By Jack Mitchell*

The Temple of Bel, Palmyra, was destroyed in 2015 by the Islamic State.Photo: Wikimedia Commons/Bernard Gagnon

I

In 2012, at the UNESCO World Heritage site in Timbuktu, Mali, Ahmad Al Faqi Al Mahdi destroyed historic mausoleums, manuscripts, and even a mosque. Al Mahdi belonged to the Al-Qaeda-linked group, Ansar Dine. His subsequent conviction by the International Criminal Court (ICC) last year was covered in the mainstream press and art world publications as a “landmark” case, the first time the destruction of “cultural heritage” was prosecuted as a war crime in the ICC. In prosecuting and convicting Al Mahdi, however, the ICC did not create a new war crime for destroying “cultural heritage.” Rather, it invoked part of Article 8 of the Rome Statute that it had never used before. Under Article 8(2)(e)(iv) of the Rome Statute, intentionally “directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick are wounded and collected, provided they are not military objectives” is a war crime.

The Al Mahdi case was so lurid because it fit a grisly pattern of World Heritage and other significant cultural sites targeted by Islamist extremists, including the Islamic State of Iraq and the Levant (ISIL). ISIL has destroyed numerous historic sites in Syria and Iraq, including ancient Assyrian sites. When it obliterated the Temple of Bel and other ancient features in Palmyra in 2015, for example, the loss was as devastating as the 2001 Taliban bombing in Afghanistan of the Buddhas of Bamiyan.  So far, though, Al Mahdi’s conviction remains a significant but isolated precedent.  The destruction of the Bamiyan Buddhas was never subject to prosecution in the ICC because the Rome Statute had not yet entered into force.  The perpetrators of cultural heritage destruction in Syria also might elude prosecution in the ICC because Syria, like the United States, is not a party to the ICC, meaning that an ICC investigation and prosecution would require an unlikely referral from the UN Security Council.

But it’s not just terrorist groups. States and non-state actors have participated in recent cultural heritage destruction. According to Matthew Barber, former director of Yazda, ISIL’s campaign to exterminate the Yazidis went forward because KDP forces decided not to defend them. Similarly, the US has been mute as its ally Saudi Arabia bombs the UNESCO-listed Old City of Sana’a in Yemen.

II

First, principles about the law of cultural heritage are surprisingly unsettled. What is the difference between “cultural heritage” and the older term, “cultural property?” If cultural heritage is the more encompassing concept, what should its boundaries be? Second, how do we assess the gravity of cultural heritage destruction?

International criminal law would do well to focus on cultural property destruction as a war crime—as opposed to language and oral history, for example—because deeper efforts at “cultural cleansing” would possibly fit better under the umbrella of crimes against humanity.

Two key factors concerning when cultural property destruction should be prosecuted are military necessity and gravity of the crime. Military necessity, although the doctrine is controversial, is a kind of “affirmative defense” to cultural property destruction because an opponent’s use of cultural property or its status as a military objective can be used as justification for its destruction. This doctrine has sparked promising efforts to improve militaries’ awareness about where cultural property is located such as ICOM’s Red List and archeological inventories used to create “no-strike lists.”

The gravity of the crime question depends upon our purpose. Should cultural heritage law protect people or things? A “people” approach emphasizes what cultural property means to distinct groups of people. A “things” approach emphasizes its supposed intrinsic worth. Both approaches are flawed. The first might have to credit nationalistic myths. The second might entail using market value or the fallible judgment of UNESCO as a proxy for actual value. My trite but sincere belief is that international criminal law can adopt a flexible standard that recognizes that gravity is established for targeted, damaged, or destroyed cultural property both when it is especially meaningful to specific cultures and when it has internationally recognized importance.

*Jack Mitchell is a student at Georgetown University Law Center in the class of 2019. This blog post is the winner of the International Cultural Heritage Law Blog Post Competition that was co-sponsored by the American Society of International Law, the Georgetown Journal of International Law, the Lawyers’ Committee for Cultural Heritage Preservation, and the Georgetown Art Law Association.

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May 05, 2017

By Nicholas Nalbantian

Photo: Wikimedia Commons/Julian Nitzsche, Creative Commons License

On September 27, 2016, at the National Press Club in Washington, D.C., Gary Vikan presented his memoir: Sacred and Stolen. After twenty-seven years at the Walters Art Museum in Baltimore, including eighteen years as its director, we were given an inside view of the art world and the development of the international law of art theft.

