Edited by
Joris D. Kila
James A. Zeidler
Editorial Board
VOLUME 3
Edited by
LEIDEN | BOSTON
This hardback is also published in paperback under ISBN 978-90-04-28053-3.
Cover illustration: Serbian police guard the stolen painting The Boy in the Red Vest by Paul Cezanne at a
press conference in Belgrade, Serbia, Thursday, April 12, 2012. Reporters/AP/Darko Voijnovic.
Cultural property crime : an overview and analysis of contemporary perspectives and trends / edited
by Joris D. Kila and Marc Balcells.
pages cm. (Heritage and identity : issues in cultural heritage protection ; volume 3)
Includes index.
ISBN 978-90-04-27971-1 (hardback : alk. paper) ISBN 978-90-04-28054-0 (e-book) 1. Cultural
propertyProtectionLaw and legislationCriminal provisions. 2. Art thefts. 3. Archaeological
thefts. I. Kila, Joris, editor. II. Balcells, Marc, editor.
K3791.C854 2015
345.026dc23
2014033844
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isbn 978-90-04-28054-0 (e-book)
Preface
Criminology in Art Crime: Some Lessons for the Legislatorsix
Stefano Manacorda
List of Contributorsxiv
Part 1
Art Theft
1 Art Theft and Time Limits for Recovery: Do the Facts of the Crime Fit
the Limits in Law?3
Kenneth Polk and Duncan Chappell
Part 2
The Relationship between Cultural Heritage Crimes
and Organized Crime
Part 3
Fakes and Forgeries
Part 4
Art and White-Collar Crime
Part 5
Armed Conflicts and Cultural Property
Part 6
Archaeological Looting
Part 7
Art Vandalism
Index371
Preface
Criminology in Art Crime: Some Lessons for the Legislators
Stefano Manacorda
The readers of this book will see progressively how the pieces of a mosaic form
in front of their eyes. At first, the wide variety of the contents and method-
ologies in this book could generate the feeling of seeing a fragmented picture.
However, as the study of this volume progresses, different contributions take a
definite form and reveal an image of what the editors of the volume, Joris Kila
and Marc Balcells, have chosen to label cultural property crime.
First of all, there are common elements in the chapters that shape this vol-
ume. A first, obvious link is the perspective adopted: empirical data on the
studied phenomenon is highlighted, both in its quantitative and qualitative
facets. To describe and measure crime in the art and archaeology world is the
common goal of the contributions collected by the editors. A second link,
though not explicit, is the chosen topic: the scope of the studies presented in
the volume is essentially focused on movable works of art, and omits intan-
gible cultural heritage. This is a commonly shared tendency if one takes into
account the current trends in legislative reforms: internationally, it is the phe-
nomenon of the trafficking of works of art and archaeological heritage that
dominates the criminal policy arena. This commonality also highlights a cer-
tain frustration with the impotence of instruments currently being enforced.
With this common framework, however, the different chapters draw com-
plementary perspectives that allow the reader to capture a kaleidoscopic
image of the crimes in the art and archaeological world, giving the volume
certain originality in this field of study.
First of all, the combination of empirical experience and scientific perspec-
tive can be observed. The reader can see interwoven testimonies obtained from
the practice in the field of art and archeology, but also studies of a scientific
nature, sometimes obtained via participant observation, sometimes obtained
via a particular theoretical framework.
The reader can see analyses of source countries: that is, the countries that
fall prey to the most significant acts of looting. The study of Simon Mackenzie
and Tess Davis on the looting of Cambodian temples; the analysis undertaken
by Donna Yates on the relationship between trafficking in cultural goods and
illicit drug trade in Guatemala; and the chapter by Duncan Chappell and
Damien Huffer, which treats Vietnam, all provide up-to-date evidence on the
worrying extent of cultural property crime in parts of Asia and Latin America.
x Manacorda
The study of Joris Kila, whose analysis is essentially focused on the experience
gained in the course of either conflicts or popular uprisings in Africa, where
cultural goods are subject to systematic attacks, provides similar emphasis.
