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Attività e Programmi Internazionali

Combating the Illicit Antiquities Trade: Progress and Problems (Colin Renfrew)

Colin Renfrew (University of Cambridge)

It was helpful, at the International Meeting on Illicit Traffic in Cultural Property organised by the Ministero per i Beni e le Attività Culturale, in Rome in December 2009 to review together progress in combating the illicit traffic. There has been real international progress in recent years in which our Italian colleagues have taken an outstanding role. It has been a privilege, therefore, to review the position with an international group of officials and scholars, and to appreciate the successes of the Italian authorities in achieving the return to Italy of a major series of looted antiquities from museums in the United States. We hope that the process will continue, for instance with apparently looted antiquities currently under scrutiny in Britain and in Denmark.  But the question arises: how can we ensure that these encouraging initiatives really do go on to have, as their successful conclusion, the reduction in the international traffic in looted antiquities?

How can effective restitution end the looting?
The remarkable and conspicuous success of the Italian authorities in effecting the return to Italy of major antiquities from a number of museums in the United States has rightly been widely acclaimed (Watson and Todeschini 2006, Isman 2009, Silver 2009). It is not only a formidable achievement in itself in terms of the antiquities recovered, but it should also have a deterrent effect against the continuing looting of archaeological sites. The concern, however, must be that the museums in question, and the world of collectors internationally, should themselves draw what seems the obvious ethical conclusion: that the ongoing looting of antiquities should cease and that they should therefore desist from purchasing antiquities without secure provenance. But can we be confident that this will be the outcome?
In a recent article (Renfrew 2009) I argued that the Italian authorities would have done well to ensure that, as a part of the legal settlement, each museum in question should agree formally to observe the ‘1970 Rule’. This rule states that, in acquiring an antiquity from a country overseas, the trustees of the museum will acquire only those objects which have documentation to show that they were exported from their country of origin before 1970 (or that they were legally exported, with valid export licences from the country of origin, after that date). This formulation, when carefully applied, should prevent the acquisition of any antiquities illicitly excavated after the year 1970. The formulation should not, of course, be taken to encourage the acquisition of antiquities that were looted prior to that date, but it marks a useful and practical dividing line to prevent or discourage ongoing looting.
 It is not clear that the Italian authorities did in fact formally require a declaration of this kind from the museums in question. But it is the case that the Board of Trustees of the J. Paul Getty Trust on October 23rd 2006 did adopt such an acquisition code and publish it. The Metropolitan Museum of Art, following the position of the Association of Art Museum Directors (of the USA) has taken steps in the same direction, but with much less clarity. I am not aware whether the Boston Museum of Fine Arts (one of the other principal delinquent museums) has done the same.

Questions of ownership

It is worth remembering that in many ‘common law’ countries, such as Britain or the United States of America, the legal position is that in general antiquities belong to the owner of the land where they are found. There is no presumption that the state has a right over them.  This position is significantly modified in the United Kingdom by the Treasure legislation, by which ‘The Crown’ (i.e. the national government) has a right of pre-emption over discoveries antiquities made of precious metal, although with the obligation to offer recompense at market value to the finder or landowner when the discovery is reported to the proper authorities and the right of pre-emption is exercised. It is the case, perhaps surprisingly, that metal detecting is not illegal in the United Kingdom (except at specially designated protected sites, known as ‘scheduled monuments’). The general procedure is for the metal detectorists to enter into a signed agreement with the landowner which will determine the proportion of the value of the finds discovered which should go to the landowner. The obligation for the museum  to pay the landowner and/or finder the  full market value when a find is pre-empted by a national or local museum (under the ‘Treasure Act’) offers a powerful incentive for finders to declare their finds, and most such discoveries are reported in this way.
This general situation has had an influence, however, upon the attitude to claims made in the United Kingdom by other countries claiming the restitution of antiquities which in those countries would automatically be the property of the state. Until recently such claims were not easily accepted in Britain. Two recent court judgements, in the United States and in Britain, have however recently and significantly recognised the right of nations to claim illegally removed artefacts as national property and to achieve restitution. The first of these is the United States v. Schultz case, where on June 25th 2003 the United States Court of Appeals for the Second Circuit in New York upheld the conviction of the dealer Frederick Schultz on the charge of conspiracy to receive stolen property. (Gerstenblith 2003; see Silver 2009, 211). The property in question was an ancient Egyptian stone head. The key point was the provision of the National Stolen Property Act which held that anything deemed stolen by a foreign country would also be considered stolen under U.S. law. For Egypt is one of the many nations which has legislation determining the buried antiquities are the property of the state.
A comparable decision was made by the English Court of Appeal on 21st December 2007 in the case of Islamic Republic of Iran v. Barakat Galleries Ltd. Here the court decided that Iran could indeed show it had good title under Iranian law to antiquities excavated in Iran, and could therefore seek to recover such antiquities. The judgement of the court explicitly recognised that Britain had ratified the 1970 UNESCO Convention against the illicit traffic in cultural property and was formulated with that as an underlying and relevant factor. The decision opens the way for Iran to recover the looted antiquities held by the Barakat Galleries which were subject to dispute. The ruling, like that in the Schultz case in the United State, has wide general applicability.
It was against the background of the Schultz ruling that the Metropolitan Museum and the Getty Museum decided to return to Italy the antiquities which had been claimed. It is likely that without the Schultz ruling the position would have been much less satisfactory.

