises his argument in a historical and religious context in
which he suggests that people in these times recognize the risk that such fear
would turn into devotion.15 This devotion, worship or idolatry, can only be pre-
vented (or stopped) by destroying the image (object) that almost autonomously
triggers this process. From this perspective, those who destroy images for reli-
gious motives are merely defenders of their faith, which opens the door for legal
discussions and considerations that will include freedom of religion. Morgan
nevertheless observes that, even in the times of the Protestant Iconoclasts
of the sixteenth century, there were discussions about whether the provok-
ing qualities of images had their seat in the human mind or in the images per
se.16 Another opinion is expressed by Dario Gamboni in The Destruction of Art
(1997). In this publication he explores and analyzes iconoclasm and vandalism
from the French Revolution until after the Second World War. Gamboni states
that iconoclasm can only be studied and interpreted from an art-historical per-
spective using art-historical research methods. He argues that the destruction
of art cannot be seen separately from certain artistic or theoretical goals. I do
not agree with his point of view, when for example rebel groups disturb archae-
ological stratifications while digging illegally or cause damage in the course of
looting a museum collection to gain objects to sell for financial profits (to buy
weapons), there is no art-historical motive unless their actions are clearly aimed
at damaging or erasing the identity of their opponents.
But how do Morgans views compare to contemporary and, in particular, not
religiously motivated, iconoclasm? When taking into account Morgans point

13 Stacy Boldrick (2013), Striking Images, Iconoclasms Past and Present, 1.


14 David Morgan (2005), The Sacred Gaze, 141.
15 Freedberg (1989).
16 Morgan (2005), 142.
172 Kila

that idols can possess an autonomy or a power over the human imagination,17
one can conceive of a possible intrinsic quality existing in works of art. It has been
established that, for instance, graffiti art and certain conceptual art works can
provoke aggressive reactions. Examples include the famous case of the German
conceptual artist and ex-military Joseph Bueys. In 1986, a grease stain by Joseph
Beuys valued at about 400,000 was mopped away at the Academy of Fine Arts
in Dsseldorf.18 This needs some explanation: Bueys, who served as a Luftwaffe
fighter pilot in World War ii, looked upon the felt and grease that served as recur-
ring themes and materials in his oeuvre as symbols of nutrition and warmth.
They had become essential to him after his Luftwaffe bomber crashed in the
Crimean mountains in 1943 and the Tatars who rescued him wrapped him in
fat and felt to keep him warm.19 A cleaning lady did not recognize the grease
substance (some sources speak of a bathtub smeared with grease, while others
mention a sculpture made of fat; the cleaning lady is also sometimes referred to
as a cleaning team) as a work of art and it was washed away.20
Another example: in this case a devestating reaction destroyed a painting
and answered the question in the paintings titleWho is Afraid of Red, Yellow
and Blue iii, one of a series of four large-scale paintings by Barnett Newman
painted between 1966 and 1970. This 1967 painting is part of the collection of
the Stedelijk Museum in Amsterdam. It was attacked with a knife by Gerard
Jan van Bladeren in 1986 and restored by Daniel Goldreyer in 1991.21
Following Freedbergs fear argument, it seems logical that the question in
the titlewho is afraid of red, yellow, and blue?can trigger (as an answer to
the paintings title) a destructive reaction by someone who actually is afraid
of the painting. The offender, an unknown Dutch realistic painter, later stated

17 Ibid.
18 <http://www.theguardian.com/artanddesign/2011/nov/03/overzealous-cleaner-ruins-
artwork> (accessed 15 November 2013).
19 <http://articles.latimes.com/1986-01-31/local/me-2695_1_joseph-beuys> (accessed 15 Novem
ber 2013).
20 By comparison, in 1986 Joseph Beuys sculpturea dirty bathtub with a layer of grease on
the insidewas scrubbed clean by an employee of the Academy of Fine Art in Dsseldorf.
See <http://art-damaged.tumblr.com/page/7> (accessed 17 November 2013).
21 The restoration of the Newman work was almost as controversial as the actual crime. The
restoration cost somewhere between $300,000 and $400,000, yet critics claimed that subtle
variations of color had been lost and that house paints and a roller were used. Lawsuits
followed when the restorer, Daniel Goldreyer, took offence to the museum director call-
ing his work a botched job. After a $100,000 settlement, the cost of the restoration and
the subsequent legal costs totaled around $1 million; see <http://www.artcrimes.net/
who%2526%2523039%3Bs-afraid-red,-yellow-and-blue-111> (accessed 16 November 2013).
From Crimes against Art to Crimes against Cultural Property 173

that he perceives abstraction in art as a plague he actually is afraid of. The per-
petrator was also found to suffer from anxiety attacks and paranoia.
It seems justified to assume that fear also plays a role in current cases of
iconoclasm seeming to come from a variety of motivations, from religious rea-
sons like (supposed) idolatry22 (fear for God), politically driven identity dev-
astations or obliterations (fear of extinction), and acts of vandalism driven by
anger. The fear argument does not count for cases of outright theft. This raises
the question whether an act against cultural property during an armed con-
flict is permissible, for instance, when the excuse is military necessity. I want
to stress that even in times of conflict there are crimes committed by normal
criminals. Still, there are situations in which inflicting damage to cultural prop-
erty is permissible. This is the case when an object, site, or monument has been
made into a military target. In such an event, we speak about attacking cultural
property, legitimized by military necessity.
Sometimes the damaging of cultural objects had to do with erasing an iden-
tity. This was already practiced by the Pharaonic Egyptians: numerous bas
reliefs and statues, still in situ, have cartouches with exised names, e.g., the
names of Queen Hatshepsut and King Akhenaten, who both fell from grace.
The phenomenon was known by the Romans as well under the name damna-
tio memoriae, a posthumous dishonour.23
Many such incidents have taken place throughout history. A plain exam-
ple is what has become known as the first Byzantine iconoclastic outbreak.
Sometimes between 726730 bc, the Byzantine Emperor Leo iii, who was
against the worship of images, began this iconoclast campaign ordering removal
of an image of Jesus prominently placed over the main ceremonial entrance
to the Great Palace of Constantinople also known as the Chalke gate. In the
Netherlands, the iconoclastic outbreak of 1566 known as the Beeldenstorm
and caused by a religious conflict between Calvinists and Catholics resulted
in large scale damaging of church interiors and monasteries. Because of this

22 David Morgan (2005), The Sacred Gaze: Religious Visual Culture in Theory and Practice
(Berkeley and Los Angeles), 117.
23 Condemnation of the memory; ancient Roman processes dealing with individuals
judged unfit to be members of a community. This posthumous dishonor was considered
the worst thing that could be done to a former senator. Tacitus describes in Tacitus Annals
3.17 what was done to condemn the memory of Piso. Acts included scratching names
and titles from inscriptions, defacing likenesses, confiscation and destruction of the con-
demned man or womans writing, annulling of wills, mutilation of corpses, and more.
The condemnations could be started by the senate, the emperor, or the army; <http://
ancienthistory.about.com/b/2010/01/14/thursdays-term-to-learn-damnatio-memoriae
.htm> (accessed 14 January 2010).
174 Kila

historical trend from time to time initiatives were taken to promote protection
of cultural objects.

2.2 A Case Study Involving Modern Iconoclasm: Mali


In Mali, or to be more precise, Timbuktu, north of Mali, cultural properties
such as mosques and mausoleums containing tombs of Sufi saints, all officially
recognized by unesco and many registered on the list of endangered World
Heritage sites, were damaged or demolished by the extremist Islamist group
Ansar ad-Din.24 The extremists regarded the shrines as idolatrous and in viola-
tion of sharia law. The attacks were reported to have started on 30 June, 2012.25
According to different sources, the Mausoleum of Sidi Mahmoud Ben Amar
and two other tombs were destroyed.26 Another source states that all sixteen
of the Sufi saints mausoleums were completely destroyed by the Jihadists that
are primarily Salafists. Nevertheless, when I visited Timbuktu for an assess-
ment mission of imcurwg and Blue Shield27 on 16 January 2014, I also saw a
number of untouched shrines, some of them more or less hidden and others
hardly recognizable as shrines, such as two unharmed shrines in the outside
wall of the Great Mosque.28 The antique wooden door of the fifteenth-century
Sidi Yahya Mosque, also known as the sacred door, was demolished; only
some fragments were left, though it was said that some remaining wooden
fragments were stored elsewhere.
The reason for the doors destruction was the fact that people believe that if
that door is opened, the world will end, an un-Islamic superstition that had to
be disproved by Ansar ad-Din.29 As already noted, Islamists also threatened to
destroy all ancient mosques that have saints inside their premises; several holy
men are buried inside the citys three historic mosques.30 In Timbuktu there is

24 Defenders of faith, the group seeks to impose sharia law across Mali and is accused of
having links with Al-Qaeda.
25 See, amongst others, <http://news.nationalpost.com/2012/07/02/islamist-fighters-in-tim
buktu-continue-destruction-of-citys-mausoleums-heritage/> (accessed 7 February 2012).
26 See <http://m.bbc.co.uk/news/world-africa-18657463> (accessed 3 July 2012).
27 See the report on http://www.blueshield.at/.
28 Next to these two there was another damaged because Jihadists had booby-trapped it; the
explosives could not be removed without damage. The three shrines were only indicated
by three small round holes in the wall.
29 See http://www.nytimes.com/2012/07/03/world/africa/mali-islamists-exert-control-with-
attacks-on-mosques.html (accessed 3 July 2012).
30 Based on information from Dr. Thomas Schuler in his North-Mali: Heritage Reports No. 1
and 2. (16 May and 6 July, 2012)reports for internal use from the icom Disaster Relief
Task Force (drtf).
From Crimes against Art to Crimes against Cultural Property 175

Figure 10.1 The destroyed door of the Sidi Yahya Mosque in Timbuktu ( January 2014). Picture
by Joris Kila.

also a huge collection of texts called the Timbuktu Manuscripts. These manu-
scripts consist of medieval African documents, ranging from scholarly works
to short letters that have been preserved by private households in Timbuktu.
The manuscripts, dating back to the thirteenth century of the common era
and passed down for generations in Timbuktu families, are mostly in poor con-
dition. Many documents were kept in libraries including a new large library
(built with the support of South Africa), three new major private but publicly
accessible libraries, and up to sixty other private libraries.31 There were fears
that either these documents would suffer attacks, damage, or neglect caused
by the armed struggles or that they would be stolen and end up in antique mar-
kets. This could cause additional safety and security liabilities since thieves,
iconoclasts, groups of opposing forces, or, in this case, Islamist extremists
with connections to Al Qaida in the Islamic Maghreb might find sale of the
manuscripts profitable. The revenues would then be used for buying arms and
ammunition. Though Ansar ad-Din took over the new building of the Ahmad
Baba library and removed all the computers and other equipment, no major
losses were reported. In January 2014 we found the library in a reasonable
condition; though the laboratory was empty and most of the collections gone,

31 Ibid.
176 Kila

many objects were brought to the capital Bamako before the Jihadists could
touch them. unesco and many other organizations protested without imme-
diate results; however, as an additional measure, unesco worked together
on the matter with its counterpart the Islamic Educational, Scientific, and
Cultural Organization (isesco).32 From the legal front, Ms. Fatou Bensouda,
the International Criminal Court (icc) prosecutor stated that those respon-
sible could face prosecution as their actions constituted a war crime. However
in this context the Hague 1954 did not seem applicable from a practical view.
Although Mali, since 1961, has been a state party to The Hague Convention of
1954 and its First Protocol, the Muslim extremist group that seized power in
the northern part of the country was not an internationally recognized Mali
governmental party and therefor does not classify as a state party. However,
the (then) transitional government in the capital, Bamako, that is a recognized
state party, requested unesco World Heritage Committee to place Timbuktu
on the list of endangered unesco sites due to unrest in the north. unesco
agreed and stated that its decision to place both the town and the nearby
Tomb of Askia in Gao on its list of World Heritage in Danger, aims to raise
cooperation and support for the sites threatened by the armed conflict. The
request to unesco made by Malis transitional government was reportedly
what angered Ansar ad-Din, who then accused unesco of cooperating with
the Mali government.33
It seems fair to say that in the Mali cases once more history repeats itself; for
instance, the Talibans destroying the Bamiyan Buddha statues in Afghanistan
is very similar. In both cases, the acting partys excuse for the destruction is
idolatry. In addition it forms more proof for what I argued in Heritage under
Siege: cultural property is vulnerable and available for politicization and
manipulation, which can be clearly seen in Ansar ad-Dins accusation that
unesco was prejudiced in favor of the transitional government and the appar-
ent use of cultural property to damage the opponents identity.

3 Cultural Property (cp); Some Examples of Vulnerable cp in Times


of Conflict and Turmoil

This definition of cp according to the Hague Convention of 1954 is found in


Chapter i.

32 See http://www.isesco.org.ma/ (accessed 9 July 2012).


33 Ibid.
From Crimes against Art to Crimes against Cultural Property 177

General provisions regarding protection,


Article 1. Definition of cultural property.
For the purposes of the present Convention, the term cultural prop-
erty shall cover, irrespective of origin or ownership:
(a) movable or immovable property of great importance to the cul-
tural heritage of every people, such as monuments of architecture, art or
history, whether religious or secular; archaeological sites; groups of build-
ings which, as a whole, are of historical or artistic interest; works of art;
manuscripts, books and other objects of artistic, historical or archaeo-
logical interest; as well as scientific collections and important collections
of books or archives or of reproductions of the property defined above:
(b) buildings whose main and effective purpose is to preserve or
exhibit the movable cultural property defined in sub-paragraph (a) such
as museums, large libraries and depositories of archives, and refuges
intended to shelter, in the event of armed conflict, the movable cultural
property defined in sub-paragraph (a);
(c) centres containing a large amount of cultural property as defined
in sub-paragraphs (a) and (b), to be known as centres containing
monuments.

Rules for the safeguarding of cp are given in Article 2: Protection of cultural


property.

For the purposes of the present Convention, the protection of cultural


property shall comprise the safeguarding of and respect for such property.

As a further explanation it should be mentioned that the types of cp described


by the Hague Convention of 1954 can have different or shifting connotations or
be of increased importance in the event of conflict or in the period just before
the outbreak of a conflict (or directly after ending a conflict). This brings impli-
cations for the planning of military operations. For instance:

(working) Archives: can be of value or danger to military intelligence


(intel) due to their contents whereas historical archives can be of impor-
tant for the national or ethnical identity of certain groups involved in a
conflict. Often such archives contain both contemporary as well as his-
torical and cultural materials.

Monuments of architecture can be of strategic importance in the terrain due


to height (snipers), location, or strategic use. e.g., weapons can be hidden or
178 Kila

stored; the same goes for prisoners and hostages that can be used as human
shields.
Works of art, books, manuscripts can have propaganda value or can be con-
sidered as icons from certain ethnic, religious, or political groups within a soci-
ety. Even natural monuments can for fill such a role, e.g., the tree behind the
Anne Frank house in Amsterdam34 and the already mentioned Uluru (Ayers
Rock), the sacred rock of the aboriginals in Australia.
There is a distinction between material and immaterial35 heritage; as
examples of the latter, we can list performing arts such as music and theatre,
national anthems, dialects, languages, oral history, certain traditional perfor-
mances, and tribal rituals. These also can have links to propaganda, national
pride, etc., and therefore can be relevant for military intelligence and give valu-
able information for the planning phase of an operation. Certain ethics and
procedures should be developed and codified for scientists, subject matter
experts, militarized experts, cpp officers, and the like to avoid them getting
compromised, similar to ethical codes developed for military medical experts.
Heritage Sites are divided into cultural heritage and natural heritage sites.
Different properties recommended by each country are included in the World
Heritage List after being screened according to strict criteria defined by the
World Heritage Committee.36
To illustrate the continually changing appreciation of cultural heritage and
property, some clarification seems relevant about what classifies under todays
perception of cultural property and then specifically objects and sites that are
vulnerable in the event of conflict and turmoil. The categories mentioned are
just an indication and do not aim at providing a complete picture. For a com-
prehensive categorization reference is made to the definition of cp according
to the Hague Convention of 1954 as listed above under 2. Where possible and
appropriate legal consequences including (potential) prosecutions and penal
sanctions will be presented in the context of case examples.

34 In 2007 there were major protests when the municipality of Amsterdam wanted to cut
down a sick tree that was mentioned in Anne Franks Diary.
35 See the Convention for the Safeguarding of the Intangible Cultural Heritage (Paris,
17 October 2003).
36 Founded 1976 in Nairobi and aiming at identification, protection, and preservation for
future generations of the cultural and natural heritage, including buildings, monuments,
and landscapes important from a historical, art-historical, and scientific point of view and
placed on the World Heritage List by the Committee. The properties are cultural, natural,
or mixed.
From Crimes against Art to Crimes against Cultural Property 179

3.1 Monuments
There are various types of (and overlaps between) what are currently charac-
terized as monuments. These can be natural monuments, historic testimoni-
als, or objects and places designed as or changed into memorials, sometimes
referred to as lieux de memoires. The latter can also be a mix between memo-
rials and, as they are called in the current heritage debate, traumascapes,37
which can be monuments in memory of victims of genocide and war crimes
located in the actual environment or actual locations where such crimes took
place. Examples are concentration camps like Auschwitz but also locations
like Ground Zero, Guernica, and the killing fields in Cambodia.38 But a lieu
de mmoire does not necessarily has to be a physical location. According to
Pierre Nora,39 it is all about the connection between memory and identity;
remembrance days, symbols, persons, and even songs can trigger memories
to a specific historic event. Consequently symbolic places of memory are impor-
tant parts to construct an identity such as a national, local, or cultural distinctive-
ness. Examples are Frances le 14e Julliet and the 9/11 tragedy in the United States.
Nevertheless places, objects, and immaterial expressions of the categories
described above can be highly sensitive, and any change or manipulation, par-
ticularly for political reasons, can have severe consequences. An example of
fierce reactions following relocation of a memorial is the case of the controver-
sial Bronze Soldier monument that was removed from downtown Tallinn (the
capital of Estonia) in 26 April 2007, which led to heavy rioting in which one
man was killed and many were injured.40 Still, traumascapes and other memo-
rials can be subject to ordinary crimes as well; a clear example took place in
Auschwitz in December 2009, when the famous Arbeit macht frei sign was
stolen from the main gate of the camp. Five thieves were captured and, accord-
ing to the local police chief in Krakow, the theft was financially motivated, but
it remained unclear whether it was carried out by order.41
The intersection of art crime, traumascape, financial gain, and terror can be
even more puzzling as the 9/11 Twin Towers disaster illustrates: reportedly the
total value of art lost from the collapsed Twin Towers exceeded $100 million.
Among lost art objects were Alexander Calders sculpture wtc Stabile, Joan

37 Traumascapes are a distinctive category of places transformed physically and psychically


by suffering; they are scar tissue that stretches across the world. See Tumarkin (2005).
38 A number of sites in Cambodia where large numbers of people were killed and buried by
the Khmer Rouge regime, during its rule of the country from 1975 to 1979. See Wikipedia.com.
39 Nora (19961998).
40 See <http://news.bbc.co.uk/2/hi/6602171.stm> (accessed 19 August 2013).
41 See <http://news.bbc.co.uk/2/hi/8423827.stm>(accessed 19 November 2013).
180 Kila

Mirs epic World Trade Center Tapestry, a painting from Roy Lichtensteins
Entablature series, and others by Picasso and David Hockney.42 Another source
states that the offices occupied by the brokerage house Cantor Fitzgerald con-
tained some 300 sculptures and drawings by Rodin that are now lost. So far, the
company has not issued a complete inventory of the collection or declared its
value for insurance purposes.43 The Twin Towers housed hundreds of compa-
nies including a lot of investment firms, trusts, and hedge funds. In this con-
text, one can expect that some of these institutions possessed objects that had
no provenance or were in some other way illegal. Of course we will never know
how many and which illegal art objects were lost.

3.2 Bridges, other Urban Settings, and Legal Instruments to


Protect Them
An illustrative case concerns the Stari Most or the Old Bridge of Mostar, now
a reconstruction of a sixteenth-century Ottoman bridge in the city of Mostar
in Bosnia and Herzegovina. Throughout Bosnian-Croatian Militia (hvo)
assaults, the Old Bridge was a favored target for hostile artillery. On 9 November
1993, the bridges spring line was hit at point-blank range by a Croatian tank
shell and Mostars 400-year-old symbol fell into the Neretva River.44 Slobodan
Praljak, the commander of the Croatian Defence Council, was arrested and
send to the Hague on 5 April 2004 for trial and sentencing at the International
Criminal Tribunal for former Yugoslavia (icty) for ordering the destruction of
the bridge, among other charges. Although he pleaded not guilty to all charges,
he was found guilty and sentenced to twenty years imprisonment on 29 May
2013.45 In fact, Praljak was prosecuted for serious violations of International
Humanitarian Law (ihl) committed in the Territory of the Former Yugoslavia
since 1991. The icty Statute mentions: Article 2, Grave breaches of the Geneva
Conventions of 1949 (d) extensive destruction and appropriation of property,
not justified by military necessity and carried out unlawfully and wantonly;
Article 3, Violations of the laws or customs of war; (c) attack, or bombardment,

42 See <http://www.telegraph.co.uk/news/worldnews/september-11-attacks/8722638/21-awful-
truths-about-911.html> (accessed 19 November 2013).
43 See <http://worldtradecenterart.blogspot.nl/> (accessed 19 November 2013) and <http://
www.dailymail.co.uk/news/article-2020808/Mystery-lost-art-records-vanished-9-11-
attacks.html> (accessed 19 November 2013).
44 See Historic Cities Support Program, Conservation and Revitalization of Historic Mostar,
Aga Khan Trust for Culture, World Monuments Fund (Geneva, 2004).
45 See <http://www.icty.org/x/cases/prlic/cis/en/cis_prlic_al_en.pdf> (accessed 24 November
2013).
From Crimes against Art to Crimes against Cultural Property 181

by whatever means, of undefended towns, villages, dwellings, or buildings;


(d) seizure of, destruction or wilful damage done to institutions dedicated to
religion, charity and education, the arts and sciences, historic monuments and
works of art and science; (e) plunder of public or private property.46
Old city centers or other characteristic locations in a town can be consid-
ered cultural heritage representing the character and identity of a city and com-
munity. This connection has been identified by those recognizing the culture
heritage of an enemy (in an armed conflict) is an object to be obliterated in
order to achieve extermination of this enemy. In this context culture is identity.47
The cultural heritage in question can be quite common objects like buildings
that constitute a collective memory forming an important part of a groups con-
sciousness. The term urbicide is used to describe this type of intentional iden-
tity destruction; the term literally translates as violence against the city48 or, as
Bevan puts it, the murder of a city (as a strategy), thus erasing its character and
identity from the memory of its (former) inhabitants and mankind; see, e.g.,
Carthage, Sarajevo, and Beirut.49 These case examples show that destruction
of cultural property in a wider construct can be aimed at, or result in, cultural
destruction, at times causing historical obliteration that in its turn can lead to
the damage or eradication of identities. This scope is relatively wide since, as
already established the threat to common objects, especially buildings, is con-
sidered a threat to identity as well as to the collective memory maintaining a
groups consciousness. All the same, this leads to a more comprehensive notion
of places of memory, including traumascapes. Such locations can be, in a sense,
considered containers or markers of identity. Bevan calls the destruction of
such markers forced forgetting, and his description says it all.
There are examples of individuals being convicted for what is in fact urbi-
cide. This is clearly illustrated in the Pavle Strugar case. This case came before
the icty that implemented the most effective regime for cpp50 in The Hague
and dealt with the former General and commander of the Second Operational

46 See <http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf> (accessed


23 December 2013).
47 Bevan (2006).
48 See <http://www.wordaz.com/urbicide.html> (accessed 16 July 2013).
49 Bevan (2006), Sandes (2013).
50 The effectiveness of icty to prosecute and sentence individuals responsible for cultural
property crimes is illustrated in several cases: Dubrovnik (Strugar and Joki), Bosnia &
Hercegovina (Praljak), Kosovo, Croatia, & Bosnia (Miloevi), Lava Valley (Kordi), and
Krajina (Branin). See Penal Sanctions in the Law of Cultural Property Protection, pre-
sentation by Dr. Udo Birkner at the International Seminar on the Implementation of the
1954 Hague Convention for the Protection of Cultural Property in the Event of Armed
182 Kila

Group formed by the Yugoslav Peoples Army (jna). The charges concerned
his legal and effective responsibility for the military campaign against the
Dubrovnik region of Croatia. In the verdict, the Hague 1954 convention was
cited throughout. The former Lieutenant-General of the jna, Strugar was spe-
cifically charged for the shelling of the old town of Dubrovnik on 6 December
1991, which took place under his responsibility. The allegation against Strugar
stated that damage or destruction carried out in the course of the shelling was
a crime of devastation, not justified by military necessity, and the destruction
of cultural property. For the charge of devastation, the court found that the Old
Town sustained damage on a large scale in the shelling. The charge of destruc-
tion of cultural property drew its releveance from the fact that the Old Town
of Dubrovnik in its entirety was entered onto the unesco World Heritage List
in 1979, so every building of the Old Town was already properly identified and
listed as cultural property.51
In addition it was found that there were no military objectives in the
immediate vicinity of the buildings and structures destroyed or damaged, nor
were they present in the Old Town or in its immediate vicinity. Therefore the
destruction or damage of property in the Old Town on 6 December 1991 was
not justified by military necessity.52 On 31 January 2005, Strugar was sentenced
to eight years imprisonment. Of additional interest is that in recent scientific
literature on this case, a plea is made for the constitution of a cultural swat
team consisting of experts from various disciplines (forensic, art, architecture,
archaeology, etc.) to perform investigative workboth forensic investigation
and the identifying of damaged or destroyed objects. This work would signifi-
cantly assist investigations and any subsequent prosecution. It is also recom-
mended that military experts should be part of such swat teams.53

3.3 Museums
The definition of a museum according to the International Council of Museums
(icom) Statutes, adopted in 2007, is as follows: A museum is a non-profit, per-
manent institution in the service of society and its development, open to the
public, which acquires, conserves, researches, communicates and exhibits the
tangible and intangible heritage of humanity and its environment for the pur-

Conflict and its Two Protocols for Sub-Saharan African Countries (Vienna, 3 December
2013).
51 See http://whc.unesco.org/pg.cfm?cid=31&mode=table (accessed 30 July 2012).
52 See <=http://www.icty.org/sid/8655 (accessed 30 July 2012).
53 Susan Somers (2010).
From Crimes against Art to Crimes against Cultural Property 183

poses of education, study and enjoyment.54 All of this makes the museum a
target in times of conflict or turmoil, either to damage the identity of a (local)
population or to steal objects that can be sold to buy weapons and other means
to prolong a conflict. In fact, there are military, economic (tourism), financial
(theft), and identity (reconstruction of society) elements at stake. Sometimes
a blend of these elements is present, making issues of protection, prosecution,
and restoring quite complicated as is illustrated in the following case exam-
ples. A well-known contemporary case of breaking in a museum, though insig-
nificant compared to the widespread looting of archaeological sites all over the
country, was the looting of Iraqs National Museum in Baghdad. Before the war,
archaeologists and cultural specialists had warned that this museum and Iraqs
cultural heritage in general were vulnerable, but nobody was prepared for the
plunder that eventually took place.55
Between 8 April 2003, when the museums staff vacated the museum, and
12 April, when they returned, thousands of valuable historical items were taken
and destroyed by looters. Some of the plunderers were professional thieves
who stole specific artifacts from the storerooms. A second group stole objects
from the galleries and storerooms. They also ransacked the museums archives,
offices, and laboratories. All of this theft and ransacking in the museum
had already taken place by the time us troops, engaged in toppling Saddam
Hussein, arrived to protect it on 16 April 2003. An estimated 15,000 items, many
of them choice antiquities: ritual vessels, heads from sculptures, amulets,
Assyrian ivories, and more than 5,000 cylinder seals were looted. On 12 April
museum staff drove the looters out and four days later us forces secured the
building. Starting 22 April 2003, Colonel Matthew Bogdanos led the us investi-
gation of the looting at the museum while museum staff began the enormous
tasks of assessing the damage, and recovering and restoring objects.56
In Iraq, the sale of looted artifacts and the sale of illegal weapons were
linked; the profits from selling looted artifacts were used to buy weapons. The
continued looting of antiquities and their sale in other countries directly con-
tributed to the cycle of Iraqs internal violence. Cultural objects that are first
looted and then smuggled out of conflict zones usually end up in the antique
and art markets of the Western hemisphere. Profits stimulate belligerent and
rebelling parties to continue stealing and looting to generate funds for weapons

54 <http://archives.icom.museum/hist_def_eng.html> (accessed 24 February 2014).


55 See <http://www.smithsonianmag.com/specialsections/making-a-difference/monument-
sidebar.html#ixzz2obcO0Kjj> (accessed 26 December 2013) and <http://oi.uchicago.edu/
museum/special/catastrophe/summary.html> (accessed 26 December 2013).
56 Matthew Bogdanos and William Patrick (2006), Thieves of Baghdad (New York).
184 Kila

and ammunition, thus prolonging a conflict. Cultural property protection is in


this context an instrument to deny resources to the opponent, consequently
reaching the end state of a military operation sooner by creating a military
force multiplier.57 Another contemporary example of demand-driven theft
and traffic are the looted and stolen objects from Afghanistan, often commis-
sioned by the Taliban, smuggled out through Kandahar military airport and
ending up in expensive antique shops in Brussels, Belgium.58 The link with
criminality maintained by opposing forces is good reason to inform all military
personnel involved in missions in sensitive areas that buying artifacts is strictly
forbidden. As a general rule, military personnel entering or leaving a mission
area are checked by military police.59

3.4 Archaeological and Historical Sites


New techniques like satellite imagery not only underpin cultural propertys
connection with poverty but allow methodical new research. For instance,
Elizabeth Stone60 took a systematic approach towards researching looting of
archaeological sites in the context of conflict and turmoil in Iraq. She started
to study the commercially available, high-resolution satellite imagery taken
by the Digital Globe Corporation from Colorado (see Emberling and Hanson
2008).61 Shortly before the 2003 invasion in Iraq, Digital Globe began tak-
ing satellite photographs of southern Iraq commissioned by the Pentagon.
Stone started buying the images and examined approximately two thousand
sites using reference materials dating from before these sites were damaged.
Intervals of one month between photos of looted sites were used to develop a
perceptive on the chronology of looting.62 This way it was possible to answer
questions as: are specific type of sites preferred for targeting? Is the size of
a site relevant? How selective is the looting? Are certain archaeological peri-
ods more favored by looters than others (thus indicating what type of finds to
expect)? How deep are the holes? (The depth of holes can be determined by

57 The term force multiplier refers to a capability that, when added to and employed by a
combat force, significantly increases the combat potential of that force and thus enhances
the probability of successful mission accomplishment.
58 See <http://www.deredactie.be/cm/vrtnieuws.english/news/1.592370> (accessed 22 July
2011).
59 Olbrys (2007).
60 Professor of Mesopotamian Archaeology at Stony Brook University.
61 http://www.digitalglobe.com.
62 As described in: Elizabeth C. Stone (2008), Archaeological Site Looting: The Destruction
of Cultural Heritage in Southern Iraq, in Geoff Emberling & Katharyn Hanson (eds.),
Catastrophe! The Looting and Destruction of Iraqs Past (Chicago).
From Crimes against Art to Crimes against Cultural Property 185

their blackness on the imagery; they indicate deep trenches that reach down to
the earliest stratum of human history in the specific area.)
When looking at historical places, we find vulnerable objects such as murals
(the Matejce Monastery case in Macedonia), temples (Babylon in Iraq, Palmyra
in Syria), antique fortifications (Krak des Chevaliers in Syria), religious monu-
ments, artifacts, libraries, and archives and their respective contents.63
Typical art objects and their vulnerability to criminal acts are addressed
throughout this book in various sections, but this chapter aims at introducing
and, to an extent, defining types of cultural properties that can be damaged
or stolen in the event of conflict and insurgency. This has consequences for
the market; e.g., changes in known strategies and, if applicable, methods of
distribution. Nevertheless the term crime also gets a wider meaning since we
consider, for instance, damaging objects and monuments not only for financial
gain but sometimes for unlawful political and strategic purposes in the context
of conflict, as a form of crime. A classic example is the phenomenon of icono-
clasm. But also the question is raised whether an act against cultural property
is committed as a permissible deed, for instance, when the excuse is military
necessity. For more on military necessity see paragraph 5.
The problem of art crime is already of a different nature when compared to
the more classical perception and prosecution of art crime defined as thefts
of paintings and precious artistic objects by common criminals. Given this
hypothesis it can be argued that cultural property crime is, in the legal sense,
a generalis in which art crime is a subdivision dealing with civilian criminal
actions that involve paintings, sculptures, antique books, etc., and therefore
should be seen as a specialis.

3.5 Recycling and Cultural Property Crime


A troubling development is an increasing use, from a military perspective, of
strategically located sites such as ancient fortifications on elevated terrain.
Using citadels, towers, and castles that were historically fortifications or tow-
ers and minarets is a strange approach to recycling. An example of this type
of misuse is the spiral minaret of Samarra in Iraq also known as the Malwiya
tower, built by Caliph al-Mutawakil in the ninth century ad. In 2005, insurgents
blew up the top section of the 52m (162ft) tower, because it was being used by
us soldiers as a lookout position. In many cases such actions can classify as
a crime; for instance, under the Rome Statute of the International Criminal
Court of 1998 or under the Hague Convention for the Protection of Cultural

63 For the Matejce and Babylon cases see Joris Kila (2012), Heritage under Siege (Leiden),
chapter three.
186 Kila

Property in the Event of Armed Conflict of 1954 and its two protocols. The key
elements to determine the degree of proportionality or the excessiveness of an
attack in relation to the concrete military advantage anticipated are (defen-
sible) military necessity and whether the cultural property was made into a
military target. This is the case when, for instance, an anti-aircraft gun is placed
on the roof of a temple or church. Today, military reuse of fortified cultural/
historical sites is still going on. The recent shelling of national heritage sites in
Syria, including the twelfth-century crusader fortress Krak des Chevaliers and
the Citadel, the medieval fortress at the center of Aleppo, happened because
these places were being used by modern soldiers (of both sides). This is an
indication that it is wise to give higher priority protection to such sites in risk-
preparedness plans while taking into account the so-called military necessity
implications they can evoke.64

3.6 Recent Legal Developments Concerning the Prosecution of


Cultural Property Crimes
The objects and entities mentioned in this paragraph provide for clear illus-
trations of how penal aspects of and legal tools for the protection of cultural
property in the event of armed conflict become manifest and can be imple-
mented. In practice this mostly involves instruments given by International
Criminal Law (icl) to prosecute cultural property crime that is often commit-
ted by individuals. The nature of icl needs some further explanation.
A useful basic classification of icl is:65

a. icl in the narrow sense: individual criminal responsibility under interna-


tional law.
b. icl in the large sense: all national and international aspects of criminal
law.