Dr. Vikan began by recounting an earlier time, in the 1970s and 1980s, when the comfort level for purchasing stolen art was still high. Collectors were more concerned with whether any particular piece had been called “stolen” publicly rather than concerned for the reality surrounding the item. Such little care made the West a ready market for plundered works of artistic and historical significance. From 1975 to 1984, Dr. Vikan worked at the Dumbarton Oaks Research Library and Collection, an American center for Byzantine art. During that time, Dr. Vikan witnessed the flood of plundered artifacts following the Turkish invasion of Cyprus, a part of the more general effort to “de-Hellenize” Northern Cyprus.

Dr. Vikan’s talk focused on two particular episodes: In the first, he recounted the entertaining tale of how Vikan helped Dominique De Menile, the oil heiress, obtain thirteenth century frescos in 1983. Through her generosity, these plundered mosaics were housed in Houston, with permission from Cyprus, until 2012 when they were returned. However, the second episode more significantly highlights the contribution Dr. Vikan made to the jurisprudence of international art theft. This is the saga of the sixth century Kanakaria Mosaics.

The Kanakaria Mosaics were likely stolen from the Cypriot Church of the Panagia Kanakaria in 1979. In 1988, the mosaics were sold for $1.2 million in cash from a dubious German art dealer in Geneva to Peg Goldberg, an Indianapolis dealer in nineteenth and twentieth century paintings. Upon returning to the United States, Goldberg tried to sell the mosaics to the J. Paul Getty Museum in California for $20 million; such a high profile item sale alerted Cypriot authorities to the mosaic’s location.

Once located, the Autocephalous Greek Orthodox Church brought suit in federal district court in Indianapolis in 1989 for the return of the mosaics. In an illustration of how the law treats the issue of plundered art like any other stolen item, the action of replevin had to begin with the court considering whether Indiana applied the O’Keeffe v. Snyder rule on the statute of limitations. The court determined that the O’Keeffe v. Snyder rule did apply, which meant that the statute of limitations began upon discovery of the mosaics by the Orthodox Church, rather than running from their date of theft. Dr. Vikan was called as an expert witness to explain whether these mosaics were sufficiently suspicious to defeat Goldberg’s defense that she was a good faith purchaser. Judge Nolan was unconvinced by Goldberg and ruled in favor of the Orthodox Church. Goldberg appealed, but the Seventh Circuit affirmed:

“Lest this result seem too harsh, we should note that those who wish to purchase art work on the international market...are not without means by which to protect themselves. Especially when circumstances are as suspicious as those that faced Peg Goldberg, prospective purchasers would do best to do more than make a few last-minute phone calls. As testified to at trial, in a transaction like this, ‘All the red flags are up, all the red lights are on, all the sirens are blaring.’”

With the Seventh Circuit quoting the testimony of Dr. Vikan – "All the red flags are up, all the red lights are on, all the sirens are blaring." –  he has made a noted contribution to the growing customary international law on art theft as the choices made by the United States may influence other states’ courts in the future. The international law of art theft has seen improvement since the 1970s, but is still lacking in many regards.

Dr. Vikan’s experiences with the occupation of northern Cyprus can inform how to deal with the current trade of plundered artifacts from Syria and Iraq.  Art theft is the third highest-netting criminal enterprise after drugs and guns, and a number of valuable pieces remain on the market as a result. The governmental instinct is that of restriction, such as Cyprus’ foreign minister  Ioannis Kasoulides’ request that the UN Security Council “apply universal limitations on the trade and transfer of artefacts originating from all conflict zone, with the obligation of proof of legitimate trade resting on the traders, auction houses and buyers and not on the originating state.” The hope is that cutting off market access will remove a stream of income available to ISIS. Combating terrorism is important, but we should perhaps take a more nuanced approach than the one espoused by Kasoulides.