The international dimension
This, then, is the good news. The decision by the various American museums concerned to negotiate the return to Italy of the antiquities in question avoided for the museums what might have been embarrassing appearances in court. And it also avoided the necessary for the state of Italy of undertaking expensive legal action to recover them.  It is to be hoped that wider implications of the ruling in Iran v. Barakat will similarly facilitate the recovery by Italy of looted antiquities allegedly held in Britain, for instance antiquities held by the Liquidators of the Estate of Robin Symes. Symes is the well-known London dealer, now declared bankrupt, who formerly had in his possession an extensive collection of antiquities, many of which are claimed by the Italian state on the grounds that they were allegedly looted from Italy.  That claim will be a matter for the courts to rule upon, but the claim of Italy for ownership of antiquities found on Italian soil is greatly facilitated by the Iran v. Barakat ruling. Similar questions apparently hold for the Ny Carlsberg Glyptothek in Copenhagen: a seemingly discreditable position for an institution which holds the status of a national museum.
But how far can such decisions in the United States or in Britain be made to apply on a truly international basis? At our meeting in Rome we heard from Professor Toshiyuke Kono of Kyushu University of what seems the very unsatisfactory position of Japanese law, which has a notably short time  period in its statute of limitations. The situation of the Miho Museum came under scrutiny, with its extensive collections of unprovenanced antiquities, and its position does indeed seem scandalously anomalous. It is well known that the Miho Museum holds many object allegedly looted from Iran (Watson and Todeschini 2006, 295). It would be interesting to see what response Iran would encounter if it sought to claim these antiquities.
The next stage, on an international level, must be to seek wider application of the principles which have so far operated mainly in the discussions between Italy and those American museums which have now indeed restituted material when this could be shown to have been looted after 1970. One would like to see museums in Japan, specifically the Miho Museum, undertaking the same process.
Nor is Japan the only country which has recently developed an appetite for unprovenanced antiquities. In earlier days, of course, few museums were concerned about the ethics of acquisition (Brodie and Renfrew 2005), but today many are. The question remains, however, as to whether new and growing museums in countries recently become wealthy will take the same view. There is clearly a need for a truly international approach to these issues – it is one which is only now beginning to emerge.

The usefulness of the 1970 rule
It is worth noting some of the convenient benefits of the 1970 Rule.  It rule does have the merit of being workable, and it is now followed by such long-standing institutions as the British Museum and the Berlin Museums. If it were universally followed the looting of archaeological sites would suffer a sharp decline. For, in theory at least, its application should make recently looted antiquities completely unsalable.
Of course by definition it says nothing about such famous cases as the Parthenon marbles, removed by Lord Elgin more than a century earlier, or the Benin bronzes seized by Britain at the end of the nineteenth century, both  understandably matters of concern for the countries of origin. But the issue of restitution is not at all the same as the need to put a stop the ongoing destruction of archaeological sites through looting.
And the 1970 Rule has other merits. For instance under the law of several countries including England a so-called ‘good faith buyer’ (i.e. one who acquires goods having confidence in the vendor and without having cause for suspicion that the goods have not been obtained legally) can acquire good title to the goods once they have been in his or her possession for a specific number of year, sometimes six years.  That is the case even if the goods are later shown to be stolen or looted. It is implicit here that the good faith buyer has acted with ‘due diligence’ – that is to say has not had cause to doubt the credentials and honesty of the vendor or the propriety of the merchandise.  When the 1970 Rule is applied, however, the ‘due diligence’ required of the good faith buyer goes beyond the law and requires more than the absence of dubious circumstances. Following the Rule, the buyer actually has to see and scrutinise documentation that the antiquities in question had been unearthed before 1970 or see a very detailed account of their provenance following excavation if they were excavated after that date.
This was a key issue in the recent controversial case of the 654 Aramaic incantation bowls lent to University College London by the well-known Norwegian collector Martin Schøyen for the purposes of study. When it was appreciated that these might be looted antiquities, perhaps originating in Iraq, UCL set up a Committee of Inquiry. The Inquiry concluded ‘on the balance of probabilities’ that the bowls had indeed originated in Iraq and that they might be considered the rightful property of the state of Iraq. But the Committee had to recognise the possibility that Mr. Schøyen had been a good faith buyer (Freeman et al. 2006, 30) and that if he were he could therefore, following the law of limitations, have acquired good title to the bowls after a period of six years.  Publication of the Report of the Committee of Inquiry was unfortunately prevented following legal action taken by Mr. Schøyen against UCL.  The Report has however subsequently been made available on the internet, and the details are informative and illustrate the legal complexities that can arise. Of course one of the problems which can occur is the possibility of the provision of fake or false documentation pertaining to the provenance of the antiquities. In general, however, if the 1970 Rule is scrupulously followed it should have the effect of markedly diminishing the traffic in illicit antiquities.
Similarly, it is clear that if the Ny Carlsberg Glyptothek in Copenhagen had followed the 1970 Rule, it is clear that it would not now be in dispute with the It lain authorities over apparently looted material of recent Italian origin in its collection.