These chapters confirm the long-stated dictum that the geographical areas
where artistic and archaeological heritage are most at risk are those in which
cultural richness is combined with scarcity of material and legal resources and
those which are frequently engaged in armed conflicts; both are fertile fields
for the pillage and mass destruction.
On the other end of the art crime stands the testimony of John M. Fossey,
who, while reporting on the activities of illegal imports into a traditional desti-
nation country like Canada, ascertains how source countries should take more
responsibility in recovery activities, both through the sharing of costs incurred
for the complex search and return operations, and through the care and man-
agement of cultural heritage once back at home.
Another theme that runs through the book is the examination of the narra-
tive of the art crime phenomenon with a more sociological or even narratolog-
ical approach. The latter is the point of view adopted by Thierry Lenain, who
focuses on the existence of the necessary and other typical (but not essential)
elements in the narrative of the phenomenon of counterfeiting of art objects.
Saskia Hufnagels contribution aims to describe both the German public and
medias perception regarding a particular art crime case: without offering
definitive results, her thesis is that the reputation of these cases is not a vari-
able directly dependent on the extent of the sanctions imposed (and some-
times even the existence of a judicial proceeding), but instead is related to the
symbolic nature of the art piece and the charismatic dimension of the crime.
The studies of Fincham, Lervik and Balcells, and Schutten and Van Duyne fol-
low the same direction. The first two explain from different points of view one
of the best-known legal proceedings in international art crime: the one on the
famous statue of the Victorious Youth found off the Italian coast in 1961 and
now in possession of the Getty Museum. Alongside the recent study by Brodie
and Proulx on crimes perpetrated by museums seen as corporate crime, Lervik
and Balcells demonstrate how the culture of corruption in this sector can
become systemic, sometimes implicating the vertices of cultural institutions.
Finchams chapter, on the other hand, reconstructs in detail the events of
the Gettys Victorious Youth and, while focusing also on the decisions of the
Italian courts, emphasizes the centrality and the difficulty of finding an effec-
tive mechanism for enforcing return of disputed cultural property at the inter-
national level. Lesser-known cases are treated in two contributions: on the one
hand, Schutten and Van Duyne, investigate a Dutch case in which the role of
Preface xi
but also allows the reader to draw some useful starting points in the field, now-
adays particularly fertile, of the transformation of the legal framework for the
protection of cultural heritage. The initiatives currently underway within the
United Nations also stand out in this area, where guidelines for the prevention
and combating of trafficking in works of art and archaeological sites have been
drafted and are in an advanced stage of discussion (https://www.unodc.org/
unodc/en/organizedcrime/trafficking-in-cultural-propertymandate.html).
The lessons to be learned both for the scholars of the criminal justice system
and national and international organizations who are going to legislate on the
matterwhich also represent the added value of the work that we introduce
hereare numerous and can be briefly stated.
First of all, it is clear that we are in the presence of unique and irreplaceable
property, sometimes an expression of the entire world community and invested
with a high symbolic value, whichin addition to explaining the interest
of scholars and the charm that it exerts on the general publicexcludes its
assimilation from the legal point of view from other forms of property.
Second, white-collar crime, organized crime, and war crimes are related to
the phenomena we are discussing, but it is necessary to avoid improper gen-
eralizations. The United Nations Convention against Corruption (uncac), the
United Nations Convention against Transnational Organized Crime (untoc)
and other conventions related to armed conflicts (international humanitarian
law) certainly show some utility related to the protection of cultural heritage,
yet they cannot solve all cultural property crime problems, nor can address
them all at the same time.
Finally, an increase in focus on these studied phenomena, in addition to
those related to the destruction or theft of works of art and archaeological
artifacts, and the reuse of the proceeds that might arise from these crimes, is
needed. After the phase in which the interest of the international community
focused on forgeries and the destruction of cultural heritage in the strict sense,
and on theft and plunder, today the focus has changed to the conduct of the
illicit trafficking that is the natural outlet for many of the illegal activities that
thrive in the artistic and archaeological sphere, which assumes a greater sig-
nificance in the criminal policies within an empirical point of view.