64 In this situation, military necessity forms part of a basic conflict of interest between mili-
tary necessity that is used as a reason to solve (or end) a conflict as soon as possible and
civil interests in cpp related to matters like identity, economy, and science in post-conflict
conditions.
65 This classification was given in a presentation by Astrid Reisinger Coracini (2013), Penal
Aspects of the Protection of Cultural Property in the Event of Armed Conflict at the
International Seminar on the Implementation of the 1954 Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict and its Two Protocols for
Sub-Saharan African Countries (Vienna, 3 December).
From Crimes against Art to Crimes against Cultural Property 187

It should be noted that icl is a subset of public international law. As such, its
sources are the same as those that comprise international law. While interna-
tional law typically concerns inter-state relations, international criminal law
concerns individuals. Basic sources of icl generally are the five sources used
by international and hybrid66 criminal courts:

1) treaty law; international agreements concluded between states in writ-


ten form and governed by international law, whether embodied in a sin-
gle instrument or in two or more related instruments and whatever its
particular designation. The 1986 Vienna Convention extends the defini-
tion of treaties to include international agreements involving interna-
tional organizations as parties.
2) customary international law; customary practice of states followed from
a sense of legal obligation.
3) general principles of law; expressions of national legal systems and other
unperfected sources of international law.
4) judicial decisions (subsidiary source); earlier verdicts that can influence
future decisions.
5) learned writings (subsidiary source); academic literature.

These five sources are interpreted by international criminal courts.67

4 Cultural Property Crime During Turmoil, The Current Situation in


Egypt as a Case Example

Egyptian national heritage is currently being destroyed in plain view, both by


looters and by illegal construction.68

66 Treaty-based, hybrid courts with national and international elements were proposed
to help create efficient, locally based courts to address serious international crimes.
Generally, both international and national judges and practitioners are employed in
the administration of hybrid courts. The Special Court for Sierra Leone (scsl) and the
Extraordinary Chambers in the Courts of Cambodia (eccc), are examples of hybrid
courts. See <http://wcjp.unicri.it/deliverables/docs/Module_4_International_war_crimes_
courts.pdf> (accessed 24 December 2013).
67 See <http://wcjp.unicri.it/deliverables/docs/Module_2_What_is_international_criminal_
law.pdf> (accessed 24 December 2013); I also rely on information given by Marc Balcells.
68 See Catrina Stewart (2014), Egyptian Tomb Raiders Persist under Poor Economy, usa
Today (24 March) http://www.usatoday.com/story/news/world/2013/03/24/egypt-tomb-
looting/1956693/ (accessed 19 February 2014).
188 Kila

4.1 The Break-In at the Egyptian Museum


The Art Newspaper reports that in the evening of 28 January 2011, people
jumped over a wall into the compound of the Egyptian Museum, which lies at
the north end of Midan Tahrir in Cairo, at the time the scene of protests against
president Hosni Mubarak.69 Most of the looters who entered the museum
grounds headed for the gift shop, where all the modern jewelry was stolen.
Fortunately, the shop offered no direct access to the galleries.70 Nevertheless,
ten people managed to enter the main building. They climbed fire-exit stairs
to the roof, broke through a glass panel, and lowered themselves on a rope
into the gallery, four meters below. The intruders first went to a Late Period
display, presumably looking for antique jewelry. Thirteen vitrines were broken
and their contents thrown onto the floor. Two mummies were taken from glass
cases. They were damaged and their heads broken off. It is unclear whether the
two mummies were on open display or removed from their coffins. A statue
from Tutankhamuns tomb was thrown to the ground, breaking in half. At least
one of the looters was caught. Army tanks were later brought in to protect the
museum, and some protesters joined soldiers in guarding the entrances.
There were rumors about political manipulation involving staging the loot-
ing of the Egyptian Museum. Supposedly, the idea behind this was to create an
excuse to crack down on the protesters that were on the Tahrir square. Reports
contradicted; for instance, the former director of the Egyptian Museum, Wafaa
el-Saddik, in an interview published on German publication Zeit Online,
said that the individuals responsible for the looting at the National Museum
included the institutions own guards.71 Dr. Zahi Hawass, who at the time was
chairman of Egypts Supreme Council of Antiquities (sca), stated in his web
blog: When I arrived, I found out that, the night before, three tourist police
officers had stayed there overnight because they were not able to get out before
the curfew was put in place.72 These officers, and many young Egyptians who
were also there, helped to stop more people from entering the museum.

69 See Martin Bailey (2011), Details of looting of Cairo and other Egyptian Museums:
Jewellery the Main Target in the Egyptian Museum, but Mummies Also Damaged, The
Art Newspaper (31 January; only only).
70 Curiously Dr. Hawass, the chair of the sca, was involved in a (legal) dispute over how the
contract for this new gift shop was awarded that threatened to land him in jail. See http://
www.nytimes.com/2011/07/13/world/middleeast/13hawass.html?pagewanted=all&_r=0
(accessed 5 January 2014).
71 See <http://www.zeit.de/politik/ausland/201101/interview-el-saddik> (accessed 3 January
2014).
72 See http://www.worldarchaeologicalcongress.org/home/63-press-releases/519-the-situa
tion-in-egyptian-antiquities-today (accessed 25 February 2014).
From Crimes against Art to Crimes against Cultural Property 189

4.2 The Looting of the Malawi Museum


The Malawi Museum in Minya was attacked in August 2013. The motives for
this attack are unclear. Under the Morsi government, protection of antiquities
had no priority. No police were present at the museum according to an anon-
ymous source to Ahram online.73 Egypts Antiquities Minister Mohammed
Ibrahim said some 1,050 artifacts spanning 3,500 years of history were looted.
Rows of display cases were broken and emptied after looters shot a museum
employee and ransacked the institution.
Local reports suggest that vandals later burned mummies and broke sculp-
tures too heavy to be carted away. Different sources mention that the Ministry
of Antiquities offered an option of no reprisal if objects were returned, and,
luckily, many have been returned and others are continuing to reappear,
although more are still missing or irretrievably damaged.74
Police have blamed the looting of Egypts museums on supporters of ousted
President Mohammed Morsis Muslim Brotherhood, who supposedly retali-
ated over the violent dispersal of two sit-ins a week before the museum loot-
ing. Many archeologists, however, say it is more likely that unaffiliated gangs of
thieves are taking advantage of the relative lawlessness in Egypt.75

4.3 The Looting and Burning of the Villa Casdagli76


The Villa Casdagli is a listed historic monument in Cairo and is an irreplace-
able architectural landmark with distinguished architecture, European-style
paintings, mosaics, and special inlays. It was built during the first decade of the

73 See http://english.alarabiya.net/en/News/middle-east/2013/08/16/Egypt-s-Malawi-museum-
looted-amid-violence-says-ministry.html (accessed 2 January 2014).
74 See Salima Ikram (2013), Cultural Heritage in Times of Crisis: The View from Egypt,
Journal of Eastern Mediterranean Archaeology & Heritage Studies 1: <http://www.jstor.org/
stable/10.5325/jeasmedarcherstu.1.4.0366> (accessed 4 January 2014).
75 See <http://www.ibtimes.com/malawi-national-museum-looting-condemned-unesco-
amid-fears-egypts-cultural-heritage-danger-1391295> (accessed 4 January 2014).
76 Sources include email correspondence of the author with Dr. Thomas Schuler Disaster
Relief Task Force (drtf) of icom, Cori Wegener usbs and Dr. Peter Lacovara; see also
Joris Kila, Can White Men Sing the Blues? Cultural Property Protection in Times of Armed
Conflict Deploying Military Experts, in Laurie Rush (ed.), Archaeology, Cultural Property
and the Military (Woodbridge 2010), 4159; Idem. (2012), Heritage under Siege: Military
Implementation of Cultural Property Protection following the 1954 Hague Convention
(Heritage and Identity 1; Leiden-Boston); Ahram Online, (16 February 2013) <http://www
.egy.com/gardencity/97-02-08.php> (accessed 1 January 2014); Sara Hashash (2013),
Looters Smash Jewel of Cairos Colonial Past, The Sunday Times (10 February); Back to
School for Museum Staff, Al-Ahram Weekly On-Line 1048 (May 2011): 1925.
190 Kila

twentieth century by Austrian architect Edward Matasek (18671912) report-


edly for Emanuel Casdagli, a member of a British-educated Levantine family of
Georgian-Central Caucasia origins dealing in the lucrative Manchester trade.
According to some sources, it is possible that the house was originally built for
banker Felix Suares and, following his death in April 1906, his heirs sold it circa
1909 to the Casdaglis. One of Villa Casdaglis pre-World War ii tenants was the
American Embassy.
The building is situated next to the plot where the current us embassy is
located. Later the Villa became a school for girls named after Sudanese rev-
olutionary Ali Abdelatif. In 2006, the Supreme Council of Antiquities (sca),
now the Ministry of State for Antiquities (msa), placed the villa on Egypts
heritage list as an Islamic monument. In 2008, the sca, in collaboration with
the United States Agency for International Development (usaid) and the
American Research Centre in Cairo (arce), developed a comprehensive resto-
ration project for the building. The project was funded by the us Department
of States Ambassadors Fund for Cultural Preservation with a $5 million grant.
After restoration the monument would become a new Institute of Museology,
established by the Ministry of State for Antiquities Affairs to train curators on
modern technology used in world-renowned museums. Courses would include
museum presentation and exhibition design, restoration, museum studies,
and heritage management; the institute would offer ma and PhD programs.
In my capacity of chairman of the International Cultural Resources Working
Group (imcurwg) and adviser to the Austrian Committee of the Blue Shield
and ancbs,77 I spent a week (511 February 2013 ) in Cairo where I received
an urgent message from us Blue Shield (usbs) president Corine Wegener.
The usbs in its turn was alerted by the us Lawyers Committee for Cultural
Heritage Preservation. The case concerned a call for help initiated by Dr. Peter
Lacovara, a us Egyptologist working in Luxor, and concerned the Casdagli Villa
located on Midan Simon Bolivar (formerly Midan Kasr el Doubara) in Cairo.
Apparently the villa was burned on Friday 1 February, and not until the early
hours of Saturday morning (2 February) was the fire put out by the Cairo fire
department. The Midan Simon Bolivar is very close to the Tahrir Square. It was
reported that later several adolescents set fire again in the interior of the villa,
and they were chased away by casual passersby. According to the message of
Dr. Lacovara, dated 4 February 2013, the fire department had been able to get
to the fire only through actions by the security forces to clear the square, for
demonstrators were doing everything possible to stop the fire department
from putting out this fire.

77 Association of the National Committees of the Blue Shield.


From Crimes against Art to Crimes against Cultural Property 191

figure 10.2 The looted and partially burnt Villa Casdagli in January 2013. Picture by Joris
Kila.

Fire was still smoldering in the upper floors, and smoke coming out through
the windows, as of 4:30 in the afternoon of 4 February. At the same time, there
seemed to be plunderers at work ripping out anything of value still in the inte-
rior. Dr. Lacovara asked the fire department to revisit the premises, but they
refused to do so as there was no roaring fire apparent, and they didnt want to
venture out and possibly cause another violent demonstration. They believed
protection was needed to undertake this job, and the security forces were dis-
inclined to break the calm that prevailed in the area over the last thirty-six
hours counted from 4 February.
On Saturday 9 February, I together with Tilly Mulder, who is an advocate
for Blue Shield in Egypt, went to the Midan Simon Bolivar to find the build-
ing unprotected and consequently open for looters since most of the antique
fences and the gate were already stolen. Later we were joined by Ahmad
Al-Bindari, an Egyptian architectural researcher. The team went inside and
looked on all floors; the devastation was terrible. The Byzantine hall with its
depiction of Saint George in both the celestial ceiling and the halls extraordi-
nary cloister or chapel was severely damaged. The monumental staircase was
destroyed by fire and completely lost. Marble ornaments and fireplaces were
192 Kila

broken in pieces and scattered around. Everywhere in the building useable


parts were stripped and stolen. An attempt was made to get more informa-
tion about who created this destruction and looting, but this was difficult. The
Villa is close to Tahrir Square, which was at the time more or less a sort of riot
zone, and there were no police so everything was left unguarded. Unconfirmed
rumors blame criminal elements who are also held responsible for looting and
damaging the lobby of the nearby Intercontinental Hotel. The website Egy.com
states: the solitary winner here is the villas latest owner, who will no doubt
sell this prime real estate to Qatar or replace it with a lucrative high rise. The
fact that the Casdagli Villa was an official monument did not make much dif-
ference as last year another Cairo monument, the luxuriously furnished villa
of Kevork Ispenian on the Pyramids Road, was looted and destroyed despite
being on Egypts heritage list.78

4.4 A Contribution to Solve the Problems Using Religion


According to an article in Al Ahram online, published 13 February 201379 on
the occasion of a symposium on the Islamic view on cultural heritage, the
Egyptian Ministry of Antiquities, the Organization of Islamic Cooperation
(oic), and the Research Centre for Islamic History, Art and Culture (ircica)
issued the International Declaration of Cairo, which protects Islamic as
well as Pre-Islamic heritage. Among the participants were the Grand Mufti
of Egypt, the Sheikh dAl-Azhar, and the Minister of Waqfs. The Grand Mufti
announced that he is going to publish a book on short notice that collects all
fatwas on the protection of heritage. The use of fatwas to prevent abuse and
destruction of cultural property also happened in Iraq. In May 2003, just after
the American invasion of Iraq had begun, Grand Ayatollah Ali al-Sistani was
asked by the archaeology inspector of Dhi Qar province in southern Iraq to
announce a fatwa. The request was granted and Al-Sistani proclaimed that dig-
ging for antiquities is illegal; that both Islamic and pre-Islamic artifacts are part
of Iraqi heritage; and that people with antiquities in their possession should
return them to the museum in Baghdad or Nasiriya. Copies of the fatwa were

78 On February 10, 2013, Joris Kila and Ms. Mulder attended a meeting of the so-called
Friends of Manial Palace Museum. This ngo has good relations with the Antiquities
Ministry (formerly Supreme Council of Antiquities); proof of this is that the meeting was
held in the premises of this ministry in Zamalek. During the meeting it was understood
that the ownership of the Casdagli villa was transferred from the Ministry of Education to
the Antiquities Ministry, which makes real-estate speculation less likely.
79 See <http://hebdo.ahram.org.eg/NewsContent/961/32/97/1682/D%C3%A9claration-du-
Caire-Conserver-le-patrimoine,-un-d.aspx> (accessed 1 January 2014).
From Crimes against Art to Crimes against Cultural Property 193

distributed widely in the south and published in the Iraqi press. As a result
some of the looting stopped. Islamic leaders can have a major positive impact
on protecting cultural heritage.

4.5 Conclusions from the Egypt Looting Cases


The above case examples from Egypt illustrate assumptions that certain mech-
anisms, already manifest in Iraq, are common. Examples of such dynamics are:
looting national museums, looting archaeological sites, political manipula-
tions of cultural property, and influencing economic implications of conflict
related heritage destruction. In both Egypt and Iraq, the fact that media atten-
tion was first drawn to lootings in the respective national museums is worry-
ing since in the time attention is focused on such iconic objects it is relatively
easy to loot other unwatched sites. Just like in Iraq, information about missing
and damaged objects was kept vague in the Egyptian examples. Most prob-
ably this had to do with avoiding responsibilities. Aspects of manipulating
cultural property played a role too. As established, there were rumors about
political manipulation in connection with the alleged staging of the looting of
the Egyptian Museum. True or not, these are methods or strategies known in
history, e.g., Nazi Germany, Iraq, and Afghanistan.
Although Egyptian cultural resources yield considerable income for Egypt
in tourism revenue, this did not stop certain groups and individuals from loot-
ing. It looks like there is a direct relation between looting and locals suffering
from poverty. Moreover, guards and Antiquities Council staff are not motivated
to do their jobs under threat of violence due to their low salaries.80 The latter
is not only related to economic circumstances, but also to certain governmen-
tal policies since reports of underpaid employees go back for years. The Blue
Shield Egyptian emergency assessment mission brought the unique opportu-
nity to test an important argument, namely, the military should implement
cpp and its preparations in peacetime to avoid cultural disaster in times of
conflict or turmoil. The rules that were laid down in the 1954 Hague convention
and protocols and ratified by Egypt, stipulated that the army or a designated
department from the Egyptian Ministry of Defense (MoD) have emergency
preparedness plans in place to undertake immediate action.
But some problems were caused by political and cultural differences; for
example, the Egyptian MoD refused to be trained by Americans an opportunity

80 During an assessment in 2011, the majority of guards we spoke to complained about this;
see <http://www.blueshield.at/egypt_2011/mission_report_egypt_02_2011.pdf.> (accessed
1 December 2013).
194 Kila

offered during the Bright Star exercise of 2009.81 As a result, Egyptian military
were not trained to safeguard their cultural heritage when turmoil started in
2011, and consequently they did not act or did too little too late. The situation
has not changed; the latest break-in, this time of the Museum of Aswan, was
reported on 1 January 2014. According to the Egyptian Ministry of Antiquities,
ninety-six artifacts, mostly small figurines and beads, disappeared from the
Aswan Museums storehouse. Employees noticed artifacts missing, the state-
ment said. A committee looking into the objects disappearance checked the
storehouses inventory and found that the lock on the inner door had been
broken. They said evidence pointed to an insider theft.82 The latest general
incident took place in Cairo where the faade and part of the interior of the
Museum of Islamic Art and the National Library of Egypt Bab al Khalq were
partly destroyed by a car bomb that exploded on 24 January 2014.

5 Legal Considerations, Justifications, and Obligations for Military


in Situations that Include Cultural Property

5.1 Military Necessity


As mentioned, military necessity can be a legitimization for official military
conflict parties to attack or damage cultural property.
Military necessity or urgent military need is considered part of just war
theory83 dealing with the conduct of warfare. It is also a legal concept used
in International Humanitarian Law (ihl) as part of the legal justification for
attacks on legitimate military targets that may have adverse consequences for
civilians and civilian objects. It implies that military forces, in planning mili-
tary actions, are permitted to take into account the practical requirements of
a military situation and the imperatives (prerequisite) of winning at any given
moment.

81 Laurie Rush (2010) notes that the Egyptians pointed out that people responsible for
destroying Babylon should not be teaching anyone about cpp. Teaching Cultural
Property Protection in the Middle East: The Central Command/Cultural Advsiory Group
and International Efforts, in idem. (ed.), Archaeology, Cultural Property and the Military
(Woodbridge: The Boydell Press), 103. See also Kila (2010b).
82 See <http://bostonherald.com/news_opinion/international/middle_east/2014/01/egypt_
96_artifacts_missing_from_museum> (accessed 2 January 2014).
83 Just War Theory has three main components: 1) jus ad bellum: the justice of going to war;
2) jus in bello: the means by which war is conducted; and 3) jus post bellum: the means by
which the war is concluded and the peace restored.
From Crimes against Art to Crimes against Cultural Property 195

Military necessity acknowledges that even under the laws of war, winning
the war or battle is a legitimate consideration, though it must be put alongside
other considerations of ihl.84
This does not mean that military necessity gives armed forces immunity for
taking actions that would otherwise be impermissible for it is always balanced
against humanitarian requirements of ihl. Three requirements or constraints
upon exercising military necessity are of importance:
First: any attack must be intended and tend toward the military defeat of
the enemy; attacks not so intended cannot be justified by military necessity
because they would have no military purpose. Second: even an attack aimed
at the military weakening of the enemy must not cause harm to civilians or
civilian objects that is excessive in relation to the concrete and direct military
advantage anticipated. Third: military necessity cannot justify violation of the
other rules of ihl.
Aside from all this, there are related aspects regarding military necessity
such as the principle of proportionality or, to put it simply, the amount of force
to be used. Proportionality is difficult to interpret in relation to the protection
of cultural property. Nevertheless, if in an armed conflict situation cultural
property is damaged by a military party and the appeal to military necessity is
proven invalid, a responsible commander can be tried and sentenced.85
An almost creative variation in the (ab)use of cultural property in the
context of armed conflict involving official combatants were the acts of the
Russian (Soviet) Trophy Brigades (Akinsja, Koslov 1996) who were ordered
to retrieve equivalents of the artworks destroyed or removed from Russia dur-
ing the War as a form of reparation.86 This appropriation of cultural objects as

84 See Franoise Hampson, Crimes of War, Crimes of War A-Z Guide <http://www.crimesof
war.org/a-z-guide/military-necessity/> (accessed 9 August 2013).
85 The former jna (Yugoslav Peoples Army) General Pavle Strugar was convicted by the
International Criminal Tribunal for the former Yugoslavia for the destruction or willful
damage done to institutions dedicated to religion, charity and education, the arts and
sciences, historic monuments, and works of art and science (among other war crimes)
in connection with the shelling of the Old Town of Dubrovnik, a site listed on the World
Heritage List. Strugar was sentenced to eight years in prison. Another commander,
Miodrag Jokic, pled guilty to similar charges and was sentenced to seven years in prison.
See <http://www.cemml.colostate.edu/cultural/09476/laws13afghenl.html> (accessed
9 October 2013).
86 These included German state-owned cultural objects, objects taken from churches and
synagogues, and a great deal of private property looted by the Germans from individu-
als. The art works taken back to the Soviet Union were held in relative secrecy for years,
until the final years of glasnost. As European countries started to demand their cultural
196 Kila

compensatory restitution is in principle not allowed under international law.


The Soviet actions were complicated by the fact that not only German objects,
but also French and Dutch cultural properties were taken out of Germany by
these Trophy Commissions. This stirred legal discussions and disagreements
about whether the applicable law to the issue of restitution of illegally
removed art objects is the law where the property is situated; lex rei sitae or the
origin lex originis. In fact this is not valid in the case of cultural objects which
were rendered war booty: in such case, the lex originis is unanimously con-
sidered as the applicable law.87 The key problem is to perceive the particular
dimension of time that is relevant to the legal regime governing the objects here
concerned.88 Surely The Hague 1954 is not applicable to the period in question;
therefore Fiedler argues for the use of the Hague Regulations, specifically the
Hague convention of 1907 on land warfare.89 This argument is supported by
the fact that allied military tribunals dealing with World War ii also took the
provisions of the Hague Regulations into account when accusing the main war
criminals to have violated just that Convention. Russia in its turn passed a law
that potentially nationalizes all cultural treasures brought to Russia at the end
of World War ii. In the meantime, the appropriated large number of objects
remain in Russia where they are still kept in storage, partly in secret depots.
As already indicated, art or cultural property crime in the context of armed
conflict differs from the more classical perception of art crime as theft of
paintings and precious cultural objects by common criminals. During con-
flicts there are also illegal digs, mostly in so-called archaeological source coun-
tries, often performed by local groups or even families, that can be classified
as ordinary crimes. But these acts do not principally take place in the event of
conflict. These crimes take place routinely and do not show signs of cessation

treasures and archives, Russian legislators passed a law that potentially nationalizes all
cultural treasures brought to Russia at the end of World War ii. In 1999, the Constitutional
Court issued an opinion basically upholding the law. How do these actions comport with
international law? What are the chances for restitution of these displaced cultural valu-
ables? See announcement conference Spoils of War Versus Cultural Heritage (Harvard,
February 2008), <http://www.commartrecovery.org/events/spoils-war-v-cultural-heritage
(accessed 15 October 2013).
87 See Elina N. Moustaira International Protection of Cultural Property in the Event of
Armed Conflict, <http://users.uoa.gr/~emoustai/Hague_1954-Moustaira.pdf> (accessed
13 October 2013).
88 Wilfried Fiedler, Safeguarding of Cultural Property During Occupation = Modifications of
The Hague Convention of 1907 by wwii?
89 This Convention replaced The Hague Convention on Land Warfare (1899).
From Crimes against Art to Crimes against Cultural Property 197

during conflict.90 On the contrary, illegal digs become more intense during
conflict when there is lack of site protection (guards and police). A contempo-
rary phenomenon that has already been mentioned is that opposing forces in
a conflict (rebels, terrorists, jihadists, etc.) take advantage of cultural property
as a means to increase their income either harvesting the goods themselves or
commissioning locals to loot or dig. As stated by Alderman, generally, such
illegal excavators receive less than one percent of the final market value of
their discoveries, but the proceeds are a boon to them.91 Nevertheless, there
are also recent criminal cultural property incidents that seem to combine the
civilian and (military) aspects of conflict. An example of such cultural prop-
erty abuse is the case of the Benghazi Bank robbery.

5.2 The Benghazi Bank Robbery


According to several sources, between March and May 2011 a large number of
priceless coins and other precious artifacts were taken from a bank in Omar al-
Mukhtar Street in the center of Benghazi while the city battled for its survival
against forces loyal to Colonel Muammar Gaddafi.92 Benghazi was the main
stronghold of anti-Gaddafi rebels, who seized power in February 2011. These
stolen items were known as the Quryna treasures, a collection of gold and sil-
ver coins, beads, agate necklaces, earrings, and bronze statues.93 The collection
is also known as the Benghazi Treasure and was excavated in Cyrenaica after
World War I during the Italian occupation of Libya following the breakdown
of the Ottoman Empire.94 The treasure was never on display and only partly
photo-documented.
According to an article by Donna Yates in Trafficking Culture, the loot con-
sists of three collections of archaeologically excavated material: first, objects
excavated from the Temple of Artemis in Cyrene in 1917, including a number
of gold items that date to the fifth and sixth centuries bc; second, objects

90 A good example are the Tombaroli, tomb-robbers operating in Italy. See <http://trafficking
culture.org/encyclopedia/terminology/tombarolo/> (accessed 9 January 2014).
91 Alderman, Kimberly (2011), Honor Amongst Thieves: Organized Crime and the Illicit
Antiquities Trade Indiana Law Review (July 25); see <http://papers.ssrn.com/sol3/papers
.cfm?abstract_id=1872726> (accessed 9 January 2014).
92 Sources include Looted Libyan treasure in Egypt, http://www.bbc.co.uk/news/world-
africa-15517886 (accessed 27 October 2013); <http://traffickingculture.org/encyclopedia/
case-studies/benghazi-treasure/> (accessed 27 October 2013).
93 See <http://magharebia.com/en_gb/articles/awi/features/2013/11/29/feature-01> (accessed
25 January 2014).
94 See Donna Yates in http://traffickingculture.org/encyclopedia/case-studies/benghazi-
treasure/ (accessed 17 February 2014).
198 Kila

figure 10.3 Joris Kila (left) in the burnt Benghazi bank where the gold treasure was stolen
through the hole in the floor. Photo by Hafed Walda.

excavated from the Palace of Columns in Ptolemais in 1937, which date to the
Hellenistic period; and third, the Meliu collection of 2,000 coins.95
In the same article, and in a piece in the Artnewspaper by Martin Bailey
(Bailey 2011) it is said that Italian archaeologists sent the treasure in 1942 to
Rome packed within military chests as the allies forced on Libya and in 1944
the trunks were moved first to Cremona and then to Val Brenta. After the war,
they were brought back to Rome and were deposited in the Museo Coloniale
(Bailey 2011). In 1961 the collection, still in the two military chests, was returned
to Libya and an inventory compiled; however, photographs were not taken
(Bailey 2011). The trunks were moved to two safes within a bank vault in the
National Commercial Bank on Omar al-Mukhtar Street, Benghazi, where they
remained untouched for several decades. In 1980, more archaeological material
was added to the chests and again they were sealed in the vault (Bailey 2011).
The rest of the story remains a bit vague; apparently the robbers drilled
through a concrete ceiling in the National Commercial Bank of Benghazi. In
the vault they smashed metal storage cupboards and opened the sealed trunks
that contained the Treasure of Benghazi.96 Before or after the break-in, the

95 http://traffickingculture.org/encyclopedia/case-studies/benghazi-treasure (accessed 17 Feb


ruary 2014).
96 See http://magharebia.com/en_gb/articles/awi/features/2013/11/29/feature-01 (accessed
25 January 2014).
From Crimes against Art to Crimes against Cultural Property 199

building was set on fire and it burned out completely. On 12 November 2011,
I was able to go into the damaged building since I was part of an a assessment
mission to Benghazi. Normally it is impossible to get access to the bank, but it
was opened up especially for the mission. The thieves had drilled a hole from
the cashier room right into the safe, through the floor of approximately sev-
enty centimeters of steel-reinforced concrete. As can be seen in the picture,
the hole was so small that the thieves had to use somebody extremely small or
a child to climb down and get the treasure.
In an article in the Art Newspaper, Italian archaeologist Serenella Ensoli,
the Naples-based director of the Italian Archaeological Mission to Cyrene, says
that the two chests and the safe were apparently moved out of the vault on
25 May 2011 without proper authorization and sent to another bank building
near the Hotel Dujal. Only one of the chests arrived; the other chest and the
safe went missing. To make matters worse, Ensoli suspects that the thieves
went through the containers, looting the gold and silver and leaving the lesser
material in the remaining chest, which went to the new location. Interpol was
alerted about the theft only in July. It is unclear whether the incident occurred
in March or in May.97
There are early reports indicating that 500 coins from the Benghazi collec-
tion turned up in Egypt and that others have appeared on the black market in
Libya (Bailey 2011). Various commentators described the Libya/Egypt border
as penetrable at the time of the theft and speculated that this was the route
the looted material would take out of Libya (Allsop, 2011). Nick Meo of The
Telegraph reported that in the months since it happened, ancient gold coins
have turned up repeatedly in Benghazis gold market, and an Egyptian farmer
was caught with over 500 coins and a gold figurine that may have come from
the Benghazi Treasure theft (Meo 2011).

6 Art Theft in the Context of Conflict: Motives and Opportunities

As indicated, there are semantic aspects that can especially make any legal
interpretation complex. Terms like culture, cultural heritage, cultural affairs,
cultural awareness, cultural property, cultural identity, and cultural diplomacy
are rather vague. The terms heritage or property, when used in the context
of safeguarding cultural objects in the event of conflict, have legal and material

97 See <http://www.coinsweekly.com/en/Treasure-Stolen-in-Benghazi-or-Hollywood-the-
Libyan-Way/4?&id=856> (accessed 9 January 2014) and <http://www.theartnewspaper
.com/articles/Interpol+confirms+Libyan+treasure+was+looted/24900> (accessed 9 January
2014).
200 Kila

connotations. Cultural properties in danger of damage or destruction during


modern asymmetrical conflicts are often owned and maintained by states,
whereas the terms property and heritage can imply a disputed or claimed
ownership. Not only are these associations important in a legal and political
(conflict) sense, but, in the case of state-ownership, they can contribute to and
evoke risk-avoiding behavior amongst military decision makers. As addressed
in paragraph 2, there are also conceptual approaches based on the idea of
heritage.98 Concepts of heritage are subject to change as are related ideas
of identity, status, social, philosophical, and economic values. Finally, there is a
tendency to attach different meanings to the term culture including religious
connotations. Throughout this chapter different reasons for damaging and
abuse of cultural property were discussed such as economic, political, military,
and religious motives. Another important historical motiveor opportunity
is looting or plundering.

6.1 Looting
Looting has military parallels dating to the ancient Romans, who allowed their
soldiers to plunder as a form of wages. In more recent times, the traditional
tribal militias in Afghanistan and Pakistan (the Lashkar) are not paid salaries,
but share in loot captured from the enemy. This form of pay is, of course, not
permitted under international law, but it occurs (though rarely) nonetheless.
Looting, stealing, and smuggling of artifacts are, of course, market-driven and
based on the international rising demand for antiquities. Since there is only a
finite supply of legal objects that are available for trade, any increase can only
come from illegal sources (OKeefe 1997). Cultural objects that are first looted
and then smuggled out of conflict zones end up in the antique and art black
markets of the Western hemisphere.
Profits stimulate belligerent and rebelling parties to continue stealing and
looting to generate funds for weapons and ammunition, thus prolonging a con-
flict. As already mentioned in paragraph 3, in this context cpp is an instrument
to deny resources to the opponent consequently reaching the end state of a
military operation sooner by creating a military force multiplier.
Here too we can draw a parallel with the past when soldiers (often merce-
naries) were allowed to plunder as a form of wages. Still, it should be stressed
that motives for plunder and looting differ. Mac Ginty gives a more nuanced
perspective on looting; he finds the terms looting and looters generally to
be considered pejorative.99 From this perspective, the negative label prevails

98 Gillman (2010).
99 Mac Ginty (2004).
From Crimes against Art to Crimes against Cultural Property 201

over an objective description of looting as a certain activity. Many looters


choose not to interpret their activities as criminal, but see looting as justifiable
and legitimate. Some point to the fact that they are unemployed and need to
provide for themselves and their families. Others justify looting as an act of
taking back items that were in the possession of an ousted regime by enter-
ing its former facilities or as an act to express their anger by just vandalizing
objects. A recent example was, for instance, the takeover of Gaddafis house
in Tripoli by rebel forces during which statues and even a golden mask of the
dictator were damaged in anger as a form of revenge. Certain lootings can be
even explained as redistribution; as the former British Defense Minister Geoff
Hoon stated in 2003 when referring to plunder in Iraq, liberating those items
that are in the charge of the regime by entering its former facilities and the
secret organizations and redistributing that wealth among the Iraqi people
(Mac Ginty 2004: 85770).
Seen from another angle, looting is regarded as a byproduct of violent pro-
test and riots, especially in the so-called flash- or mob-lootings in sudden out-
bursts. Looting can be organized by a government to serve as justification for
tough action against protesters, and withdrawing fighters or armed forces have
been known to take or deliberately destroy objects because they do not want
the winning party to take them in possession. It is obvious that looting stems
from several types of motives that have to be considered specifically in relation
to military and cultural intervention.
The looting, stealing, and trafficking of cultural objects, and the protection
of sites and monuments, including preparation in peacetime, has to be looked
at from multiple angles.100 In most recent cases, protection seems only pos-
sible through the use of armed civil or military guards combined with techni-
cal solutions such as cameras or even satellite observation. Most solutions rely
heavily on the military not least because of military logistics, tools, and access
to conflict areas and classified data such as aerial photography. The idea of
involving contractors (in this case, mercenaries) as guards has been discussed
in a number of expert panels like the yearly military cpp panel at the aia con-
ferences. However, this idea is rejected by many for legal and financial rea-
sons. The legal reasons tend to be matters of authority in conflict areas; the
financial have stem from the fact that many MoDs and other stakeholders like
unesco do not have the financial resources to hire guards. Identification of
effective strategies for protection can be hindered by the fact that, especially
in troubled times, specific cultural objects are looked upon as national- or
group-related and become targets for opposing forces. This touches on military

100 Mac Ginty (2004).


202 Kila

intelligence and security because the trading of looted artifacts in war-stricken


areas is often done by opposing forces. Large numbers of artifacts originat-
ing from looted war areas are commissioned by insurgents. A recent exam-
ple of demand-driven theft and traffic are the looted and stolen objects from
Afghanistan, often commissioned by the Taliban, smuggled out through
the Kandahar Military airport and ending up in expensive antique shops in
Brussels, Belgium.101 Smuggling routes for the export of stolen artifacts can be
the same as those used for trafficking insurgents, weapons, and drugs.

