What Future for Looted Syrian Antiquities?: The Clash Between the Law and Practice for the Repatriation of Cultural Property to Countries in Crisis

Erin L. Thompson Assistant Professor, John Jay College, City University of New York

Abstract: Thousands of cultural artifacts smuggled out of since the current conflict began have been seized by authorities in other countries, but only a few have been returned. The rest remain in limbo, held by countries unwilling to cooperate with the government that still, according to international law, controls Syria. This article examines whether the relevant international treaties and domestic law in the United States allows for these indefinite delays in repatriation to a disfavored government, comparing the fate of Syrian antiquities to seized Iraqi cultural property, which has, in general, been rapidly returned. The article argues that assumptions about who “deserves” to own objects will creep into our answers to the question of what to do with seized antiquities unless we rigorously examine the pertinent law and fill the gaps that would allow indefinite retention and de facto acquisition under the guise of concern for the safety of objects and the stability of states, and proposes that seizing governments must be transparent about what they have seized and what conditions must be met for its return.

In 2015, Augusta McMahon, a senior lecturer in at Cambridge, and Alessio

Palmisano, of University College London, went undercover for a BBC investigation.1 The archeologists visited antiquities shops in London to see if they could find artifacts recently looted in Syria or Iraq and smuggled into the UK.

The looting of archeological sites has long been a problem in this region, known for its rich cultural heritage after millennia of occupation by Ancient Near Eastern cultures as well as

Greek and Roman traders and settlers. However, an acute looting crisis has developed following the disintegration of order that accompanied the rise of armed rebel groups disputing Syrian

1 For information about this investigation and the Nawa lintel, see BBC Channel 4, “ISIS and The Missing Treasures: Channel 4 Dispatches,” April 18, 2015, transcript available at http://www.channel4.com/info/press/news/isis-and-the-missing-treasures-channel-4-dispatches; Umberto Bacchi, “Syria: Looted Byzantine artefact sold in London for £50,000,” International Business Times, April 9, 2016, http://www.ibtimes.co.uk/syria-looted-byzantine-artefact-sold- london-50000-1553867; Samuel Hardy, “ISIS and the Missing Treasures, The Missing Treasures and ISIS?,” Conflict Antiquities Blog, April 28, 2016, https://conflictantiquities.wordpress.com/2016/04/28/iraq-syria-uk-islamic-state-antiquities- market-evidence-interpretation-explanation/.

What Future?, 1 President Bashar al-Assad’s government in 2011. The radical Islamic group calling itself the

Islamic State (“IS”) has taken advantage of this chaos to establish claims to territory inside both

Syria and Iraq. IS is not the first to loot in the region, but it has sped the pace of the looting by encouraging professional looters with heavy machinery and archeological knowledge to dig archeological sites in return for payment to IS of a “tax” on the value of what they find.2 Reports from inside IS-controlled territory controlled by are fragmentary, but researchers are tracking the looting of archeological sites in Iraq and Syria through a variety of means, including analyzing high-resolution satellite photographs to identify looter pits and track their proliferation over time.3 These photographs show that thousands of archeological sites have been looted in the last few years.

According to Amr Al-Azm, a professor of anthropology and Middle Eastern history who has been collecting reports from inside Syria, IS even has jihadist bureaucrats charged with issuing official-looking permits allotting sites to approved looters, appraising their finds, and

2 “Dangerous ‘Uphill Battle’ to save Syria’s History,” CBS News, March 20, 2015, available at http://www.cbsnews.com/news/syria-antiquities-looted-destroyed-war-isis-modern-monuments- men/; Amr Al-Azm, Salam Al-Kuntar, and Brian I. Daniels, “ISIS’ Antiquities Sideline,” New York Times, September 2, 2014, available at http://www.nytimes.com/2014/09/03/opinion/isis- antiquities-sideline.html?_r=0. 3 Jesse Casana, “Satellite Imagery-Based Analysis of Archaeological Looting in Syria,” Near Eastern Archaeology 78.3 (2015), pp. 142-152; Emma Cunliffe, Wendi Pedersen, Manuel Fiol, Traci Jellison, Caryn Saslow, Einar Bjørgo, and Giovanni Boccardi, “Satellite-based Damage Assessment to Cultural Heritage Sites in Syria” (2014), available at http://unosat.web.cern.ch/unosat/unitar/downloads/chs/FINAL_Syria_WHS.pdf; Jesse Casana and Mitra Panahipour, “Satellite-Based Monitoring of Looting and Damage to Archaeological Sites in Syria,” Journal of Eastern Mediterranean Archaeology and Heritage Studies 2.2 (2014), pp. 129–52; Daniel A. Contreras and Neil Brodie, “The Utility of Publicly-Available Satellite Imagery for Investigating Looting of Archaeological Sites in Jordan,” Journal of Field Archaeology 35.1 (2010), pp. 101–114; Susan Wolfinbarger, Jonathan Drake, Eric Ashcroft, and Katharyn Hanson, “Ancient History, Modern Destruction: Assessing the Current Status of Syria’s World Heritage Sites Using High-Resolution Satellite Imagery” (2014), available at http://www.aaas.org/sites/default/files/content_files/AAAS-SyrianWHS-9182014.pdf.

What Future?, 2 connecting sellers to foreign dealers who take possession of the artifacts at the border.4 From there, the material goes underground, moving from middleman to middleman until, usually disguised with false paperwork, it appears on the legitimate art market.

McMahon and Palmisano, the undercover archeologists, carried a hidden camera, but what they found was displayed openly on the sales floor of a posh Mayfair gallery: a six foot long piece of stone, once the lintel of a doorway, carved with a menorah and other Jewish symbols. Eventually, posing as interested buyers, the archeologists spoke to the owner of the lintel, Fares Dalloul. Dalloul provided sale, shipping, and storage invoices describing the movement and sale of some objects in 2007. He claimed that this paperwork related to the lintel.

However, as is so often true of paperwork in the antiquities market, these papers do not give a complete provenance, since they do not mention the original source of the artifacts.5

Dalloul had also mentioned that the lintel had been pulished in a reference book. But the seller was right about one thing – the lintel had been published. McMahon found it illustrated in an 1886 book, where it is described as an “ornamental lintel from a Jewish house at Nave,” a product of Syria’s Byzantine period (4th-7th centuries CE).6 Nawa (also transliterated Nave,

Naveh, Nawe, and Neve) is a town off the Golan Heights, near the Israeli border, known for its

Jewish artifacts. McMahon also found records and photographs of the lintel as an architectural

4 “Dangerous ‘Uphill Battle’ to save Syria’s History.” 5 The paperwork is also of a type that is relatively easy to forge. For a discussion of the problem of false provenance documentation in the antiquities trade, see Samuel Hardy, “Illicit Trafficking, Provenance Research and Due Diligence: The State of the Art” (2016), available at http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Hardy_2016_UNESCO_ant iquities_trafficking_review_materia.pdf. Additionally, the papers give vague descriptions of the invoiced objects, making it possible that the paperwork itself is genuine, but simply relates to completely different artifacts. 6 Gottlieb Schumacher, Across the Jordan: Being an Exploration and Survey of Part of Hauran and Jaulan (1886, reprinted Cambridge University Press 2010), 173.

What Future?, 3 element in a standing building up to 1936,7 and then a record from the Syrian Directorate

General of Antiquities and Museums showing that the lintel was in a Syrian museum in 1988.

She concluded that “[t]here is no question that this object in the photograph and the object that is in London are exactly the same thing.”8

Syrian law has generally prohibited the export of antiquities since 1963. After that, antiquities could be taken out of the country only with an export license, and only as gifts to scientific excavators of Syrian sites or as exchanges with scientific bodies outside Syria.9

Clearly, then, the Nawa lintel, recorded in a Syrian museum in 1988 and now in the hands of a private seller, without an export license or record of gift or exchange, had been stolen from the museum and smuggled out of Syria, although by persons unknown.