The griffins of Ascoli Satriano: a personal reaction
At the Rome symposium, a very pleasurable personal experience was occasioned by the evening visit organised to the exhibition ‘The Secret of Marble: the Painted Marbles of Ascoli Satriano’ at the Palazzo Massimo, which contains two important antiquities returned to Italy by the Getty Museum: the marble Griffins (marble table decoration) and the painted ceremonial basin (‘podanipter’: Bottini and Setari 2009, 44 cat.1 and 60 cat. 10).
I had seen the extraordinary marble sculpture of the Griffins at Malibu, both at the Villa where they were originally exhibited by the J. Paul Getty Museum and then at the inaugural installation at the new Getty Museum in Los Angeles. Indeed so striking and unexpected was the impression then made on me that I was quite doubtful of their authenticity. That is one of the prices which one pays when antiquities are clandestinely removed from their context of discovery.
And now, at the Palazzo Massimo I saw not only the Griffins and the remarkable painted marble basin but a whole assemblage of marble artefacts, including the painted calyx crater and the splendidly severe group of marble vessels (loutrophoros, epichysis, oinochoe) which apparently formed part of the original tomb group.  A single de-contextualised artwork now had an important series of accompanying pieces. These added greatly to the significance of the extraordinary Griffin piece. But in addition they themselves became of vastly greater importance. Initially, at the time of their seizure by the authorities, sometime after the episode of looting which led to the loss of the Griffins (whose existence at that time was not known to the local officials in Puglia), their significance had not been understood and even their date seemed uncertain: they were initially assumed to be of post-classical, perhaps Renaissance date and were put into storage by the finance police. Now this wonderful assemblage of objects had been re-constituted.
As a result we see not just a single, perhaps rather anomalous art work, but a whole remarkable assemblage of objects:  the partial reconstruction of one of the most remarkable tomb groups recovered from Magna Graecia, safely assigned to the fourth century BC and to Ascoli Satriano.
Moreover there is hope that more can be achieved in the near future. The precise location of the original tomb is not currently known: the looting is believed to have taken place between 1976 and 1978 (Bottini and Setari 2009, 22). But with further investigation in the area where the tomb is believed to have been located it may prove possible to locate the tomb and perhaps even to find associated fragments matching those in the Palazzo Massimo assemblage, thus allowing definitive identification. This in turn would enlarge the association to include any new associated materials. These might not be so spectacular, since the tombaroli will have taken the obviously saleable pieces, but they might include many significant artefacts and associated materials. So these important finds are in process of becoming re-contextualised after the disastrous disjuncture of the looting episode.
This brings into sharp focus the despicable role of the unfortunate Giacomo Medici, the illicit dealer and middleman, who was so vainglorious as later to be photographed alongside the Griffins in the  Getty Museum (Watson and Todeschini 2006, pl.4, lower).
In his archive, recovered in the notorious Geneva Freeport raid of 1995, is a photograph of the Griffins, before restoration following the looting episode of 1976-8 (Watson and Todeschini 2006, pl. 4, middle). 
It brings into focus also the foolish irresponsibility of those at the Getty who authorised this purchase of an evidently looted antiquity of major importance. And it emphasises again the great success of the Carabinieri Art Squad, of Prosecutor Ferri and of the other officials involved who succeeded in effecting the return of the Griffins to Italy.  And here the great academic and cultural significance, I should like to emphasise, is not the act of restitution but the successful act of re-contextualisation. The exhibit and the preceding scientific study, lucidly reported in I Marmi Dipinti di Ascoli Satriano (Bottini and Setari 2009) are a triumphant success. It will culminate soon in the permanent installation of the re-constituted tomb assemblage in the Civic Museum of Ascoli Satriano.