ISIS has been destroying antiquities like the Temple of Baalshamin or the contents of the Mosul Museum. Their movement is iconoclastic and they wish to remove evidence of pre-Islamic civilization. Yet, should we follow Kasoulides’ lead, we risk the further destruction of Syrian and Iraqi history. Dr. Vikan shared his belief that there is value in providing safe harbor to these items of national and cultural significance, a notion that it is better that the sixth century mosaics eventually return to Nicosia than risk their permanent destruction at the hands of nationalists or iconoclasts. So too recovered relics should be protected by states without conflict zones rather than rejecting them out of hand. The U.S. government passed the Protect and Preserve International Cultural Property Act in September 2016, which, in part, adopted this tendency. The Act includes provisions that allow for the waiver of import restrictions if “the President determines that, for purposes of protecting and preserving such material, the material should be temporarily located in the United States.” This is the goal epitomized by Dominique De Menile. The law should allow for these cultural relics to be protected in the stable states, without taking title to the item, in the hope that these antiquities will someday be returned to their home region.

As for items that are already in the United States illegitimately, there needs to be a process of recovery superior to the one the Cypriote government went through with the Goldbergs. There are laws in place aimed at preventing the theft of the historical objects, including the 1970 UNESCO Convention requiring the repatriation of objects illegally removed from many countries. However, the process is still cumbersome and can take four to five years for an identified piece to be returned to Egypt. The Protect and Preserve International Cultural Property Act was a step in the right direction, but more needs to be done to aid the recovered pieces to be returned to their rightful homes.

The book “Sacred and Stolen: Confessions of a Museum Director” by Dr. Gary Vikan was published September 20, 2016.

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November 13, 2016

By Anthony Zurcher

In response to Turkey shooting down a Russian jet last week, President Vladimir Putin has signed a decree putting into effect a set of harsh economic sanctions. In addition to covering imports from Turkey and limiting Turkish companies/nationals located in Russia, the sanctions also will end charter flights between the two nations and forbid tourist packages to Turkey. These provisions are expected to have a considerable effect, as Turkish exports to Russia are worth more than $1.52B each year. Neither side is showing any signs of backing down following the controversial jet shooting, which Turkey claims was a violation of its airspace. Mr. Putin has firmly maintained that the jet was in Syrian territory and is expecting a formal apology that has yet to materialize.

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December 01, 2015

By Anthony Zurcher

Palmyra, an ancient city in central Syria, presents one of the more stunning exposés of ancient Semitic life. Distinct in both architecture and style, the city attained prominence in the 3^rd century BCE as an important caravan stop and regional center. Built on an oasis, Palmyra provided a central point for main trade routes throughout the Middle East and effectively connected Rome to Mesopotamia. The ruins of Palmyra have long fascinated archeologists and historians alike, and they were designated a UNESCO World Heritage site in 1980. Early age Christian churches, temples devoted to the Aramean deities of the epoch, statues and arches representing phenomenal feats of architecture, and a Roman amphitheater have been uncovered among other artifacts. Historians often suggest that the city’s prosperous nature directly contributed to the establishment of such a notable historic site. And although history has reduced it to nothing more than a small village, Palmyra’s archeological site provides a vivid if not complete picture of the once bustling metropolitan city.

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October 22, 2015

By Evan Abrams

The Financial Transactions and Reports Analysis Centre of Canada is a little-known organization, but it is playing a key role in the fight against ISIL in Iraq and Syria. According to an article by The Globe and Mail, “The agency’s access to information about banking and other financial transactions allows it to see links between people and groups in Canada and abroad that support terrorist activities.” The agency made 234 disclosures to security officials last year for instances related to terrorist financing or national security threats. This marks a 450% increase from 2008.  

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October 24, 2014

By Huiyu Yin

Nabeel Rajab, a prominent human rights activist, had just returned to Bahrain on September 30 from Europe, where he had made public appearances criticizing his government for using counterterrorism laws to prosecute human rights defenders and charged that Bahraini security forces foster violent beliefs akin to those of the Islamic State (IS, otherwise known as ISIS or ISIL). On October 1, 2014, Rajab was arrested and faced with charges that he “offended national institutions” in comments on social media on September 28.”

According to Human Rights Watch, this is clearly a violation of the International Covenant on Civil and Political Rights, which Bahrain has ratified. The UN Human Rights Committee issued General Comment 34 to interpret the scope of the right to freedom of expression and opinion. The committee stated that “In circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the Covenant upon uninhibited expression is particularly high.” It also stated that “states parties should not prohibit criticism of institutions, such as the army or the administration.”

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October 07, 2014