Regardless of who originally stole the lintel, it clearly left Syria illegally. Accordingly, the BBC notified the authorities, and the Metropolitan Police’s Art and Antiquities Unit seized the lintel in February 2015. Syria subsequently requested its return.10

The Return of Cultural Property: International Law

The next step should have been clear, since there is an international convention specifically directed towards the issue of the repatriation of stolen cultural property like the

7 Leo A. Mayer and Adolph Reifenberg, “The Jewish Buildings at Nawe,” [Hebrew], Bulletin of the Jewish Palestine Exploration Society (1936), pp. 1-8. 8 “ISIS and The Missing Treasures.” 9 Article 69 of the Antiquities Law of 1963 was maintained in the amended Antiquities Law of 1999. 10 This investigation is not the only recent discovery of antiquities likely to have been recently looted in Syria or Iraq in the London marketplace. See also Rachel Shabi, “Looted in Syria – and sold in London: the British antiques shops dealing in artefacts smuggled by Isis,” The Guardian, July 3, 2015, available at https://www.theguardian.com/world/2015/jul/03/antiquities-looted-by- isis-end-up-in-london-shops (Professor Mark Altaweel of the University College London Institute of Archaeology finds artifacts from the 2nd-4th centuries BCE, including glass, a statuette, and bone inlay, that are “very likely to be coming from conflict regions” in Iraq and Syria in London shops).

What Future?, 4 Nawa lintel.11 On November 14, 1970, the United Nations Educational, Scientific and Cultural

Organization (UNESCO) adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 Convention”).12

The 1970 Convention describes its goal of international cooperation to stop the looting and smuggling of cultural heritage in sweeping language, requiring the governments of member

States to take action at the request of another member State whose cultural property has been stolen, and to collaborate to solve major crises in the protection of cultural property.

However, the 1970 Convention does not specify exactly what actions or collaborations members States must take to fulfill these obligations, and generally leaves it up to member States to translate these goals into law. Accordingly, there is a broad range of domestic cultural heritage legislation among member States, ranging from strict bans on exporting or even owning antiquities in some countries to more permissive trading regimes in many countries with active antiquities dealers and collectors.

There is one key exception to the 1970 Convention’s refusal to specify obligations:

Article 7 states that

11 Another major international treaty that addresses stolen cultural property exists: the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (June 24, 1995). However, this Convention has many fewer member States than the 1970 Convention, and neither Syria nor Iraq are signatories. 12 The 1970 Convention entered into force on May 12, 1973, for Iraq and on May 21, 1975, for Syria. In addition to the 1970 Convention, there have been a number of United Nations Security Council Resolutions addressing the looting of antiquities from Iraq and Syria, including Resolutions 1483, 2199 (12 February 2015), and 2253 (17 December 2015). Thus, for example, Resolution 2199 calls upon all U.N. member States to “take appropriate steps to prevent the trade in Iraqi and Syrian cultural property… illegally removed from Iraq since 6 August 1990 and from Syria since 15 March 2011, including by prohibiting cross-border trade in such items, thereby allowing for their eventual safe return to the Iraqi and Syrian people.” S.C. Res. 2199, U.N. Doc. S/RES/2199 (2015). This phrasing is telling: the returns must be “safe” and may be “eventual,” and are to be directed towards the “Iraqi and Syrian people,” rather than to the government.

What Future?, 5 The States Parties to this Convention undertake… (b)(i) to prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to this Convention after the entry into force of this Convention for the States concerned, provided that such property is documented as appertaining to the inventory of that institution; (ii) at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property….

Thus, the 1970 Convention requires its member States to “take appropriate steps” to ensure the return of a quite limited class of objects: stolen artifacts documented in the inventories of museums and similar institutions. Such cases are quite rare. First, it is simply much less risky to obtain artifacts by looting an archeological site than a museum, because large, underfunded sites have much less security than museums. Second, even if an artifact was stolen from a museum, many museums do not have full documentation of their holdings. Creating a full inventory of holdings both on display and in storage is an endeavor that requires the devotion of time, money, and expertise that many museums have simply not been able to afford. But the

Nawa lintel is precisely one of these rare cases, and the 1970 Convention clearly mandates its return to Syria.

The Return of Cultural Property: International Practice

Yet, despite the mandate of the 1980 Convention, U.K. police are still holding the lintel.

In April 2016, the police told the International Business Times that the owner of the shop had

“co-operated fully” but that they were unable to establish details of the provenance of the lintel, which had been placed in secure storage “until such time as provenance could be established.”13

13 Umberto Bacchi, “Syria: Looted Byzantine artefact sold in London for £50,000,” International Business Times, April 9, 2016, available at http://www.ibtimes.co.uk/syria-looted-byzantine- artefact-sold-london-50000-1553867. In the same article, Elias Assad, the shop owner, is quoted as saying that he “had no idea about the lintels’ history,” and that he was not selling it but was “merely and perhaps naively” storing it as a favor for Fares Dalloul. A spokesman for Elias

What Future?, 6 The police said that no arrests had been made and that the inquiry was continuing.

This further inquiry might well uncover interesting information, like the identity of those who removed the lintel from Syria or those who brought it into the UK. But this information is not necessary for returning the lintel to Syria. All that is needed to trigger the responsibility to return is the knowledge that an antiquity was removed from a specific country in violation of that country’s laws. Unfortunately often, even this small amount of information is not available. An antiquity can remain in legal limbo if nothing about its appearance or known history links it definitely to a source country, as with the so-called Sevso Treasure, a horde of ancient silver tableware that could have been fashioned anywhere in the Roman Empire, and which has been claimed in a series of lawsuits by Croatia, Lebanon, and Hungary.14 By contrast, the Nawa lintel

– repeatedly drawn and photographed in situ until well after the passage of Syrian law that banned its export – should be as close to an open and shut case as there is in the often frustratingly complex and elusive world of antiquities smuggling.

The retention of the lintel becomes less surprising when examined in the context of the fate of other seized Syrian antiquities. In the last few years, a number of countries have announced the seizure of thousands of artifacts, from Ancient Near Eastern sculptures to Roman coins to medieval Islamic texts, that they describe as having been smuggled out of Syria.15 These

Assad added that “he does not, and never has, dealt with antiquities from Syria… and ensures that his pieces are genuine with appropriate provenance.” 14 John Henry Merryman, “Thinking about the Sevso Treasure” in The Futures of Our Pasts, Michael A. Adler and Susan B. Bruning eds., Santa Fe: School for Advanced Research Press, 2012; Peter Landesman, “The Curse of the Sevso Silver,” The Atlantic, November 2011, available at http://www.theatlantic.com/magazine/archive/2001/11/the-curse-of-the-sevso- silver/302331/. 15 It should be noted that the authenticity of a number of the seized objects discussed in this article has been called into question; see, e.g., Paul Barford, “From Erbil to Baghdad: That Abu Sayyaf Nefertiti” (2015), available at http://paul-barford.blogspot.com/2015/07/from-erbil-to- baghdad-that-abu-sayyaf.html, while Maamoun Abdulkarim, Chief of the DGAM, has estimated

What Future?, 7 countries include Bulgaria and Turkey,16 while a Syrian official has also claimed that Israel has seized smuggled Syrian cultural property,17 and it appears that the U.K. has seized a number of other Syrian artworks beside the Nawa lintel.18