In sum, the adoption of an ad hoc international instrument to guide inter-
national criminal policy responses of states in order to sanction the conduct
of illicit trafficking in cultural goods (albeit initially in an attenuated form of a
soft law) is extremely appropriate.
The book presented here, as well as providing the reader (whether it is a
scholar in this field, a magistrate, a law enforcement agent, or an administra-
Preface xiii
tive officer) the essential interpretive keys to navigate this complex and fasci-
nating world of crimes against cultural heritage, constitutes also a tool for the
orientation of future work of the United Nations in this field, corroborating the
idea that criminal law is called upon to play a decisive role in the near future.
Marc Balcells, ma
is a senior researcher and doctoral candidate at The Graduate Center,
The City University of New York.
Toby Bull
is a senior inspector, Hong Kong Police Force, and an art risk security
consultant at TrackArt.
Tanya K. Lervik, ma
is an expert in Global Management and an independent researcher.
Lena Louwe, ma
is a case manager at Slachtofferhulp Nederland.
Henk Schutten
is a writer and an investigative journalist, working for the Amsterdam
newspaper Het Parool.
CHAPTER 1
For the criminologist, there are a number of distinctive puzzles that arise
regarding the theft of art. The present discussion deals with the issue of the
degree to which the facts of art theft, in particular the time it can take for the
discovery and resolution of the theft, correspond to the time limitations found
in the law when a victim attempts to recover that art. A common approach,
as was established in English law as early as 1623, and as is found currently in
Australia, is to limit the period where a victim of a theft retains title to a work
to a period of six years; after that time, the title of the victim is extinguished. As
we shall see, stolen art may be recovered many years after this six year period,
as in a case decided in a us court in 2014:
This account demonstrates how there can be an extensive period before a sto-
len painting resurfaces onto the art market (in this case fifty-eight years), how
the civil law in the United States assures that thieves are not able to provide
valid title, and that any person who comes into possession of a stolen work
must be able to demonstrate that their possession was a result of a good faith
transaction and/or be able to demonstrate due diligence regarding obtaining
the work of art (see in general Gerstenblith, 2008, chapter 8). Thus, jurisdic-
tions differ in their application of time limits and in their laws regarding access
to title after the theft. In this case, while the time limits are long (and certainly
exceed six years, which might provide a cut-off point in Australia), many states
in the United States provide that not only can a thief not gain or give title, the
time limits can be affected by when a victim gains knowledge about the loca-
tion of the work.
A case with some similar features involved an object originally taken in
Cyprus:
During the war that raged in Cyprus in the late 1970s, a mosaic was sto-
len from a Christian church. Some ten years later, in 1988, it surfaced on
the art market. An antiquities dealer in the United States purchased the
mosaic from a contact in Cyprus, and then offered it for sale to the Getty
Museum in Los Angeles. When the church learned of these negotiations,
the church sued for the return of the mosaic. An important feature of the
decision of the us court was that the time limitation for the original own-
ers ran from the time that they learned of the whereabouts of the work,
rather than from the date of the theft. As a result, the court ordered the
return of the mosaic to Cyprus. (Webb, 2008, pp. 3942).