7 Conclusion: Curbing cp Crime: Joint102 Strategies and


International Cooperation

Policy makers are gradually becoming aware of two important factors in the
assessment and study of international cpp cooperation. First, cooperation
brings efficiency; second, it enhances cultural diplomacy, loosely defined as
the exchange of ideas, information, art, and other aspects of culture among
nations and their peoples in order to foster mutual understanding.103 cpp as
part of Cultural Diplomacy also provides the means to restore old or develop
new contacts after conflict with countries with subversive governmental sys-
tems or ideology. Cultural diplomacy is the first resort of Kings, says Diplomat
Richard Arndt.104 It seems clear that international cooperation to establish
military responsibility in cpp is necessary. In most cases, financial and person-
nel resources are insufficient to achieve a comprehensive solution for each sep-
arate nation. Via combining forces it will be possible to achieve cost-efficient
training, exercises, interagency cooperation, sufficient research, academic
education, in-theater assessments, and the development of educational tools.
Benefits of such an approach will include timely implementation and effective
synergy, which is important given the current conflicts where cultural heri-
tage is at risk and efficiency at a low (tactical) level. Overall, cpp can generate
important force multipliers for military that help end military missions sooner.

101 See <http://www.deredactie.be/cm/vrtnieuws.english/news/1.592370> (accessed 22 July


2011).
102 Joint in this context stands for integration of the various service branches of a states
armed forces.
103 See Milton C. Cummings, Jr. (2003), Cultural Diplomacy and the United States Government:
A Survey (Washington, D.C.: Center for Arts and Culture), 1.
104 Richard T. Arndt (2005), Cultural Diplomacy: The First Resort of Kings, American Cultural
Diplomacy in the Twentieth Century (Dulles, va).
From Crimes against Art to Crimes against Cultural Property 203

It is important that cpp contributes to post-conflict reconstruction by stimu-


lating tourism and strengthening national identities. Nevertheless one still has
to be very careful: Eric Nemeth in The Chicago Tribune105 suggested that there is
a potential for proactive protection of cultural artifacts, particularly in the light
of the United States ratification of The Hague 1954 Convention.106 Nemeth
claims that us foreign policy can transform the risk related to the potential
loss of cultural property into a diplomatic gain by insisting that military inter-
ventions include a strategy for securing cultural sites and avoiding collateral
damage. This approach is mandatory under ihl; however, Nemeth forgets to
mention that the United States has not ratified the Protocols of the Hague 1954.
This means that using this treaty to promote certain ethically driven values
could backfire if it is pointed out that the United States evokes a treaty for
which they do not want to carry full responsibility. The sanctions put down in
the first and second protocols107 are those that the United States did not sign
or ratify. An effective weapon against cultural property crime in the context
of conflict is individual prosecution of those responsible under international
criminal law, especially by the icc in the Hague. This organization should put
its money where its mouth is and start with gaining evidence to start cases
for cultural crimes like those committed in Mali. This should include hiring
experts on the subject.
Still, the Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict of 1954 and its two protocols should be used in stra-
tegic communication and cultural diplomacy albeit only by the parties who
fully endorse them. It should be noted, though, that if demonstrable success
implementing the convention should be the condition for its use, not many
states or parties would qualify. Therefore, promoting cpp for diplomatic or
even economic reasons is a valid and potentially beneficial idea but should be
addressed cautiously.
As established, a vital aspect of international cooperation would be to cre-
ate a military or militarized cultural emergency assessment capability which
at the very least is able to monitor and mitigate cultural destruction during
conflicts. nato or the United Nations can serve as an institutional umbrella for
such a capability. In addition, a civilian counterpart capability should be cre-
ated to take over from the military team as soon as situations permit. The latter
should also contain an academic chair on the subject to help researchers and

105 See <http://articles.chicagotribune.com/20120607/news/ct-perspec-0607-artifacts-2012


0607_1_hiram-bingham-iii-artifacts-collateral-damage> (accessed 15 June 2012).
106 In March 13, 2009.
107 1954 and 1999 respectively.
204 Kila

students obtain academic degrees while continuing with research. Last but not
least, such an institution should be instrumental and coordinating in issues
like cultural no-strike lists. It would be highly desirable that the creation of
such entities will not be restrained by political motives, competence struggles,
and bureaucracy.

References

Akinsja, K. and G. Kozlov (1996). Operatie Kunstroof. De lotgevallen van het goud van
Troje, de Koenigscollectie en andere Russische oorlogsbuit. Amsterdam.
Allsop, Laura (2001). Looting of Libyan Treasure Highlights Illicit Antiquities Trade.
cnn.com, http://edition.cnn.com/2011/11/11/world/europe/looted-treasure-libya/index
.html (accessed 17 February 2014).
Arndt 2005. Arndt, Richard T. Cultural Diplomacy: The First Resort of Kings, American
Cultural Diplomacy in the Twentieth Century. Dulles, va.
Bailey, Martin (2011). Interpol Confirms Libyan Treasure Was Looted. The Art
Newspaper 229 (November), http://www.theartnewspaper.com/articles/Interpol-
confirms-Libyan-treasure-was-looted/24900 (accesssed 17 February 2014).
Bevan, Robert, The Destruction of Memory, Architecture at War, London 2006.
Elkin, Mike (2012). The Libyan Job: Insiders used War to Steal Priceless Artifacts.
Wired (16 March), http://www.wired.com/dangerroom/2012/03/libyan-job/ (accessed
7 February 2014).
Emberling, Geoff and Katharyn Hanson (eds.) (2008). Catastrophe! The Looting and
Destruction of Iraqs Past. Chicago.
Freedberg, David (1989). The Power of Images in the History and Theory of Response.
Chicago.
Gamboni, Dario (2007). The Destruction of Art. Iconoclasm and Vandalism since the
French Revolution. London.
Gillman, D. (2010). The Idea of Cultural Heritage (revised edition). Cambridge.
Gunn, Simon (2006). History and Cultural Theory. Harlow.
Kila, Joris (2012). Heritage under Siege: Military implementation of the 1954 Convention
for the Protection of Cultural Property. Leiden.
Mac Ginty, Roger (2004). Looting in the Context of Violent Conflict. Third World
Quarterly 25: 857870.
Meo, Nick (2011). Treasure of Benghazi Bank Vault Raided. The Telegraph 20 (October),
http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/
8858415/Treasure-of-Benghazi-bankvault-raided.html (accessed 17 February 2014).
Morgan, David (2005). The Sacred Gaze: Religious Visual Culture in Theory and Practice.
Berkeley.
From Crimes against Art to Crimes against Cultural Property 205

Nora, Pierre (19841992). Les lieux de memoire (7 vols.) Bibliotheque illustre des his-
toires. Paris: Gallimard.
(19961998). Realms of Memory. New York.
Olbrys, M. (2007). Archaeologists on Duty in Iraq: Polish Approach to the Protection
and Salvage of Archaeological Heritage in Central South Iraq (November 2003
April 2005), in Conservation and Management of Archaeological Sites (cmas) vol. 8,
88108.
OKeefe, Patrick J. (1997). Trade in Antiquities. unesco. Paris.
Somers, Susan (2010). Investigation and Prosecution of Crimes against Cultural
Property. In L. Lijnzaad and N. van Woudenberg (eds.), Protecting Cultural Property
in Armed Conflict: An Insight into the 1999 Second Protocol to the 1954 Hague
Convention for the Protection of Cultural Property in the Event of Armed Conflict.
Leiden.
Tumarkin, Maria (2005). Traumascapes: The Power and Fate of Places Transformed by
Tragedy. Melbourne.
CHAPTER 11

Illicit Traffic in Antiquities: Some Canadian


Experiences

John M. Fossey

In February 1996 I received an invitation from the Investigations Service of


what was then officially known as Canada Customs (part of Revenue Canada)
but has now been renamed Canada Border Services Agency. Thus began my
association with law enforcement in the control of questionable movement
of cultural goodsmore specifically, the trade in antiquities from the ancient
Mediterranean worldan association that was to continue until my retire-
ment in late 2009. This paper is intended to outline some of the experiences
gained in that decade-and-a-half and to point out some conclusions that might
be drawn therefrom.
That original invitation concerned offering expertise in the matter of a large
group of Palaeochristian floor mosaics that I was able to show had been ille-
gally removed from a site or sites in northwest Syria and shipped to Canada,
specifically to Montral, destined for the then-lucrative market for such mate-
rial in the us. Indeed, in those days, Montral was a plaque tournante for trade
in cultural goods destined for North America.

The Canadian Position

As we know, the end of the general assembly of unesco on 14 November 1970


saw the appearance of the convention concerning measures to be taken to pro-
hibit and impede the illicit import, export, and transfer of ownership of cultural
goods; this came into effect on 24 April 1972 after receiving the signature of a
third participating state. Already in 1971 the Canadian Society for Archaeology
Abroad had made representation to the then minister for foreign affairs of
Canada in order to persuade the federal government to become a signatory
to the convention. As a result the original version of the Cultural Property
Import and Export Act of Canada that was proclaimed on 6 September 19771
was drawn up between 1974 and 1976. With its own legislation thus in order,

1 Gazette du Canada Partie ii, vol. iii, no. 16, si/tr/77151.

koninklijke brill nv, leiden, 5|doi .63/9789004280540_012


Illicit Traffic in Antiquities 207

Canada was able to formally accept the unesco convention on 28 March 1978,
and it thus came into effect in our country on 28 June of that year. The act
was revised a few years later, and it is the resultant version of 1985 that is still
in effect.2 Canada was thus some five years in advance of our neighbour the
United States, which only passed its enabling act on 12 January 1983, bringing
the convention into effect in that country on 2 December 1983.3
Unfortunately Canada did not follow the United States in their subsequent
elaboration of bilateral agreements with some countries of Latin America4
or the more generic law covering some broad categories of Pre-Columbian
artifacts,5 now extended by several bilateral agreements with European coun-
tries such as Greece, Cyprus, Italy, and Bulgaria along with with Asian coun-
tries like Azerbaijan, Irak, and China. Nor did they follow the United States
and Australia in participating with many other European, Asian, and Latin
American countries in adherence to the much stronger unidroit convention
on stolen or illegally exported cultural objects, a convention open for signa-
ture on 24 June 1995.6 In fact, Canadian interest in the whole problem was
strong under the Liberal government of the 1970s, but seems largely to have
evaporated since that period. Material continued to arrive in Canada, espe-
cially Montral, and the Investigation Service of Customs tried to handle what
it could, but the traffic through the citys large international port is of such
dimensions that in the early years of this millennium it was estimated that
less than one in every eighty containers could be properly examined. The situ-
ation was compounded by the quantities of material arriving by international
mail and by air-freight. In short, inadequate funding and insufficient personnel
rendered the task overwhelming, a common excuse for governmental inaction.
Nonetheless, several successes were achieved by investigators, and for
a brief while there were officers specializing in questions of cultural prop-
erty. Unfortunately the tragic events of 9/11/01 led to an almost paranoid

2 Cultural Property Import and Export Act, Canada: Consolidated Statutes of Canada,
[R.S. 1985. C. C-51], with revisions to section 43.
3 Partial Text of Public Law 97446 [H.R. 4566], 96 Stat. 2329, approved January 12, 1983; as
amended by Public Law 100204 [H.R. 1777], Stat. 1331, approved December 22, 1987.
4 With Mexico in 1971 (even before elaboration of the unesco convention) and again with
Peru in 1981 (before us ratification of the unesco convention), then with Guatemala in 1997;
with Nicaragua in 2000, with Honduras in 2004, and with Columbia in 2006. For a complete
list, see http://eca.state.gov/cultural-heritage-center/cultural-property-protection/bilateral-
agreements (accessed 25 January 2014).
5 p l92-581 Title ii, Regulation of Importation of Pre-Columbian Monumental or Architectural
Sculpture or Murals.
6 www.unidroit.org (accesssed 12 January 2014).
208 fossey

reoccupation in the United States with the control of immigration. Canada


p
was increasingly drawn into this American preoccupation by pressure from
our neighbour. In this context Canada Customs was merged with Canadian
Immigration Service in December 2003 to create a new force named the
Canadian Border Services Agency, and, as a result, customs officers became
increasingly involved in immigration matters rather than such questions
as protection of cultural goods. Shortage of funding and lack of trained and
experienced personnel played an increasing role in further reducing the effec-
tiveness of our agents in observing Canadas obligations under the unesco
convention.
A further problem arises from the fact that, while Canada Customs is the
authority to examine material upon arrival in Canada, unless there has been
specifically an infringement of Canadas customs law, any other cultural mate-
rial seen must be referred to the Department of Canadian Heritage and its
Movable Cultural Property Program. The program is the secretariat to the
Canadian Cultural Property Export Review Board. The very title of this last
body is significant; it shows that its primary function is the protection of
Canadian heritage and control of the exportation of Canadian cultural mate-
rial rather than the protection of the cultural resources of other countries and
control of their importation to Canada. In fact the very titles of the depart-
ment and its review board imply a conflict of interest since that body comes to
consider cultural goods arriving from abroad that might be thought to enrich
Canadian heritage. It is noticeable that the law does not provide for a separate
review board with its own funding and specialized staff to examine cases of
importation.

The Montral Mosaics Project

This project, the subject of the initial request for my expertise, fell in the years
when our customs agents and investigators had fair success in intercepting
some important shipments of Old World antiquities. Although the request
came to me in February 1996, the story began some five years earlier. In the
winter of 1990/1991 a container holding fifty-four portions of Palaeochristian
floor mosaics had been held by customs in the Port of Montral, but they
were released shortly afterwards by the short-sighted decision by a civil ser-
vice bureaucrat in Ottawa who simply accepted the claim of the importer that
the bill of lading showed that the objects had been transported from Lebanon.
This was a facile decision for Lebanon was not at that time a signatory to the
unesco convention and so was a legitimate country of exportation. The officer
Illicit Traffic in Antiquities 209

who made the decision plainly was not reliably informed by specialist knowl-
edge and just released the material to get the file off his desk. While in the port,
however, the mosaics had been photographed with a polaroid camera by one
of the customs agents who was attracted by their unusual nature and beauty.
Those polaroid photographs were to play an important role a few years later;
when a second container with thirty-two similar pieces was definitively seized
by Canada Customs, again at the Port of Montral, and I was called in to give an
assessment of them, I was also shown the 1990/1991 photographs and realized
without hesitation that the material was related to the 1996 lot. We thought, of
course, that the first group was probably lost to the antiquities market, but an
investigator of the customs service had kept the file open and, in 1998, as the
result of a tip-off, thirty-nine of the original fifty-four 1990/1991 pieces were
finally seized, still in Montral. A further five were, at the same time, inter-
cepted by our us colleagues at the border. This meant that, of the original fifty-
four, we now held again forty-four. Of the missing ten we had, of course, the
Polaroid photographs. We also found that one of them had indeed escaped
the net and had safely crossed the border to the United States where it was
sold in an auction at Sothebys, New York; the other nine have probably disap-
peared into private collections in the United States or elsewhere.
In 1996 I was asked to write an evaluation of the thirty-two pieces, and
I was able by stylistic and epigraphic analysis to establish that the pieces had
all come from North West Syria, probably near Hama and the massif calcaire.
My conclusions were endorsed by assessments made by several colleagues
who are active in the field of Late Antiquity in the East Mediterranean. The
Civil Arbitration accepted my report and awarded ownership of the thirty-
two pieces to the Syrian-Arab Republic to which they were repatriated late in
the summer of 1996. When the 1990/1991 material was seized in the summer
of 1998, I was again asked to produce an expert report on both lots together
since a) it was obvious that there might be connections between them and
b) because my 1996 report, although accepted by the arbitration process, had
been brief by necessity. Now I was to produce a full assessment of the two
lots, covering their date, place of origin, and historical and artistic significance.
Since on this second occasion I had the good part of a year with two assistants
to study the material and write the report, the result was a 200-page evalua-
tion of all eighty-six pieces comprising the two lots, including the missing ten
pieces on the basis of the Polaroid photographs. Again the Civil Arbitration
accepted my report and awarded ownership to the Syrian-Arab Republic but,
unlike the situation in 1996 when the importer also accepted the arbitration
decision and relinquished any claim to the mosaic pieces, the importer of the
1990/1991 lot continued for some while to contest the decision. As a result many
210 fossey

of the pieces were again repatriated to Syria but, at the same time, Syrian diplo-
matic authorities in Canada retained eleven pieces in case they should become
necessary as evidence in any criminal proceedings that might result from
the importers position. In the end the case was settled out of court; the
remaining pieces could be repatriated, but the same Syrian diplomatic officers
arranged with their government that I might choose up to three pieces to stay
on long-term loan to the Montral Museum of Fine Arts in recognition of the
work done by Canada Customs and my team in Montral to preserve these
valuable examples of Syrian cultural heritage. In the end I selected two pieces
that make up a complete floor mosaic (Pl. 11.1) and they were installed in the
new galleries of Mediterranean Archaeology that we opened at the museum in
February 2004.
In one sense the end of the story should come with the publication of the
full account of these mosaics currently being prepared by my colleague George
Kellaris and me. At the same time, this is not the end of the story. In late 2004
we were able to visit Syria and view the material on which we had worked for
so many months. What we saw was not entirely encouraging. The mosaics that
were returned in 1999 were entrusted to a new mosaic museum at Maaret al-
Numan where they were carefully mounted on the walls of the old caravanserai
that had been converted into the museum, but the pieces that were repatriated
in 1996 had gone to the recently created museum at Hama. There two different
fates had met them. On the one hand, several groups of pieces that could be
reassembled to form whole floors had been joined up in the museums garden
under ineffectual thatched roofs near a busy road intersection; these included
the floors of the narthex (Pl. 11.2), the western nave of a fifth-century ad church
(Pl. 11.3), a large floor with an octagonal pattern centring on the representa-
tion of a zebu (Pl. 11.4), and another complex floor with an animal carpet so
organized as to be viewable from any one of its four sides (Pl. 11.5). As a result
of their placement, they were so covered in dust that they were indistinct for
us who knew them well, and they could not be adequately photographed due
the dust and the low roofs. The remainder had received worse treatment in
that they had simply been piled one atop another (to some extent still in the
same packaging in which they had left Canada). Larger pieces were piled on
top of smaller so that they were bending towards the edges under their own
weight; we were not at all sure how long they could survive (Pl. 11.6). The last
lot that had been repatriatedin 2003, when they were no longer needed as
court evidencehad also been entrusted to the Hama museum, but these had
at least been unpacked and were placed in the largely empty display rooms of
the museum. Although they were clean and could be properly viewed, many of
Illicit Traffic in Antiquities 211

them were leaning at an angle against the walls with much of their bulk unsup-
ported and thus subject to buckling.
This was the sad fate of cultural objects of beauty carefully saved and
returned by Canada to their country of origin. The country of origin showed
itself little concerned with the preservation of those pieces not lucky enough
to go to Maaret. The ultimate fate of the mosaics was not the only discouraging
aspect of the projectt. While the Syrian diplomatic personnel at the Consulate
General in Montral and at the Embassy in Ottawa all helped wherever pos-
sible, there was little collaboration from the Syrian archaeological authorities.
So little was the interest in the country of origin that the first, 1996-repatriated
lot was packed and shipped at Canadian expense. During the second phase
of the project over the winter of 1998/1999, we requested from the Syrian
Antiquities Service good topographic maps in order better to understand the
terrain around Hama and the adjacent massif calcaire where so many sites
of the palaeochristian period that provided comparanda for our work are
located; the only result was the receipt of a simple outline map of main roads
with absolutely no topography. What is more, this map had been sent by fax
and was accordingly rather blurred. Fortunately the map library in the McGill
University Department of Geography had a series of the old staff maps that
were able to serve our purpose.
At no point did the Syrian Antiquities authorities show any concern with
what we were doing. At least, however, the last two lots to be repatriated were
packed and shipped at Syrian expense. Amid this general indifference it is a
pleasure to recall the concern and support provided by the Syrian diplomats;
it was they who negotiated with their home government the possibility of the
long-term loan of the two pieces previously mentioned. If it were not for them,
our entire impression of Syrian concern for its cultural heritage would be some-
what depressing, especially when compared with the reactions from other East
Mediterranean countries such as Israel and Cyprus when we appeared to be
dealing with material that might have derived illegally from their territories.

Some Reflections

The overall reaction to the situation is that, if countries of origin want coun-
tries of arrival to work for the preservation of their cultural, material they must
be prepared to be fully supportive of such efforts.
It is obvious that the material must be dealt with according to the legal pro-
cedures of the country of arrival in order to establish the origin and authenticity
212 fossey

of the material and this absolutely must be carried out by independent experts
to avoid any questions of conflict of interest. It thus cannot be undertaken
by specialists from the possible country of origin. At the same time, there is
no reason why the country of origin cannot contribute, retroactively at least,
to the costs of such expertise once the need for any continuing need of inde-
pendent witness has passed. It is, moreover, the country of origin which must
defray all cost of packing and shipping for the repatriation of the material once
officially handed over to its diplomatic representatives.7 One would hope that
there would also be a moral onus on the country of origin to accord proper pro-
fessional treatment to the material once it arrives home, but no international
instrument can coerce a country in the ways to protect and handle its own
cultural heritage. Even such documents as the Code of Ethics developed by the
international museums council cannot be coercive, but is merely a statement
of agreed standards, adherence to which is far from uniform.
All of this recalls the statements made in the early years of the unesco con-
vention by museum personnel (especially in the United States during debates
at meetings of the Archaeological Institute of America) to the effect that it was
the duty of the countries of origin to protect their heritage against theft and
illegal removal and nobody else had any related responsibility. This attitude
plainly came from biased interest in maintaining the sourcesalbeit illegal
of enrichment of museum collections and can no longer be seriously defended,
but, at the same time, the sort of disregard for cultural material shown in the
case of the Syrian mosaics does little to encourage efforts by authorities in
countries of arrival.
A further observation came out of this case. In the case of the 1990/1991 lot
where the arbitration was contested for some while by the importer, part of
the justification for importation was that the mosaics came from Lebanon. It is
indeed very likely that they had been exported from Syria by way of Lebanon,
but the reason for the importer to claim that they actually came from that
country was that, at that stage, Lebanon was not yet a signatory to the unesco
convention and thus material could legitimately be imported from there.
Our examination, however, made it quite clear that the pieces originated in a
particular area of Syria and not the Lebanon. It was amusing to note that the
piece that slipped through the net and was sold at Sothebys in New York was
described as Syrian in the auction catalogue; obviously the importer did not
send the claim of Lebanese origin of the small panel down the line!

7 See unidroit Convention, Article 6, section 4 (4) The cost of returning the cultural object
in accordance with this article shall be borne by the requesting State, without prejudice to
the right of that State to recover costs from any other person.
Illicit Traffic in Antiquities 213

This case has other sides to it. As stated, some of the repatriated material
went to the mosaic museum at Maaret and some to the museum at Hama. In
the subsequent civil war, Hama has been extensively bombed by government
forces, while the old caravanserai at Maaret has become an armed base of
insurgent groups.8 Who knows what the state of our material is now? Much of
it may have been extensively damaged, destroyed, or even relooted as appears
to be happening widely in the context of the war.9 We are often tempted to
ask why we made such effort to save the mosaics when they may now have
been subjected to all sorts of ill treatment. Such speculation is, of course, use-
less but it reflects our bitterness at the result of our work. Ironically, the only
pieces whose survival is guaranteed are the two parts of the panel lent by the
Syrian government to the Montral Musem. We may also hope for the few that
slipped through the net between 1991 and 1998 and were presumably sold on
the market.

The Coins Case

In the mosaics case the Canadian authorities behaved in an exemplary manner,


but this has not always been the case. I was called in on another case involv-
ing large quantities of small metal objects, mostly coins, and was able to prove
that these originated in Bulgaria. In fact this was only the tip of the iceberg,
for while I was examining the lot for which I had been called, I was also shown
by customs officers other lots of similar material for which I submitted a pro
bono verbal report. The amount of related material continued to accumulate,
and I was asked to submit a tender for a full examination of what had acquired
enormous proportions. Accordingly I put together a team with three other
colleagues since my experience with the two initial lots had shown that the
amount of material now in question was far too much to be handled properly
by just one or two people. Only after our submission had been reviewed were
we informed that it was much too expensive, and the contract was awarded

8 
See http://www.aawsat.net/2012/10/article55240201 (18 October 2012; accessed 18 June
2013);http://blogs.sacbee.com/phoyos/2013/03/syrians-find-makeshift-homes-l.html
(accessed 18th June 2013)
9 
http://archaeolaw.com/2013/07/31/shocking-pics-of-looting-in-syria/ (accessed 25th January
2014);http://archaeolaw.com/2013/03/12/civil-war-causes-irreprable-damage-to-syrian-
treasures/ (accessed 25th January 2014); archaeolaw.com/2013/02/20/some-days-we-are-fighters-
others-we-are-archaeologists/ (accessed 25th January 2014); http://archaeolaw.com/2013/02/14/
syrian-artefacts-seized/ (accessed 25th January 2014).
214 fossey

to someone on a temporary appointment at another Canadian museum. The


sum awarded was ludicrous for the quantity of work that would have had to
be done, and rumor has it that, in the end, the recipient of the award took the
money and disappeared. We hope, of course, that this is not the case.
It had been very clear from my earlier work on the smaller lots that we
were faced with a whole organization or network involving people in the
country of origin and immigrants from that country to Canada. Even names
and addresses of those at the Canadian end were clearly available since the
material had come through the regular postal service. It was further obvious
that much of the material must have been collected by use of metal-detectors.
Canada was, thus, in a position to help the country of origin clamp down on
this activity and the resultant trade. Eventually, it appears that the material
seized by Canadian Customs was estimated to have a value of at least one mil-
lion Canadian dollars and was repatriated by diplomatic mail as noted on the
Archaeolaw blog.10 Another blog post attests a seizure of antiquities crossing
the border out of Bulgaria at Lesovo,11 and one commentator concluded that
this indicated that the Bulgarian authorities were capable of protecting their
heritage, a comment that ignores the very reality of customs worldwide being
understaffed and the ease with which material can be sent through the post,
often unchecked, because of the simple daily volume involved at post offices
around the world.
For the record it may be added that, while coins, in themselves, are most
difficult to deal with in this way since they circulated widely in antiquity, espe-
cially in such contexts as the Roman and Ottoman Empires, in this particu-
lar case certain of the coins are essentially of such limited distribution that
they are only found in one area of Europe, Bulgaria, whose newspapers had
been used to pack the material; the postal senders return addresses were also
Bulgarian.
This contrasted with a case we previously handled concerning a collection
of Islamic (sc. Ottoman) coins. The group had been imported together and

10 For the coins, see Bulgarian Repatriation Like an Action Film says Culture Minister,
Archaeolaw (22 June 2011; accessed 25 January 2014). It is there pointed out correctly that
the large number of coins did not constitute a hoard as had previously been said, but
rather an accumulation of material recovered by metal detector vel sim. It is amusing to
note that our part in this is ignored! What is also ignored is the nature of the report that
must have eventually been produced for judicial purposes in Canada.
11 For coins, cultural property, Eastern Europe, and Trafficking, Ancient Roman and
Byzanrine Coin Hoard Seized in Lesovo, Archaeology Law (31 August 2012; accessed
25 January 2014).
Illicit Traffic in Antiquities 215

were not properly declared to Customs at entry into Canada, so full examina-
tion was necessary. Our specialist in Ottoman coinage was able to identify each
coin and to show that pieces in the group had been minted all over the Empire;
it was thus impossible to say whence they came as a group or whether they
even constituted a real group. In short, there was no possibility of establishing
a paper-trail for the coins and certainly no way of repatriating them: to which
of the half dozen contemporary countries that contained various of the places
of minting would we return them? In general this is why coins are often actu-
ally or tacitly ignored in considerations of illegal traffic. The Bulgarian case just
mentioned was an exceptional one: the coins were tied to a particular area of
origin, so the other small metal (largely bronze) objects in the lots we exam-
ined those in the larger groups, the exact treatment of which is unclear, could
be assigned to that country as well.

Further Thoughts

The Bulgarian coin case might have been lost because of insufficient funding
and Canada might have failed in its duty as a signatory of the unesco con-
vention, but this whole commerce has not escaped entirely we may be sure
that it even continues. Countries that sign the convention have to be prepared
to observe their obligations even when it costs a considerable sum of money.
Police work is not carried out free of charge, and experts have to be paid for
their time. This again underlines the need for countries of origin to be obliged
to contribute to the costs of investigation as well as covering all the expenses
of repatriation. If they are not prepared to pull their weight in this way, they
cannot expect countries of arrival to do everything for them and should be
prepared to forgo all claim to the seized material which should then accrue to
the enrichment of museum and teaching collections in the country of arrival.
At the same time, the country of arrival should not be allowed to dispose of
such material in any other way and should definitely not to let it disappear into
the market. Thus the true identity of the material and the information that can
be gleaned from it would be preserved in a consistent manner. Otherwise there
will always be dealers (and even auction houses) that are not entirely consci-
entious about provenience for material in which they deal.
In conclusion, it should be said that a lot of the incentive to the illicit trade
in antiquities would be nullified if countries of origin would take action not
just to ensure better protection for their cultural resources at home, but also
to share something of their superfluous riches with others. It appears that this
is the case with Cyprus, which has a state-controlled market for antiquities
216 fossey

with export permits. The weakness of this system is that such goods can be
purchased by individual collectors and thus lost to the broader public and aca-
demic community. If countries of origin would institute a system of legitimate
sale to and export from foreign museums and similar institutions of teaching
and research, providing the latter had incontrovertible statutes of nonalien-
ation, not only would the cultural wealth of humanity be more widely appre-
ciated, but the overcrowded reserves of museums small and large in original
countries would be relieved of space, and all such material would be prop-
erly recorded and its location clearly known. At the moment, as anyone who
has worked in various Mediterranean museums will know, chaos and lack of
control predominate. It does not encourage others to respect cultural heritage
when a country of origin does not respect its own material. Why accumulate
row after row of similar object in storerooms when they are never going to
be seen by other than the odd specialist visitor? Properly documented and
protected by non-alienation agreements, this material can enrich the lives
of people abroad and thus act as ambassadors for the cultural heritage of the
countries from which it derives, and thus remain in the public record for spe-
cialist. Such a change would, of course, require some loosening of thoughtless
nationalistic feelings!
Whatever moves are made, they should have as a common aim to avoid all
cultural goods falling into the hands of private collectors; the latter are the
greatest threat (together with a few unscrupulous museums) to the proper pro-
tection of human heritage.
On Sunday 2nd March 2014 my friend Ral Thibault died at the age of only 47.
That occurred exactly the weekend when I was putting final touches to the images
for this paper. When I learned of his passing a few days later, I felt it would be only
too appropriate to dedicate this paper to his memory since he was the investigator
at Canada Customs who first called me in February 1996 to ask me to investigate
the mosaics. It was he who first involved me in cultural property protection and
started me on the work described in this paper.
Illicit Traffic in Antiquities 217

Plate 11.1 Two parts of a mosaic floor reassembled and mounted together in the Montral
Museum of Fine Arts. Photo: John M. Fossey.

Plate 11.2 The floor of a churchs Western nave. Photo: George Kellaris.
218 fossey

Plate 11.3 The floor of a churchs narthex. Photo: George Kellaris.

Plate 11.4 Mosaic with zebu in octagonal frame. Photo George Kellaris.
Illicit Traffic in Antiquities 219

Plate 11.5 Mosaic with complex of animals. Photo George Kellaris.