But in August 2016, Maamoun Abdulkarim, the Chief of the Syrian agency responsible for antiquities, the Directorate General of Antiquities and Museums (“DGAM”) claimed that only Lebanon and Jordan have returned any seized antiquities to Syria since 2011 – and that

Jordan ceased to do so sometime after 2015.19 So, while Lebanon returns seized Syrian

that most of the “antiquities” recently seized in Syria and Lebanon upon suspicion of being looted are actually forgeries: Tim Cornwell, “Almost 70% of Smuggled Objects seized in Syria and Lebanon are Fakes, Antiquities Chief Says,” The Art Newspaper, August 24, 2016, available at http://theartnewspaper.com/news/almost-70-of-smuggled-objects-seized-in-syria-and-lebanon- are-fakes-antiquities-chief-says/. However, it is generally true of the illicit market for cultural property that forgeries are mixed in with authentic pieces by sellers eager to increase their profits, and at least some of the seized materials is authentic. 16 Steven Lee Myers and Nicholas Kulishjan, “‘Broken System’ Allows ISIS to Profit From Looted Antiquities,” New York Times, January 10, 2016, available at http://www.nytimes.com/2016/01/10/world/europe/iraq-syria-antiquities-islamic-state.html (reporting on the seizure of 9,000 items in Bulgaria in 2015, some reportedly antiquities from Syria, and the seizure of 6,800 artifacts, mostly coins, by Turkish authorities since 2011); while a Turkish newspaper reported on the seizure by Turkish authorities of three mosaic panels suspected to have been looted from a Syrian museum: “İstanbul’da tarihi eser operasyonu: 4 şüpheli adliyede” [“Antiquities operation in Istanbul: 4 suspects in court”], Haber Turk, April 17, 2016, available at http://www.haberturk.com/gundem/haber/1226216-istanbulda-tarihi-eser- operasyonu-4-supheli-adliyede. 17 Shadia Nasralla, “Syrian Antiquities Chief says Turkey Refuses to Return Looted Art,” Reuters, December 11, 2015, http://www.reuters.com/article/us-mideast-crisis-syria-antiquities- idUSKBN0TU19420151211. 18 “The Art Detective Fighting to Save Syria’s Past,” BBC News, November 11, 2015, available at http://www.bbc.com/news/world-middle-east-34732945 (Christopher Marinello, chief executive of the London-based Art Recovery Group, stating that “we know of a recent container that was seized here in the UK with a great deal of Syrian looted objects on it, and I can't go too much beyond that because it's a current investigation here in the UK”); additionally, the has stated that it is holding at least one object looted from Syria “in the hope of returning it when the country is stable”: “British Museum ‘guarding’ object looted from Syria,” BBC News, June 5, 2015, available at http://www.bbc.com/news/entertainment-arts-33020199. 19 Cornwell, “Almost 70% of smuggled objects seized in Syria and Lebanon are fakes”; Nasralla, “Syrian Antiquities Chief says Turkey Refuses to Return Looted Art.”

What Future?, 8 antiquities as soon as a DGAM employee travels to Beirut to retrieve them,20 the thousands of artifacts seized by other countries remain in limbo.

The situation is far different when it comes to the return of seized Iraqi cultural property.21 Iraq has seen a steady stream of repatriations; for example, in 2015, Iraq announced the return of 800 items from museums, universities and auction houses in the United States, Italy and Jordan, which included artifacts identified as stolen when they came up for sale at auction houses and nearly 200 items taken from Hussein’s presidential palaces after his overthrow.22

20 Chloé Domat, “Race against the Raiders of Syrian Antiquities,” Middle East Eye, October 14, 2015, available at http://www.middleeasteye.net/in-depth/features/saving-syrian-memory- 520212972 (“At the borders and in ports and airports, [Lebanese] customs officers keep a close watch, while units from domestic security forces carry out, in coordination with Interpol, inspections at potential points of sale: the antiquities markets in Basta, Souk el-Ahad, Jnah and Ouzaï. The procedure is well established: when a person is arrested for illegally trafficking cultural property, the objects are immediately confiscated and sent to the Antiquities Board; the trafficker is then questioned to find out where the objects come from…. If the objects come from Syria, the Antiquities Board contacts [the DGAM] so that they can dispatch an expert to Beirut. The objects are then taken back to Syria if so requested by the country.”) See also Assad Seif, “Illicit Traffick in Cultural Property in Lebanon,” in Countering Illicit Traffic in Cultural Goods: The Global Challenge of Protecting the World’s Heritage, France Desmarais, ed. (International Commission of Museums, 2015) (discussing 58 cases of seizures of Syrian antiquities by Lebanon since 2012). 21 Although beyond the scope of this article, which is focused on the situation in Syria and uses Iraq as the main comparison, there have been other countries that have faced prolonged conflicts featuring the theft and smuggling of items from a rich cultural heritage and worries about their safety upon return, including Libya and Afghanistan. See, e.g., Kim Lee, “The Amaigh’s Fight for Cultural Revival in the New Libya: Reclaiming and Establishing Identity Through Antiquity,” Seattle Journal for Social Justice 11.1 (2012), and St John Simpson, “Back to Kabul: Case Studies of Successful Collaboration between the National Museum of Afghanistan, the British Museum, the UK Border Force and others in the Return of Stolen Antiquities to Afghanistan,” in Countering Illicit Traffic in Cultural Goods: The Global Challenge of Protecting the World’s Heritage, France Desmarais, ed. (International Commission of Museums, 2015). Interestingly, as detailed in the later article, the U.K. held an eventual total of 1,500 Afghani objects seized in Britain between 2003 and 2007 and did not begin to repatriate them until 2009. However, the decision to delay their return was made in collaboration with the staff of the Afghanistan National Museum, in contrast to the current situation in Syria, whose officials want ongoing repatriations. 22 Dominic Evans, “Iraq Celebrates Return of Antiquities, Appeals for World Help,” Reuters, July 8, 2015, available at http://www.reuters.com/article/us-mideast-crisis-iraq-antiquities-

What Future?, 9 Germany has also recently returned a number of artifacts to Iraq, including an ancient Sumerian clay cuneiform tablet in 2016 (seized by a criminal police office in the State of Schleswig-

Holstein after having been offered in an online auction, in violation of the E.U. ban on trade with

Iraqi cultural property); an ancient inscribed clay brick from Babylon in 2015 (after a German nonprofit received the brick as a donation from an individual who had illegally removed it from

Iraq in 1975); and, in 2013, 13 ancient objects, including cylinder seals, sculptures, and a form tablet, at least one of which was stolen from the National Museum of Iraq in Baghdad in 2003.23

Even Syria has returned stolen Iraqi cultural property, repatriating some 700 ancient artifacts, including gold coins and jewelry, which had been stolen after the fall of Saddam Hussein, in

April 2008.24

The U.S. has returned a strikingly large number of antiquities to Iraq. U.S. Immigration and Customs Enforcement (ICE) estimates that it has repatriated 1,350 items of Iraqi cultural property since 2008,25 and the Federal Bureau of Investigation has reported recovering and

idUSKCN0PI1WN20150708. 23 Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, Report of the Secretariat on the Follow-Up to the Recommendations and Decisions Adopted during the 19th Session (2016), available at http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Final_Secretariat_report_E n.pdf and Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, Report of the Secretariat (2014) at 17, available at http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/3_Report_Secretariat_19_I CPRCP_en.pdf. 24 Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, Secretariat Report (2009) at 10, available at http://unesdoc.unesco.org/images/0018/001822/182210E.pdf. 25 Government Accountability Office, “Cultural Property: Protection of Iraqi and Syrian Antiquities” (2016), at 25-26. The Government Accountability Office report does not include many details on either the ICE or the FBI seizures, but some of the seizures have been reported on more fully elsewhere, including, e.g., Tom Mashberg, “Assyrian Artifacts to Be Returned to Iraq,” New York Times, March 15, 2015, available at