In this account, while the time limitations might have appeared to have
expired, given the ten year gap between the theft and the emergence of the
object onto the art market, the court found (as often occurs in the United
States, but as we shall see, not in Australia) that the time limits only started
when the original victims learned of the whereabouts of the work. The next
case is rather different:
In this narrative, we find that not all of the important steps involve legal pro-
cesses. Once again, we see how a number of years can intervene between the
original theft and the discovery that the work has previously been stolen (in
this case, thirty-four years). Of course, it is not always possible for legal pro-
cesses to result in successful return of stolen artwork, as the following case
demonstrates:
sixteen paintings were stolen on December 24, 1980. The persons who
carried out the theft apparently had a shopping list of items to steal,
that list including works by Cezanne, Degas, Rodin and Matisse. For more
than twenty years these works remained out of sight. The works emerged
some 20 years later, in early 2001. The story at this point becomes com-
plex. It appears that the art objects had travelled over vast distances,
from Argentina, to Brazil and then Surinam in South America, thence to
Hong Kong, finally coming to rest in Taiwan. While a number of people
became involved in the attempt to untangle the web that had been cre-
ated, ultimately what defeated all attempts to arrange for the return of
the works to the original victim were the legal complications that result
from the peculiar political status of Taiwan. As the account by the Art
Loss Register observed: Taiwan is essentially untouchable for most legal
purposes. The reasons for Taiwan being untouchable go well beyond
our concerns with time limits, but have the result nonetheless of render-
ing these important, and obviously stolen, works of art well out of the
reach of either law or diplomacy (Webb, 2008, pp. 4652).
In this narrative, the works involved surfaced some twenty-one years after the
original theft. The attempts to negotiate the paintings were conducted in the
United States, in England, and in France before it became clear that it was not
going to be possible to use legal means to extract the works from Taiwan. In the
complicated story of these objects, three were actually returned when a later
attempt was made to sell them in France, resulting in their seizure and ulti-
mate return to Argentina in 2005. However, thirteen works are still in Taiwan.
At times, the circumstances of the loss of a work will be uncertain, although
theft is a likely factor in the loss, as in the following account:
In this account we see that the period of loss was forty-two years, well over
the common six-year limitation period. Despite the lengthy period involved,
6 Polk and Chappell
which might in some circumstances result in the quashing of the claim of the
original victim, the painting in fact was restored to the original owners (in this
case, the heir of the original victim). In the next narrative, again there was a
long period from the theft to the recovery of the art works involved:
This tale, like the previous one, demonstrates that decades can pass between
the theft and the return of the art to the victim (if that return is successful).
This case demonstrates that at times complications arise in the recovery of
stolen art that are a consequence of the international networks that become
involved, including the legal negotiations. Despite the fact that a number of
maneuvers were undertaken by the possessor of the works, the ultimate result
was the return of the art to the original victim of the theft.
Art Theft and Time Limits for Recovery 7
One of the most unusual cases of art theft is found in the odd story of
the late William M.V. Kingsland. For openers, his birth name, apparently,
was Melvyn Kohn, but it seemed he thought his new name better fitted
his aspirations of status. In what appeared to be an attempt to elevate his
image, Kingsland falsely had claimed that he lived on Park Avenue (his
small New York apartment was on the East Side on 72nd), that he had
attended Groton and Harvard (he had been to neither) and that he had
previously been married to French royalty (he had not). After his death in
2006 at age 58 (it might have been 62), when public administrators began
to assess the many paintings that were crammed into his small apart-
ment, including works by Copley, Henri, Corot, Lely, Toulouse-Lautrec,
and Picasso, among others, many were found to have been stolen, most
apparently in the 1960s and 1970s. One work, for example, a 1790 portrait
by Copley of the Second Earl of Bessborough, had been stolen in 1971
from the Fogg Art Museum at Harvard University. Unfortunately, that is
about all that is known. In fact, at this point it is not possible to say how
many of the over 300 works actually were stolen (although it is known
that several, such as the Copley, were). Important for present purposes, it
further is not known who actually was responsible for the actual thefts.
There is no mention in the available records of any acquaintance, friend,
or relative ever seeing any of the works in the apartment, so however
they came into his hands, Kingsland was not one who boasted to anyone
about the rare collection of art he has accumulated. There is no record
of him ever placing a work onto the art market, and thereby exposing
himself to the risks of discovery. The work by Copley, for example, was
quickly exposed as previously stolen when the art dealer who acquired it
after Kingslands death checked on its provenance, a simple process that
anyone might have undertaken had the work been placed on the open
market (Konigsberg, 2008).