220 fossey

Plate 11.6 Mosaics piled in basement of Hama museum. Photo George Kellaris.
CHAPTER 12

The Gurlitt Case: German and International


Responses to Ownership Rights in Looting Cases

Duncan Chappell and Saskia Hufnagel

1 Introduction: Art Plunder and Its Aftermath

For the law among all people is eternal, that when a city is captured by ene-
mies, both the bodies of those in the city and their goods belong to those who
capture it (Miles: 2008 at 13 citing Xenophon).
The plunder of art has a long if less than venerable history, as Miles reminds
us in her scholarly account of the subject. From Greek and Roman times, as
the quotation above indicates, victorious conquerors enjoyed the right to seize
their defeated foes together with their goods and chattel including works of art
of all sorts. However, this permissive attitude, while surviving for at least two
millennia, has not proved to be eternal. At the conclusion of the Napoleonic
Wars, the victorious British military leader, the Duke of Wellington, not only
took the unprecedented step of ordering the return of art looted systemati-
cally by the French from the countries they had conquered but also refrained
from sacking the remaining art treasures which lay in the Louvre Museum and
elsewhere in France (see in general Miles: 2008 at 319348).
This magnanimous act by Wellington near the beginning of the nineteenth
century marks the general commencement of a new era of forbearance regard-
ing the retention of art and other cultural heritage by defeated powers, and the
repatriation of any such property acquired as a result of conflict to their estab-
lished owners. Unfortunately this forbearance was not necessarily agreeable to
everyone at that time or since, and the plunder of art during periods of conflict
has continued until the present day despite the best efforts of the international
community to establish universal norms regarding the protection of cultural
heritage. Nowhere has this been more graphically illustrated than in the era
leading up to and including World War ii, when the Nazi regime in Germany
engaged in what was without doubt the most egregious and widespread loot-
ing of art in human history.
The nature and extent of this looting has been very well-documented else-
where (see, for example, Nicholas: 1994), as have the efforts made since the
defeat of Germany in 1945 to repatriate this art to its rightful owners, many of

koninklijke brill nv, leiden, 5|doi .63/9789004280540_013


222 chappell and hufnagel

whom were Jewish and among the millions who perished in the Holocaust.
This repatriation has continued into the twenty-first century as the heirs of
those whose property was forcefully acquired by the Nazis have sought to
establish their legal claims to specific works in public and private collections
across the globe. Even so, the great majority of legal claims have tended to take
place before European and North American courts, where the most substantial
and rich art collections and collectors tend to be found.
Most of the contemporary efforts at repatriation have taken place without
great fanfare or publicity beyond those intimately and immediately involved.
However, three recent but quite unrelated incidents have quite swiftly placed
the whole issue of the repatriation of Nazi looted art squarely on the agenda of
a number of nations and the worlds media.
First and foremost, authorities in Bavaria announced in November 2013
that they had discovered and seized a collection of more than 1500 works of
art believed to have been confiscated by the Nazis in the 1930s and 1940s. The
collection included works by such renowned artists as Matisse, Picasso, and
Chagall and was said to be valued at $1.35 billion. Some of the works were
thought to be among those declared degenerate by the Nazis while others
were stolen from or forcibly sold by Jewish art collectors. The collection had
been found in the possession of a reclusive and elderly man, Cornelius Gurlitt,
who was suspected of tax evasion (bbc: 2013).
Following this announcement, massive media attention was given to the
discovery which, if the paintings were proved to be genuine, amounted to
one of the largest troves of Nazi looted art unearthed since World War ii. This
attention was magnified by the release (the second incident), early in 2014,
of a new American and German film titled The Monuments Men and directed
by and starring, among others, the us actor George Clooney. The film, which
was heavily publicized and screened in many countries, was based loosely on
a popular book (Edsel: 2009) describing the work of the men and women from
thirteen nations who served between 1943 and 1951 in the Monuments, Fine
Arts, and Archives (mfaa) section of the Allied forces in Europe. Their initial
remit was to mitigate combat damage, primarily to buildings of cultural sig-
nificance, but as the war progressed, their focus shifted to locating and pro-
tecting art and other cultural heritage items stolen or otherwise missing. At
the conclusion of the war the mfaa spearheaded the huge restitution process
for the art and allied works they had discovered (see in general Nicholas: 1994;
Edsel: 2009).
The third incident was the timely opening in March 2014 at the Neue Galerie
in New York City of an exhibition titled Degenerate Art: The Attack on Modern
Art in Nazi Germany, 1937 (Peters: 2014). The Neue Galerie show, which had
The Gurlitt Case 223

been in development for a quite lengthy period, was the most extensive exhi-
bition on this subject to take place in the us in several decades. In a foreword
to the fulsome catalogue published for the exhibition, the Neue Galerie
Director, Renee Price, acknowledged the associated Gurlitt discovery in the
following terms:

Recent events involving the Gurlitt case the discovery in Munich of a


trove of artworks confiscated during World War ii have made headlines
around the world. This story of how the Nazis tried both to demonize
modern art and to profit from it continues to be a lingering source of fas-
cination and disgust. Many questions remain, including how many miss-
ing works might still be recovered, as well as what their ultimate fate will
be (Degenerate Art: 2014, 10).

In this chapter we are concerned primarily with the first of these incidents, the
Gurlitt case, and what the ultimate fate is likely to be for the works of art that
have been discovered. But we believe that it is essential to first understand the
broader historical and associated context in which this discovery took place
before turning now to consider the international actions and principles which
have been established to guide the repatriation process for identified Nazi-era
art. We then proceed to examine in much greater length the German response
and legal provisions applying to this case, and to some possible conclusions
that may be drawn from our analysis.

2 International Actions and Principles

There is no doubt that the Gurlitt case has opened up many questions about
why both Allied forces and the mfaa, as well as German authorities, have
seemingly done so little, or been so ineffective, in finding art works stolen
by the Nazis. It seems that Cornelius Gurlitt acquired his long-hidden collec-
tion from his father, Hildebrand Gurlitt, who died in a car accident in 1956.
Recent investigative reporting by the German magazine Der Spiegel appears
to establish that Hildebrand, even though he had some Jewish ancestral con-
nections, had deep Nazi ties and was an associate of Karl Haberstock (Bohr
et al.: 2013). Haberstock was Hitlers private art collector and for years engaged
in the ruthless seizure of art treasures from occupied countries as well as Italy
and Switzerland. After the conclusion of World War ii, Hildebrand Gurlitt was
questioned at length by mfaa officers about his association with Haberstock
and his dealings with looted art. He was placed under house arrest, but he
224 chappell and hufnagel

was eventually released without any convictions, and the art he possessed,
which had been seized, was returned to him in 1950. Hildebrand Gurlitt, like
Haberstock, who was also exonerated of any criminal charges, then resumed
work as an art dealer in postwar West Germany.
Cornelius Gurlitt, following the seizure of his collection and the revelation
of its existence, initially insisted that all of the works were his and petitioned
for their return. Later, in April 2014, Gurlitt entered into an agreement with
the Bavarian authorities that more than 1200 of the paintings that might have
been illicitly obtained could be evaluated by a specially established taskforce
of fifteen experts within a period of one year. He also pledged to return all
works of dubious provenance to their rightful owners in return for keeping the
balance of his collection. On 6 May 2014 Cornelius Gurlitt died. His will left
all of his collection to the Kunstmuseum Bern in Switzerland (see in general
Chase: 2014).
The Kunstmuseum in Bern has indicated that before it accepts any of these
works it will conduct a full review of their provenance to ensure that they
acquire no looted items. In conducting this review, the museum will no doubt
pay attention to the so called Washington Principles. These Principles were
established by forty-eight nations, including Germany, who attended a meet-
ing on Holocaust Era Assets convened in Washington dc in 1998. The meeting
had been preceded by expressions of international concern that many of the
thousands of works of art stolen by the Nazis had still not been restored to
their original owners following the cessation of hostilities in 1945.
Washington participants agreed on a set of non-binding principles to assist
in resolving disputes over Nazi-era art (Washington Conference on Holocaust
Era Assets: 1998). These principles emphasized among other things the need
for nations to develop alternative dispute resolution processes to resolve own-
ership issues wherever possible; to provide resources and personnel to facili-
tate the identification of all art that had been confiscated by the Nazis and not
subsequently returned; to establish a central registry of such information; to
make every effort to publicize art that was found to have been confiscated by
the Nazis and not subsequently restituted in order to locate its true owners;
and to take expeditious steps to achieve fair and just solutions for the claims
made by prewar owners of confiscated art.
In addition to the Washington Principles, two leading organizations of
museums in the United States, the American Alliance of Museums (aam)
and the Association of Art Museum Directors (aamd), also developed sets
of guidelines for their members that were far more specific and directive in
their scope and content. Both sets of guidelines emphasized the need for
museums to use mediation wherever possible to resolve claims, and to offer
The Gurlitt Case 225

to resolve the matter in an equitable, appropriate, and mutually agreeable


manner (aamd: 1998 at para D3). The aam guidelines went further than this,
acknowledging that in order to achieve an equitable and appropriate resolu-
tion of claims, museums may elect to waive certain available defenses (aam:
1998 at para 4[f]). This latter exhortation appears to have attracted some con-
troversy and has not been followed with any enthusiasm by some museums.
Courts in the United States have also made it clear that these guidelines are
just thatprinciples to assist museums to act ethically and legally on a case by
case basisand do not create any legal obligations or mandatory rules (see in
general Gerstenblith: 2008 at 586592).
This interpretation of museum guidelines by the us courts reflects, of
course, the general weakness of self-regulatory and non-binding measures,
both international and national, to deal with issues like this. The Washington
Principles undoubtedly espouse noble ideals, but critics have suggested that
in reality they are ineffective paper tigers (see, for instance, Plundered Art:
2014). Indeed, there is little if any evidence to suggest that there has been any
significant increase in the identification of stolen Nazi-era art or in the settle-
ment of claims regarding contested ownership issues by means of alternative
dispute resolution since the 1998 establishment of the Washington Principles
by international fiat. In the Gurlitt case there were some early and encouraging
signs that alternative dispute resolution methods were preferred to court liti-
gation, but with Gurlitts untimely death and the surprise bequeathing of his
art works to a Swiss museum it seems very likely that German law and lawyers
will be very much involved in resolving disputed issues. It is to German law and
its ramifications that we now turn.

3 German Responses

The following assessment of the German legal situation in relation to the


Gurlitt case will not consider specific provisions on German restitution law in
cases of Nazi injustices. These are regulated in special public/administrative
laws as it has been determined by German Courts in the 1950s that civil law
claims between private parties were inadequate to compensate in these cases
of widespread and categorical state injustice (Selle: 2012). However, according
to a recent German decision of the Bundesgerichtshof (highest German federal
court competent in civil cases), claims under these specific provisions cannot
be cut off by civil law statute of limitations. Rights under German restitution
law in cases of Nazi injustices would hence always persevere, even ifas in
the Gurlitt casecivil claims cannot be sustained. The Bundesgerichtshof
226 chappell and hufnagel

decision (bgh Urt. v. 16.03.2012, Az. V zr 279/10), which determined the via-
bility of special restitution rights beyond civil law, concerned claims that the
extensive poster collection of the Jewish dentist Hans Sachs, which had been
confiscated by the Nazis in 1938, should be returned from the German History
Museum in Berlin. Hans Sachs had managed to flee Germany and immigrate
to the United States during the war. After his death his heirs demanded the
return of his very valuable poster collection (or at least some of the posters)
before the German courts. The court decision is of importance for this assess-
ment of the Gurlitt case as it determines the hierarchy of claims under German
law. In particular, the decision rules that even though administrative claims
under special provisions on restitution claims in cases of Nazi injustices are
available, the heirs can resort within this to civil claims against private parties
(here the museum), which will not be precluded by the statute of limitations.
It follows that the heirs of previous owners in the Gurlitt case would likely
have had similar rights against Gurlitt before his death and will now be able to
claim these rights against Gurlitts heirs. The German law is hence not power-
less in cases of restitution for Nazi injustices. However, based only on German
civil law, there is no right to restitution. This seems to be a lacuna in German
civil law when considering art crime cases that cannot be traced back to Nazi
injustices. Whether this lack of legal protection is significant and should be
remedied will be discussed in this part of the chapter.
The present assessment will also consider German criminal and criminal
procedural rules in relation to the Gurlitt case as it could be doubted whether
the German state dealt with this matter in an appropriate manner. As in most
common law systems, German (civil law) criminal procedure requires a rea-
sonable suspicion that the suspect has committed a crime to search a home.
Furthermore, confiscated objects need to be related to the crime committed.
If someone is suspected for murder and police are searching for a knife, they
cannot confiscate a flower vase. The present part of the chapter will hence
also assess the police and prosecutor behaviour in the Gurlitt case in light of
German criminal procedure and try to find any overlaps.
To put another caveat before the assessment of German civil restitution law,
it also needs to be noted that Gurlitts actions during his lifetime indicated
that he would be willing to return the paintings under the requirements of
the Washington Principles. In April 2014, he signed an agreement to return
property with the Bavarian state and the Federal State of Germany under the
Washington Principles. It could hence be assumed that even without court
procedures, paintings proven to unjustly have changed owners during the war
would have been returned to the previous Jewish owners.
The Gurlitt Case 227

The questions considered here are therefore only whether under German
civil law Gurlitt would have had to return the paintings and whether there
was any rightful action depriving him of his property (the paintings) in the
first place.
The answer has already been given to the first question. There are no German
civil law provisions that could have forced Gurlitt to return the paintings. The
possible provisions under which such restitution could have been achieved are
very diverse. The present chapter will hence only address the most prominent
ones. First, a right to restitution under German civil law could have been justi-
fied as Gurlitt might never have become the rightful owner of the paintings.
According to 1006 i 1 bgb (German Civil Code) the assumption is that the
actual owner of an object is also the rightful owner. As Gurlitt was in posses-
sion of the paintings (they were found in his flat), it can be assumed that he
was also the rightful owner. However, he could have lost possession when the
paintings were confiscated. Through seizure of the paintings, the Bavarian state
could have assumed actual possession of the paintings, and Gurlitt could have
lost his possession and thereby his ownership. Yet under 1006 i 3 bgb, Gurlitt
would have remained in indirect possession of the paintings, and under 1006
i 2 bgb it can be assumed that indirect possession still gives rights to owner-
ship and that this right had not been transferred to the state. Gurlitt had hence
not lost ownership when the paintings were confiscated.
An exception to ownership exists under 1006 i 2 bgb if the former
owner has lost the object. In these cases the assumption of ownership of the
previous owner prevails for the duration of Gurlitts possession, and Gurlitt
never acquired ownership through possession. Another exception to Gurlitts
legal ownership could exist if the legal act under which his father acquired
possession of the paintings was void. In these cases he would have never
become the legal ownerdespite actual possessionand the original owner
(before Gurlitts father acquired the paintings 1922 bgb) would always
have remained the rightful owner.
There are various possible scenarios under which the legal act leading to
ownership of Gurlitts father (Hildebrand Gurlitt) could have been void. First,
Hildebrand Gurlitt might have acquired the paintings after the previous own-
ers were dispossessed through a German law on degenerate art (for example).
Had the previous owners been dispossessed, they would never have lost own-
ership as the dispossession laws are in conflict with legality. In this scenario,
Gurlitts father could also not have acquired ownership in good faith as this
possibility is excluded under German civil law if the objects are lost. In cases
of Nazi dispossessions (as illegal state acts) the object is legally considered to
228 chappell and hufnagel

be lost and can therefore not be acquired in good faith. Gurlitt therefore might
not have become the rightful owner of the paintings if his father acquired
them after acts of Nazi dispossession.
However, Gurlitt could still have ownership through acquisitive prescrip-
tion (adverse possession) according to 937 bgb. Under this provision of the
German civil code, an object transfers into anybodys ownership after ten years
possession. It does not matter whether the original possession was in good
faith or not. The only exception to this rulewhich has been introduced into
German civil law to create legal certainty and reliabilityis the force majeure
argument ( 939 ii iVm 206 bgb). Had the paintings been transferred into
Gurlitts possession through force majeure, adverse possession would therefore
not be possible, and the original owners would have preserved their rights.
However, this argument would unlikely be applicable if the paintings had
been sold to Gurlitts father. Acquisitive prescription after ten years can only
be excluded if Gurlitt (the son) had not been in good faith. Despite assump-
tions about Gurlitts knowledge of the paintings provenances, his bad faith
remained difficult to prove. It is hence most likely that Gurlitt would have been
considered the rightful owner of most paintings in his possession had the mat-
ter reached the German civil courts.
Gurlitt furthermore could not have acquired ownership of the paintings
if the legal act by which ownership was transferred from the original owners
to his father (e.g., by sale) had been void or could be challenged according
to 138 bgb. Under this provision of the German civil law, the act by which
ownership is transferred could have been immoral. For example, if a Jewish
family wanted to flee Germany and was forced to sell all their belongings,
buying such items from them could from todays perspective be considered
an immoral act and render the legal transaction void. However, the buyer at
the time would have to have been aware that their actions were immoral, and
this is highly unlikely as these acts were not considered illegal or immoral
at the time. However, in most of these scenarios, the fleeing families would
have sold their possession for far under market value, and the act could there-
fore be considered immoral, even for that time, because of so-called fault of
equivalence (mismatch between the price and the actual value). If the rela-
tionship between price and value is significantly out of proportion, the legal
act is considered void. If Gurlitts father had exploited the desperate situation
of Jewish families at the time by offering low prices for their artwork, Gurlitt
would not have acquired ownership of the paintings through legal transfer of
ownership by the original owners.
If the legal act transferring ownership to Gurlitts father was challenged
because of unlawful threat ( 123 i Var 2 bgb), the act may have been rendered
The Gurlitt Case 229

void for this reason as well. Had the Jewish owners sold their property to
Gurlitts father because the situation under the unjust regime threatened them
or because they were more directly threatened to sell their property by the
German government at the time, these legal acts would also have been void.
However, for these claims, the statute of limitation starts when the threat ends,
hence, with the end of World War ii (wwii). According to 124 i bgb, the legal
act needs to be challenged within one year after the end of the threat. This
was obviously impossible considering the situation of potential Jewish claim-
ants at the end of the war. Even if the statute of limitations is precluded under
124 i 2, 206 bgb (force majeure), that only gives a timeframe of ten years
for the legal acts to be challenged, which, under the circumstances at the
time, was equally impossible in most cases. Due to the statute of limitations in
German civil law, Gurlitt would in these cases have become the rightful owner
of the paintings.
It follows from the assessment so far that restitution according to 985 or
1007 ii bgb is most likely to be an impossible claim as Gurlitt has become the
rightful owner of the objects. An exception can be considered the challenge
of the statute of limitations if the loss of the paintings was related to force
majeure. However, if there had been a legal (or even illegal) act to transfer own-
ership rights between the original owners and Gurlitts father, it is highly likely
that German civil courts would have decided in favour of Gurlitts ownership.
This is further supported by the argument that Gurlitt most likely acquired
adverse possession after ten years according to 937 bgb, which will in most
cases not be challenged by the force majeure argument.
However, if the paintings had been acquired by Gurlitts father through an
illegal act, there could be a possible right to compensation (which is the fall-
back position in German law if restitution is impossible) under 989, 990 bgb.
However, claims for compensation are subject to statute of limitations of
thirty years. Considering that thirty years had long passed since the illegal act,
there is also no right to compensationat least not under the German civil
code alone.
Another possibility, although this construction is the most far-fetched of all
scenarios considered so far, is that Gurlitts father never himself became the
owner of the paintings as he was acting on behalf of the German state and
therefore the objects could still belong to the current German state as legal
successor of the German government at the time under 667 (and 1922)
bgb. Had Gurlitts father been commissioned by the government to buy the
paintings, neither he nor his son would have acquired ownership and restitu-
tion under 985 or 1007 ii bgb could be possible. However, under 199 V or
937 bgb the statute of limitations to claim property back from Gurlitts father
230 chappell and hufnagel

expired within ten years. Furthermore, according to the laws on prescriptive


acquisition, Gurlitt would have become the owner after being in possession of
the paintings for ten years. It follows that even if it is assumed that Hildbrand
Gurlitt never owned the paintings, restitution is legally impossible.
With regard to civil law claims it can hence be concluded that it would be
extremely difficult, if not impossible, to force the return of the paintings from
Gurlitt or his now legal heirs. However, as has been pointed out in the begin-
ning of this part of the chapter, the return of the paintings could be claimed
under special laws on restitution for Nazi injustices, taking the civil avenue
against a private party, possible since 2012. Also, in this specific case, Gurlitt
manifested a willingness to return the paintings through an agreement with
the Bavarian and Federal German states. As the court stressed in the above
cited 2012 Bundesgerichthof decision concerning the Sachs posters, decisions
on restitutions in World War ii cases need to be considered on a case-by-case
basis. The fact that German Courts are more likely to be on the side of the
claimants is furthermore stressed here by the fact that the Sachs family had
already received compensation for the loss of the collection in a court case
of 1961. Despite being compensated for the loss of the collection, their claim
to return the posters was also granted. It therefore seems that claims against
Gurlitt might have been equally successful despite the dire situation under
pure civil law rights.
The next part of this chapter considers the criminal law situation in the case.
The reason Cornelius Gurlitt had come to the attention of the German police
was a journey he undertook to Switzerland where he had sold one of his paint-
ings and deposited the money into a Swiss bank account. According to Gurlitt
(zlem: 2013), he had gone over to Switzerland to take some money from his
account back to Germany. The amount was 9,000 Euros, under the legal 10,000
Euro limit he was allowed to enter Germany with. The customs officers had
been alerted to Gurlitt in 2010 on his return from Switzerland as he seemed
to be hiding from them in the train toilets. Finding the 9,000 Euros seemed to
create reasonable suspicion for the Bavarian police to request a search warrant
for Gurlitts flat, which was granted in September 2011. His flat was searched
and the paintings confiscated in February 2012. The public only became aware
of the case more than a year later (ibid.). The first question that arises is
whether the search warrant was legal.
Under German law ( 102 StrafprozessordnungCode of Criminal Proce-
dure) a search warrant has to be based on a reasonable suspicion. The crimi-
nal offence underlying the search warrant was tax evasion. It seems unlikely
that Gurlitt, an old fragile man, travelling alone on a train with 9,000 Euros,
which is not a criminal offence, would have raised reasonable suspicion for tax
The Gurlitt Case 231

evasion, let alone the level of suspicion needed under German law to justify
the granting of a search warrant for his flat by a German court. The right to
privacy, especially of the home as the most private space, is a longstanding
civil right in Germany that can only be breached in extreme cases (Article 13
German Basic Law or Grundgesetz). It is rather surprising that a German judge
allowed the search of a flat under the circumstances.
However, even if the search warrant was legal, the confiscation order cer-
tainly was not. According to the German Constitutional Court, all items to
be confiscated need to be defined in the search warrant (Beschluss vom
03.09.1991-2 BvR 279/90-NStZ 1992, S. 91). Considering that in the present case
police were looking for evidence of tax evasion, they would not have specified
more than 1200 paintings in the warrant. Gurlitts lawyers put in a complaint
against the warrant that encompassed forty-five pages and named various rea-
sons for the illegality of the confiscation.1 For any criminal lawyer the illegality
of the warrant appears blatantly obviousapart from the Augsburg prosecu-
tion services. Most striking is the infringement against the principle of pro-
portionality. This principle prescribes that a state measure that infringes basic
rights needs to be proportionate to the crime committed. The possible tax eva-
sion of a train traveller with 9,000 Euros in his pocket is likely to be dispropor-
tionate to the emptying of a whole flat of valuable paintings to which a fragile
old man feels very connected. In the end, even the Bavarian prosecutor might
have felt a bit uneasy about this and ordered all paintings that were not sub-
ject to restitutions to be returned to Gurlitt. By that stage, it was unfortunately
too late for both Gurlitt and the German state. While Gurlitt died before the
paintings had been returned to his home, he also determined in his will that
all of his paintings should be given to a museum in Switzerland (Rbel and
Sontheimer: 2014). None of his valuable paintings will benefit Germany or its
citizens.

4 Conclusion

It is striking that the representatives of the German state could make mistakes
like these in such a significant and widely publicized case. One of the prin-
ciples of Germany and, indeed, part of its international reputation today is
legality and sticking to the rules. It is interesting to see that when the panic of
bad publicity with regard to the World War ii legacy strikes, even judges and

1 See at <http://www.gurlitt.info/de/pressemitteilungen/pressemitteilung-19-02-2014.html>.
232 chappell and hufnagel

prosecutors lose their heads and make unreasonable, disproportionate, and


blatantly unjust decisions.
Bavaria now tries to implement laws on restitution into their civil code to
introduce better protection of World War ii victims in art crime cases. Other
German states are opposed to such changes of the law and consider them
unconstitutional. It seems that the Gurlitt case has managed to create a moral
panic again, which, according to the last part of this chapter, is absolutely
unjustified.
While there is little legal basis under German Civil Law for restitution, the
2012 Bundesgerichtshof decision is in deed ground-breaking. Of course all cases
have to be considered on a case-by-case basis, however, the threshold seems to
be very low. For the first time since the 1950s the courts recently allowed for a
civil restitution to be conducted under the requirements of the special provi-
sions for Nazi injustices. This could be a major breakthrough in German resti-
tution cases generally and a perfectly legal way of achieving justice.

References

American Alliance of Museums (aam; 1998). Guidelines Concerning the Unlawful


Appropriation of Objects during the Nazi Era. http://www.aam-us.org/resources/
ethics-standards-and-best-practices/collections-stewardship/objects-during-
the-nazi-era (accessed 31 July 2014).
Association of Art Museum Directors (aamd; 1998). Report of the aamd Task Force
on the Spoliation of Art during the Nazi/ World War ii Era 19331945 (4 June),
<https://aamd.org/object-registry/resolution-of-claims-for-nazi-era-cultural-
assets/more-info> (accessed 31 July 2014).
bbc News Europe (2013). Nazi Looted Art Found in Munich-German Media
(3 November), <http://www.bbc.com/news/world-europe-24794970> (accessed
31 July 2014).
Bohr, Felix, Lothar Gorris, Ulrike Knofel, Sven Robel, and Michael Sontheimer (2013).
Art Dealer to the Fuhrer: Hildebrand Gurlitts Deep Nazi Ties. Spiegel Online
(23 December), <http://www.spiegel.de/international/germany/hildebrand-gurlitt-
and-his-dubious-dealings-with-nazi-looted-art-a-940625.html> (accessed 31 July
2014).
Chase, Jefferson (2014). Unanswered Questions Abound after Death of Art Hermit
Gurlitt. dw (7 May), <http://www.dw.de/unanswered-questions-abound-after-
death-of-art-hermit-gurlitt/a-17615933> (accessed 31 July 2014).
Edsel, Robert (2009). The Monuments Men: Allied Heroes, Nazi Thieves, and the Greatest
Treasure Hunt in History. New York: Center Street, Hachette Book Group.
The Gurlitt Case 233

Gerstenblith, Patty (2008). Art, Cultural Heritage, and the Law: Cases and Materials.
Durham, nc: Carolina Academic Press.
Gezer, zlem (2013). Interview with a Phantom: Cornelius Gurlitt Shares His Secrets.
Spiegel Online (17 November), <http://www.spiegel.de/international/germany/
spiegel-interview-with-cornelius-gurlitt-about-munich-art-find-a-933953.html>
(accessed 23 July 2014).
Miles, Margaret (2008). Art as Plunder: The Ancient Origins of Debate about Cultural
Property. New York: Cambridge University Press.
Nicholas, Lynn (1994). The Rape of Europa: The Fate of Europes Treasures in the Third
Reich and the Second World War. London: Borzoi Books.
Peters, Olaf (ed.; 2014). Degenerate Art: The Attack on Modern Art in Nazi Germany 1937.
New York: Prestel and Neue Galerie.
Plundered Art. Revisiting the Washington Conference Principles on Nazi confiscated
art- 13 years later. Plundered Art- a perspective from the Holocaust Art Restitution
Project 25/06/2011 <http://plundered-art.blogspot.com.au/2011/06/revisiting-wash
ington-conference.html> accessed 31/07/2014.
Rbel, Sven and Sontheimer, Michael Kunsterbe Cornelius Gurlitt: Tod eines
Phantoms Spiegel Online 6/5/2014 at <http://www.spiegel.de/kultur/gesellschaft/
nachruf-auf-cornelius-gurlitt-a-967943.html> accessed 23/7/2014.
Selle, Dirk van and Claudia van Selle (2012). bgh-Urteil zur Sammlung Sachs
Eigentum an ns Raubkunst kennt keine Fristen. Legal Tribune (19 March), <http://
www.lto.de/recht/hintergruende/h/bgh-urteil-zur-sammlung-sachs-eigentum-an-
ns-raubkunst-kennt-keine-fristen/> (accessed 23 July 2014).
Washington Conference on Holocaust Era Assets (1998). Washington Conference
Principles on Nazi Confiscated Art. us Department of State (3 December 1998),
<http://www.state.gov/p/eur/rt/hlcst/122038.htm> (accessed 31 July 2014).
Part 6
Archaeological Looting


CHAPTER 13

The Internet Market in Pre-Columbian Antiquities


Neil Brodie

The first secure online retail transaction took place in August 1994 (Ariguzo
et al. 2006: 240). The following year saw the establishment of Internet sales as
a viable commercial strategy with the launch of Internet retailer Amazon and
Internet auction site eBay (Krishnamurthy 2004: 3233). Amazon and eBay also
pioneered two alternative models of online commercial interaction: business
to consumer (B2C) in the case of Amazon, and consumer to consumer (C2C)
in the case of eBay. By 2011 it was estimated that at least 2.3 billion people had
access to the Internet, and even with over sixty percent of that figure in the
developing world (unodc 2013: xvii), the residue of potential customers in the
developed world is an attractive prospect for any commercial venture.
The rapidly expanding world of Internet commerce offered new opportu
nities for antiquities merchants and for criminal abuse of the antiquities
market. Traditionally, antiquities collecting and trade had been high-class
affairs, with rich museums and collectors served by a small number of well-
established dealers and auction houses. Yet already in the 1990s, moves were
afoot to commercialize the antiquities trade by offering poorer quality or less-
expensive antiquities to a broader and economically more diversified customer
base, by developing transactional spaces outside the traditional andfor
inexperienced customersintimidating contexts of merchant galleries and
auction rooms, and by emphasizing the decorative and financial rather than
aesthetic and scholarly attributes of the antiquities for sale. Small trade fairs
offered the enticing prospect of a pleasant day out, and mail-order schemes
allowed purchases to be made in the reassuring comfort of the customers own
home (Brodie 2004: 8991). These tentative moves to grow the customer base
by expanding downmarket were soon overwhelmed by the growing opportu
nities of Internet commerce, however, and it was not long before an online
antiquities market became an established reality, with both B2C and C2C sales
strategies allowing the participation of collectors from a much broader range
of socioeconomic backgrounds than had previously been the case. The emerg
ing Internet market also worked against traditional merchants who maintain
galleries in expensive locations like New York or London and favored a new
business model whereby large inventories can be stored in low-cost locations
(McAndrew 2012: 104).

koninklijke brill nv, leiden, 5|doi .63/9789004280540_014


238 Brodie

The initial reactions of archaeologists to this rapidly expanding market were


negative, alarmist even (Barker 2000; Bruhns 2000; Chippindale and Gill 2001;
Lidington 2002). Most objects were being sold without any secure documenta
tion of provenance or findspot, with the presumption made that provenance
was being deliberately withheld to hide evidence of recent illicit trade (and,
fortuitously perhaps, keeping knowledge of theft or illegal trade away from
merchants, thereby protecting them from accusations of criminal practice).
The fact that the antiquities being offered for sale were seemingly of poorer
quality than those that had been traditionally traded also suggested that
archaeological sites or contexts that previously would not have been worth
looting and thus left intact might now be viewed in a more lucrative light and
targeted accordingly. Thus archaeologists believed that the expanding Internet
market would cause an upsurge in the looting of archaeological sites. Those
fears seemed to be justified. In 1999, for example, Spanish police arrested three
people with 9000 objects in their possession and charged them with taking
objects from archaeological sites in Andalusia for sale on a us Internet auc
tion site (Cacho and Sanjuan 2001: 2021). In the 2000s, such reports became
more commonplace (ap 2004; Kraft 2007; ice 2010c; Fay 2011: 453). On a more
positive note, however, it was suggested that the visibility of material offered
for sale on the Internet would provide more opportunities for monitoring and
interdiction on the part of law enforcement agencies and other interested par
ties (Bruhns 2000).
These early archaeological overviews of Internet trading focused on auction
sites eBay and Sothebys.com, but by 2009 there were signs that the Internet
market in antiquities was organizing a more mature commercial structure.
Sothebys.com had ceased trading, but alongside the continuing existence of
eBay, there was a proliferating number of B2C websites offering antiquities
for sale, and the appearance of Internet malls or marketplaces (Cooper and
Michael 2005), such as Trocadero and vcoins (Brodie 2011: 130). These Internet
malls gather together on one website links to a range of B2C merchants or
members, all offering related types of material. The Trocadero portal, for
example, links to the inventories of dealers in art and antiques, including
antiquities. Potential customers visiting the Trocadero website can search or
browse according to material or vendor. vcoins, as its name suggests, is a venue
for the purchase and sale of coins, including ancient coins. In December 2013 it
listed 143 ancient coin dealers offering 95,161 items with a total asking price of
$23,795,681. Many of the listed dealers also sold antiquities.
Unprovenanced antiquities bought and sold on the Internet are generally
believed to have been traded in contravention of national or international
laws. Most countries have placed archaeological heritage under some kind of
The Internet Market in Pre-Columbian Antiquities 239

statutory definition and ownership, so that normally antiquities can only be


exported illegally. For countries that have taken antiquities into definite state
ownership, illegal export constitutes theft. For many countries, the opportu
nity for further regulation opened up in 1983 when the United States enacted
the Convention on Cultural Property Implementation Act (ccpia) in imple
mentation of the 1970 unesco Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of Cultural
Property. Under the ccpia, states whose cultural heritage is in imminent
danger of looting and illicit trade can ask for a bilateral agreement obliging
the United States to place import controls on designated categories of cul
tural material from the country concerned (Gerstenblith 2004: 559566). The
agreements run for five years and are open to renewal. In 2006, in response to
growing concerns about the Internet market, unesco, interpol, and icom
issued a joint statement recommending several actions that might mitigate the
sale of trafficked artifacts. For dealer websites, recognizing the extant statutory
controls of national patrimony laws and the ccpia and other 1970 unesco
implementing laws, the statement recommended that the following disclaimer
should be posted on any website offering antiquities for sale:

With regard to cultural objects proposed for sale, and before buying
them, buyers are advised to: i) check and request a verification of the
licit provenance of the object, including documents providing evidence
of legal export (and possibly import) of the object likely to have been
imported; ii) request evidence of the sellers legal title. In case of doubt,
check primarily with the national authorities of the country of origin and
interpol, and possibly with unesco or icom.1

In 2013, while this paper was in preparation, the unesco/interpol/icom


disclaimer was not observed on any of the trade websites visited. More gen
erally, advice on provenance, trade controls, or national ownership laws is
generally hard to find on trade websites and usually inaccurate. In 2013, only
a few websites were offering any information about statutory regulation or
the importance of establishing a documented provenance. When advice was
offered, it was most commonly to assert the importance of the 1970 date of the
unesco Convention as a bright line, suggesting that material which was out
of its country of origin before 1970 is legally on the market, which is incorrect.
The legality or otherwise of export is determined by national legislation, not