What Future?, 10 repatriating a number of antiquities to Iraq, including eight ancient cylinder seals in 2005 and four more in 2013.26 The Department of Homeland Security, Federal Bureau of Investigation, and other federal agencies opened 17 cases regarding Iraqi cultural property between 2011 and

February 2016, with a single case involving Syrian cultural property in the same period.27 These cases included both individuals and transnational criminal organizations dealing in illicit cultural property, from those that attempted sales to museums and major galleries to those selling cultural property on Craigslist without import documentation.28

Of course, not every country is as eager as the U.S. to return cultural property to Iraq. For example, Israeli officials seized antiquities, which they described as looted from Iraq, from antiquities shops in Jerusalem’s Old City and elsewhere in early 2016, with a spokesperson stating that the goal is to return them to the Iraqi government “eventually.”29 The Iraqi Ministry of Culture recently stated that it is working with the governments of Romania, Algeria, Slovenia,

Britain, France, Lebanon, Jordan, the United Arab Emirates, and to recover more than

10,000 artifacts.30 Presumably these countries, too, have notified Iraq of seizures but have not immediately returned the artifacts, showing themselves not as willing to carry out returns as immediately as the U.S. But still, overall, there have been far more repatriations of cultural property to Iraq than to Syria.

One particularly dramatic seizure and return of cultural property is an especially good illustration of the different treatment of Syria and Iraq vis-à-vis repatriations. In May 2015, U.S.

http://artsbeat.blogs.nytimes.com/2015/03/15/assyrian-artifacts-to-be-returned-to-iraq/. 26 Government Accountability Office, “Cultural Property” at 26. 27 Id. at 25. 28 Id. 29 Nir Hasson, “Israel’s Antiques Market Awaiting ISIS-looted Treasures,” Haaretz, September 14, 2016, available at http://www.haaretz.com/jewish/archaeology/.premium-1.741730. 30 “Iraq Recovers 483 Artifacts Smuggled out of the Country by Daesh,” [Arabic], Egypt Today, August 10, 2016.

What Future?, 11 Special Operations troops entered eastern Syria to raid the house of a man known as Abu Sayyaf, an IS leader.31 While searching the house, the troops found antiquities, including cylinder seals, pottery, and hundreds of coins. Among the items were three Babylonian stone seals, marked with collection identification numbers from the National Museum of Iraq, Baghdad; they were probably part of the large number of similar seals stolen from the museum in 2003 just after the chaotic capture of Baghdad by U.S. forces, during which the museum suffered substantial losses.32

In July 2015, barely two months after the raid, the U.S. handed over more than 400 artifacts seized from the Sayyaf house to the Iraqi government during a ceremony in Baghdad.

Members of the Iraqi Culture Ministry said that they had not had time to fully study the objects, and could not be sure whether many of them were of Iraqi or Syrian origin, but, as the Iraqi

Director General of Museums put it, “We’re just happy to have them back.”33

But was Iraq perhaps getting back things that it had never lost? The seals with collection identification numbers from the Iraq National Museum, if authentic, came from Iraq, but that accounted for only three of more than 400 items. It is frequently impossible to ascertain the modern source country of an antiquity merely by examining it – as the Iraqi museum officials indicate when they mentioned their difficulties in telling apart the Iraqi from the Syrian cultural property among the seized objects. And the seizure itself took place in Syria, making it highly likely that at least some of the antiquities were looted from Syria, not Iraq. And yet, despite these

31 Loveday Morris, “Artifacts looted during the Iraq invasion turned up in the house of an Islamic State leader,” Washington Post, July 15, 2015, available at https://www.washingtonpost.com/news/worldviews/wp/2015/07/15/how-ancient-artifacts-looted- during-the-iraq-invasion-turned-up-in-the-house-of-an-islamic-state-leader/. 32 For the fate of the museum, see Matthew Bogdanos, The Thieves of Baghdad (Bloomsbury, 2005). 33 Morris, “Artifacts looted during the Iraq invasion.”

What Future?, 12 difficulties, the U.S. rapidly handed over all the seized antiquities to Iraq, without seeming to even contemplate the possibility that some of them belong to Syria.

What are the causes of this striking difference in repatriation practice? One might reasonably explain a delay in repatriating cultural property to Syria because of the ongoing conflict there, and a desire to ensure the safety of returned artifacts, but the security situation is roughly similar in Iraq. IS has seized territory in both Iraq and Syria, and is looting antiquities from both states. Both states are engaged in ongoing conflict against IS. But the U.S. has repatriated these objects to Iraq despite the ongoing conflict. In fact, Brent Easter, a Special

Agent for the Cultural Property, Art, and Antiquities unit of Homeland Security Investigations, a branch of the Department of Homeland Security, has said that it is “phenomenal” to be able to repatriate “conflict antiquities” to Iraq, “especially during the horrible turmoil that they are facing and after having the destruction of similar pieces in their country. To know that they have this piece back safely, that’s gratifying.”34

In both Iraq and Syria, some areas of the country are in turmoil while others are relatively secure. Thus, Ahmad Deib, DGAM Director of Museum Affairs, stated in mid-2016 that “99%” of the collections of the 41 DGAM museums in Syria had been moved to safe areas within the country.35 In theory, then, artifacts repatriated to Syria could be held in facilities as far as possible from the ongoing conflict, as is the case in Iraq.

It seems that claiming ongoing investigations or mentioning security concerns are forms of polite excuses for not returning cultural property to Syria, since such concerns do not prevent

34 Wesley Bruer and Alexander Rosen, “The Feds’ Real-Life Indiana Jones,” CNN, June 3, 2016, available at http://edition.cnn.com/2016/06/03/politics/hsi-indiana-jones-homeland-security- investigations/index.html. 35 Basma Qaddour, “99% of Syrian Museums’ Collections in Safe Areas - DGAM,” Syria Times, May 20, 2016, available at http://syriatimes.sy/index.php/archaeology/24070-99-of-syrian- museums-collections-in-safe-areas-dgam.

What Future?, 13 repatriations to Iraq. The question then becomes whether or not the U.K., U.S., or other member

States of the 1970 Convention who have seized Syrian cultural property are in violation of their international treaty obligations if they indefinitely delay the return of these artifacts to Syria.

Because the 1970 Convention’s language is so broad, this question can be answered only by examining the obligations individual member States have given themselves in their interpretation and implementation of the Convention. The U.S., home to deep-pocketed and passionate art collectors, is one of the major market countries for antiquities. The remainder of this article thus looks at U.S. law and practice related to the protection of Syrian and Iraqi cultural property.

Current Legal Instruments for the Return of Iraqi and Syrian Cultural Property Imported into the United States

The U.S. implemented the 1970 Convention through the Convention on Cultural

Property Implementation Act of 1983 (“CPIA”).36 The CPIA prohibits the import into the U.S. of cultural property documented as belonging to the inventory of a museum or religious or secular public monument or similar institution that was stolen from such museum, monument, or institution in a 1970 Convention member State after April 12, 1983.37 More broadly, the CPIA allows for the imposition of import restrictions on cultural property.38 Any 1970 Convention member State may request the imposition of these restrictions through the formation of a bilateral agreement. Under such an agreement, the U.S. will temporarily prohibit the import of designated cultural property unless this material is accompanied by documentation showing legal

36 Public Law 97-446, 19 U.S.C. 2601 et seq., as amended. 37 19 U.S.C. § 2607. 38 19 U.S.C. § 2606.

What Future?, 14 export from the partner State.39 If this documentation is not provided, or if there is evidence that the material was stolen from a museum or religious or secular public monument or similar institution, the material is subject to seizure and forfeiture.40 Once forfeited to the U.S. government, the material must “first be offered for return” to partner State from which it came,41 although no return will be made unless the partner State “complies with such other requirements relating to the return as the Secretary [of the Treasury] shall prescribe.”42

The CPIA does not further describe what such requirements might be, or whether the

Secretary of the Treasury must declare them publically or can keep them private, and it does not appear that the Secretary has ever publically imposed requirements that have blocked or delayed a return under the CPIA. Nor does the CPIA require that the partner State make a specific request for the seized property.