There are many puzzles that arise in this narrative. For one, while we know
that works, such as the Copley, were stolen, we have no clue as to who actually
committed the theft. What we do know is that the work ended up with several
other stolen art objects that were kept in a small apartment (Kingsland obvi-
ously had taken many of the works out of their frames, since simply storing
300 works of art takes a large amount of space). For our purposes, of course,
we can note that once again there is a long period between the original theft
(1971) and the circumstances that identified the work as stolen (after 2006, so
8 Polk and Chappell
that the time gap was roughly thirty-five years). One feature of this case that
we will see in other accounts is that the works were essentially hidden away
from public view, so that even the most aggressive and arduous victim would
be unable to locate (and then recover through legal process) any of the stolen
works so hidden.
There are similarities between this account and the next case:
Upon his death in 1998, a wealthy American left some valuable paintings
to charity. Upon checking these for appraisal, however, it was established
that in the collection were a number of stolen paintings, including two
by John Frederick Herring, and one by E. Holliday. These three works had
been stolen in Wiltshire, England in 1985. Given that the American had
passed away, it was impossible to probe further to determine how the
works had been moved from England to the United States, and who was
responsible for the thefts. Fortunately, his widow cooperated fully with
authorities, including the Art Loss Register, and the works were success-
fully returned to their original owners (Webb, 2008, p. 53).
We see in this narrative once again the prominent role of the Art Loss Register
(since they were contacted as a part of the appraisal process). As in the previ-
ous Kingsland case, the death of the current owner meant that further inter-
rogation of the matter was closed, so that it is not possible to determine how
the paintings came into the hands of the deceased. The time period in this
tale is somewhat shorter (thirteen years) but still well beyond the common six-
year limitation period. Among other unexplained features was how the three
works had made the move from England to the United States, although given
the cooperation of the widow, this posed no problems for the recovery of the
works to the original owner.
The final of these narratives actually will involve a huge number of cases,
and is a result of the actions by Nazi Germany in World War ii:
The largest art theft ever recorded, by far, was the systematic looting
of art treasures from multiple sites throughout Europe by the German
authorities during World War ii. The consequences of these thefts still
reverberate through the art market, and hundreds of thousands of works
are still untraced. (Nicholas, 1995; Feliciano, 1997) While much public
attention has been focused on Jewish victims of this plunder, and cer-
tainly Jewish families were a major target for German action, actually
the victims include as well major museums and nation states that were
occupied during the war. After the defeat of the Germans, the now well-
Art Theft and Time Limits for Recovery 9
The Point?
A consistent theme that runs through these various cases is that the time
between a theft and any possible discovery and action by the victim of that
theft can involve many years, if not decades. In some of these cases, the nature
of the theft has meant that the possessor of the objects, for reasons that may
not be clear, has essentially kept the art hidden away so that it is not viewed by
a public that might note problems in the provenance. Added to this is the fact
that the passage of time in many instances is accompanied by the geographic
movement of both the parties and the objects, so that an object may end up
far from the location of an original theft, and those representing the interests
of the original victim (often the remaining family members) may have been
forced by circumstances over the years to have moved to a new country located
far from the location of the theft.
In her review of time limits laws, Redmond-Cooper (1998, p. 145) points out
that all legal systems constrain the time within which legal redress might be
sought. However, the history of these time limits, and the circumstances dealt
with by courts of law, do not easily fit the circumstances of cases of stolen
art that are brought before the law. In particular, legal systems have tended to
favor relatively short time limit periods which do not recognize the conditions
met in many narratives of art theft (as seen above). One commonly encoun-
ters the imposition of a six-year time limit within which an aggrieved victim
might pursue their stolen works. In English law, the statute of limitations law
which was passed in 1623 provided a statement of this six-year rule that has
tended to be passed onward to the various countries which have adopted the
Common Law. These laws, as should be expected, vary considerably in form as
they have been adopted and changed over the years by different jurisdictions.