1 http://portal.unesco.org/culture/fr/files/21559/11836509429MesuresTraficIlliciteEn.pdf/
MesuresTraficIlliciteEn.pdf (accessed 14 January 2014).
240 Brodie

the 1970 unesco Convention. No website described the regulatory substance


of bilateral agreements enacted under the ccpia or provided details of spe
cific agreements. Nevertheless, although the date of 1970 has no legal function
in distinguishing between licit and illicit purchases, it is becoming accepted
within the museums community as a threshold date for acquisitions separat
ing objects with good (pre-1970) provenance from objects with bad (post-
1970) provenance. Several museums and museum organizations, most recently
the Association of Art Museum Directors in 2008, have adopted ethical codes
that discourage the acquisition of an antiquity unless it is accompanied by
documentary evidence to show that it was out of its country of origin before
1970 or exported legally after that date. Thus those trade websites recommend
ing the importance of 1970 could be construed as offering good adviceor at
least advicein conformity with ethical best practice as presently understood
within the museum community.
Several authorities have recently suggested that customers are becoming
more discriminating about provenance, preferring to buy only objects with a
well-documented (pre-1970) ownership history as a guarantee of legality and
authenticity. This more selective demand is increasing the price of well-prove
nanced objects at physical auction, which should in turn encourage the release
of more provenance-related information. Thus the market would in effect
regulate itself in response to the choice of customers desirous of acquiring
legitimate and authentic antiquitiesa process of autoregulation (Brodie in
press). Website statements emphasizing the importance of 1970 as a discrimi
nator may suggest that the Internet market too is susceptible to autoregulation.
Karen Olsen Bruhns had already broached the issue of counterfeit artifacts
in 2000, pointing out that since unprovenanced objects for sale on the Internet
are not open to physical examination, it facilitates the dissemination of fakes
(Bruhns 2000). Then, in 2009, ucla archaeologist Charles Stanish offered an
optimistic account of the possible effects of fakes on the Internet in an article
entitled Forging Ahead: Or, how I learned to stop worrying and love eBay.
In this article he argues that electronic buying and selling has actually hurt
the antiquities trade (Stanish 2009: 18; see also Stanish 2008). He argued that
the low-end antiquities market, as realized on the Internet, was badly compro
mised by fakes. He reckoned that thirty percent of objects offered on eBay as
genuine antiquities were either outright fakes or replicas originally produced
as tourist art; five percent of objects were authentic; and the remaining sixty-
five percent, the overwhelming majority in fact, were what he termed ambigu
ous, in that they might be authentic or fakeit was not possible to decide
from images and information provided by the vendor in support of the sale
(Stanish 2009: 60). Stanish argued that within countries of origin it was becom
ing more profitable to make fakes than to loot archaeological sites because the
The Internet Market in Pre-Columbian Antiquities 241

local eBayers and craftsmen can make more money cranking out cheap fakes
than they can by spending days or weeks digging around looking for the real
thing (Stanish 2009: 58). For the importer, fakes could be imported legally pro
vided they were described accurately as the replicas they are (Stanish 2009:
59). The increasing market penetration of fakes was also driving down the
prices of genuine pieces (Stanish 2009: 58). Stanish had first-hand knowledge
of workshops in Peru and Bolivia (Stanish 2009: 58), and provided the example
of a price mark-up for a recently fabricated Moche iii Fineline piece that would
sell for $223 on eBay but could be bought from a street vendor in Peru for $15; a
genuine piece would cost about $15,000 (Stanish 2009: 66). Stanish concluded
that For most of us [archaeologists] the web has distorted the market in a
positive way (Stanish 2009: 66).
At the time of its publication, Stanishs paper attracted a good deal of media
coverage (e.g. Palmquist 2009; Boehm 2009), and his argument was echoed
from within the antiquities trade. Bob Dodge, for example, founder of Artemis
Gallery, was quoted as saying Anybody who knows anything avoids eBay...the
handful of legitimate [online] dealers, were just pulling our hair out, trying to
discourage people from throwing money away on cheap tourist crap (Boehm
2009). Jerome Eisenberg, proprietor of New Yorks Royal-Athena Galleries,
added that anybody with a decent amount of intelligence isnt going to buy on
eBay unless they know who they are dealing with (Boehm 2009). It wasnt hard
either to find on the Internet cautionary tales for potential eBay customers. In
2013, for example, Dodges Artemis Gallery had on its website a piece headed
How to buy ancient art, emphasizing the prevalence of fakes, and warning:

DO NOT BUY YOUR FIRST PIECE OF ANCIENT ART ON EBAY! That may
sound harsh, and I would be lying if I told you there are not good buys to
be had on eBay despite all the fakes being sold, but if you do not know
what you are doing or do not personally have the eye to tell authentic from
fake, avoid eBay like the plague! Based on current estimates, somewhere
around 95% of all items listed under the category Ancient Egyptian, 99%
of all ancient Chinese and perhaps as much as 75% of all ancient Roman
(with over 95% fakes in anything made of metal) and 75% of all Greek
materialare just plain fake. The Pre-Columbian category is a wee bit
better, but at best you are still looking at a 50/50 chance of buying some
thing that is actually an authentic piece of Pre-Columbian art. End of
story; do not let yourself be tempted to buy from eBay...at least not yet!2

2 Available at http://www.artemisgallery.com/how-to-buy-ancient-art.html (accessed 14 Janu


ary 2014).
242 Brodie

Similar cautions about the authenticity of material available on eBay were


being offered by The Lands Beyond.3 Collector Antiquities had a large and
informative section on its website devoted to the subject of fakes, including
advice on identifying them, some illustrated case studies, and a long bibliogra
phy of relevant literature. Its author advised that eBay is an especially danger
ous place for uninformed collectors to buy.4 It linked to another site exposing
fake Egyptian antiquities, appropriately named The Fakebusters,5 which
included some images of what was purported to be manufacture of a fake in
Egypt, and advised collectors to Join Yahoo Groups Ancientartifacts and avoid
the flood of fake antiquities on eBay. Ancient Artifacts was established as a
discussion group for antiquities collectors in June 2002. A perennial topic since
the groups foundation has been the identification and presence of fakes on the
market, and even in its inaugural year members were complaining about the
sale of possible fakes on eBay. Things grew worse over the following few years,
and campaigns were mounted to out eBay dealers thought to be deliberately
selling fakes. In 2009, however, the groups moderator announced that

After a decade of efforts by dedicated collectors and dealers, at long last


an improvement is apparent in the eBay antiquities section. At times
as many as 95% of the items in certain categories were fake, but finally
someone has taken notice of us, and the worst sellers have been ejected.
This certainly doesnt mean that if you buy an ancient item on eBay
now that you can be assured of its authenticity, but as of July 2009 things
are suddenly looking so much better.6

In support of that statement, Fay (2011: 459) reported that in 2009, eleven out
of ninety-nine antiquities vendors were suspended by eBay for selling fakes.
Thus Stanishs message fell on fertile ground, reinforcing and perhaps even
encouraging from his authoritative standpoint of official archaeology the
narrative already established by dealers that eBay was a malign force in the
antiquities market, undermining customer confidence in the broader antiq
uities market by seemingly tolerating the large-scale sale of counterfeit arti
facts. For Stanish, this was a reason to stop worrying about the antiquities
trade causing the large-scale looting of archaeological sites, but it might also

3 Availableathttp://www.landsbeyondprecolumbian.com/articles/articles.cfm(accessed
14 January 2014).
4 Available at http://www.collector-antiquities.com/44/ (accessed 14 January 2014).
5 Available at http://www.thefakebusters.com (accessed 14 January 2014).
6 Available at http://groups.yahoo.com/neo/groups/Ancientartifacts/info (accessed 14 January
2014).
The Internet Market in Pre-Columbian Antiquities 243

have been a reason for merchants to stop worrying about the possible impact
of fakes on market confidence as this active ringfencing of blame deflected
scrutiny and criticism away from their own inventories and towards eBay. It
was, perhaps, a welcome diversion for them. Kelker and Bruhns (2010: 4558)
believe that only the more blatant fakes are sold on eBay; they give examples of
more convincing forgeries and pastiches sold by other merchants and bought
by wealthy collectors and museums. Nevertheless, not surprisingly, established
auction houses and dealers recommend merchants, especially merchants who
are members of professional associations, as an alternative to eBay, and fur
ther recommend buying from merchants offering unconditional guarantees
of authenticity for sold objects. (These guarantees are misleading, however,
in that they only guarantee the return of purchase price should a purchased
object subsequently be discovered to be fake. Since this would require the pur
chaser to pay for a costly examination of the object by an expert or a labora
tory, it is an unlikely eventuality. Thus in the absence of pre-sale authenticity
testing, the guarantees do not actually guarantee authenticity). Trocadero
and VCoins also seem concerned about the debilitating effect of fakes on mar
ket confidence. Both have strongly proscribed misrepresentation of objects
offered for sale and reserved the right to discontinue members who fail to com
ply with their rules on the issue.
eBay was also perceived to be causing problems in the domain of policy,
though more because of the sale of stolen or illegally traded objects than the
sale of fakes. Several governments have now reached agreement with eBay
about rules intended to prevent the sale of illicit material, including Germany,
Switzerland, France, Austria, the United Kingdom, and the United States (Kre
der and Nintrup 2013). These agreements are generally aimed only at antiqui
ties originating in the country served by the associated national eBay platform.
On eBay uk, for example, sale restrictions are placed only on antiquities legally
protected under the law of the United Kingdom or Ireland.7 eBay usa seems to
be an exception, asserting that we consider antiquities to be items of cultural
significance and can come from anywhere in the world. For eBay usa, antiqui
ties have to be authentic as described and accompanied by an image of an offi
cial document showing details of legal sale and export/import.8 Nevertheless,
the effectiveness of these eBay policy agreements is thought to be limited. The
rules are not in plain sight but hidden away in an AZ index reached through
a link on policies at the foot of the home page. It would be possible to buy and
sell antiquities without being aware of the policy (which is quite literally the
fine print). eBay rules are further weakened by the apparent absence of i nternal

7 Available at http://pages.ebay.co.uk/help/policies/artifacts.html (accessed 14 January 2014).


8 Available at http://pages.ebay.com/help/policies/artifacts.html (accessed 14 January 2014).
244 Brodie

eBay oversight and enforcement; the rules must be enforced by continual and
time-consuming monitoring by outside agencies (Bland 2009: 8896).
The views put forward by Stanish were born out of personal experience and
so unavoidably and understandably were anecdotal and impressionistic. As
he himself wrote, it is virtually impossible to obtain reliable quantitative data
(Stanish 2008: 82), either about the magnitude of illicit trade or the incidence
of fakes. Thus it is difficult if not impossible to marshal the evidence needed
to test his thesis. Even if he is correct, however, and the production of fakes is
acting to curtail looting, archaeological sites are still being looted and the illicit
trade in authentic antiquities is continuing. On the ground, reports of loot
ing in countries such as Bolivia (Quispe 2012) and Columbia (Muse 2004) con
tinue to accumulate. The website of the Fundacin Nacional de Arqueologia
de El Salvador (fundar) reports damage to six different sites in El Salvador
since 2000.9 Satellite imagery of two sites in the Lambayeque region of north
Peru shows evidence of looting between 2003 and 2010 (Lasaponara et al. 2013:
1920). Between 2008 and 2012, us Immigration and Customs Enforcement
(ice) reported the return of more than 4525 authentic antiquities from at least
twenty-six separate customs seizures and investigations within the United
States to eight different Latin American countries (ice 2008a, 2008b, 2010a,
2010b, 2010c, 2010d, 2010e, 2011a, 2011b, 2011c, 2012a, 2012b, 2012c). Some of this
material had been put up for sale on the Internet, though seems to have been
smuggled into the United States first. In 2010 a collaborative investigation
begun in 2007 between us Immigration and Customs Enforcement and the
Salvadoran police resulted in the arrest of two people in El Salvador and the
return of dozens of artifacts from the United States to El Salvador. Material
had been entering the United States through the mail for subsequent sale on
the Internet (ice 2010c). Unfortunately, there is no comparable historical data,
so it is not possible to judge the significance of these figures in a longer time
frame. In other words, by themselves, they cannot establish whether the inci
dence of looting and magnitude of illicit trade are increasing or decreasing as
a result of the expanding Internet market.
Twenty years after the first appearance of Internet commerce the size, scope,
and organization of the Internet market in antiquities are still matters for spec
ulation. There is a regrettable lack of systematic research providing answers
to even basic questions about the number and types of Internet businesses,
the physical locations of vendors, the origins and prices of material sold, the
standards of provenance, and the appropriateness and effectiveness of amelio
rating regulation. For many commentators and authorities, the Internet seems

9 Available at http://www.fundar.org.sv/e_layout.html (accessed 14 January 2014).


The Internet Market in Pre-Columbian Antiquities 245

to begin and end with eBay. Archaeologists and policy makers have largely con
fined their attention to the activities of eBay, thus inadvertently supporting
the message propagated by merchants and collectors that eBay is the main
site of wrongdoing, particularly with regard to the sale of fakes. Implicitly, for
potential customers, the message is that antiquities sold outside eBay are more
likely to be authentic and legitimately on the market. It is not clear whether
the policy focus on eBay is productive in diminishing fraud and illicit trade or if
it is merely diverting attention away from and perhaps even promoting the sale
of faked or trafficked artifacts through other outlets. This research shortfall is
surprising because, as Bruhns (2000) noted, the transparency of the Internet
offers a good opportunity for investigating the antiquities market. This chapter
takes advantage of this opportunity to establish the volume, value, and struc
ture of the Internet market in antiquities by collecting different types of sales
information with a view to answering the following questions:

1. What is the structure of the market in pre-Columbian antiquities? How


important are Internet sales?
2. What is the structure of the Internet market in pre-Columbian antiqui
ties? Is eBay a minor or major player?
3. In what countries are pre-Columbian antiquities being offered for sale
on the Internet?
4. What provenance information is supplied for pre-Columbian antiquities
offered for sale on the Internet?
5. What countries are supplying the pre-Columbian antiquities being
offered for sale on the Internet? Is it possible to discern any dampening
effects on trade of bilateral agreements reached under the ccpia?
6. Is there any evidence for market autoregulation?

The choice of pre-Columbian as opposed to any other category of antiquities


was largely arbitrary, prompted by a need to keep the project within manage
able bounds and influenced by the publicity surrounding the publication of
Stanish (2009). The answers to these questions can be used to construct a more
robust understanding of the nature of the Internet market, and to increase the
effectiveness of public policy in conditions of limited resources.

Methodology

At the beginning of this study, it was known that pre-Columbian antiqui


ties could be bought at physical auction (Sothebys, Bonhams, and Heritage
246 Brodie

Auctions), from eBay usa, from other Internet auction sites, and from Internet
dealers (including the websites of dealers with physical gallery spaces). It was
a straightforward task to tabulate sales information available on eBay and two
other B2C Internet auction sites, Arte Primitivo and Antiquities Saleroom. (For
eBay usa, the prices of lots sold Buy it Now which did not appear on the eBay
website were available on WatchCount.com).10 It was harder to acquire infor
mation from Internet dealer sites as they usually only contain clear records of
objects offered for sale, not objects sold. An Internet search in early 2011 discov
ered the sites listed in Table 13.1 offering for sale more than five pre-Columbian
antiquities each. The search probably was not exhaustive, but at the time it
was thought to have recovered most significant Internet traders. To achieve
some approximate statistics describing the number and nature of objects sold,
the dealer sites were inspected once annually for three years.
The sheer volume of material offered for sale required the implementation
of a sampling strategy and the calculation of average statistics to describe the
volume, value, and nature of annual sales. eBay was visited several times in
2012 and 2013 and sales information was tabulated for a total period of thirty-
three days. The figures were then multiplied up to provide estimated annual
averages. Sales information for six out of seven annual auctions over the period
20122013 at Antiquities Saleroom and three out of five at Arte Primitivo over
the same period was similarly tabulated and multiplied up to provide esti
mated annual averages. The Internet dealers were divided into two groups. For
the first, intensively monitored group, each site was visited once in 2011, 2012,
and 2013. The first year, information for all lots offered for sale was tabulated.
For the following two years, all removed and new lots were noted. Removed
objects were interpreted as sales that had occurred during the intervening
interval, causing their removal from the website. The two years total sales
information was then divided by two to produce estimated annual averages.
The only exception was the Barakat Gallery. The exceptionally large amount of
material available for sale meant that only about half of it could be recorded
intensively, and then multiplied up. For the second, extensively monitored
group of Internet dealers, each site was visited once in 2011, 2012, and 2013,
and on each occasion the number of lots offered for sale was tabulated. The
averages obtained for the intensively monitored group were then used to
estimate average sales information for the extensively monitored group. For
Bonhams and Sothebys, estimated annual averages were calculated from all

10 http://www.watchcount.com/?cc=us (accessed 28 January 2014).


The Internet Market in Pre-Columbian Antiquities 247

sales in 2012 and 2013. For Heritage Auctions, sales information was tabulated
for one out of two annual auctions in 2013 and multiplied up to provide esti
mated annual averages.

Results and Discussion

Dealers
The overwhelming majority of Internet dealers and auction sites identified in
this study as selling pre-Columbian antiquities are based in the United States.
The only exceptions are Mermoz, based in France, and Barakat, with galleries
in the uk and Abu Dhabi as well as the United States. As regards eBay usa, for
478 sold lots where location data was recorded at time of sale, 452 lots were
situated in the United States, fourteen in various European countries, four in
Canada, and three in Argentina. Presumably, more material located in Europe
might have been sold locally on the various national eBay platforms. Thirty-six
different vendors were responsible for the sale of 192 of the lots located in the
United States for which vendor name was recorded. The results for eBay usa
are broadly in line with those reported by Fay (2011 454) for antiquities more
generally. There was nothing to suggest, contra Stanish, that vendors based in
Peru or any other Latin American country are a significant presence on either
eBay usa or anywhere else on the Internet market for that matter. eBay does not
host sites for any Latin American countries. Instead, eBay notes its presence
in Latin America through its investment in MercadoLibre.11 MercadoLibre is
an Internet auction company with a similar international partition strategy
to eBay, offering individual, country-specific platforms. When visited in 2013
as part of this research, MercadoLibre Per was not offering for sale any pre-
Columbian antiquities12 and listed only a few replica antiquities.13 Thus there
was no evidence to support Stanishs contention that Peruvian vendors are
using eBay in Peru to sell significant quantities of replicas that might be fraud
ulently resold in the United States or other countries as genuine antiquities.

11 Availableathttp://pages.ebay.com/aboutebay/thecompany/companyoverview.html
(accessed 14 January 2014).
12 Available at http://home.mercadolibre.com.pe/arte-antiguedades/ (accessed 14 January
2014).
13 Available at http://arte-antiguedades.mercadolibre.com.pe/artesanias/ (accessed 14 Jan
uary 2014).
248 Brodie

Material Volume and Financial Value of the Market


Tables 13.2 and 13.3 present statistics describing the estimated average annual
material volume and average annual financial value of the Internet market
in pre-Columbian antiquities, together with similar statistics for three physi
cal auction houses (Sothebys, Bonhams, and Heritage Auctions), which have
been included to allow inferences about the volume, value, and structure of
the pre-Columbian market as a whole. On average, it is estimated that a total of
8667 (987+7680) lots of antiquities are sold each year. With the mean number
of objects per lot varying between 11.7, the total number of objects sold will
be something in the region of 9400. The annual aggregate value of this material
is estimated to be $7,032,708 ($1,524,150+$5,508,558). Sales at Sothebys alone
($1,644,032) account for twenty-three percent of this total, while sales on eBay
($655,175) account for only nine percent; however, with an estimated 5298 lots
sold, eBay accounts for sixty-one percent of the annual sales volume. Thus eBay
can be considered the major market outlet in terms of material sold, offer
ing and selling large quantities of generally small, low-priced objects, though
financially it accounts for less business than some of its competing Internet
dealers, Internet auctions, and Sothebys. Although the total value of sales at
Sothebys far exceeds that of any of its competitors, in terms of numbers of
objects sold, it is a minor player. Without expert or scientific examination of
the material sold, it is not possible to say what percentage is fake.
The mean price per lot sold ranges from $124 (eBay) to $46,972 (Sothebys)
with Internet dealers and auctions falling in between. For antiquities generally,
Fay (2011: 455) reported a broadly similar mean sale price of $75 for 342 lots
sold on eBay usa. The histogram in Figure 1 shows the range of prices of indi
vidual lots sold by Internet dealers, Internet auctions, eBay usa, and Sothebys
respectively. Together with the statistics presented in Tables 13.1 and 13.2, it
suggests that the market can be considered as comprising low-value (high-
volume), medium-value (medium-volume), and high-value (low-volume)
tiers with eBay and Sothebys representing the low-value and high-value tiers
respectively and other dealers and auction houses falling in between.
The annual financial value of $7,032,708 is an estimate, and because of
uncertainties surrounding the sampling methodology, it is likely to be an
underestimate. There are five possible causes of underestimation:

1. Most of the sales recorded took place in the United States, though sales
would also have taken place in other countries. For example, the March
2013 auction of the Barbier-Mueller collection at Sothebys Paris, which
sold for 10,296,300 euros ($13,385,190) was not included because it was a
one-off event, and the intention was to estimate average annual figures.
The Internet Market in Pre-Columbian Antiquities 249

2. The sale of particularly valuable antiquities is likely to be conducted


privately, on a dealerclient basis, and so be invisible to public view
(Norskov 2002: 2912). Most art dealers do not like selling online as they
prefer personal contact with potential customers (McAndrew 2012: 102
104). Individual dealers might choose to reserve more expensive antiqui
ties for private sale while offering less expensive pieces for public viewing
and sale. For the art market more generally, it is believed that twenty per
cent of sales generate eighty percent of total financial value (McAndrew
2012: 126). It would only take a few high-value invisible transactions each
year to increase the annual aggregate value suggested here by a signifi
cant margin.
3. Sales at various art and antiquities fairs were not considered, because, like
private sales, they are difficult to observe. For the art market generally, it
is estimated that dealers make about thirty-one percent of their sales at
fairs (McAndrew 2012: 57, 114). In mitigation, it is likely that many of the
dealers listed here also sold at fairs, so that any sale made at a fair would
be registered when an object was removed from the relevant website.
4. Private treaty sales are coming to constitute an important part of
Sothebys business (Sothebys 2012: front inside cover, 910; Yates 2006:
39). In 2012, across all categories of material, the total value of private
sales at Sothebys was $906.5 million, twenty percent of the $4.5 billion
achieved at auction (Sothebys 2012: 25). If this figure of twenty percent
is reasonably consistent across different categories of material, it would
suggest that Sothebys could have raised a further $328,806 through pri
vate sales of pre-Columbian antiquities.
5. It is possible that some antiquities were offered for sale on websites, sold,
and removed from view within the period of the annual sampling inter
val and thus not counted.

Alongside these possible causes of underestimation, there are also two pos
sible causes of overestimation:

1. Not all lots removed from Internet dealers websites were necessarily
soldsome might have been removed for other reasons.
2. Some of the Internet dealers might also have bought or sold material at
Internet auction or on eBay. Thus some lots might have been counted as
sold twice, once on a dealers site and once at auction.

The causes of overestimation are limited in possible effect to statistics describ


ing the sales of Internet dealers, and should not impact upon the figures
250 Brodie

describing Internet and physical auction sales that are more secure. There is
a greater likelihood of serious underestimation, because of the existence of a
market outside the United States and the possible but unknowable existence
of even a small number of high-value, private, invisible transactions. Taking
both of these considerations into account, a best guess estimate of the average
annual value of the market in pre-Columbian antiquities would be more than
$7,032,708, but is unlikely to be more than double that amount.

The Provenance of Material Offered for Sale and Sold


This set of statistics makes use of the idea of verifiable provenance. Verifiable
provenance means that the earliest date of provenance of a lot is determined
either from the conjunction of a previous owners name and date of owner
ship or from a publication date. In theory, this information would provide a
potential customer with the wherewithal to verify independently the facts
being offered about provenance, something that would not be possible with
less information. Verifiable provenance is a weaker measure of provenance
than published provenance as it is harder to verify and thus easier to falsify.
It was chosen because only a very small number of lots are accompanied by a
published provenance.
Table 13.4 presents verifiable provenance statistics for lots offered and sold
by Internet dealers, Internet auctions, eBay, and Sothebys. Outside Sothebys,
most lots are offered and sold with no verifiable provenance or with a prove
nance that fails to date back as far as 1970. Thus the large majority of antiquities
offered for sale on the Internet would not be eligible for museum acquisition,
and would be deemed unacceptable by dealer websites recommending 1970 as
a legitimizing threshold, unless relevant information relating to provenance is
being deliberately withheld.
The statistics offered in Table 13.4 do nothing to support the idea of auto
regulation. They show no consistent pattern in relation to the date of 1970 as
regards the percentage of lots sold or the mean price of lots, and thus there is
no discernible evidence of the market acting to police itself by selling a higher
percentage of well-provenanced (pre-1970) lots for higher prices. Lots some
times contain more than one object, however, and have objects made from
a variety of different materials, so that any effect of autoregulation might be
obscured by differential pricing according to the size or composition of lots.
In an attempt to control for this possible obfuscating source of price variation,
Tables 13.5 and 13.6 present a refined set of statistics describing lots which com
prised a single ceramic object only, and which therefore are more appropriate
for meaningful comparison. The statistics are consistent in showing, even for
Sothebys, that the larger and more expensive objects being offered and sold
The Internet Market in Pre-Columbian Antiquities 251

are those with a post-1970 provenancein other words, objects with a prov
enance that would be considered unacceptable by the aamd and as advised
by some members of the trade. The smaller and least expensive objects are
those with a pre-1970 provenance, one that would be considered acceptable.
Objects with no provenance are midway in both size and price, suggesting they
comprise a mixture of pre-1970 and post-1970 objects. These statistics go some
way towards confirming a subjective impression formed during data collation
that many of the smaller pre-1970 objects offered for sale were in fact only frag
ments of objects, and that as associated descriptions often claimed, they were
surface finds collected by visitors during the 1960s and earlier. The larger and
more valuable pieces were most probably looted.
Thus customers are not targeting antiquities with a long (pre-1970) prov
enance. In no case is the percentage of pre-1970 objects sold higher than the
percentage of post-1970 objects sold. These refined statistics strongly suggest
that within a given market tier, the better quality antiquities in circulation are
those with a short (post-1970) provenance, and thus tainted by the suspicion of
illicit trade. The fact that they are not being discriminated against by custom
ers, despite this taint, indicates either ignorance or insensitivity on the part of
customers towards issues of provenance and illicit trade.

The Source of Material Offered for Sale


It is sometimes claimed that antiquities are offered for sale without any clear
indication of country of origin in order to protect dealers and collectors from
accusations of knowingly transacting stolen or illegally traded material (Gilgan
2001: 8083; Brodie 2011: 123124). Many of the Latin American countries that
are the source of pre-Columbian antiquities have taken antiquities into state
ownership. Since the 1990s, they have entered into bilateral agreements with
the United States under the auspices of the ccpia that require the United
States to impose import restrictions. The import of pre-Columbian antiquities
from any country with a bilateral agreement, therefore, would be in violation
of us law. There is no real evidence, however, that concerns about import con
trols are causing the suppression of information about the origins of unprov
enanced antiquities offered for sale. Country names are frequently provided,
and even when they are not, cultural terms offered in object descriptions are
often specific to a single countrythe Chavn culture, for example, which is
restricted in its distribution to Peru. Sometimes the use of cultural labels with
an international application such as Mayan do act to hide a country of ori
gin, but often when such international labels are used by a dealer to describe
some lots, the same dealer will name individual countries (e.g., Guatemala) for
other lots in stock. Thus it seems more likely that international labels such as
252 Brodie

Mayan are used honestly in object descriptions when the country of origin is
uncertain, not because of any intention to deceive. (There is one exception to
this general observation. One merchant consistently failed to name Peru as the
country of origin of lots that in cultural terms were clearly from Peru. Peru has
had a bilateral agreement with the United States since 1997. Lots from Mexico,
which does not have an agreement, were described by the same merchant as
coming from Mexico. Nevertheless, even in this case, the cultural terms used to
describe lots from Peru were transparent and would not mislead even a mini
mally knowledgeable collector about country of origin.)
Tables 13.7 and 13.8 provide a breakdown according to country of origin of
a sample of unprovenanced lots offered on the Internet for which relevant
information was recorded, with an asterisk marking those countries which in
2013 had bilateral agreements with the United States. Clearly, merchants were
not shy about selling material from countries with bilateral agreements. This
data set cannot be used to assess the overall effectiveness of import controls
enacted under bilateral agreementsalthough there are a large number of
unprovenanced lots offered for sale and ascribed to Peru, for example, there is
nothing to say that without a bilateral agreement the number might be higher.
What Tables 13.7 and 13.8 do show, however, is that there is no real evidence
of customer caution or restraint when faced by unprovenanced material from
countries with bilateral agreements. The percentages of lots sold from coun
tries with agreements compares well to the percentages sold from countries
with no agreements. Thus once unprovenanced material is available for sale
within the United States, a possible history of illicit import is not seen as an
impediment to purchase. Again, as in the case of provenance, customers seem
unaware of or unconcerned about the possible illicit origins of their purchases.

Conclusion

For people who are not antiquities merchants it is hard to say anything that
is constructive or productive about the present state of the Internet market
in pre-Columbian antiquities. Pre-Columbian antiquities have been collected
seriously as art since the early decades of the twentieth century (Boone 1993)
and there is a history of looting and illicit trade to match (Coggins 1969; Atwood
2004; icom 1997), not to mention the associated forgery culture (Bruhns and
Kelker 2010; Kelker and Bruhns 2010). The large majority of objects offered for
sale in 201113 without provenance were in all probability not recent arrivals
on the market; many had most likely been out of their country of origin for ten,
twenty, or more yearsand an unknown proportion were probably fakes. But
The Internet Market in Pre-Columbian Antiquities 253

the size of the market is a constant reminder of the destruction of archaeo


logical heritage that has taken place over those preceding decades, and of the
failure of public policy to achieve any kind of decisive hold on controlling the
problem. Given that the looting and illicit trade are ongoing, the prognosis is
not good.
Buoyant sales figures show that the general absence of any reliable prove
nance-related information and the likely presence of fakes are not deterring
customers, who are either unaware of the possible illicit or fraudulent sources
of material up for sale or do not care. Thus the Internet market is flourishing in
part because of what appears to be widespread indifference on the part of cus
tomers to the issues involved. Merchants do nothing to help. Several websites
provided lengthy advice about avoiding fakes on the market, particularly on
eBay, but had less to say about illicitly traded objects. The reason presumably is
to protect business by reassuring customers about the authenticity of material
up for sale while at the same time not frightening them off with talk of laws
and law-breaking. The recommended interpol/unesco/icom statement
was nowhere to be seen. Where websites did provide information about appro
priate laws and regulations, it looked to be for cosmetic purposes only. On
websites stating the importance of 1970 as a threshold date, for example, the
majority of lots offered and sold had no dated provenance and thus nothing to
guide a customer in search of pre-1970 material. Self-regulation appears to be
non-existent. eBay usa, for example, completely ignores its own rule requiring
vendors to include an image of an official document confirming legal export.
Thus the Internet market is thriving because of customer indifference and
ineffective self-regulation. Other regulatory options should be considered;
though in a political climate parsimonious of resources, there is not much to
suggest. A first step would be to extend the purview of regulation to all trad
ers, including, along with eBay, the B2C Internet auction sites and electronic
malls such as Trocadero and vcoins. All merchants should be encouraged and
preferably required to display in clear view a statement about acceptable prov
enance similar to the one recommended by Interpol and unesco and adopted
if ignored by eBay usa. A clear view statement might in itself do something to
change the complacent attitudes of customers as regards the absence of prov
enance. eBay clearly does not monitor adherence to its own rules as it requests
public reporting of any rules violations.14 Bland (2009: 9091) reports the heavy
time burden of monitoring and the disappointing response of eBay uk. The
German experience seems more positive (Kreder and Nintrup 2013: 1718).

14 Available at http://pages.ebay.com/help/buy/report-trading.html (accessed 14 January


2014).
254 Brodie

Nevertheless, the experience of eBay usa and eBay uk shows that effective
regulation requires external oversight, and concerned public or professional
bodies need to step forward and respond to the challenge. In January 2014,
for example, it was reported that eBay usa had agreed to suspend the sale of
Egyptian antiquities in response to a request from the Egyptian Embassy to
the United States (mena 2014). As regards law enforcement, there are many
traders on eBay offering small quantities of low-priced objects, but they are the
small fish of the antiquities market pond. What scarce resources are available
to law enforcement agencies would be better expended on chasing the bigger
fish, including perhaps eBay itself (Kreder and Nintrup 2013: 1833), and on
generating more publicity for successful convictions. One or two high-profile
prosecutions for illicit trade might send a chastening message, alerting cus
tomers who choose to ignore warning statements to the financial and legal pit
falls of the Internet market, something that the poorly publicized convictions
of small-time eBay traders has signally failed to do.

Acknowledgments

The research leading to these results has received funding from the European
research Council under the European Unions Seventh Framework Programme
(FP7/20072013)/erc Grant agreement no. 283873. Thanks are due to Will
Korner for collating the Sothebys and Bonhams data.

table 13.1 Internet dealers offering more than five pre-Columbian antiquities for sale in 2011.

Internet dealers (intensively monitored group)

Ancient Resource
Apolonia Ancient Art
Arte Xibalba
Artemis Gallery
David Bernstein
Galeria Con-Tici
Griffin Gallery
hd Enterprises
Lands Beyond
Lost World Artifacts
Howard Nowes
Barakat Gallery
Galerie Mermoz
The Internet Market in Pre-Columbian Antiquities 255

Internet dealers (extensively monitored group)

Ancient Artifacts
Edgar Owen
Galleria Delvecchio
Galleria Verges
Genius of Man
Haigs of Rochester
Hundred & One Antiques
New World Antiquities
One of a Kind
Riverbend Gallery

table 13.2 Estimated material volume and financial value of Internet market in pre-
Columbian antiquities: Internet dealers. (All prices in usd). The average
thirty-eight percent lots sold is the average of percentage lots sold for each
dealer, and is higher than the overall figure (of twenty-three percent lots sold)
because of the low percentage sold figures of two dealers with large inventories.
The figures in square brackets for the extensively monitored group are
estimated from information obtained for the intensively monitored group.

Lots Lots sold Mean Percentage Total price Mean


offered objects lots sold price
per lot

Intensively monitored group


Subtotal 3258 745 1,150,018
Average 1.1 38 1,546

Extensively monitored group


Subtotal 635 [242] [374,132]
Total 6227 987 1,524,150
256 Brodie

table 13.3 Estimated material volume and financial value of Internet market in pre-
Columbian antiquities: Internet and physical auctions. (All prices in usd.)