Neither Iraq nor Syria have bilateral agreements with the U.S. under the CPIA.

However, the CPIA allows for the unilateral passage of import restrictions in emergency situations.43 The Emergency Protection for Iraqi Cultural Antiquities Act of 2004, intended to implement U.N. Resolution 1483, allowed the President to exercise his authority under the CPIA to apply import restrictions to Iraqi archaeological or ethnological material. 44 These restrictions came into effect in 2008.45 The Protect and Preserve International Cultural Property Act, signed

39 19 U.S.C. § 2606 (a). 40 19 U.S.C. § 2609(a). 41 19 U.S.C. § 2609(b)(1). 42 19 U.S.C. § 2609(b)(3). 43 19 U.S.C. § 2603. 44 Iraqi Cultural Antiquities Act, Pub. L. No. 108-429 (Dec. 3, 2004). 45 President George W. Bush designated the authority to determine the existence of an emergency condition under the Act to the Department of State, which made this determination on July 2, 2007. The Department of Homeland Security, U.S. Customs and Border Protection, then issued a regulation on April 30, 2008, to reflecting the imposition of import restrictions under the Act. Import Restrictions Imposed on Archaeological and Ethnological Material of Iraq,

What Future?, 15 into law on May 9, 2016, with implementing regulations promulgated on August 15, 2016, resulted in similar emergency protection for Syrian archaeological and ethnological material.46

Cultural property seized under either of these Acts should be treated as directed in the CPIA; that is, offered to Iraq or Syria for return as long as this return complies with any requirements prescribed by the Secretary of the Treasury.

There have been a number of other relevant U.S. legal initiatives. These are either specifically directed towards the protection of cultural property from Iraq or Syria, or are broadly directed against terrorism and can be applied to cultural property insofar as it is used as a funding source by terrorist organizations. Thus, purchasers of cultural property sold by IS can be prosecuted for providing financial support to a terrorist organization under 18 U.S.C. 2339A or under the Iraq Stabilization and Insurgency Sanctions Regulations,47 which, among other provisions, prohibits the trade in or transfer of ownership or possession of Iraqi cultural property or other items of archeological, historical, cultural, rare scientific, and religious importance that were illegally removed, or for which a reasonable suspicion exists that they were illegally removed, from Iraq since August 6, 1990.48

73 Fed. Reg. 23,334 (Apr. 30, 2008), codified at 19 C.F.R. § 12.104j. 46 Pub. L. No. 114-151. Authority to determine the existence of an emergency condition was similarly delegated to the Department of State, which made this determination on August 2, 2016, after which the U.S. Customs and Border Protection (CBP) regulations were revised to reflect the new import restrictions on August 15, 2016. This Act additionally authorizes certain activities that would otherwise be prohibited by Syria sanctions regulations, namely, the export of services to Syria by NGOs seeking to preserve cultural heritage sites. 19 U.S.C. § 2611. However, these exports must be immune from seizure pursuant to section 2459 of title 22 of the United States Code. 47 31 CFR part 576. 48 The Iraq Stabilization and Insurgency Sanctions Regulations were finalized in 2010, but implement a number of Executive Orders dating back to 1990, namely, Executive Order 12722 of August 3, 1990; Executive Order 13290 of March 20, 2003; Executive Order 13303 of May 22, 2003; Executive Order 13315 of August 28, 2003; Executive Order 13350 of July 29, 2004; Executive Order 13364 of November 29, 2004; and Executive Order 13438 of July 17, 2007.

What Future?, 16 If imported in violation of the Iraq Stabilization and Insurgency Sanctions Regulations, cultural property is subject to seizure and forfeiture under the same laws that generally provide both criminal and civil penalties for the smuggling of goods in violation of U.S. law or the importation of goods by means of false statements.49 The goods in these cases will be seized and

Note that Executive Orders 12722 and 12724 restricted most imports, including cultural property, from Iraq from August 1990 until they were revoked by Executive Order 13350 (Exec. Order No. 13350, § 4, 69 Fed. Reg. 46,055, 46,056 (July 30, 2004), (codified at 31 C.F.R. § 576.208). 49 31 CFR 576.411. See also Title 18 U.S.C. 545: “Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law— Shall be fined under this title or imprisoned not more than 20 years, or both. Proof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.” Note that this law operates to convict only those guilty of smuggling an item it is illegal to import under U.S. law. Just because it is illegal under the law of a foreign country to export an object does not guarantee that it is illegal under U.S. law to import this item. Title 18 U.S.C. 542 Entry of Goods by Means of False Statements: “Whoever enters or introduces, or attempts to enter or introduce, into the commerce of the United States any imported merchandise by means of any fraudulent or false invoice, declaration, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance, or makes any false statement in any declaration without reasonable cause to believe the truth of such statement, or procures the making of any such false statement as to any matter material thereto without reasonable cause to believe the truth of such statement, whether or not the United States shall or may be deprived of any lawful duties; or Whoever is guilty of any willful act or omission whereby the United States shall or may be deprived of any lawful duties accruing upon merchandise embraced or referred to in such invoice, declaration, affidavit, letter, paper, or statement, or affected by such act or omission— Shall be fined for each offense under this title or imprisoned not more than two years, or both.” If a prosecutor does not have enough evidence to prove that a defendant committed a crime beyond a reasonable doubt, the prosecutor can choose to undertake a civil action under Title 18 U.S.C. 981 or Title 19 U.S.C. 1595a, taking advantage of the more lenient preponderance of the evidence standard of a civil action to accomplish the recovery of cultural property imported via false statements or smuggling, or that was stolen in violation of the source country’s national ownership laws. This cultural property can then be repatriated to the country of origin, although the persons responsible for attempting to smuggle it into the U.S. are unfortunately free to try again.

What Future?, 17 forfeited.50 In general, these laws do not mandate the final disposition of forfeited goods, but allow for a great deal of discretion in their treatment, including the return of the goods to a foreign government51 or simply their retention by a U.S. federal agency.52

In theory, then, the U.S. federal government might address a case of attempted import of stolen Iraqi cultural property using the Iraq Stabilization and Insurgency Sanctions

Regulations, which would allow the government to retain discretion in whether or not to return these goods to Iraq. But the legislation currently allowing for the seizure and forfeiture of imported Syria cultural property is either the CPIA (for material documented as belonging to the inventory of a Syrian museum or religious or secular public monument or similar institution that was stolen after April 12, 1983) or the Protect and Preserve International Cultural Property Act

(for material listed in the import restrictions implemented on August 15, 2016), which follows the CPIA’s regulations for return. Accordingly, the U.S. must currently offer seized and forfeited

Syrian cultural property to Syria as long as this return complies with any requirements prescribed by the Secretary of the Treasury – and no such requirements have been prescribed, at least publically.

The Status of the Syrian Government

The reluctance of many countries, including the U.S., to cooperate with the Assad government is understandable. Not only does the regime government have an atrocious record of human rights abuses, but it has also been attempting to use cultural property as a lever to gain

Western backing. For example, Assad has insisted that the re-capture of the archeological site of

50 Title 18 U.S.C. 982 mandates the forfeiture of any property relating to the crime when a defendant is convicted either of making false statements under section 542 or smuggling under section 545; Title 18 U.S.C. 981 allows for the seizure and forfeiture of goods in civil cases. 51 Title 18 U.S.C. 981(i). 52 Title 18 U.S.C. 981(e).