Post-disjunctive  forensic  re-contextualisation 
This triumphantly successful episode or re-contextualisation carries wider implications. For it exemplifies a process of recovery which can be highly significant on occasions when looted antiquities are successfully returned to their area of origin.
Each act of looting represents a disastrous disjuncture, a destructive episode in which the artefacts are illicitly and clandestinely removed from their original context of discovery, with its rich and informative associations. The information crucial to the effective archaeological interpretation of the excavated assemblage is lost in this process: a disaster for any attempt to increase our understanding of the human past. For the interpretive process can only work when the context of discovery can be carefully researched.
There are occasions, however, when the looted antiquities can be subjected to forensic study (in both the legal and scientific senses) in such a way as to allow the partial reconstitution of that original context. This is well exemplified by the case of the Ascoli Satriano Griffins. This piece and the painted ceremonial basin reached the Getty from the same dealer (Medici). But it was the forensic work (in the historical and legal senses) which led to their reunion with the other marble pieces from their original find spot.
And it was forensic work (in the scientific sense, namely the study of marble and of pigments n the painted decoration) which confirmed their original association and their association with the calyx crater and the other pieces which had remained in Puglia.
It is perhaps worth recognising this process and of giving it a specific designation: ‘DPFR’ or ‘post-disjunctive forensic re-contextualisation’. This refers to the possibility, after a catastrophic episode of looting (the ‘disjuncture’) to use investigative (forensic) techniques to bring about the restoration of aspect of the original context of discovery. In this way important information can be recovered, and the catastrophe of the looting at least partly mitigated. The same approach has been applied, although not yet with great success, to the Euphronios calyx crater returned from the Metropolitan Museum (Silver 2009). Recently attempts have been made to apply it to the Early Cycladic marble figures looted in the late 1950s from the site of Kavos on the Cycladic island of Keros (Sotirakopoulou 2005; Papamichelakis and Renfrew 2010), For there are many cases where at least partial forensic re-contextualisation can be attempted after the disjuncture occasioned by looting.

Conclusion
If the striking advances recently achieved by the Italian authorities in combating the illicit traffic in looted antiquities are to be of wide general, indeed international value, a number of steps will be necessary. The first of these could be the formal and published acceptance of the 1970 Rule by museums and then by private collectors in all countries.
The second should be the true internationalisation of such a position. That would include, for instance, the recognition by Japan of its obligations under the 1970 UNESCO Convention, and the equivalent recognition by the Trustees of the Miho Museum of their own responsibilities. I do not imply here that the Miho Museum is alone in flouting the conventions of good conduct in this respect, but it is certainly prominent. And here it should be remembered that many museums, even private museums, have charitable status in relation to taxation. That status should be questioned by national authorities if the institution is seen to be flouting either international law or the widely shared ethical standards implied by the UNESCO Convention. Only then can progress be made.
Our congratulations go out to our Italian colleagues for all that they have achieved. The triumphant re-contextualisation of the Ascoli Satriano tomb is a splendid example of what can be accomplished. The task now is to make the impact of their work effective on a truly international scale.
                           
References
Bottini  A. and Setari E. (eds.), 2009, I Marmi Dipinti di Ascoli Satriano, Roma, Ministero per i Beni e le Attività Culturali.
Brodie N. and Renfrew C., 2005, Looting and the world’s archaeological heritage: the inadequate        response, Annual Review of Archaeology 34, 343-61
Freeman D.J., MacDonald S. and Renfrew C., 2006, An Inquiry into the provenance of 654 Aramaic incantation bowls delivered into the possession of UCL by, or on the instruction of Mr. Martin Schøyen, London, University College London. [Unpublished report available on the website ‘wikileaks.org’ under the reference ‘Schøyen]
Gerstenblith P., 2003, The McClain/Schultz doctrine: another step against the trade in stolen antiquities, Culture without Context 13, 5-8.
Isman F., 2009, I Predatori dell’Arte Perduta, Milano, Skira.
Papamichelakis G. and Renfrew C., 2010, Hearsay about the ‘Keros Hoard’, American Journal of Archaeology 114, 181-5.
Renfrew C., 2009, Ethics in archaeological research: international responses to the illicit trade in antiquities, in D’Agata  A.L. and Alaura S. (eds.) Quale  futura  per l’archeologia?, Roma, pp. 235-47.
Silver V., 2009, The Lost Chalice, New York, William Morrow.
Sotirakopoulou P., 2005, The “Keros Hoard”: Myth or Reality? Searching for the Lost Pieces of a Puzzle, Athens, N.P. Goulandris Foundation.
Watson P. and Todeschini C., 2006, The Medici Conspiracy: the Illicit Journey of Looted Antiquities from Italy’s Tomb Raiders to the World’s Greatest Museums, New York, Public Affairs.