Lots Lots sold Mean Percentage Total price Mean


offered objects lots sold price
per lot

Internet auctions
Arte Primitivo 1,060 960 1.7 91 992,693 1,034
Antiquities Saleroom 629 335 1.1 53 433,367 1,294
eBay usa No data 5298 No data No data 655,175 124

Physical auctions
Bonhams 94 51 1.2 54 359,736 7,054
Sothebys 46 35 1.1 77 1,644,032 46,972
Heritage Auctions 394 256 No data 65 375,574 1,467
Total 7,680 5,508,558

80
Internet dealers Internet auctions
70 ebay Sothebys

60
Percentage lots sold

50

40

30

20

10

0
0-100 101-500 501-1,000 1,001-5,000 5,001-10,000 10,001-50,000 >50,000
Price range ($)
figure 13.1 Range of prices of individual sold lots of pre-Columbian antiquities.
The Internet Market in Pre-Columbian Antiquities 257

table 13.4 Earliest verifiable provenance of lots offered and sold. (All prices usd.)

Earliest provenance Lots offered Lots sold Percentage Mean


lots sold price

Internet dealers 19141945 16 1 6 50


19461969 415 21 5 775
1970 24 12 50 6131
None 1923 690 36 1900

Internet auctions 19141945 0 0 0 0


19461969 152 135 89 575
1970 286 252 88 1477
None 737 475 65 1089

eBay 19141945 0 0
19461969 18 154
1970 8 482
None 453 116

Sothebys 19141945 1 1 100 98,500


19461969 24 17 71 57,875
1970 26 22 85 47,614
None 39 29 74 41,058

table 13.5 Earliest verifiable provenance and mean size of single ceramic object lots offered
for sale.

Earliest provenance Lots offered Mean size (inches)

Internet dealers Pre-1970 179 5


1970 17 9.2
None 1264 6.4

Internet auctions Pre-1970 45 8.5


1970 96 10.4
None 190 8.5
258 Brodie

table 13.5 (cont.)

Earliest provenance Lots offered Mean size (inches)

Sothebys Pre-1970 11 13.6


1970 15 15.8
None 27 14.5

table 13.6 Earliest verifiable provenance and mean price of single ceramic object lots offered
and sold. (All prices in usd.)

Earliest Lots Lots Percentage Mean price Mean price


provenance offered sold lots sold ($) lots lots sold
offered

Internet dealers Pre-1970 179 7 4 787 411


1970 16 8 50 3765 3380
None 1249 472 38 1307 1558

Internet auctions Pre-1970 45 36 80 660


1970 96 80 83 1727
None 190 109 57 824

eBay Pre-1970 12 141


1970 5 558
None 247 128

Sothebys Pre-1970 9 5 56 26,625


1970 13 10 77 66,088
None 21 15 71 26,354
The Internet Market in Pre-Columbian Antiquities 259

table 13.7 Countries of origin of lots offered and sold by Internet dealers. Asterisk indicates
a country with a bilateral agreement with the United States.

No lots offered No lots sold % lots sold

Bolivia* 1 1 100
Brazil 2 1 50
Colombia* 17 7 41
Caribbean 2 0 0
Costa Rica 25 8 32
Ecuador 71 7 10
El Salvador* 3 0 0
Guatemala* 22 1 5
Honduras* 4 1 25
Mexico 175 37 21
Peru* 136 73 54
Panama 3 1 33
Venezuela 2 0 0

table 13.8 Countries of origin of lots offered and sold by Internet auctions (not including
eBay). Asterisk indicates a country with a bilateral agreement with the United
States.

No lots offered No lots sold % lots sold

Argentina 3 1 33
Belize* 1 0 0
Brazil 7 6 86
Colombia* 36 28 78
Costa Rica 54 41 76
Ecuador 24 19 79
El Salvador* 7 4 57
Guatemala* 21 13 62
Honduras* 14 9 64
Mexico 276 168 61
Peru* 128 63 49
Panama 11 7 64
Venezuela 2 1 50
260 Brodie

References

ap (2004). Internet Sales Driving Indian Pottery Looting. Associated Press (April 29).
Ariguzo, Godwin, Efrem Mallach, and Steven White (2006). The First Decade of
e-Commerce. International Journal of Business Information Systems 1: 239255.
Atwood, Roger (2004). Stealing History. New York: St. Martins Press.
Barker, Alex (2000). Ethics, E-Commerce, and the Future of the Past. saa Bulletin 18,
http://www.saa.org/Portals/0/saa/publications/SAAbulletin/18-1/saa13.html.
Bland, Roger (2009). The United Kingdom as a Source Country: Some Problems in
Regulating the Market in uk Antiquities and the Challenge of the Internet. Pages
83102 in Simon Mackenzie and Penny Green (eds.), Criminology and Archaeology:
Studies in Looted Antiquities. Oxford, Hart.
Boehm, Mike (2009). Ancient Artifacts, Cyber Scams. Los Angeles Times (May 29).
Boone, Elizabeth H. (ed.) (1993). Collecting the Pre-Columbian Past. Washington dc:
Dumbarton Oaks.
Brodie, Neil (2004). Export Deregulation and the Illicit Trade in Archaeological Mate
rial. Pages 8599 in Jennifer Richman and Marion Forsyth (eds.), Legal Perspectives
on Cultural Resources. Walnut Creek: AltaMira.
(2011). Academic Involvement in the Market in Iraqi Antiquities. Pages 117133
in Stefano Manacorda and Duncan Chappell (eds.), Crime in the Art and Antiquities
World: Illegal Trafficking in Cultural Property. New York: Springer.
(in press). Provenance and Price: Autoregulation of the Antiquities Market.
European Journal on Criminal Policy and Research.
Bruhns, Karen (2000). www.plunderedpast.com . saa Bulletin 18, http://www.saa.org/
Portals/0/saa/Publications/SAABulletin/18-2/saa11.html.
Bruhns, Karen and Nancy Kelker (2010). Faking the Ancient Andes. Walnut Creek:
Left Coast.
Chippindale, Christopher, and David Gill (2001). On-line Auctions: A New Venue for
the Antiquities Market. Culture Without Context 9: 412.
Coggins, Clemency (1969). Illicit Traffic of Pre-Columbian Antiquities. Art Journal
(Fall): 9499.
Cooper, Renae, and Katina Michael (2005). The Structure and Components of E-mall
Business Models. University of Wollongong, Research Online. http://ro.uow.edu
.au/cgi/viewcontent.cgi?article=1377&context=infopapers.
Fay, Emily (2011). Virtual Artifacts: eBay, Antiquities, and Authenticity. Journal of Con-
temporary Criminal Justice 27: 449464.
Cacho, Silvia, and Leonardo Sanjun (2000). Site Looting and Illicit Trade of Archaeo
logical Objects in Andalusia, Spain. Culture Without Context 7: 1724.
Gerstenblith, Patty (2004). Art, Cultural Heritage, and the Law. Durham: Carolina Aca
demic Press.
The Internet Market in Pre-Columbian Antiquities 261

Gilgan, Elizabeth (2001). Looting and the Market for Maya Objects: a Belizean Per
spective. Pages 7388 in Neil Brodie, Jenny Doole and Colin Renfrew (eds.), Trade
in Illicit Antiquities: the Destruction of the Worlds Archaeological Heritage. Cam
bridge: McDonald Institute for Archaeological Research.
ice (2008a). ice Returns Ancient Marble Sculpture of Roman Emperor to Alge
rianGovernment (press release, us Immigration and Customs Enforcement, Janu
ary 15).
(2008b). ice Returns more than 60 Pre-Columbian Artifacts, Gold Pieces and
Emeralds to Colombian Government (press release, us Immigration and Customs
Enforcement, July 8).
(2010a). ice Returns to Peru 12 Human Skulls Dating to A.D. 640890. A
Cracked Crate in Cleveland Warehouse Reveals Human Skulls Hidden in Ceramic
Masks (press release, us Immigration and Customs Enforcement, April 7).
(2010b). Cultural Heritage Investigations and Repatriations (press release, us
Immigration and Customs Enforcement, April 29).
(2010c). ice, cbp and El Salvador celebrate Recovery of Pre-Columbian Arti
facts in Joint Investigation into Smuggling Ring Selling on eBay (press release, us
Immigration and Customs Enforcement, May 12).
(2010d). Stolen Pre-Columbian artifacts Returned to Peru by ice (press
release, us Immigration and Customs Enforcement, June 2).
(2010e). Art Collector Settlement Allows Repatriation of 2 Rare Ceramic
Antiquities to Peru (press release, us Immigration and Customs Enforcement,
November 3).
(2011a). ice and cbp Officials Return Pre-Columbian Artifacts to Panama
(press release, us Immigration and Customs Enforcement, April 27).
(2011b). ice and cbp Return 67 Artifacts to the Dominican Republic (press
release, us Immigration and Customs Enforcement, August 18).
(2011c). ice hsi Repatriates Pre-Columbian Bowl to Belize (press release, us
Immigration and Customs Enforcement, September 14).
(2012a). ice and cbp Return Illegally Exported Cultural Artifacts to Guate
mala (press release, us Immigration and Customs Enforcement, February 24).
(2012b). ice Returns Stolen and Looted Art and Antiquities to Peru (press
release, us Immigration and Customs Enforcement, July 12).
(2012c). ice Returns Stolen and Looted Archaeological Art and Antiquities to
Mexico (press release, us Immigration and Customs Enforcement, October 25).
icom (1997). One Hundred Missing Objects: Looting in Latin America. Paris: icom.
Kelker, Nancy and Karen Bruhns (2010). Faking Ancient Mesoamerica. Walnut Creek:
Left Coast Press.
Kraft, Robert (2007). Pursuing Papyri and Papyrology by way of eBay. A Preliminary
Report to the 25th International Congress of Papyrology. University of Michigan,
262 Brodie

Ann Arbor, August 3. http://ccat.sas.upenn.edu/rak/papyri/ebay/report-2007/report-


frame.html (accessed 29 January 2014).
Kreder, Jennifer, and Jason Nintrup (2013). Antiquity Meets the Modern Age: eBays
Potential Criminal Liability for Fake and Stolen International Antiquity Sales.
Case Western Reserve Journal of Law, Technology and the Internet, forthcoming.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321387.
Krishnamurthy, Sandeep (2004). A Comparative Analysis of eBay and Amazon. Pages
2944 in Gupta, Jatinder, and Sushil Sharma (eds.), Intelligent Enterprises of the 21st
Century. igi Global.
Lasaponara, Rosa, Giovanni Leucci, Nicola Masini and Raffaele Persico (2014). Investi
gating Archaeological Looting Using Satellite Images and Georadar: The Experience
in Lambayeque in North Peru. Journal of Archaeological Science 42: 216230.
Lidington, Helen (2002). The Role of the Internet in Removing the Shackles of the
Saleroom: Anytime, Anyplace, Anything, Anywhere. Public Archaeology 2: 6784.
mena (2014). Egyptian Embassy in us, eBay Agree to Suspend Selling Antiqui
ties. Cairo Post, January 29. http://thecairopost.com/news/81721/news/egyptian-
embassy-in-us-ebay-agree-to-suspend-selling-antiquities.
Muse, Toby (2004). Colombians Say Past is in Peril. Boston Globe (15 February).
McAndrew, Clare (2012). The International Art Market in 2011. Observations on the Trade
Over 25 Years. Helvoirt: European Fine Art Foundation. http://www.tefaf.com/
media/tefafmedia/TEFAF%20AMR%202012%20DEF_LR.pdf.
Nrskov, Vinnie (2002). Greek Vases in New Contexts. Aarhus: Aarhus University Press.
Palmquist, Matt (2009). Indiana Jones and the Temple of eBay. Pacific Standard
(June 24). http://www.psmag.com/navigation/business-economics/indiana-jones-
and-the-temple-of-ebay-3622/.
Quispe, Jorge (2012). Reliquias a la venta en Tiwanaku. La Razn, 5 November.
Sothebys (2012). Annual Report 2012. New York: Sothebys. http://files.shareholder
.com/downloads/bid/2841405695x0x648544/03391A3428804F51878A-3B9FDD
6C4225/bid_2012_annual_report.pdf.
Stanish, Charles (2008). Why I love eBay. Backdirt: Annual Review of the Cotsen Insti-
tute of Archaeology at ucla: 8285.
(2009). Forging Ahead: Or, How I learned to Stop Worrying and Love eBay.
Archaeology 62, no. 3 (May/June): 18, 5860, 6566. http://archive.archaeology
.org/0905/etc/insider.html.
unodc (2013). Comprehensive Study on Cybercrime. Vienna: United Nations Office on
Drugs and Crime.
Yates, Donna (2006). South America on the Block: The Changing Face of Pre-Colum
bian Antiquities Auctions in Response to International Law. MPhil dissertation,
University of Cambridge.
CHAPTER 14

Local and International Illicit Traffic in Vietnamese


Cultural Property: A Preliminary Investigation

Damien Huffer and Duncan Chappell

Introduction

In 2013 Vietnam became one of the twenty-one States Parties elected to


become a member of the World Heritage Committee (whc), the international
body responsible for the implementation of the World Heritage Convention.
The whc is also responsible for defining the use of the World Heritage Fund
and allocating financial assistance upon requests from States Parties. It has
the final say on whether a property is inscribed on the World Heritage List. It
examines reports on the state of conservation of inscribed properties and asks
States Parties to take action when properties are not being properly managed.
It also decides on the inscription or deletion of properties on the List of World
Heritage in Danger (unesco, 2014; see http://whc.unesco.org/en/committee/).
Although not the first Southeast Asian nation to assume this important
international role, Vietnam has joined the Committee at a time when increas-
ing attention is being given to the continuing threat in the region, and glob-
ally, from looting and trafficking of cultural heritage property from known and
unknown archaeological sites, including some already on the World Heritage
List (e.g. Davis, 2011; Bowman, 2008; Bowman-Proulx, 2011; Mackenzie, 2005).
Much of this attention has focused on Cambodia and Thailand although, as
we indicate in more detail below, the evidence suggests that other Southeast
Asian nations, including Vietnam, are also the victims of this illicit activity.
Given Vietnams newly acquired prominence in the heritage protection field
we present in this chapter a preliminary review of what is known about the
illicit trade in Vietnamese cultural heritage, both within Vietnam itself and
from Vietnam to key regional and international market countries. We believe
that this is the first analysis of its type that has been attempted, largely from
a criminological perspective. The material to be discussed derives primarily
from pilot fieldwork conducted in the Vietnamese capital, Hanoi, in early
2014, as well as interview data solicited before and during that time. A street-
level survey of market activity was conducted, as well as questionnaire data

koninklijke brill nv, leiden, 5|doi .63/9789004280540_015


264 Huffer and Chappell

solicited with consent from Western and Vietnamese archaeologists, relevant


Vietnamese museum and governmental officials, and certain antiquities deal-
ers. The review was also conducted within the framework of what current leg-
islation permits and what efforts, if any, are being made to regulate antiquities
trafficking.
The chapter is arranged in five parts. In Part 1 we provide a brief contextual
and historical overview of Vietnams rich cultural heritage from the Paleolithic
to the present and current examples of threats to it. In Part 2 we describe the
legislative framework that has been put in place to protect that cultural heri-
tage while in Part 3 we provide a description of our own research methodology.
In Part 4 we turn to our research findings, while in Part 5 we seek to draw some
conclusions about the lessons to be learned and the policy and related changes
that might be needed to offer better protection to cultural heritage both within
Vietnam and its neighbors in Southeast Asia.

1 Vietnams Ancient Past and Current Threats

The prehistoric and ancient historic periods that chronicle the presence of
H. sapiens within Southeast Asia from circa 30,000 years bp to the firstsecond
millennia ad (the early historic period), are increasingly becoming crucial to
understanding the global past, with numerous comprehensive overviews avail-
able (e.g. Higham, 2002; OReilly, 2006; Bellwood & Glover, 2004; Stark & Allen,
1998), and new research progressing rapidly (ippa, 2014). A general chronology
for the region posits that the pre-agricultural Paleolithic period lasted from
first human/hominid occupation until circa 4,000 bp. The Neolithic period
saw a transition to settled life, the onset of agriculture, the mixing of geneti-
cally distinct populations, and the expansion of regional trade by coast and
river, and lasted until circa 3,500 bp. The Bronze Age (in northern, mainland
Southeast Asia at least) saw initial experiments in bronze casting from copper
antecedents and the distinct material cultural assemblage of tools, weapons,
jewelry, molds and slag, accompanied by new ceramic vessel forms, lasting
until circa 2,500 bp. The Iron Age (known as the ng Sn period in north-
ern Vietnam) continued these trends in material culture, stratified societies
increasingly, and lasted until circa 50 ad when the first Eastern Han invasion
in Vietnam brought the rise of proto-historic, state-level societies elsewhere.
Within this general framework, new excavations continue to demonstrate
the importance of sites along Vietnams major river tributaries and extensive
coastline in clarifying numerous issues in Southeast Asian regional prehistory.
Illicit Traffic in Vietnamese Cultural Property 265

New research pertaining to topics ranging from first settlement by human


populations (e.g. Schepartz, Miller-Antonio, & Bakken, 2000), to the origin
of common stone tool assemblages and their makers (e.g. Matsumura et al.,
2008; Schoocongdej, 2001), transitions to agriculture and its human biologi-
cal ramifications as understood from skeletal data (Oxenham, Matsumura &
Dung, 2011; Huffer, 2012), the domestication of animals (Piper et al., 2012), the
spread of bronze and iron metallurgy, and the rise of unique states (Kim, Van
Toi & Hiep, 2010; Hardy, Cucarzi & Zolese, 2009) are all benefiting from the
inclusion of new data from Vietnam. Recently excavated coastal prehistoric
villages and shipwreck sites have also encouraged new research into how pre-
historic populations and historic ports in Vietnam participated in regional and
international maritime trade in the region (e.g., Hung et al., 2013; Flecker, 1992;
Blake & Flecker, 1994).
Unfortunately, the degree to which new archaeological discoveries can con-
tinue is likely hampered by the pervasive yet poorly documented incidence of
site-looting for the local and perhaps wider illicit antiquities trade. This trade,
especially as it relates to smaller and portable artifacts removed from prehis-
toric and historic archaeological sites, is giving increasing cause for alarm in
many parts of the world (e.g. Bowman, 2008; Brodie, 2006; Brodie & Tubb, 2003;
Brodie & Renfrew, 2005; Chippindale, Gill, Salter, & Hamilton, 2001; Kersel,
2013; Renfrew, 2000). To date, mapping the nature and scope of this illicit antiq-
uities trade on the ground has been difficult, primarily due to lax or conflicting
enforcement practices, inadequate and often confusing national and interna-
tional laws, and the poor understanding and visibility of the market forces at
play. This has been especially true within Southeast Asia, where the bulk of
research and outreach to date has focused on the more observable trade ema-
nating from Cambodia and, to a lesser extent, Thailand (e.g. Anderson, 2007;
Byme, 1999; Chappell & Huffer, 2013, 2014; Davis, 2011; Huffer, 2009; OReilly,
2007, 2009; Thosarat, 2001).
The current threats to Vietnams historic and prehistoric cultural heritage
are unfortunately numerous. Illicit salvaging of shipwrecks along the South
China Sea coast (Staniforth, 2012; Flecker, 2002), imported metal detector use
at the Bronze Age site of Vn Chui (Dung, 2009a,b), robbery of Dynastic
period tombs (Van, 2013a), and damage to monumental sites (e.g., the M Sn
Champa temple complex) due to neglect, mismanaged tourism, and looting
have all been documented (Heritage on the Wire, 2012). What proportion of
antiquities on the market derives from organized looting activity as opposed
to the chance discovery of field finds uncovered while plowing fields in
rural areas is unknown. Even in rural areas, the suspected presence of bronze
266 Huffer and Chappell

artifact deposits, especially rare drums, weapons, jewelry and sculpture, has led
to the occasional reported instance of looting, and sometimes the salvaging of
unique finds if the destruction is stopped in time (Bellwood et al., 2007). There
is even a thriving collecting and trading community for ancient and historic
coins, sometimes with decidedly nationalistic motives (Viet Nam News, 2013a;
Vinh, 2011; Barker, 2011). The illicit trade in antiquities and the collecting com-
munity that sustains it is not the only example of a transnational organized
crime in which Vietnam participates (Roberts, 2014). All such forms of illicit
trade require continued exposure, documentation, monitoring and outreach
to create and enforce effective policy changes and raise public awareness.
Fortunately, in regard to the Vietnamese illicit antiquities trade, public
awareness and scholarly attention is beginning to reveal the existence of the
problem to the local and international public (e.g. Boom, 2012; Thanh Van,
2012; An, 2013; Flecker, 2002; Poser, 2012). Coupled with an increased push by
the Southeast Asian archaeological community for the community benefits
that preventing looting on the ground bring in favor of better conservation,
on-site museum development, and managed tourism (Viet Nam News, 2010),
the situation is beginning to change. It is our belief that the new data pre-
sented here adds significantly to the knowledge base needed to address this
problem. However, before this research and the results generated from it can
be discussed, the legislative framework that is meant to govern the acquisi-
tion, private ownership, display and trade of Vietnamese antiquities needs to
be outlined.

2 Legislative Framework

Vietnams turbulent past under French colonial rule has been well-docu-
mented, as has its successful efforts to break free of these colonial shackles
and ultimately achieve full independence as the Socialist Republic of Vietnam
(srv) in 1976 (e.g. Harrison, 1989; Pike, 1977). During the French colonial period,
the occupying powers legal system prevailed. Many archaeological sites were
identified and excavated throughout what was then French Indochina, com-
prising Cambodia and Laos in addition to Vietnam (see in general Chapman
2013). These archaeological endeavours were significant in giving impetus to
the development of museums and other repositories within Indochina for
antiquities collected during this colonial period. Many of these artifacts, of
course, found their way back to France where they continue to be displayed in
places like the Louvre in Paris.
Illicit Traffic in Vietnamese Cultural Property 267

When he first came to power in 1945 Vietnams revered revolutionary leader,


H Ch Minh took an interest in the protection of the nations antiquities,
signing a law which called in principle for the conservation of historic sites
(Chapman 2013: 115). An edict was added to the measure in 1957:

an edict entitled the Decree on the Management, Classification and


Methods to Organise the Protection and Restoration of Historical and
Cultural Monuments. This was little more than an expression of intent,
but it did set out the principles of a government-initiated conservation
program. It also showed Vietnams willingness to be part of an interna-
tional community that valued cultural heritage (Chapman 2013: 116).

During the years of war that followed this edict, H Ch Minh and his col-
leagues were able to give little attention to these principles as they fought for
their independence. As a result, most of Vietnams ancient sites and monu-
ments slid rapidly into decay and ruin. Many sites were also badly damaged or
destroyed by bombing and other forms of armed conflict.
Following unification of North and South Vietnam in 1976, the new srv
passed its first Ordinance on the Protection of Historical Cultural Relics and
Scenic Sites in 1984. Conservation and associated activities began with for-
eign assistance; this was given primarily by Poland, which was also a socialist
state at the time (Chapman 2013: 117). The protection of the cultural heritage
of the Vietnamese nation was also reflected in its constitution; Article 34
provides that:

The State and society preserve and develop the national cultural heritage;
historical or revolutionary monuments, cultural relics, works of art and
beauty-spots shall be maintained, restored, protected and their impact
fostered. Due attention shall also be granted to preservation and museum
work. All acts causing damage to or prejudicial to historical or revolu-
tionary monuments, works of art and beauty spots are strictly prohibited
(Constitution of the Socialist Republic of Vietnam 1992).

Reflecting these constitutional principles, the National Assembly of the srv in


2001 passed a comprehensive Law on Cultural Heritage (lch 2001) (see unesco
2013) which, with minor amendments in 2002 and 2009, remains the nations
principal legislative statement and provision on this topic. This legislation sets
out the parameters of protection given to both tangible and intangible objects
of cultural significance. It also provides that all cultural heritage remaining
268 Huffer and Chappell

underground or underwater, together with any newly discovered or excavated


items, belongs to the people of Vietnam (lch Articles 6 and 7). Definitions of
the various objects that are to be considered a part of the tangible cultural
heritage of the nation are provided in the lch (Article 4) and include vestiges
which are bequeathed objects with historical, cultural and/or scientific value
as well as antiques that are bequeathed objects with typically historical, cul-
tural and/or scientific value and aged one hundred years or more (lch Article
4 [5] and [6]).
Organizations and individuals retain the right to own cultural heritage
objects as well as to purchase, sell, exchange, donate, or bequeath them as
inheritance (lch Articles 14 and 43). However, the export abroad of objects fit-
ting the description of vestiges or antiques requires the permission of the com-
petent State agencies in charge of culture and information (lch Articles 43
and 44). Further, any such objects owned by the people at large, like those held
in museums or newly discovered, are excluded from these provisions, as are
objects termed national precious objects, which are defined as bequeathed
objects with extremely precious, rare and typical value in terms of history, cul-
ture and/or science (lch Article 4[7]. National precious objects are required
to be registered with the appropriate state agency and the state has the first
right to purchase them for an agreed price or at an auction (lch Article 43).
From what has been described so far it will be seen that on first sight Vietnam
has put in place quite comprehensive and protective legal provisions designed
to safeguard its cultural patrimony. These provisions are in general accord with
the protective regime encouraged internationally by unesco and its 1970s
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export
and Transfer of Ownership of Cultural Property (unesco 1970). In fact Vietnam
became a signatory to this Convention in December 2005, although it has not so
far ratified the more recent 2001 Convention on the Protection of the Underwater
Cultural Heritage (unesco 2001). Despite these encouraging developments,
how effective lch 2001 and its associated regulatory and enforcement mecha-
nisms has been in tackling the problems of looting and trafficking of cultural
heritage objects in Vietnam must be shown. It is to this question and to our
research in general that we now turn.

3 Research Methodology and Study Limitations

To begin to understand the nature of the current antiquities trade, both licit
and illicit, within and from Vietnam, we collected data in two ways. First, to
collect qualitative data, we conducted unstructured interviews or solicited
Illicit Traffic in Vietnamese Cultural Property 269

responses to short formal questionnaires. Our informants for these interviews


and questionnaires were Western and Vietnamese archaeologists, muse-
ologists, and local government officials. Second, we conducted a street-level
survey during an approximately two-week period from 1631 January, 2014 to
collect largely quantitative data on such aspects as the spatial distribution of
dealers and end-market collectors around metropolitan Hanoi as well as varia-
tion in price and the diversity of artifacts, both genuine and fake, on offer by
different venders.
Hanoi was selected for this fieldwork due to its importance as an entry and
exit point for Vietnamese citizens and tourists, the known presence of antique
(souvenir) shops selling allegedly genuine artifacts (sometimes despite
observed evidence to the contrary), and one authors (dh) already-established
contact network within the local and regional archaeological community. The
ever-increasing presence of international tourists and proximity to unesco
World Heritage sites and numerous known and unknown archaeological sites
around northern Vietnam were also important considerations.
The methodology selected to collect both categories of data have precedent
within global antiquities trade research. Scholars have utilized interviews and
questionnaires as means of soliciting data not only from demand-side deal-
ers and collectors (e.g., Mackenzie, 2005), but also from field archaeologists
working around the world (Bowman-Proulx, 2013). Ethnographic fieldwork
that directly queries looters and dealers (comparable to the unstructured
interviews reported below) also has precedent (e.g., Al-Houdalleh, 2012;
Antoniadou, 2009; Politis, 2002). The research presented here is modeled after
these larger studies, but is the first to apply these methods specifically to inves-
tigating source to market flow in the Vietnamese antiquities trade.
In common with the research discussed above, the majority of the quali-
tative data presented here was solicited via in-person unstructured inter-
views and/or formal questionnaire responses solicited from Vietnamese and
Western archaeologists, government officials from the Ministry of Culture and
Information, Foreign Affairs, and the Hanoi branch office of unesco, and
certain dealers willing to cooperate. A total of twenty-five individuals were
contacted by email, initially in October 2013. If the potential interviewee still
did not reply after onetwo months, they were excluded from the sample. At
the time of writing, fourteen informants had responded, each of whom has
been given a number for anonymitys sake when direct quotations are used.
Aside from biographical information solicited from each respondent, numer-
ous questions were proposed to elicit informants views on observed loot-
ing activity around Vietnam as well as legislative and public responses to it
in order to better understand internal and external demand for Vietnamese
270 Huffer and Chappell

antiquities. Interview questions addressed such topics as the location and


frequency of looting respondents had observed in the field, types of sites tar-
geted, observations of the sale of real or forged antiquities in the towns or
cities in which they live and work when excavating, encounters between (or
employment of) current or former looters by archaeologists, on-the-ground
impacts of heritage legislation, and general public attitudes to cultural heri-
tage. In general, the questions were designed to be broad-spectrum in topical
focus, and respondents were chosen to obtain as wide a geographic coverage
of Vietnam as possible.
Due to the sample sizes of respondents in this exploratory study being much
smaller than those mentioned above, no attempt was made to code or statisti-
cally manipulate the interview data obtained. The written questionnaires used
in this research were also not administered online, but rather sent to respondents
via email for them to fill out off-line and return in their own time. Utilizing ques-
tionnaire data in this manner provides a baseline to which future research may be
added.
Any study of this nature undoubtedly faces limitations; our chief problem
was the short amount of time at our disposal for interviews and investigative
fieldwork due to the intrusion of the Tt holiday into our nominated research
window. This holiday is celebrated nationally, and most official and private
agencies and businesses close for at least a one-week period in observance.
In addition, with a few exceptions, interviews with street-level dealers were
not prearranged, and were therefore dependent on being in the right place at
the right time. Furthermore, like other studies (e.g., Baruch & Brooks, 2008;
Bowman-Proulx, 2011) relying on individual informants to return survey or
questionnaire responses in a timely manner, this study also had to contend
with a generally low response rate. Nevertheless, the response rate was more
than expected, especially given that all contact with informants and dissemi-
nation of questionnaires was done online.

4 Preliminary Findings

We now turn to consider the preliminary results of our research. The section is
structured so as to progress from general to more specific observations. It will
begin with discussion of the frequency and location of looting, what looting
entails in Vietnam specifically, observations of the street-level trade in urban
Hanoi, observations of forgery, less-obvious differences between the trade in
antiquities derived from terrestrial sites vs. maritime sites, and, finally, the
subjective assessment of the on-the-ground impact of current legislation and
local attitudes towards heritage preservation.
Illicit Traffic in Vietnamese Cultural Property 271

4.1 Where is Looting Observed?


In regard to this fundamental question, in general the data suggest that looting
occurs geographically throughout the country. This is not to imply that the fre-
quency or severity of illicit excavation is equal throughout; our archaeological
informants responded differently depending on where the majority of research
they have conducted took place and what time periods they focused on. For
example, one informant (Archaeologist 8) had only excavated at Paleolithic
rock shelters in Ninh Bnh Province, two hours travel by road south of Hanoi,
and reported no direct observations of looting activity. This is most likely due
to the generally unproductive nature of rock shelters with regard to monetarily
valuable artifacts readily recognizable by clientele. Remoteness and difficulty
of access are other reasons why this is the case. Other informants, for exam-
ple Archaeologists 1 and 2, with excavation expertise on late prehistoric and
historic period sites which frequently contain gold, silver, and precious gems
as grave goods, noted much more wide-spread activities. When asked within
Vietnam, where are the majority of looted sites that you have observed, if any?
Archaeologist 1 (a native German speaker) replied:

All over the country where you have sites with gold or salable objects.
Certainly, in Vietnam are areas which were more densely populated in
past and present like the river deltas in northern Vietnam than other
areas like the mountain areas. Sites before the Bronze Age are not so in
danger of looting.

The concentration of looting activities in riverine and coastal regions of the


country also (unsurprisingly) applied to the illicit salvaging of shipwrecks,
with numerous recent newspaper articles indicating incidents of interrupted
maritime looting as recently as 2013 (Van, 2013b) along the Qung Ngi coast
(a Central Vietnamese coastal province) and as far north as Qung Ninh
(the main province covering remote H Long Bay, near the Chinese border).
These looting events, and other similar instances, were confirmed by per-
sonal observation (or via direct word-of-mouth from Vietnamese colleagues)
by two Western maritime archaeological informants (Archaeologist 4, 7).
Our Vietnamese archaeological informants were of more mixed opinion in
regard to where looting occurs, with one (Archaeologist 12) reporting that
archaeological sites are destroyed everywhere; wherever antiquities may be
stolen, while another informant, a Vietnamese archaeologist from a moun-
tainous province north of Hanoi (Archaeologist 10) noted:

Where I live (Tuyn Quang Province), this phenomenon does not exist.
Locations with archaeological sites are places that people believe to be
272 Huffer and Chappell

sacred and would not dare to steal from. If this problem occurs, it is only
(due to) people from elsewhere coming here.

If the balance of evidence we have gathered so far suggests that looting in some
form occurs throughout the country and off its coast where shipwrecks can be
located in shallow water, then the next questions to be asked is how frequently
this looting occurs and what it looks like on the ground.