What Future?, 18 , Syria by regime forces from IS, accomplished in early 2016, was “another indication of the success of the strategy pursued by the Syrian army and its allies in the war against terrorism.”53 The “liberation” of Palmyra was marked with a concert held in the site’s ancient theater in May 2016, with the Mariinsky Theater Orchestra of St. Petersburg performing for an audience of Syrian schoolchildren, Russian and Syrian soldiers, UNESCO officials, and journalists, who were also treated to a speech by Russian President Vladimir Putin, via live video link. Putin argued that the world should unite with Syria to restore Palmyra as a sign of hope in the battle against terrorism – Russia being one of the most prominent backers of the Syrian regime.54

In this atmosphere of the exploitation of antiquities as propaganda, returning Syrian cultural property to the Assad government would not be a neutral move, concerned solely with the legal ownership of the artifacts, but would instead probably be eagerly exploited by the government as a sign of its importance and official status. Nor would the repatriation of cultural property to the regime be welcomed by all Syrians. For example, Nawa, from which the ancient lintel discussed earlier in this article was stolen, was one of the first cities to rebel against the regime in 2011, and has been repeatedly shelled, bombed, and occupied by regime forces in the years since.55 One does not imagine that the regime would return the lintel to Nawa if it obtained it, or that Nawa’s citizens would approve of this opportunity to benefit the regime.

53 “Assad says Palmyra shows Army’s Success against Terrorism: TV,” Reuters, March 27, 2016, available at http://www.reuters.com/article/us-mideast-crisis-syria-assad- idUSKCN0WT0DZ. 54 Michael Press, “Why Do We Care About Palmyra So Much?” Hyperallergic, June 2, 2016, available at http://hyperallergic.com/299983/why-do-we-care-about-palmyra-so-much/; Ishaan Tharoor, “How Ancient Ruins are Perfect Propaganda in the Middle East,” Washington Post, May 6, 2016, available at https://www.washingtonpost.com/news/worldviews/wp/2016/05/06/how-ancient-ruins-are- perfect-propaganda-in-the-middle-east/. 55 Hardy, “ISIS and the Missing Treasures, The Missing Treasures and ISIS?”

What Future?, 19 Maamoun Abdulkarim, Chief of the DGAM, seems to recognize this reality – that few foreign governments are eager to cooperate with the Assad government. Abdulkarim reports to the Ministry of Culture, which in turn reports to Assad.56 Abdulkarim has attempted to distance himself from the regime, stating that he has not accepted a salary from the government in his three years as Chief of the DGAM, and that he threatens to quit whenever his ability to make decisions on behalf of Syria’s cultural heritage is challenged.57 But Abdulkarim’s maneuverings have had limited results. In 2016, he told the Art Newspaper that he knew that

Turkey and Jordan were holding Syrian artifacts but that “I don’t ask that they return all objects to Syria, because I know there will be a negative response.”58 Instead, Abdulkarim appealed to

Turkey and Jordan simply to release information on what they had seized, either publically or at least to UNESCO or Interpol. That Turkey has not returned any cultural property to the DGAM is hardly surprising, given Turkey’s backing of rebel groups seeking to overthrow the Assad government.59

The U.S., too, has been providing “direct, non-lethal support to the moderate Syrian opposition” in order to support “the Syrian people’s aspirations for a democratic, inclusive, and unified Syria.”60 There have been many other signs of American disapproval of the Assad regime. The U.S. withdrew its ambassador from Syria,61 and then closed its embassy in Syria,62

56 Kristin Romey, “Antiquities Chief: Syria Needs Global Help to Save Heritage,” National Geographic, December 1, 2015, available at http://news.nationalgeographic.com/2015/12/151201-syria-cultural-heritage-antiquities-isis- palmyra-dgam-assad/. 57 Id. 58 Cornwell, “Almost 70% of smuggled objects seized in Syria and Lebanon are fakes.” 59 Nasralla, “Syrian Antiquities Chief says Turkey Refuses to Return Looted Art.” 60 Bureau of Near Eastern Affairs, “U.S. Relations With Syria: Fact Sheet,” March 20, 2014, available at http://www.state.gov/r/pa/ei/bgn/3580.htm. 61 Nicholas Blanford, “Surprise Recall of US Ambassador to Syria Spurred by Threats,” Christian Science Monitor, October 24, 2011, available at

What Future?, 20 later expelling all Syrian diplomatic staff from Washington.63 Various representatives of the U.S. government, including President Obama, have called for the resignation of President Assad,64 and, in 2012, Obama stated that a group known as the Syrian Opposition Coalition would be recognized as “the legitimate representative of the Syrian people.”65

However, the political recognition of an opposition group does not release the U.S. from its obligations to the Assad government. Even if not politically recognized by another State, the government recognized by international law remains the subject of international law, and all rights and duties stipulated by treaty or customary international law remain in force in the mutual relations between these States.66 Under international law, the legally recognized government of a

State is the one that has territorial control over it.67 Thus, the Assad government is still the legal government of Syria under international law, and even States that have politically recognized opposition groups continue to fulfill their international treaty obligations by working with the

http://www.csmonitor.com/World/Middle-East/2011/1024/Surprise-recall-of-US-ambassador-to- Syria-spurred-by-threats. 62 Anthony Shadid, “U.S. Embassy in Syria Closes as Violence Flares,” New York Times, February 6, 2012, available at http://www.nytimes.com/2012/02/07/world/middleeast/violence- in-syria-continues-after-diplomacy-fails.html?_r=0. 63 Bureau of Near Eastern Affairs, “U.S. Relations With Syria.” 64 Id.; Macon Phillips, “President Obama: ‘The future of Syria must be determined by its people, but President Bashar al-Assad is standing in their way,” August 18, 2011, available at https://obamawhitehouse.archives.gov/blog/2011/08/18/president-obama-future- syria-must-be-determined-its-people-president-bashar-al-assad. 65 Devin Dwyer and Dana Hughes, “Obama Recognizes Syrian Opposition Group,” December 11, 2012, available at http://abcnews.go.com/Politics/OTUS/exclusive-president-obama- recognizes-syrian-opposition-group/story?id=17936599. 66 See James R. Crawford, “The Rights of Peoples: ‘Peoples’ or ‘Governments’,” in The Rights of Peoples, James R. Crawford, ed. (Oxford, 1988), 54; Hans Kelsen, “Recognition in International Law: Theoretical Observations,” American Journal of International Law 35 (1941), 615; Stefan Talmon, “Recognition of Opposition Groups as the Legitimate Representative of a People,” Chinese Journal of International Law 12.2 (2013), pp. 219-253. 67 Kelsen, “Recognition in International Law,” n.58, 606–607, 614–615.

What Future?, 21 Assad government, for example by fulfilling its requests for dealing with Syrian passports.68

Even the U.S. has clarified that its statement that the Syrian Opposition Coalition is the legitimate representative of the Syrian people is “not a legal step,” since, as explained by a

Department of State spokesperson, “legal recognition goes to the question of physical control of territory.”69 Thus, repatriations of cultural property from the U.S. to Syria would currently have to be directed towards to Assad government.