4.2 How Often Does Looting Occur, and What Do Looting Events Entail?
Anecdotal evidence from our informants suggests that the detection of looting
events and apprehension of perpetrators frequently proves to be extremely dif-
ficult. Such evidence also suggests that much more looting occurs, especially
in rural areas, than is routinely observed by archaeologists or reported to pro-
vincial or national authorities. One informant (Archaeologist 1) observed that
approximately twentythirty percent of looting occurs at sites already known
to the archaeological community, leaving seventyeighty percent that occur
at archaeologically unknown sites. If correct, this assessment makes damage
mitigation much harder given no preexisting knowledge of site location or the
nature of the archaeology involved. This assessment, nonetheless, does make
sense in light of this same informants stated personal viewing of tentwenty
instances of looting over twenty years field experience. What very few pub-
lished accounts there are suggest that small, portable antiquities such as gold,
silver, and bronze jewelry (in addition to beads, bronze and iron tools, weap-
ons, and even the occasional figurine) are the primary targets of late prehis-
toric and historic period site looting (e.g., Thosarat, 2001a).
In terms of what looting events entail, numerous similarities can be seen in
Vietnam to looting in Cambodia, Thailand, and likely elsewhere in Southeast
Asia (Thosarat, 2001a,b). Some of our informants (e.g., Archaeologist 5, who
has excavated early prehistoric burial sites in northern Vietnam over four field
seasons) suggested that deliberate looting does not seem to target pre-Bronze
Age sites. Thus the appearance on the market of any genuine prehistoric
antiquities made of nephrite or ceramic would be due almost exclusively to
chance finds during plowing and allied agricultural activity that went to
antiquities dealers rather than being reported to the government. Another
informant who responded to our questionnaire and sat for an interview in
Hanoi (Archaeologist 11, an expert in ng Sn drums and the Metal Age in
general) suggested that late prehistoric ng Sn tombs are occasionally bro-
ken into so as to recover intact ng Sn drums (Heger ii type especially), as
well as early Han Dynasty brick tombs (to remove intact ceramics), and even
Illicit Traffic in Vietnamese Cultural Property 273

more recent burials of the Muong ethnic minority. For a recent example of sal-
vage excavation of a unique ng Sn burial, see Bellwood et al. (2007).
Another informant (Archaeologist 2, a specialist in historic-period Cham
archaeology) noted that ancient Cham tower sites, both those previously
excavated and those archaeologically unrecorded, have been damaged to both
acquire gold and silver artifacts as well as to reuse bricks in modern construc-
tion projects. A stark example of prehistoric (Bronze and Iron Age) site looting
specifically within a recently urbanized district of Hanoi itself was also docu-
mented during the period of our preliminary fieldwork. The site complex of
Vn Chui (Hoi c district) has been excavated since 2004, but scientific
excavation (of domestic and mortuary features) has been accompanied by
illicit excavations off-season, including the use of metal detectors from 2009
until very recently. While this particular example will be discussed in more
depth in a forthcoming publication, it would not be unrealistic to suppose that
other incidents of metal detecting occur elsewhere. How this relatively novel
method of looting is monitored and controlled elsewhere in Vietnam is an as
yet unresolved question.

4.3 Observations of Urban Antiquities Trafficking


The sections above have described the extent and nature of illicit excavation
activities that currently occur in Vietnam. This section discusses what hap-
pens when objects derived from these activities enter the marketplace. Our
archeologist informants, in particular, were of the view that a significant but
hard-to- quantify proportion of the looted objects bypassed galleries or street-
level dealers and instead flowed directly from source sites to private collectors
(and occasionally museums featuring exhibits they have sponsored). However,
during our field survey our preliminary observations of where and how antiq-
uities are trafficked within Hanoi itself led to the discovery of approximately
twenty-six businesses ranging from long-established galleries openly selling
antiquities and ethnographica to individual shop fronts in which the sale of
antiquities, or the display of the remnant of a familys previously sold private
collection, was only discovered by chance. Figures 14.1 and 14.2 below show the
spatial distribution of these galleries and private dealers we directly observed
during our fieldwork, with Figure 14.2 showing the Old Quarter district of
Hanoi in more detail.
As is apparent from these maps, while there is no specific single district
in which all of the antiquities dealers have established themselves, there is a
cluster (14) of open-air shop fronts along the 100300 block of Nghi Tm Street
in the West Lake District on the fringes of the main tourist area of central
274 Huffer and Chappell

Figure 14.1 Overview of relevant locations mentioned in text outside of the Old Quarter
(Hon Kim District). Xs mark locations of specific establishments. 1=shop fronts
and private collectors along Nghi Tm Rd; 2=approximate location of antique/
antiquities fair preceding the Tt holiday; 3=arrow points towards the H Ni
Museum.

Figure 14.2 Gallery/dealer locations recorded within the Old Quarter (Hon Kim) district.
Illicit Traffic in Vietnamese Cultural Property 275

Hanoi. In these specific shop fronts, amongst numerous forgeries we observed


of objects ranging from Dynastic period ceramics (Trn, L, L, Nguyn) to
ng Sn period bronzes, there were a few examples of authentic, small, pre-
historic artifacts in bronze and stone alongside glass beads and coins. Both
local archaeologists and dealers with more established galleries told us they
knew of the existence of these shops, and attested to the high prevalence of
forged antiquities they purveyed. They also described these shops as family-
owned businesses, with one shop attendant we talked to informally while
exploring the area suggesting that more than ninety percent of the shops for
500 meters are owned by my family from Thanh Ha.
Thanh Ha (approximately three hours south of Hanoi) was the heart-
land of the ng Sn culture and many archeological excavations and salvage
projects have been carried out there. Several of our informants, both archae-
ologists and dealers, strongly suggested the presence of an active forgery
industry for bronze artifacts emanating from the Thanh Ha area (see in more
detail below). If only minor volumes of genuine antiquities pass through these
shop fronts on the outskirts of the tourist districts of Hanoi, the question must
be asked: how they are able to stay in business? The answer may be that they
are able to survive largely from the sale of forgeries. However, a more likely
explanation may be found in the current cultural heritage legislation, which, as
noted earlier, permits private ownership of antiquities and, with certain provi-
sos, direct no-questions-asked collaboration between museums and collectors
in the acquisition of genuine cultural artifacts. More will be said about this
issue below, but a likely conclusion is that direct purchase by private collec-
tors from these family-run shop fronts of those genuine but illicitly excavated
antiquities that do enter the city this way sustains these businesses.
It is important to note at this point that the level of urban trade in illicit
antiquities we observed in Hanoi represented by the small shop-front store-
houses along Nghi Tm road, the mixed business galleries (i.e., antiquities
exhibited or sold by request within the family-owned shops of dealers that
had more legitimate business, such as the sale of silk or contemporary art),
or even the very few more high-end galleries primarily devoted to the sale of
antiquities, do not appear to represent the topmost echelon of the organized
antiquities trafficking cordata (sensu Chappell and Polk, 2011) witnessed
elsewhere. Archaeologist 11 (a Vietnamese expert in the ng Sn Period) and
other informants with different types of expertise all alluded to the existence
of such a top echelon whom they labeled the Big 5an inter-connected
network of top-level collectors who monopolize the high-end antiquities trade
in Hanoi and probably other parts of Vietnam.
276 Huffer and Chappell

We did not press our informants to name the Big 5, but during the course of
our preliminary research the potential identities of two were alluded to while
the others remain anonymous. All of our informants confirmed that it is very
difficult to obtain information about how the Big 5 acquired their wealth and
what other affiliations they hold. The most visible example we found of this
top-tier level of collectors, although, according to our informants, not one
of the Big 5, came in the form of the ng Sn Drum restaurant, a massive
dining and entertainment complex on the edge of Hanoi owned by a wealthy
local businessman. We visited this complex during our field research and were
amazed by its dazzling and professional display of Vietnamese antiquities
(http://www.dongsondrum.com.vn). It would seem that one of the main func-
tions of the establishment is to serve as the largest private museum display-
ing prehistoric (ng Sn) material culture in Vietnam. The full extent of this
individuals collection is unknown, but its ornateness and rarity have not gone
unnoticed. Archaeologist 11 attested via interview to the authenticity of the
artifacts on display there, while Archaeologist 6 noted:

At the time (2008) I wondered how a private individual managed to


have a better collection of ng Sn drums (many of which still had dirt
stuck to them) than the ones I had seen in the Vietnamese Museum of
History.

In summary, the evidence from both our street-level survey and our qualita-
tive database suggests that a small but active trade in antiques and antiquities,
both licit and illicit, does exist in Hanoi. It exists as a loose affiliation of deal-
ers with no distinct geographic center, and many dealers appear to operate
fronts to disguise the presence, or scope, of antiquities collections for dis-
play or sale. Some dealers and gallery owners attested to the use of spotters
to locate rare objects, but several of our archaeological informants suggested
that, especially in cases of illicit excavations within urban areas (prompted by
construction activities exposing new sites), dealers or private collectors would
purchase directly from the leaders of looting gangs. The urban trade in real,
and forged antiques and antiquities is sanctioned enough that fairs exist on
the grounds of the new Museum of Hanoi and as the daily display of numerous
vendors and private collectors wares during a month-long event leading up to
Tt (see Fig. 14.1 for location).
As one of us experienced when exploring this fair, it is relatively easy for a
foreigner to arrange private sales, often in the houses of individual vendors,
especially if Vietnamese is spoken and the vendor has rarer items at home. The
authenticity of items proffered in private deals remains an issue. Given that the
Illicit Traffic in Vietnamese Cultural Property 277

sale of authentic rarities such as ng Sn drums to foreign buyers is technically


illegal, the movement of such items outside of the networks formed by local
private collectors and affiliated museums or public establishments would by
default require the collusion of authorities to arrange export and Customs clear-
ance. Indeed, a former dealer (self-identified as such) interviewed in his gallery/
home clearly indicated that his previous shipments to international clients (pre-
2005) left via Hi Phng port by means of bribes to ensure transit. It was only
when Customs apprehensions increased that this became not worth it any-
more. Nevertheless, the exploratory data presented here suggests that antiqui-
ties trafficking within and from Hanoi continues. To what degree the frequency
and regularity of the illicit trade in Hanoi (the national capital and a primary
entry/exit point for people and goods, despite a more inland location) compared
to port cities such as Hi An, Hu, or H Ch Minh City, is unknown at this time.

4.4 Does the Trade in Maritime Antiquities Differ from Terrestrial?


In general, the results obtained in this exploratory research suggests that few
differences exist between the trades in maritime and terrestrial antiquities in
Vietnam in general, let alone the Hanoi region. When asked via questionnaire to
describe the general process of looting in Vietnam, Archaeologist 1 responded:

Successful looting in Vietnam (and in the neighboring countries) is


based on networks between villagers, informants, dealers and collectors.
Just a minor part of looting is spontaneously done. This was maybe not
the same 50 years ago in Vietnam. All authorities you have in Vietnam
(local police, peoples committee in the villages, communes or districts,
as well as provincial museums and central scientific institutes) know in
detail or more general about this situation, they can stop some dealers
but cannot change the whole situation.

While this observation could describe the generic process of looting in many
locations, with increasing media scrutiny of the illicit salvaging of shipwrecks
off the Central and Southern Vietnamese coasts, one would surmise that the
illicit trade in maritime antiquities would be more clandestine, replete with
household-level retention of artifacts discovered on private property, as was
documented by Archaeologist 13 in discussing the use of intact Han Dynasty
ceramic vessels as flower pots by villagers in H Tnh Province as recently
as 2013.
However, two interviewees (Vietnamese maritime archaeologists) suggested
that the discovery of new shipwreck sites is still primarily accidental or due
to authorities intercepting illicit village-level salvage operations after dealers
278 Huffer and Chappell

have already purchased the rarest items, usually with no interference by the
Vietnamese Navy or other authorities with law enforcement capability. Each
passing storm reveals new artifacts for the taking from known wreck sites. In
some situations land and water buffer zones can be established around a ship-
wreck site, controlled at the Commune level. This then allows more systematic
salvage work to take place with an archeological input. The Vietnamese gov-
ernment has opted on several occasions to arrange joint ventures with private
maritime salvage companies to conduct such work. These companies then
participate in the sanctioned sale of recovered shipwreck antiquities at public
and private auction, often times as a means to fund the initial salvage work
or further scientific excavation once illicit activity has ceased. These arrange-
ments can cause problems. Archaeologist 6 among our informants summed
up the main problem in the following way, with particular reference to the
discovery of new wreck sites off the Qung Ngi coast in 2012:

Unfortunately the Vietnamese government has been involved in the sale


of many artifacts from shipwrecks in the past. One of the consequences
of government authorities putting a price on shipwreck artifacts is that
poor local people want to grab the loot and sell it for themselves rather
than letting the government get (and sell) the artifacts. Having created a
situation where artifacts from wrecks are regularly sold by government
authorities in Vietnam it should come as no real surprise that local poor
fishermen see the Qung Ngi shipwreck as the fortune from the sea
and are currently seeking to grab some of the loot for themselves.

There are differences in the process, especially the fact that maritime looting
involves public-private sector partnerships whereas trafficking in materials
from terrestrial sites does not. But the overall route that looted and laundered
antiquities take from the ground (or seabed) to market is more or less the same.

4.5 Perspectives on Forgery Industries


All our informants suggested that an active forgery industry exists for several
categories of artifacts. Those informants who answered questions related to
forgeries suggested that prehistoric bronze and prehistoric and historic-period
stone artifacts (ranging from small pieces of jewelry and simple adzes and
axes to elaborate Champa sculpture) were the most commonly forged artifacts
available in urban markets (and internationally via false advertising online).
The more elaborate the particular category of bronze artifact, the more dif-
ficult the creation of reproductions, and yet the more value they can fetch if
done accurately. This is not surprising given the fact that authentic ng Sn
Illicit Traffic in Vietnamese Cultural Property 279

drums, for example, can fetch anything from $50,000$500,000 at auction or


from museums or private collectors. With few exceptions, and despite the abil-
ity of the trained expert or connoisseur to spot fakes, it is only the most elabo-
rately designed artifacts which have proven profitable enough to create active
forgery industries at the household or village level.
Portable antiquities that may or may not be elaborately decorated, such
as Han Dynasty coins (readily available in the majority of shops or galleries
recorded during our street level survey), represent a more complex situation.
Archaeologist 7 notes:

Copper cash is sold in many stores but some are legitimate copies and
it is difficult to draw a line between what is forgery and what is [intended
as] souvenir.

In subsequent interviews, Archaeologists 11 and 12 mentioned that the skill of


forgers is so great that, in the case of ng Sn drums specifically, only a 10 point
system of checks (devised from experience by Archaeologist 11 himself) can
separate authentic from inauthentic objects. As this informant had been con-
sulted in the past by both collectors and provincial museums (for purposes of
authentication), he could readily attest to the ease with which forgeries of rare
bronzes (and occasionally other artifact types) can be sold as genuine. While
Thanh Ha Province has long been suggested by collectors and archaeologists
to be a prime source of reproduction (and authentic) bronze artifacts (Viet
Nam News, 2013b), Archaeologists 11 and 12 also suggested that the quarries
and villages of Bc Ninh Province to the east of Hanoi and in the Red River
delta have become a key source of reproduction stone artifacts (axes, shoul-
dered adzes, jewelry) available on the Hanoi market. Robust industries also
exist for counterfeit wreck ceramics of several dynasties that have flooded
markets in Hanoi, Hi An, and other major cities. It would seem that exist-
ing consumer protection and allied legislation in Vietnam has too date been
unable to curb such practices (see in general Nguyen 2011).

4.6 Evidence for the Impact of Current Legislation


Unfortunately, very little evidence was forthcoming from our prelimi-
nary research demonstrating a positive, discernible impact of the current
Vietnamese cultural heritage legislation on trafficking behaviors, at least from
the perspective of the archaeological informants from whom we solicited
responses. A few informants (e.g. Archaeologist 1, 3, 4) were adamant in stating
that they have not noticed any direct impact while others (e.g., Archaeologist 2)
noted that a tightening of laws had not curtailed looting or illicit destruction
280 Huffer and Chappell

(in this informants case, of Cham temple sites), but had instead increased the
caution of perpetrators.
Some informants, however, (Archaeologists 6 and 7, both maritime special-
ists) were more cautiously optimistic. Archaeologist 6 noted:

At some level yesthere are Vietnamese archaeologists who deplore


what happens in their country and there are some attempts to use
unesco Conventions to attempt to get this to stop but it is and will be a
long slow process.

Archaeologist 7 focused instead on efforts at on the ground enforcement,


alluding to problems caused by the presence of authority figures (e.g., forcing
source-level antiquities sales further underground).

The police and authorities are trying to prevent large scale looting, but
(according to some news reports and personal stories) their presence
seems to create more problems.

Vietnamese informants who answered relevant questions (Archaeologists 11


and 12 specifically) were still generally positive about current national and
international legislation, but it was suggested that this legislation only had an
impact on the public visibility of the illicit antiquities trade. Archaeologist 12
noted (paraphrased):

The law as passed only reduces the frequency of buying and selling
antiques in public, but does not reduce the theft of antiquities or the ille-
gal transportation of antiques inside and outside Vietnam. Because this
transport and exchange still occurs, but less publicly, poor people who
find antiques are less likely to be aware of this law, and they just think
antiques are for earning money, and are very proud of it.

The few government officials who did respond to our questionnaires or who
have agreed to be interviewed to date (Ministry of Foreign Affairs, and the
Ministry of Culture) supported the general findings we have presented above.
Official 1 (MoFA), when asked to describe the impact (or lack of) current
cultural heritage legislation on illicit antiquities markets, reported
(paraphrased):

The Law on cultural heritage was adopted in 2001, but its impact is very
limited, with the illegal trade of antiquities and conflicts between the
Illicit Traffic in Vietnamese Cultural Property 281

state and other actors remaining prevalent (e.g., the case of the excavation
of an old sunken trade ship and destruction of the Trm Gian Pagoda).

This concern over the impact of the 2001 law also extended to enforcement
practices, but both Ministry representatives interviewed for this project
stressed that any solutions must first solve structural problems between vari-
ous Vietnamese Government Ministries and Departments so that legal reform
can result in better monitoring on the ground. Other informants, such as a
Commune-level former Chief of Police who now guards the Vn Chui site
complex (Hoi c Distric, Hanoi), spoke of a marked disconnect between
Commune-, District-, and Provincial-level officials as a major barrier to effec-
tive enforcement of existing legislation, and a way for Provincial or District
officials to strip heritage status from a site in advance of construction (as was
alleged to have occurred in the case of Vn Chui and nearby sites).

4.7 Local Attitudes Towards Heritage Preservation


As a final query, each interview subject was asked to provide their perspective
on local attitudes towards heritage preservation and the problem of looting,
both among the local inhabitants who live in the vicinity of their excavation or
survey sites (and frequently work with archaeologists as skilled, paid laborers)
as well as in Vietnam in general. Here again the results were mixed, reflect-
ing, among other things, each informants total time in the field, cultural back-
ground (Western or Vietnamese), and the type of archaeology they conducted.
Some informants expressed a quite cynical view. For example, Archaeologist 1
noted: The local people have so many other existential problems than this
that they are mostly apathetic about this matter. Others (e.g., Archaeologist 2)
were more direct in their condemnation: In rural areas, everybody seems to
know who is looting...nobody speaks. In the cities, traffic[king] is organized
by rich and powerful men, nobody will dare [speak].
As discussed above, some archaeological informants merely attest to a need
for the strengthening of Vietnamese cultural heritage laws, but, as this study
suggests, measuring the impact of the laws on the ground is not straightfor-
ward. There remains an urban/rural divide in attitudes towards site preserva-
tion and antiquities collecting. Archaeologist 6 (a maritime specialist) noted:

It [the divide] varies a lot. In Qung Ninh, the local people in the province
seem to be proactive about trying to collect cultural heritage material
and either donate it to a local museum or to a local (official or respected)
person some of whom seem to act as stewards for the material until (or in
case) a museum can be established. There is recognition that the cultural
282 Huffer and Chappell

material is important and should stay locally (not be sold to antiquities


dealers, etc.). In Hanoi, not so much, and in Hi An there are so many
local dealers that it is unlikely that this will be stopped any time soon.

Responses from other informants (also maritime archaeologists) stressed


the complexity of local attitudes towards preservation, especially in rela-
tion to sites of suspected historical or mythical importance. One informant
(Archaeologist 4) noted:

The major site (Bch ng River battle field site) I am working shows less
looting activities due to the background of the site and the worship of the
historical victory. While the deity of a i Vit general, who led the battle
to win, is observed in the area, [although] it does not necessarily relate
[to] the protection of the site/archaeological objects.

Archaeologist 7 elaborated on this, stressing the need for greater educative


outreach in rural areas:

In rural areas, people just simply do not know how old things are. Some
of them will tell that the artifacts are from Chinese Han dynasty, and they
know the age, but do not grasp the significance. If we tell them, most of
them will understand the importance (or seems to understand). What we
need is a good education program that teaches people the importance
of protecting these sites. I find it easy for the people in the rural area to
grasp the connection between the ancient and the present. In the cities,
however, this may not be the case.

Some informants took a more optimistic view, suggesting that rural and
urban Vietnamese citizens would readily identify the criminal aspects of the
illicit trade in antiquities as a crime against both the state and their own
national heritage (Archaeologist 5), even if local field finds are kept when
discovered. In national park areas currently being nominated for World
Heritage Status (such as the Tam Cc area in which Archaeologist 8 had
conducted excavations of ancient rock shelters), another perspective was
suggested:

Local communities generally identify closely with the landscape setting,


and now with its past. Such an attitude is, without doubt, going to be
linked in peoples minds to the economic benefit the park is and will
continue to bring them through the local service industry and wider
Illicit Traffic in Vietnamese Cultural Property 283

economy. But with cultural heritage, display and management deeply


embedded in the growing identity of the park and those working in and
for it (something I have been actively encouraging also), Id like to hope
that helping people identify with their heritage at a personal level is one of
the best ways to help ensure its protection. It might just also help dimin-
ish the attractiveness of an illicit antiquities trade from the sellers point
of view.

Thus, while local attitudes to heritage preservation are arguably diverse and
varied, in general all of our informants suggested that more needs to be done
to fight this trade in all its forms.

5 Conclusions

As we have emphasized throughout this chapter, our research in Vietnam has


been of a preliminary nature and thus the results we have reported must be
treated with appropriate caution and reserve. Funding for the research has also
been entirely personal, although we seek to obtain funds in the future which
will allow us to extend our field observations to regions of Vietnam beyond
Hanoi and its environs.
Against this background our findings do suggest that an illicit trade in antiq-
uities is present in Vietnam with probable ties to other countries in the region
and possibly further afield. These findings will almost certainly come as no
surprise to the Vietnamese Government, which in a recent report to unesco
concerning the nations implementation of the unesco 1970 Convention
stated that:

Illicit excavation of archeological sites has not been strictly prevented


by the legal authorities...The black market of trading antiquities has
been in operation for a long time. The illegal trading of antiquities has
not been strictly punished. Increasing numbers of foreigners to Vietnam
leads to the higher need of purchasing antiquities. The wrongdoers take
this advantage to do business (srv 2013: 9).

In its report to unesco, the srv also admitted that it had very little infor-
mation concerning the size and scope of this illicit trade, and that when it
came to regulating the illicit export of antiquities the provisions of the
lch 2001 and later revisions were both inadequate and incomprehensive
(srv 2013: 10).
284 Huffer and Chappell

Our own research findings confirm the veracity of these admissions, but we
would add to them the statement that the provisions of the lch 2001 seem
equally deficient in their regulation of the internal illicit trade in antiquities. It
is our impression that this trade is probably much more extensive and lucrative
than the illicit export market. The lch 2001 certainly allows for the licit own-
ership and trade of antiquities, and an extensive internal network of antiqui-
ties collectors exists in Vietnam who trade amongst themselves as well as with
public museums and galleries. Some of these collectors have also established
their own museums, like the one referred to earlier that we observed when vis-
iting the Dong Son Drum restaurant or the non-public museums on display
in the homes of some collectors along Nghi Tm St. These collectors are also
encouraged to display portions of their collections in public institutionsa
practice we also observed at the quite new Museum of Hanoi.
While all of these activities are permitted within the lch 2001 framework,
what is not legal is the private excavation or acquisition of new antiquities. All
such excavation can only be done under license and any new object discov-
ered in the country, whether by digging or by chance, belongs to the srv. Any
discovery of this nature should be reported to the authorities, and any objects
obtained should be handed to them or to the nearest provincial museum. In
reality the tentative evidence we have uncovered suggests that these provi-
sions are in practice largely ignored. At the lowest level of the discovery chain,
the individual who discovers an antiquity purely by chance, perhaps while
plowing a field or fishing near a shipwreck, may decide to keep the object per-
sonally. More likely, however, the discoverer will seek to benefit in some way
economically from the find and traffic the object to a dealer or someone else
willing to offer some financial benefit. Depending on the nature of the object
and its presumed value, the antiquity may eventually be passed into the hands
of a collector, including one of the Big 5 mentioned above.
We do not know as yet how many layers of dealers and middlemen there
are in this local illicit antiquities trading cordata, but we were told by several
of our informants that spotters were employed by some collectors and deal-
ers (these roles undoubtedly overlap to a degree) to advise them when new
objects were available and to acquire them where appropriate. All of these
arrangements take place outside the official regime devised to regulate the
antiquities trade. They may also involve corrupt practices where officials are
paid to ignore illicit activities. Such corruption seems endemic not only in the
internal illicit trade in antiquities, but also in the extension of that trade to
the export of antiquities. As we noted above, the lch 2001 provisions relating
to the export of antiquities from the srv require the provision of an export
Illicit Traffic in Vietnamese Cultural Property 285

license, and those which are national precious objects may not be exported
at all. We were told by several dealers we encountered during our street survey
in Hanoi that the obtaining of an export license was no problem at all through
payment of what was generally referred to as a facilitation fee to the relevant
officials involved.
Our preliminary research did not uncover much significant information
regarding the volume, value, or primary destination(s) of exported antiqui-
ties from the srv, nor the importation of any antiquities from elsewhere in
the region including neighboring countries like Cambodia and Laos. Several
of our informants suggested that there are very wealthy expatriate Vietnamese
residing in the us and elsewhere who maintain very extensive antiquities col-
lections derived from local sources. It was also suggested that some illicitly
obtained objects came across the border from both Cambodia and Laos (see
Fig. 14.3 below). We did not detect any such objects on open display, but it is
quite possible that a cross-border trade does exist, given the long and porous
borders the srv has with both of these nations as well as the historical and
regional connections existing between them.
Looking towards the future there are clearly many important questions that
remain unanswered by our research, but we believe sufficient information is
now available to justify concerted action by the srv to enhance the protection
afforded to the nations tangible and portable cultural heritage. Law reform
may be required, but far more important in our view is the need to provide for
adequate enforcement of the existing legal regime and to better inform the
Vietnamese public about the importance of preserving the nations cultural
patrimony. There is no doubt the srv Government is very much aware of these
needs, as they informed unesco:

[There is] insufficient awareness of people, authorities at all levels, pro-


fessional agencies, executive and justice institutes in terms of the sig-
nificance and value of antiquities. There is overlapping in decentralized
administration at local level. Professional skills and capacity in inspect-
ing antiquities of staff members at local level and customs officers at the
border gates are still limited. (srv 2013: 11).

Vietnam has achieved quite remarkable results in restoring and reconstructing


so much of its rich cultural heritage ravaged by decades of past armed conflict.
There is every chance that this process will continue as it now assumes its posi-
tion on the World Heritage Committee.
286 Huffer and Chappell

INDIA
CHINA
JAPAN

TAIWAN
MYANMAR Hanoi
LAOS Halong Bay
Luang Prabang
Chiang Mai Vientiene

Rangon
THAILAND Hoi An
Manila
Bankok Siem Reap VIETNAM
CAMBODIA SOUTH CHINA
ANDAMAN SEA
SEA
PHILIPPINES
Phnom Penh Ho Chi Minh City
Mekong Delta

Songkhla

MALAYSIA BRUNEI
Kuala Lumpur
MALAYSIA
SINGAPORE

Figure 14.3 Political map of Mainland Southeast Asia.

Acknowledgements

The authors would like to thank all of our informants; both archaeologists and
government officials alike within Vietnam, as well as everyone who assisted
with our street-level survey and responded to our questionnaire. It is to you
whom we owe a debt of gratitude for making this exploratory study possible.

References

Al-Houdalleh, S.H. (2012). Palestinian Antiquities Looters, Their Skill Development,


Methodology and Specialized Terminology: An Ethnographic Study. Palestinian
Exploration Quarterly, 144: 115127.
An, M. (2013). Nine Categories of Ancient Items Banned from Leaving Country. http://
www.saigon-gpdaily.com.vn/Culture_Art/2013/1/103967/(accessed 28 February 2014).
Anderson, W. (2007). Commodifying Culture: Ownership of Cambodias Archaeological
Heritage. Limina: A Journal of Historical and Cultural Studies 13: 103112.
Illicit Traffic in Vietnamese Cultural Property 287

Antoniadou, I. (2009). Reflections on an Archaeological Ethnography of Looting in


Kozani, Greece. Public Archaeology 8: 246261.
Barker, R.A. (2011). The Historical Cash Coins of Viet Nam: Vietnams Imperial History As
Seen Through Its Currency. London: Spink & Sons.
Baruch, Y. & H.C. Brooks. (2008). Survey Response Rate Levels and Trends in
Organizational Research. Human Relations 61: 11391160.
Bellwood, P., J. Cameron, N.V. Viet, & B.V. Liem (2007). Ancient Boats, Boat Timbers,
and Locked Mortise-And-Tenon Joints from Bronze/Iron-Age Northern Vietnam.
The International Journal of Nautical Archaeology 36: 220.
Bellwood, P. & I. Glover (eds.) (2004). Southeast Asia: From Prehistory to History.
London, uk: Routledge.
Blake, W. & M. Flecker (1994). A Preliminary Survey of a South-East Asian Wreck, Phu
Quoc Island, Vietnam. International Journal of Nautical Archaeology 23: 7391.
Boom, C. (2012). Ancient Shipwrecks along Vietnam Coast Looted. http://prehist.
org/news/71/Ancient+shipwrecks+along+Vietnam+coast+looted/(accessed
28 February 2014).
Bowman, B.A. (2008). Transnational Crimes against Culture: Looting at Archaeological
Sites and the Grey Market in Antiquities. Journal of Contemporary Criminal Justice
24: 225242.
Bowman-Proulx, B. (2011). Drugs, Arms, and Arrowheads: Theft from Archaeological
Sites and the Dangers of Fieldwork. Journal of Contemporary Criminal Justice 27:
500522.
(2013). Archaeological Site Looting in Glocal Perspective: Nature, Scope,
Frequency. American Journal of Archaeology 117: 111125.
Brodie, N. & C. Renfrew (2005). Looting and the Worlds Archaeological Heritage: The
Inadequate Response. Annual Review of Anthropology 34: 343361.
Brodie, N. & K.W. Tubb (2003). Illicit Antiquities: The Theft of Culture and the Extinction
of Archaeology. London, uk: Routledge.
Byme, D. (1999). The Nation, the Elite, and the Southeast Asian Antiquities Trade:
With Special Reference to Thailand. Conservation and Management of
Archaeological Sites 3: 145153.
Chapman, W. (2013). A Heritage of Ruins: The Ancient Sites of Southeast Asia and Their
Conservation. Honolulu, hi: University of Hawaii Press.
Chappell, D. & D. Huffer (2013). Quantifying and Describing the South and South East
Asian Illicit Antiquities Trade: Australia As an Overlooked Destination? Brisbane,
Australia: ceps Briefing Papers 24.
(2014). Protecting Cultural Heritage: A Review of Some Contemporary
Developments in Australia and Near Environs. Pages X-X in D. Chappell &
S. Hufnagel (eds.), Contemporary Perspectives on the Detection, Investigation and
Prosecution of Art Crime. Surrey, uk: Ashgate Press.
288 Huffer and Chappell

Chappell, D. & K. Polk (2011). Unravelling the Cordata: Just How Organized is the
International Traffic in Cultural Objects? Pages 99113 in Manacorda, S. & Chappell, D.
(eds.), Crime in the Art and Antiquities World. New York, ny: Springer Press.
Chippindale, C., D. Gill, E. Salter, & C. Hamilton (2001). Collecting the Classical World:
First Steps in a Quantitative History. International Journal of Cultural Property 10:
131.
Constitution of the Socialist Republic of Vietnam (1992), http://www.vietnamlaws.com/
freelaws/Constitution92(aa01).pdf (accessed March 28, 2014).
Davis, T. (2011). Supply and Demand: Exposing the Illicit Trade in Cambodian
Antiquities through a Study of Sothebys Auction House. Crime, Law, and Social
Change 56: 155174.
Dung, L.M.T. (2009a). Archaeological Excavations at Thanh Den, Vn Chui and Go
Chien Sites. http://anthropologymuseum.net/en/index.php?option=com_content
&view= article&id=271: archaeological-excavations-at-thanh-den-vuon-chuoi-and-
go-chien-sites&catid=20:tin-tc-ni-bt&Itemid=7 (accessed 22nd February 2014).
. (2009b). Du tch vn ha ng Sn Vn Chui. http://baotangnhanhoc.
org/vi/tin-tuc-su-kien/su-kien-noi-bat/1137-du-tich-vn-hoa-ong-sn--vn-chui-.html
(accessed 22nd February, 2014).
Flecker, M. (1992). Excavation of an Oriental Vessel of Circa 1690 off Con Dao, Vietnam.
International Journal of Nautical Archaeology 31: 221244.
. (2002). The Ethics, Politics, and Realities of Maritime Archaeology in
Southeast Asia. International Journal of Nautical Archaeology 31: 1224.
Hardy, A., M. Cucarzi, & P. Zolese (eds.) (2009). Champa and the Archaeology of My Sn
(Vietnam). Singapore: nus Press.
Harrison, J.P. (1989). The Endless War: Vietnams Struggle for Independence. New York:
Columbia University Press.
Heritage on the Wire (2012). Threatened Ancient Monumental Site in Viet Nam
Receives Needed Attention. http://popular-archaeology.com/issue/march-2012/
article/threatened-ancient-monumental-site-in-viet-nam-receives-needed-
attention (accessed 5th March, 2014).
Higham, C.F. (2002). Early Cultures of Mainland Southeast Asia. Chicago: Art Media
Resources, Ltd.
Huffer, D. (2009). Conserving the Past Through Play: Educational Gaming and Anti-
Looting Outreach in Cambodia. Bulletin of the Indo-Pacific Prehistory Association
29: 92100.
. (2012). The Ties That Bind: Population Dynamics, Kinship and Mobility dur-
ing The Mid-Holocene in Northern Vietnam. (Unpublished PhD thesis). The
Australian National University.
Hung, H.-C. et al. (2013). Coastal Connectivity: Long-Term Trading Networks across
the South China Sea. The Journal of Island and Coastal Archaeology 8: 384404.
Illicit Traffic in Vietnamese Cultural Property 289

ippa (2014). Welcome to ippa 2014, https://sites.google.com/site/ippasiemreap2014/


home (accessed 27 February 2014).
Kersel, M. (2013). Illicit Antiquities Trade. Pages 6769 in N.A. Silberman (ed.), The
Oxford Companion to Archaeology. Oxford, uk: Oxford University Press.
Kim, N.C., L. Van Toi, & T.H. Hiep (2010). Co Loa: An Investigation of Vietnams Ancient
Capital. Antiquity 84: 10111027.
Mackenzie, S.R.M. (2005). Going, Going, Gone: Regulating The Market in Illicit
Antiquities. Leicester, uk: Institute of Art and Law.
Matsumura, H. et al. (2008). Terminal Pleistocene Human Skeleton from Hang Cho
Cave, Northern Vietnam: Implications for the Biological Affinities of The Hoabinhian
People. Anthropological Science 116: 201217.
Nguyen, N. (2011). The Drafting of Vietnams Consumer Protection Law: An Analysis
from Legal Transplantation Theories. Unpublished Ph D dissertation: Universtiy of
Victoria.http://www.law.unimelb.edu.au/files/dmfile/CuongEnglish2.pdf
(accessed 29 March 2014).
OReilly, D.J.W. (2006). Early Civilizations of Southeast Asia. Walnut Creek: AltaMira
Press.
OReilly, D. (2007). Shifting Trends of Heritage Destruction In Cambodia: From
Temples to Tombs. Historic Environment 20: 1216.
(2009). The Tide Is Turning: Battling Heritage Destruction in Cambodia
through Social Marketing and Education. The saa Archaeological Record 9: 1113.
Oxenham, M.H. Matsumura, & N.K. Dung (eds.) (2011). Man Bac: The excavation of a
Neolithic site in Northern Vietnam. Vol. ii: The Biology. Canberra, act: Terra
Australis 33.
Pike, D. (1977). Vietnam during 1976: Economics in Command. Asian Survey 1: 3442.
Piper, P. et al. (2012). Early Evidence for Pig and Dog Husbandry from the Neolithic Site
of an Son, Southern Vietnam. International Journal of Osteoarchaeology 24: 6878.
Politis, K.D. (2002). Dealing with the Dealers and Tomb Robbers: The Realities of the
Ghor Es-Safi in Jordan. Pages 257267 in N. Brodie & K.W. Tubb (eds.), Illicit
Antiquities: The Theft of Culture and Extinction of Archaeology. Walnut Creek: Left
Coast Press.
Poser, R. (2012). Archaeology Talkfest Seeks to Bury the Myths. ht://vietnamnews.vn/
sunday/features/222690/archaeology-talkfest-seeks-to-bury-the-myths.html
(accessed 5 March, 2014).
Renfrew, C. (2000). Loot, Legitimacy and Ownership: The Ethical Crisis in Archaeology.
London: Duckworth.
Roberts, S.L. (2014). Vietnams Illegal Trade in Rhino Horn http://www.bbc.com/
news/magazine-26081168 (accessed 5 March 2014).
290 Huffer and Chappell