Training Initiatives: Different Practices for Antiquities that Remain in Syria

Still, the lack of repatriations to Syria cannot be explained simply by a reluctance to work with the regime. Numerous U.S.-based initiatives, by both governmental and non-governmental actors, have worked with members of the Assad government to provide training and other forms of assistance for the protection of Syrian cultural property.70 For example, the Smithsonian

Institution has trained Syrian antiquities professionals in the use of emergency protection materials for museum collections.71 Similar training programs have provided benefits to Syrians from other countries, including a major initiative, the Emergency Safeguarding of the Syrian

Heritage Project, funded by the European Union in collaboration with UNESCO and based in the

68 See, e.g., Emma Graham-Harrison, “Syrian Activist Barred from Travel after UK Seizes Passport at Assad’s Request,” The Guardian, September 24, 2016, available at https://www.theguardian.com/world/2016/sep/24/syrian-journalist-zaina-erhaim-passport-held- assad-request. See also Steven Erlanger, “France to Let Syria Council Establish Ambassador,” New York Times, November 17, 2012, A16. 69 US State Department, Daily Press Briefing, 12 December 2012 and 3 January 2013. 70 There have also been similar initiatives for the benefit of Iraqi antiquities personnel. For example, the U.S. Department of State helped establish and fund the Iraqi Institute for the Conservation of Antiquities and Heritage, an archaeological site protection and collection management training facility in Erbil, Iraq, in 2009, which has so far trained approximately 350 Iraqi professionals. Government Accountability Office, “Cultural Property,” 27. 71 Id.; Smithsonian Global, “Safeguarding Cultural Heritage in Syria and Iraq,” available at https://global.si.edu/success-stories/safeguarding-cultural-heritage-syria-and-iraq.

What Future?, 22 UNESCO Field Office in Beirut, Lebanon.72 This project, which has resulted in five workshops or training meetings so far, was launched in March 2014 and is set to run for three years.73 It has a number of goals, including the training of Syrian antiquities professionals in emergency preparedness and conservation strategies.

It is most often the case that the Syrians who receive these training, whether from

UNESCO or individual states, are employees of the DGAM or other governmental branches, such as the police or customs forces. They are thus members of the regime government. Why, then, is it thought permissible to provide the benefit of training and other resources to enable the regime government to protect antiquities within Syria, but not to return to their care any antiquities that have left Syria?

Historical Attitudes towards Islamic Owners of Greco-Roman Antiquities: Alternative

Explanations for the Reluctance to Return Antiquities to Syria

Western countries are willing to work with regime officials when it comes to safe-

72 “UNESCO-EU: Launch of the Emergency Safeguarding of the Syrian Heritage Project,” available at http://www.unesco.org/new/en/safeguarding-syrian-cultural-heritage/international- initiatives/emergency-safeguarding-of-syria-heritage/. 73 A workshop on the fight against illicit trafficking of cultural property and its restitution in Syria was held in Lebanon from November 30-December 2, 2015; its topics included the “international legal framework” as well as “measures to facilitate return and restitution of cultural objects,” and it was attended by DGAM staff and Syrian customs and police officers. A meeting of experts to discuss inventories of cultural heritage in Syria was held in Lebanon from February 16-18, 2015; it was attended by DGAM staff. A training on securing movable heritage was held in Lebanon from January 26-30, 2015; its topics included the legal frameworks that combat the illicit trafficking of cultural objects , and it was attended by DGAM staff. A training to fight against the illicit trafficking of Syrian cultural property was held “at the explicit request expressed by Syrian stakeholders and authorities” in Lebanon from November 10-14, 2014; its topics included “normative presentations focusing on international treaties and conventions and national legislation for the protection of cultural heritage,” and it was attended by police and customs officers from Syria. A workshop on the fight against illicit trafficking of cultural property was held in Damascus, Syria, from May 10-13, 2013; its topics included a discussion of “legal aspects and local and international regulations” associated with combatting illicit trafficking.

What Future?, 23 guarding cultural property still within the boundaries of Syria, but refuse to work with them when it comes to deciding the fate of cultural property that has left Syria. That we are sometimes willing to cooperate with Syrian regime officials means that the refusal to repatriate artifacts to them is not based solely on a general boycott of the regime government. Instead, the pattern of sometimes collaborating and sometimes boycotting seems to indicate that the underlying values that guide these decisions are 1) a privileging of the preservation of artifacts over ethical issues of regime support and 2) the belief that these artifacts would be better off outside of Syria.

There is a long history of antiquities collectors in the U.S. and western Europe believing that they are the best owners for these objects. These collectors have frequently justified breaking the laws of source countries in order to obtain antiquities by describing the current possessors of antiquities as unworthy owners who are neglecting or damaging artifacts:

Here in Rhodes, there are many very excellent sculptures… Since these have not received recognition they are neglected, berated, and kept in such vile conditions that they lie exposed to wind, rain, snow, and storm, and so they are eaten up or ruined. I was so moved with pity for their cruel fate, no differently than if I had seen the disinterred bones of my own father in such conditions.74

This is Fra Sabba da Castiglione, writing to his patron, the collector Isabella d’Este, in the early sixteenth century about the neglect of ancient Greek sculptures by the Turkish rulers of the island of Rhodes. A hundred years later, Henry Peacham expressed similar thoughts about the Muslim possessors of Greek sculptures in the :

in Greece and other parts of the Grand Seignior’s Dominions (where sometime there were more Statues standing than men living, so much had Art out-stripped Nature in these days) they may be had for the digging and carrying. For by reason of the barbarous religion of the Turks, which alloweth not the likeness or representation of any living thing, they have been for the most part buried in ruins

74 Letter of Fra Sabba da Castiglione to Isabella d’Este, undated, quoted and translated by Kathleen Wren Christian, Empire without End: Antiquities Collections in Renaissance Rome, c. 1350-1527 (Yale University Press, 2010), 195.

What Future?, 24 or broken to pieces, so that it is a hard matter to light upon any there that are not headless and lame, yet most of them venerable for their antiquity and elegancy.75

Elsewhere in the same book, Peacham praises the collection of Greek antiquities formed by his patron, Lord Arundel, who had them smuggled out of Turkey. Similar stories of destruction pervade many collecting narratives, which claim that inhabitants of Islamic countries have no connection to the pre-Islamic past and believe that figural art is heretical. Seeing this neglect and destruction, the collector aspires to rescue antiquities and provide them with a better, safer home.

As Charles-Francois Olier, Marquis of Nointel, France’s ambassador to the Ottomans wrote in a dispatch from Athens in 1674, asking (unsuccessfully) for funds to bring the Parthenon marbles to Paris: “There they would be safe from the insults and injuries done to them by the Turks, who, in their horror of what they call idolatry, deem it a worthy act to break off a nose or some other part.”76

These justifications for taking pre-Islamic antiquities from the control of Islamic populations (with their accompanying misunderstandings of the role of iconoclasim in Islamic culture) are no mere historical remnants. Instead, a number of prominent Western collectors and museum officials have recently made strikingly similar arguments against repatriation of IS- looted antiquities. For example, Gary Vikan, former director of the Walters Art Museum,

Baltimore, told the New York Times that he believed museums should become more conservative about returning art to Iraq, Syria, Afghanistan and northern Africa, given the violence happening there, which he stated “will put an end to the excess piety in favor of the repatriation model.”77

75 Henry Peacham, The Compleat Gentleman (1622), quoted in Jonathan Scott, Pleasures of Antiquity (Yale University Press, 2003), 91. 76 Quoted and translated in Constantine, Early Greek Travellers and the Hellenic Ideal, 12. 77 Tom Mashberg and Graham Bowley, “Islamic State Destruction Renews Debate Over Repatriation of Antiquities,” New York Times, March 30, 2015, available at

What Future?, 25 Boris Johnson, mayor of London, has pointed to the destruction of art by IS in Iraq and Syria as reason enough to justify, retroactively, the removal and retention of the Elgin marbles from

Greece.78 And James Cuno, President and Chief Executive of the J. Paul Getty Trust and

Museum, referring to the actions of IS, wrote in a letter to the editor of the New York Times that

“antiquities will remain at risk” as long as the 1970 Convention allows for “the retention of antiquities within the borders of the modern state that claims them” because “[t]hat state, very sadly, also has the authority to sell them on the illegal market, damage them or destroy them.”79

Such statements are evidence that there are many who would be eager to seize upon the excuse of concern about the safety of artifacts or about the advisability of collaborating with a particular regime to justify ignoring the international legal obligation to repatriate stolen art.

Conclusion: A Growing Problem that Requires Transparency about Seizure and Return

The problem of the looting of cultural property is not a new one.80 Nor is IS the only insurgent group to have realized the potential inherent in the destruction or sale of cultural property, which is now an important part of current conflicts in Syria, Iraq, Afghanistan, Egypt,

Yemen, Mali, Tunisia, Nigeria, Azerbaijan, Ukraine, and many parts of Central America. In short, though the question of how to handle the repatriation of cultural property stolen from a country in crisis may currently be most acute for Syria, the future unfortunately promises an expansion of the issue to a number of other states. Colonialist assumptions about who “deserves”

http://www.nytimes.com/2015/03/31/arts/design/islamic-state-destruction-renews-debate-over- repatriation-of-antiquities.html. 78 Id. 79 “Deploring ISIS, Destroyer of a Civilization’s Art,” New York Times, March 11, 2015, available at http://www.nytimes.com/2015/03/11/opinion/deploring-isis-destroyer-of-a- civilizations-art.html?_r=0. 80 For an overview of the areas of the world threatened by looting, see Erin L. Thompson, “The Relationship between Tax Deductions and the Market for Unprovenanced Antiquities,” 33 Columbia Journal of Law and the Arts 33 (2010).

What Future?, 26 to own objects will creep into our answers to the question of what to do with seized antiquities unless we rigorously examine the pertinent law and fill the gaps that would allow indefinite retention and de facto acquisition under the guise of concern for the safety of objects and the stability of states.

However, safety and stability remain legitimate concerns, even if they cannot justify permanent retention by the seizing government. Proper policy for the treatment of seized Syrian cultural property must address these concerns without providing incentives for permanent retention.

On a national level, seizing governments should be transparent about what they have seized and what conditions must be met for its return. Such transparency can be relative; for example, INTERPOL maintains a database of stolen artworks, certain areas of which are accessible only to authorized users from national police forces.81 Thus, the country or countries from which seized artifacts were likely stolen can be notified that they have been added to this database.

Similarly, there must be transparency about the conditions imposed upon repatriation, whether by the Secretary of Treasury or other relevant authority. Information about these conditions should be available to the public, so that interested groups, such as scholars and museum professionals, can analyze the conditions and track the progress of the source country in meeting them. Without this transparency, retaining countries might simply impose more and more conditions, providing cover for their lack of intent to return. For example, the Secretary of

Treasury could declare that Syrian cultural property will not be repatriated except to a democratically elected government, or only at such time as the U.S. has reestablished full

81 Interpol Database of Stolen Art, http://www.interpol.int/Crime-areas/Works-of-art/Database.

What Future?, 27 diplomatic relations with Syria as marked by, for example, the reopening of the U.S. embassy there.

Of course, conditions like these might violate underlying international treaty obligations.

Thus, there must be a recognized international body to handle disputes between source countries claiming seized antiquities and countries who are unwilling to return these antiquities.

Fortunately, such a body already exists: the UNESCO Intergovernmental Committee for

Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of

Illicit Appropriation.82 This Committee was established in 1978 in order to provide a forum for the negotiation of requests for the return of cultural property, whether under the 1970

Convention or otherwise, in cases where UN member States have failed to reach bilateral agreements. The Committee has not so far handled any disputes involving the non-recognition of governments or the safety of returned artifacts, but there seems to be no reason why it could not.

This Committee is a consultative body; its decisions have no legal weight. It seems likely that a push for transparency and the provision of a forum for discussion will be all that is needed to prevent 1970 Convention member States from using the excuses of ongoing investigations or security concerns from justifying indefinite detention, but, if the Committee’s mediation efforts fail, claimant countries can have recourse to legal action in national or international courts.

Many of the trainings provided by UNESCO or other bodies to Syrian antiquities professionals include discussion of the 1970 Convention and other international and national legal mechanisms for the repatriation of stolen cultural property. For example, the Emergency

Safeguarding of the Syrian Heritage Project has the communication of this information to

82 Sophie Delepierre and Marina Schneider, “International Conventions on Illicit Trafficking in Cultural Property,” in Countering Illicit Traffic in Cultural Goods: The Global Challenge of Protecting the World’s Heritage, France Desmarais, ed. (International Commission of Museums, 2015), 131-32.

What Future?, 28 Syrians listed as one of its official goals, and four or the five trainings it has so far held explicitly included instruction in these laws.83

But what is the purpose of training Syrian officials in the operation of laws about the return of cultural property when the holding countries show no willingness to actually carry out such returns? The situation is too complex for countries to simply practice what they preach, since the repatriation of seized cultural property to the Assad regime is not palatable to many, both inside and outside Syria. But an increase in transparency would allow the Syrian people to understand that the rest of the world hopes, along with them, for the swift return of their cultural heritage.

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83 “training police forces and customs officers in Syria and adjacent countries to fight illicit trafficking of cultural property (and on the specific tools available to facilitate and improve the implementation of the 1970 UNESCO Convention)”: “UNESCO-EU: Launch of the Emergency Safeguarding of the Syrian Heritage Project.”

What Future?, 29 Kelsen, Hans, “Recognition in International Law: Theoretical Observations,” American Journal of International Law 35 (1941). Lee, Kim, “The Amaigh’s Fight for Cultural Revival in the New Libya: Reclaiming and Establishing Identity Through Antiquity,” Seattle Journal for Social Justice 11.1 (2012). Mayer, Leo A. and Adolph Reifenberg, “The Jewish Buildings at Nawe,” [Hebrew], Bulletin of the Jewish Palestine Exploration Society (1936), pp. 1-8. Merryman, John Henry, “Thinking about the Sevso Treasure” in The Futures of Our Pasts, Michael A. Adler and Susan B. Bruning eds., Santa Fe: School for Advanced Research Press, 2012. Schumacher, Gottlieb, Across the Jordan: Being an Exploration and Survey of Part of Hauran and Jaulan (1886, reprinted Cambridge University Press 2010). Seif, Assad, “Illicit Traffick in Cultural Property in Lebanon,” in Countering Illicit Traffic in Cultural Goods: The Global Challenge of Protecting the World’s Heritage, France Desmarais, ed. (International Commission of Museums, 2015). Simpson, St John, “Back to Kabul: Case Studies of Successful Collaboration between the National Museum of Afghanistan, the British Museum, the UK Border Force and others in the Return of Stolen Antiquities to Afghanistan,” in Countering Illicit Traffic in Cultural Goods: The Global Challenge of Protecting the World’s Heritage, France Desmarais, ed. (International Commission of Museums, 2015). Talmon, Stefan, “Recognition of Opposition Groups as the Legitimate Representative of a People,” Chinese Journal of International Law 12.2 (2013), pp. 219-253. Thompson, Erin L., “The Relationship between Tax Deductions and the Market for Unprovenanced Antiquities,” 33 Columbia Journal of Law and the Arts 33 (2010). Wolfinbarger, Susan, Jonathan Drake, Eric Ashcroft, and Katharyn Hanson, “Ancient History, Modern Destruction: Assessing the Current Status of Syria’s World Heritage Sites Using High- Resolution Satellite Imagery” (2014).

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