Schepartz, L.A., S. Miller-Antonio, & D.A. Bakken (2000). Upland Resources in the
Early Palaeolithic Occupation of Southern China, Vietnam, Laos, Thailand and
Burma. World Archaeology 32: 113.
Schoocongdej, R. (2001). Hoabinhian. Pages 2627 in P.N. Peregrine & M. Ember
(eds.), Encyclopedia of Prehistory Vol. 3 East Asia and Oceania. Los Angeles: Springer.
Socialist Republic of Vietnam (2013). Annex to Report on the Application of the 1970
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property. Hanoi: srv.
Staniforth, M. (2012). First Wrecked, Now Pillaged: Vietnams Underwater Treasure.
http://theconversation.com/first-wrecked-now-pillaged-vietnams-underwater-
treasure-10219 (accessed 5 March 2014).
Stark, M. & S.J. Allen (1998). The Transition to History in Southeast Asia: An
Introduction. International Journal of Historical Archaeology 2: 163174.
Thanh Van, L. (2012). Tragedy for Mummies in Vietnam, http://english.vietnamnet.vn/
fms/art-entertainment/54525/tragedy-for-mummies-in-vietnam.html.
Thosarat, R. (2001a). The Destruction of the Cultural Heritage of Thailand and
Cambodia. Pages 718 in N. Brodie, J. Doole, & C. Renfrew (eds.), Trade in Illicit
Antiquities: The Destruction of the Worlds Archaeological Heritage. Cambridge:
McDonald Institute for Archaeological Research.
(2001b). Report from Southeast Asia. http://www2.mcdonald.cam.ac.uk/proj-
ects/iarc/culturewithoutcontext/issue8/thosarat.htm (accessed 15 March 2014).
unesco (1970). Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property. http://portal
.unesco.org/en/ev.php-url_id=13039&url_do=do_topic&url_section=201
.html (accessed March 28, 2014).
(2001). Convention on the Protection of the Underwater Cultural Heritage.
http://unesdoc.unesco.org/images/0012/001260/126065e.pdf (accessed 28 March
2014).
(2013). Socialist Republic of Vietnam Law on Cultural Heritage 2001. http://
www.unesco.org/culture/natlaws/media/pdf/vietnam/vn_law_cltal_heritage_
engtof.pdf (accessed 15 March 2014).
(2014). The World Heritage Committee. http://whc.unesco.org/en/committee/
(accessed 17 February 2014).
Van, T. (2013a). Thieves Break into Tomb of King Tu Duc, Taking Away Valuable
Antiques. http://english.vietnamnet.vn/fms/art-entertainment/88995/thieves-break-
into-tomb-of-king-tu-duc--taking-away-valuable-antiques.html (accessed 5 March
2014).
(2013b). Second Shipwreck with Ancient Potteries Discovered in Qung Ngi.
http://english.vietnamnet.vn/fms/art-entertainment/82149/second-shipwreck-
with-ancient-potteries-discovered-in-quang-ngai.html (accessed 15 March 2014).
Illicit Traffic in Vietnamese Cultural Property 291

Viet Nam News (2013a). Collector Has Treasure Chest of Old Cash. http://vietnam-
news.vn/sunday/features/236149/collector-has-treasure-chest-of-old-cash.html
(accessed 5 March 2014).
(2013b). vn Artifacts Are (Mostly) the Real Deal. http://vietnamnews.vn/
sunday/inner-sanctum/243340/vn-artifacts-are-mostly-the-real-deal.html
(accessed 20 March 2014).
(2010). Archaeology Has Community Benefits in Vietnam. http://archaeology
newsnetwork.blogspot.com.au/2010/12/archaeology-has-community-benefits-in
.html#.UxZx3j-Sznh (accessed 5 March 2014).
Vinh, P. (2011). Defending National Sovereignty by Ancient Coins. http://english
.vietnamnet.vn/fms/special-reports/12791/defending-national-sovereignty-by-
ancient-coins.html (accessed 5 March 2014).
CHAPTER 15

Crime and Conflict: Temple Looting in Cambodia


Tess Davis and Simon Mackenzie

Introduction: Cambodias Looting Problem

As we are seeing now with the Arab Spring, and have seen throughout history,
cultural destruction is often a handmaiden to conflict. In the Southeast Asian
nation of Cambodia, fighting erupted between government forces and the
communist Khmer Rouge in 1970 and did not end until the 1998 death of Pol
Pot and subsequent surrender of his remaining forces. While contemporary
accounts and photographs confirm the countrys ancient Hindu and Buddhist
temples were largely intact before the war, most were then cut off from the
outside world for decades, and some remain difficult and even dangerous to
reach today due to poor roads, jungles, landmines, and unexploded ordnance
(uxo). It is thus only now becoming possible to systematically investigate the
wartime plunder of Cambodias antiquities, an undertaking that is growing
more important each year as the country steps up efforts to recover its stolen
treasures from overseas collections.
Cambodia is internationally celebrated for the twelfth-century ruins of
Angkor Wat, the crowning achievement of the Khmer Empire, which ruled
much of Southeast Asia from the ninth to fifteenth centuries. But this temple
said to be the largest religious monument in the worldis just one of many in
the country. While only the size of the us state of Oklahoma, Cambodia boasts
4,000 known prehistoric and historic sites, with more discovered each year
(mocfa, 2013). But despite a long tradition of archaeology dating back to the
French colonial era (18671953), only a fraction has been thoroughly surveyed,
and even fewer scientifically excavated. So when looters reach them first, the
only evidence of theft is often an empty hole in the ground, or an empty space
on a temple wall. Calculating how many antiquities have been stolen and their
value is thus very difficult.
Still by 1993the same year as the United Nations-sponsored elections
that some credit with putting Cambodia on the road to stabilitythe Phnom
Penh Post estimated that almost 80% of all temples had been looted (Channo,
1993). Twelve years later in 2005, noted art historian Helen Jessup went

koninklijke brill nv, leiden, 5|doi .63/9789004280540_016


temple looting in Cambodia 293

further by stating, there is not a single site that is not affected (Perlez, 2005).
While these figures are clearly subjective, it is theoretically possible to mea-
sure the extent of looting, and this has been done for select sites. The conclu-
sions from these studies suggest that nationwide statistics, if they existed,
would be grim.
For example, in 2006, the nongovernmental organization (ngo) Heritage
Watch conducted a looting survey at the 2,000-year-old burial ground of Wat
Jas in northwestern Cambodia. During rescue excavations, a team of archae-
ologists extensively recorded the damage, mapping and taking aerial pho-
tographs to fully illustrate the scale of destruction (Heritage Watch, 2014).
Afterwards, the ngos founder and archaeologist Dr. Dougald OReilly said
Wat Jas has been completely decimated. Not one of its estimated 1,000 graves
remains undisturbed (ap Worldstream, 2006).
That same year, Heritage Watch completed an additional two-year study of
looting at temple sites throughout the country, including Banteay Chmmar,
Beng Melea, Koh Ker, Phnom Banan, Phnom Chisor, and Tonle Bati. These sur-
veys were originally meant to map the extent of plunder, but the damage was
so ubiquitous that plotting it would simply have created overlays of the temple
layouts. Therefore, for the purposes of the report, the few remaining architec-
tural elements and statuary were plotted and photographed, along with partic-
ularly egregious incidents of theft. Without exception, all of the sites surveyed
had been pillaged, and extensively.
Before and after the above topical studies, general archaeological surveys
and excavations have also frequently recorded evidence of looting. While
these references are often just footnotes to other research, they still demon-
strate that none of Cambodias historic periods or geographic regions has been
spared since the 1970 outbreak of civil war. Plunder appears in the pages of
OReillys (2004; 2006) reports from Iron Age cemeteries in the northwest,
Miriam Starks (1999) at Pre-Angkorian sites in the Mekong Delta, and Eric
Bourdonneaus (2011) at the tenth-century capital of Koh Ker.
When taken together, these scattered reports paint a picture of a cultural
tragedy that reduced Cambodias templessome of which had stood for a mil-
lenniumfrom open-air museums to riddled shells within decades. Due to
the reach, scale, and speed of this devastation, experts have long believed it
is the work of organized trafficking networks. However, for those supporting
this belief, it has been difficult to move beyond anecdotal evidence to more
systematic or scientific data.
294 davis and Mackenzie

Interview-Based Reports of Cambodian Looting and Trafficking

In an attempt to better understand Cambodias story, we present an empiri-


cal study of a wartime antiquities trafficking network constructed from inter-
views conducted during ethnographic criminology fieldwork. The orientation
of these interviews varied from short factual conversations to more in-depth,
oral-history type discussions, which sought to elicit rich personal narratives of
life during the conflict period and individual interviewees knowledge of loot-
ing and trafficking of statues and other cultural objects during that time. Our
case study focuses on the bloody conflict with the Khmer Rouge, from 1970
to 1998, which decimated both the kingdoms population and its archaeologi-
cal heritage. While this article is of a historical nature, we hope it will start to
answer some of the still-unresolved questions in the academic literature on
the illicit antiquities trade during combat while providing lessons for better
protecting cultural objects and sites in the present.
In 2013, we travelled approximately 2,500 kilometres around dozens of tem-
ple sites in northern, western, and central Cambodia. We then crossed into
Thailand and the central trading hub of its capital Bangkok, where stolen art
has long been known to make the jump from East to West. Helped by local
contacts and translators, we tracked down and interviewed a variety of Cam-
bodian and Thai looters, traffickers, and dealers, who helped us to flesh out
the networks that had been taking (and in some cases are still taking) pillaged
statues out of Cambodia and onto the international market. Emerging from
these first-hand narratives of participation in looting and trafficking statues
was a picture of two channels from the country.
We label these channels the organized crime channel and the conflict
channel We have documented the former in depth elsewhere (Mackenzie
and Davis, 2014); it is a network of actors moving a considerable volume of
statues from temple sites like Angkor and Koh Ker, through the transit towns
of Sisophon and Poipet, across the border to Thailands Aranyaprathet, and
onwards to Sa Kaeo and then Bangkok. This network was operated in consider-
able measure by key people who bore many attributes of organized criminals.
In contrast, the second channel, which we describe here, moved objects by a
different route via different actors, and these were more centrally involved in
the countrys military conflict than the less ideological and more opportunistic
actors who ran the organized crime channel.
The channel we describe here drew from many of the same northwestern
temples as the first channel: we visited and draw data from sources at Ang-
kor (including the Roulous grouping and Banteay Srei), Banteay Chhmar
temple looting in Cambodia 295

(including Banteay Torp), Beng Mealea, Koh Ker, Phnom Banan, Preah Khan of
Kompong Svay (the Bakan), and Sambor Prei Kuk. Instead of the northwestern
trafficking route through Sisophon and Aranyaprathet, however, these statues
were routed directly northwards, through the deep forests of the Kulen region
and former Khmer Rouge stronghold of Anlong Veng, across the Dangrek
Mountains forming the due northern border, to Khun Han and Kantharalak
on the Thai side. Again, from there the statues moved to Bangkok and onto the
international market.
In summary, Channel 1 was controlled by local mafia, thrived in areas long
after peace returned, and exploited main highways and commercial routes.
Channel 2 instead snaked through the minefields and jungles of northern
Cambodia, a region controlled by the Khmer Rouge on and off until their 1998
surrender. These differences lend support to our approach in looking at the
former from an organized crime standpoint and the latter from an armed con-
flict standpoint. Of course, some of the key players along Channel 1 were affili-
ated with armed factions, and Channel 2 was not the exclusive purview of the
Khmer Rouge so the distinction we make is to some extent reified for analytical
purposes.

The Debated Role of the Khmer Rouge

The Khmer Rouges trafficking of arms, gems, and timber is well documented
(see Global Witness, 1995; Le Billon, 2000; Fafo Institute, 2002), but their role
in the illicit antiquities trade has remained controversial. Given their mission
to obliterate traditional Cambodian culture and replace it with a new revolu-
tionary culture, it seems only natural they would have targeted the countrys
archaeological heritage. A prominent collector of Cambodian art has certainly
employed this argument, defending his dealings in looted Cambodian art as
necessary to rescue it before Khmer Rouge cadres shot it up for target prac-
tice (Mashberg and Blumenthal, 2013).1
Alongside the Extraordinary Chambers in the Courts of Cambodia (eccc),
the ongoing and still-struggling tribunal that Phnom Penh and the United
Nations first established in 1997 to try the most senior members of the regime,

1 It is worth noting he has also used another justification, telling the New York Times that in
a previous life I had been Khmer, and that what I collect had once belonged to me (http://
www.nytimes.com/2012/12/13/arts/design/us-links-collector-to-statue-in-khmer-looting-
case.html?pagewanted=all).
296 davis and Mackenzie

Sarah J. Thomas (2006, p. 29) researched the Khmer Rouges destruction of cul-
tural property and found:

Following its seizure of power in April 1975, the Khmer Rouge regime
proclaimed a return to Year Zero and set about demolishing links to
the past, to the outside world and to religion. As part of their systematic
attack upon Buddhism, the Khmer Rouge desecrated or destroyed most
of Cambodias 3,369 [contemporary] temples, inflicting irreparable dam-
age on statues, sacred literature, and other religious items. Similar dam-
age was inflicted on the mosques of the Cham, some 130 of which were
destroyed. The Khmer Rouge regime attacked Christian places of wor-
ship, even disassembling the Catholic cathedral of Phnom Penh stone by
stone until only a vacant lot remained. The Khmer Rouge destroyed all
73 Catholic churches in existence in 1975.

The Documentation Center of Cambodia, a not-for-profit organization dedi-


cated to documenting the Killing Fields, likewise wrote The Khmer Rouge
deliberately targeted Cambodian cultural resources, destroying temples,
forbidding traditional dances and music, and leaving no space for cultural
expression beyond propaganda for the regime (2013, pp. 12). According to it,
[t]his cultural devastation left Cambodians unmoored, deepening their suf-
fering from the loss of their loved ones and significantly complicating their
attempts to reconstruct Cambodian society.
On the other hand, noted historians have claimed the Khmer Rouge spared
and even protected Cambodias ancient temples and sites, albeit only for their
own perverse needs (the kingdoms glorious past featured heavily in party pro-
paganda). According to Elizabeth Becker (2013), the award-winning journal-
ist who has covered Cambodia since 1973 and written a thorough account of
its recent history, During their murderous regime, the one thing the Khmer
Rouge protected was [Angkor Wat]. They killed or worked to death nearly two
million Cambodians, but they preserved those magnificent temples as the
symbol of Cambodias greatness. In those days would-be thieves would have
been hard-pressed to spirit stolen art across the heavily defended border to
Thailand.
So did the Khmer Rouge destroy or preserve Cambodias ancient temples?
While further research is needed, our initial fieldwork indicates both. The party
did have a long and complicated history. Over the decades, they shifted from
guerrilla fighters to heads of state and back to guerrilla fighters. Their useor
misuseof Cambodias past changed along with their changing fortunes.
temple looting in Cambodia 297

General Indications of a Confused Relationship between Conflict


and Looting in Cambodia

Villagers at temples across the country repeatedly told us that organized loot-
ing and trafficking started in approximately 1970, the same year that war offi-
cially erupted between the Khmer Rouge and Cambodian government. This
emphasis on organized trafficking is necessary, as looting certainly took place
in the colonial era and the early years of independence, the most infamous
example of which was conducted by young Frenchman Andr Malraux at the
temple of Banteay Srey in 1922. Malrauxs subsequent trial and conviction
made headlines throughout Indochina and even back in Paris. The scandal is
still remembered today since he went on to become one of Frances most cel-
ebrated writers and its first Minister of Culture. However, our sources reported
without exception that, despite such incidents of thefts, the temples were
largely intact before the war. This is confirmed by photographs taken at the
time by the cole Franaise dExtrme-Orient and by scholars like Madeleine
Giteau, which show the sites rich in statuary.
Sources at Anlong Veng, Banteay Chhmar, Phnom Banan, and other sites
described heavy and methodical plunder from around 1970, which they attrib-
uted to the state forces of General (and subsequently Prime Minister) Lon Nol.
A former soldier in his armywhose position allowed him to mix with the
Lon Nol elitetold us that as many as eighty percent of senior officers were
involved. He and others were even able to name some of the guiltiest officials,
some of whom are now living comfortably in the United States (which backed
Lon Nols rule). These reports are not surprising, for even though we have not
yet found anything in the existing literature specifically linking Lon Nols army
to the illicit antiquities trade, much has been written about his administrations
notorious and unparalleled corruption. Lon Nol took power in a us-backed
coup in 1970 and ruled until the Khmer Rouge victory in 1975. Becker (1998)
details his appalling practices, noting his army drafted children to inflate its
numbers, padded payrolls with phantom soldiers to pay off rapidly promoted
and corrupt officers and that he himself permitted other forms of wholesale
corruption (p. 123). All in all, she summarized his Khmer Republic as a brief
and corrupt experiment (p. 189).
In addition to Lon Nols government forces and the Khmer Rouge, the
Northern Vietnamese Army (nva) were also operating in Cambodia during the
early 1970s. Moreover, even then, there were credible reports of nva involve-
ment in antiquities trafficking. A former us intelligence officer who had been
assigned to the region told us:
298 davis and Mackenzie

My intelligence agent network in Cambodia in MarchJuly 1970 reported


the nva capturing the Angkor Wat area and looting statues and bas reliefs
to sell on the art black market in Hong Kong to raise hard currency for
their war effort. Some idiot analyst...in Saigon started arguing with me in
message traffic that was impossible that the nva were there...because
the nva have no interest in being that far inside Cambodia, they only
want to secure the border areas to continue infiltration of men and
munitions....I clearly remember this message exchange with the staff
analyst because the looting of cultural artifacts really offended me, even
in war time.

The nva presence at Angkor has since been corroborated, for example, in
the acclaimed memoir Le Portail by anthropologist Franois Bizot (the only
Westerner to have survived capture by the Khmer Rouge). The former us intel-
ligence officer to whom we spoke felt Bizots account confirmed that my agent
report about the nva capturing and looting the Angkor Wat area was likely
correct. He added, Having some experience in these matters and routes, my
guess is the nva moved their covered antiquities booty...to Aranyaprathet,
Thailand (a key stop on what we have identified as Channel 1). The border
there has been (and is) very porous, and armed nva/[Viet Cong]/Sihanouk
Liberation Front fighters, or western or other civilians hired for the purpose,
with two or more trucks of loot could easily bribe their way across the border
to Thailand....Smuggling has gone on for centuries in the area, and these are
routes that could have been used by smugglers for years, so the border crossing
scenario was well-rehearsed and well-greased.
In marked contrastaccording to accounts from our fieldworkthe
Khmer Rouge did indeed protect (or at least did not target) Cambodias ancient
temples in this 19701975 phase of the Civil War. While rogue soldiers or units
certainly may have trafficked antiquities, doing so would have defied the party
leadership. Both Khmer Rouge victims and perpetrators also consistently
reported to us that the regime continued this stance towards ancient temples
during the 19751979 Killing Fields (even while slaughtering the descendants
of those who built them). Angkorian heritage was a key part of the Khmer
Rouge narrative, and the party strictly controlled this narrative from the top
down. Moreover, the Khmer Rouge sealed Cambodias borders immediately
upon their victory, halting most legal trade, and illegal trade with it.
The situation changed after the 1979 Vietnamese invasion. Interestingly,
we received few reports of looting by Vietnamese forces then or during their
subsequent decade long occupation, even though they certainly would have
had the opportunity. But as the Khmer Rouge went from a governing force to
a fragmented army and news of their atrocities spread, they began to lose key
temple looting in Cambodia 299

i nternational backers. These included Singapore, Thailand, the United Kingdom,


and the United States (whose preference for the Khmer Rouge over Vietnam
has been likened to the old axiom the enemy of my enemy is my friend). Their
financial situation became critical in the late 1980s, when even China started
pulling its support. Beijing finally struck the deathblow in the early 1990s, cutting
the Khmer Rouges last major source of funding (Kristof, 1993).
Without money to continue their armed struggle and facing rising defec-
tions and factional fighting, it is not surprising the Khmer Rouge would turn
from revolutionaries to bandits. The territory they controlled was rich in gem-
stones, lumber, and temples. Pol Pot himself ordered they be put to use, stating
in 1991, Our state does not have sufficient capital either to expand its strength
or enlarge the army....The resources [in our liberated and semi-liberated
zones] absolutely must be utilised as assets (Fafo Institute, 2002, p. 17). The
Khmer Rouge found a ready market across the border in Thailand.
Again they were not alone. The 1989 Vietnamese withdrawal had left a power
vacuum in Cambodia, with the country divided into several political factions,
each with its own army. According to villagers, all these various forces were
active looters during the 1990sfrom the Khmer Rouge to the Cambodian
army to the variety of paramilitary forces. Sometimes our sources did not know
who exactly was responsible for the plunder as these groups were fluid and
soldiers frequently shifted allegiances between them. Moreover, even while
actively trying to kill one another on the battlefield, they apparently had no
problem doing business together off it. Such collusion between enemies, espe-
cially between the Khmer Rouge and Cambodian government, has also been
noted in previous research on Cambodias wartime timber trade. According
to Le Billon (2000), This contradictory logic of political accommodation
between supposed political and battlefield enemies to further their own ends
was repeated in numerous instances at the local level (p. 792). Looters within
military forces also worked closely with organized criminal gangs without any
military affiliation in both Cambodia and Thailand.
The puzzle that is the illicit trade in Cambodian antiquities may never be
complete, but one thing is clear: organized antiquities trafficking largely started
with the war but did not end with it. Business continued along the same routes
likely by the same people. Some participants may have switched hats from
fighters to gangsters; others may have stayed in or entered the Cambodian
army. Villagers do report looting by soldiers at Preah Khan within the last
decade as well as the misuse of old military equipment like metal detectors
(used in landmine and uxo clearance efforts) or trucks in support of looting
and traffic.
Furthermore, in some respects, the 1998 Khmer Rouge surrender presented
new possibilities for plunder: for example, it opened temple-rich areas of the
300 davis and Mackenzie

country that had been inaccessible to the outside world since 1970. In another
example, we were told that a high concentration of landmines perversely pro-
tected the temples of Koh Ker from thieves well after the conflict ended, but
a heavy round of looting immediately followed demining efforts in the mid-
2000s (one of the authors even photographed vast pits at the site during this
time). The sad truth may be that antiquities trafficking did not slow thanks to
peace, but because after the war there was little left to steal.
Le Billion (2000) has also noted that cultural and natural resources, timber,
in this case, can be protected by conflict as well as destroyed by it: Ironically,
twenty years of war saved Cambodias forests from the destruction associated
with economic growth in the asean [Association of Southeast Asian Nations]
region. Despite heavy us bombing and the murderous agrarian utopia of the
Khmer Rouge, forests survived the 1970s. Their exploitation during the 1980s
remained limited, the result of continuing war and a trade embargo by the
west. By the late 1980s, nearly two-thirds of Cambodias surface was covered
by forests; a key asset for a country among the poorest of the world. Since
then, however, much of Cambodias forests have been exploited by intensive
commercial logging as the country progressively reintegrated into the global
economy (pp. 786787).

A Specific Case Study: The Butcher of Cambodia

The best illustration of the Khmer Rouges ambiguous, and shifting, relation-
ship with antiquities is the general known as Ta Mok. He is a shadowy figure,
so much so that even today, scholars differ on his real name and birth year. Ta
() means grandfather, a friendly honorific belying his other nom de guerre,
The Butcher. That he would earn such a distinction amongst a whole regime
of murderers speaks to his major role in the Khmer Rouge purges. As late as
1997, he reportedly continued to orchestrate massacres from Anlong Veng, kill-
ing some 3,000 people outside the town (Rowley, 2009). Some even suspect he
poisoned the head of the Khmer Rouge, Pol Pot himself, on 15 April 1998.
A former monk, Ta Mok fought for Cambodias independence in the 1950s
and joined the Khmer Rouge in the 1960s. Over the decades, he rose through
their ranks. He was never one to lead from behind; he lost a leg during com-
bat in 1970. He eventually became the partys Brother Number 5. After the
Vietnamese invasion and occupation, he retreated to Anlong Veng, and he
and his followers waged war from there for another twenty years. Government
forces captured him near Thailand in 1999, and he died in a Cambodian prison
in 2006 still awaiting trial for genocide and crimes against humanity. He main-
temple looting in Cambodia 301

tained his innocence until the very end and even afterwards in a statement to
be read upon his death (Aglionby, 2006). Becker (p. 487) thus calls him a true
veteran of every phase of the revolution.
Ta Moks former lakeside villa in Anlong Veng is now an historical monu-
ment, even listed as an architectural and cultural attraction in Lonely Planet
(2014). This open-air concrete complex is empty today save for brightly
coloured murals of Angkor Wat and Preah Vihear temples that still adorn its
walls. When Ta Mok lived here, however, it would have looked more like a
storeroom. After his arrest, government forces found and confiscated sixty-one
Khmer sculptures weighing in the tons. The same had also happened in 1994,
when they briefly captured Anlong Veng and with it another haul of art from
Ta Moks house (Dodd, 1994).
That such a cache would be found just kilometres from the Thai border and
its ready art market would suggest that Ta Mok was an active participant in the
illicit antiquities trade. But his family and supporters, some of whom remain
in the area as caretakers of the property, disagree. One of Ta Moks sons in law
told the anthropologist Timothy Dylan Wood (2009):

Ta Mok used to capture things from smugglers which he would then put
in the house...When the government came, they took some of these
things. When Anlong Veng was liberated again, he tried to collect the old
things again. Finally, the government army came and took all the things.
Thus, he said the house on the lake is no longer his house and that he
wants it to become a museum with ancient artefacts such as statues,
busts, etc. captured from Thai smugglers (pp. 158159).

A caretaker at the villa todaya man who had served in the Lon Nol army as
a young man before joining the Khmer Rouge and eventually becoming a stal-
wart follower of Ta Mokechoed this sentiment to us. He told us that Ta Mok
was a guardian of antiquities. Yes, he did confiscate pieces from looters, but did
not loot himself, and in fact he punished looters with death. The collection of
sixty-one statues in his personal house in the warzone of Anlong Veng was a
collection for the local people.
The similar claim was made by another former comrade of Ta Mok, who now
holds a prominent position in the regional government. He too said Ta Mok
did not loot or traffic antiquities himself and that the sixty-one statues were
seizures from actual looters and traffickers. Moreover, these looters and traf-
fickers were said to have no ties to the Khmer Rouge, but were instead soldiers
from the Cambodian military and paramilitary groups. He did not explain why
such enemies of the Khmer Rouge would traffic antiquities directly through
302 davis and Mackenzie

their territory instead of going around it. Ta Mok intercepted them when they
were trying to cross the border into Thailand to meet buyers and dealers.
Interestingly, this individual and others also note that when the government
captured Ta Moks house in 1999, some of his best pieces disappeared before
making it to the Angkor Conservation.
Wood (p. 160) remarks that, Beyond revering Ta Mok as a local and indeed
national hero, [such] assertions cohere around a particular nationalist senti-
ment that portrays him and the Khmer Rouge loyalists in Anlong Veng to be
defenders of Khmer sovereignty as well as conservators (and potential cura-
tors) of its glorious past. It is possibleeven very likelythat Ta Mok did
begin as a preserver of antiquities, especially when doing so meant toeing the
party line as described earlier by Becker. At the Khmer Rouges height of power,
during the 19751979 Killing Fields, he and the other Khmer Rouge certainly
would have had both the motivation and means to enforce such a policy.
Woods (p. 161) notes However, the view of Ta Moks greatness does not meet
with unanimity among Anlong Vengs former Khmer Rouge. Nor, as we discov-
ered, was there a consensus among Ta Moks former business associates. A num-
ber of individuals from both these groups have now gone into hiding along the
Thai border, serving as monks or taking on legitimate professional roles. They
admitted organizing antiquities trafficking with Ta Mok using the route we have
identified as Channel 2, noting that it was hardly their most serious crime.
According to these former associates, Ta Mok entered the trade as a looter-
for-hire for dealers from Thailand. This is not surprising given his close rela-
tionship with members of the Thai army and criminal gangs, which allowed
him to orchestrate a lucrativeand well-documentedcross-border trade in
gems and timber, and even led to rumours that he had been granted Thai citi-
zenship (Phnom Penh Post 1998). But upon seeing the profits Thai middlemen
were making, he decided to cut them out and forged links himself with buyers
further up the chain.
It is not difficult to find an explanation for Ta Moks change of heart, if
indeed one did occur, as he and the Khmer Rouge would have needed the
money. Throughout the Killing Fields (19751979) and even into the subse-
quent Vietnamese occupation (19791989), the Khmer Rouge survived with
backing from China and others (in what is still a source of embarrassment for
the international community, they also retained a seat at the United Nations
until 1993). But when these allies finally began to pull their support, the Khmer
Rouge were forced to find other means of arming their cause. Anlong Veng was
rich in gems and timber, as well as antiquities, and all were apparently sold to
the highest bidder.
Those farther from Anlong Veng and with no personal relationship to Ta Mok
also speak openly today (and in years past) of his role in the illicit antiquities
temple looting in Cambodia 303

trade. In fact Uong Von of the Conservation dAngkoran institute in Siem


Reap charged with preserving Khmer artifacts, which acts as a storeroom for
pieces removed from temples for safekeepinghas referred to Ta Mok as the
chief thief of Khmer antiquities.2 The Conservation itself had been a repeated
target for looters (including, at least according to press reports, those from the
Khmer Rouge): the enclosure was attacked three times between 1992 and 1993,
and, in one particularly violent raid, 300 marauders stole dozens of statues
and murdered a guard. This attack forced the government to ship a hundred
of Angkors remaining artifacts to Phnom Penh for safekeeping in the National
Museum (Choulean et al., 1998, p. 112).
A caretaker at the Conservation confirmed to us that Ta Mok collected arti-
facts, and showed us many of the sixty-one statues that had been seized from
his house in Anlong Veng. These stone masterpieces ranged from architectural
elements like lintels, to human torsos (probably representing gods), to the
mystical and multi-headed snakes called nagas. Still others were on display at
the Angkor National Museum in Siem Reap. It is not known from which exact
temples these were taken, but stylistically they appear to come from a number
of different sites.
There is further anecdotal evidence specifically placing Ta Mok at the tenth-
century ruins of Koh Ker, which rank among the most heavily plundered of all
Cambodias temples. Villagers there report that he personally visited the site in
the early 1980s, ordered the temples cleared of vegetation, and then carefully
photographed a number of statues in the main grouping at Prasat Thom (Big
Temple). All later disappeared. No one we spoke to directly accused him of
their theft.
Ta Mok would have been in a good position to loot Koh Ker, or benefit
from its looting, had he wanted to do so. His relationship with the site has
already been well-documented by the Documentation Center of Cambodia
(transcripts of dc-cam interviews with villagers from Koh Ker on file with
the authors) and others researching the Khmer Rouge era. While it was not in
his zone during the early years of the Civil War or the Killing Fields, after the
1979 Vietnamese invasion, it fell under his control (which is the period during
which locals report his interest in the temples). Indeed, many of Koh Kers vil-
lagers fled to him in Anlong Veng, first to escape fighting between the Khmer
Rouge and Vietnamese during the 1980s, and then between the Khmer Rouge
and other Cambodian factions during the 1990s. The community would retain
close ties to Ta Mok until the 1998 Khmer Rouge surrender, with large numbers
only returning from Anlong Veng in 1999 and 2000.

2 http://www.museum-security.org/97/19111997.html.
304 davis and Mackenzie

More work on this topic is needed, but if the Butcher of Cambodia were
indeed responsible for some of the plunder at Koh Ker and other temples,
it means that prominent masterpieces now on the international art market
may have passed through his very hands. This possibility certainly gives added
moral context to Cambodias ongoing efforts to recover its statutes. But regard-
less of Ta Moks own role, which perhaps will never be perfectly clear, our
research and that of others is beginning to reveal the bigger picture of wartime
looting in Cambodia, confused as it is.

Conclusion

The illicit trade in Cambodian antiquities that we detail here shares many sim-
ilarities with