In England, for example, changes made in 1980 mean that while the six-year
rule provides the general statement of the time limitations, in the case of theft
of an object, the period can be considered to run from the time that a good
faith purchaser acquires the object (Redmond-Cooper, 1998, p. 147). An impor-
tant corollary which reverberates through the Common Law countries is the
nemo dat principle (the full phrase is: Nemo dat quod non habet, which trans-
lates loosely as no one gives what he doesnt have) that states that not only
is a thief unable to gain title, but also they are not able to give legitimate title
to a stolen work. In England, changes to the statute of limitations have made
it possible for a good faith purchaser in theory to obtain subsequent title to a
work that has been stolen, but such a purchaser, if a case comes to court, may
have to prove their good faith in terms of their due diligence in attempting to
Art Theft and Time Limits for Recovery 11
The situation in us law is quite different. As is the case with other Common
Law countries, throughout the United States there is the general principle that
a thief will not be able to benefit from the crime (as expressed in nemo dat).
As argued by Redmond-Cooper (1998: 154) the states (especially New York and
California) have ...developed limitation of action principles which strongly
favor owners and property rights. In these two states in particular (where most
of the actions regarding art recovery in the United States are lodged), the legal
statues provide that the time limitation clock does not start to run until the
dispossessed owner either comes into possession of knowledge about the
whereabouts of the previously stolen objects (as in California) or takes some
action regarding these objects (as in New York).
In looking at these different approaches, it seems clear that, in jurisdic-
tions such as Australia, the workings of the art market and the theft of art
within that market are such that in many cases the law operates against the
interests of victims and instead favors those who follow on from the theft.
The imposition of a flat, distinct, six-year rule renders many victims without
recourse to the law as a mechanism for redress, regardless of the steps they
may have taken to locate stolen artwork. One might expect that some consid-
eration would be given to victims, as in the Bakwin case cited above, who go
to the expense of even hiring private detectives to search out the stolen works,
but when the time limitation rules are rigid, even sympathetic judges will find
their hands tied.
12 Polk and Chappell
It must be acknowledged early on, of course, that there are valid legal rea-
sons for limiting the time within which claims might be lodged. A classic
defense of such limits can be traced back to an English court decision of 1820,
as illustrated in the following statement:
The classic statement in law of the principles involved, found in the 1820 case
cited, is: Vigilantibus et non dormientibus lex succurrit (which can be trans-
lated roughly as: the law assists those that are vigilant with their rights and
not those that sleep thereupon). The problem, of course, is that the time limit
in many jurisdictions runs regardless of whether or not the original victims
sleep upon their rights.
obtain information that would lead to the recovery of the work (photos of
the painting were included in the advertisements). Watt died in 1993, and
his heirs continued the search for the stolen work, again circulating infor-
mation in the local newspapers, offering a reward, and even calling upon
the services of a private investigation agency. None of these steps were
successful. In early 2010, the heirs became aware of a major exhibition
in Melbourne of the works of Rupert Bunny. They used this occasion to
send emails and otherwise contact those connected with this exhibition.
A source came forward with the information that he had seen this paint-
ing two years before, but also saying he would divulge this information
only to competent authorities. The police were contacted, and an inves-
tigation was carried out. Ultimately a search warrant was issued, a house
was searched, and the painting was discovered and seized. A magistrate
ordered that the work temporarily be given back to the heirs of the origi-
nal victim. The matter, however, did not stop there. It transpired that the
possessor of the painting was an attorney who had received the painting
as an inheritance from a client. There was no proof that there was any
wrong-doing on the part of the attorney, or of his client. As a trained law-
yer, he knew, of course, about the six year rule, which had long ago expired.
Since a confident case could be advanced for the return of the painting
to the possessor, rather than the original victims, because of the expiry of
the time limits in this case, the lawyer sued for the return of the painting.
In his judgment Habersberger J found that the person who had made the
bequest of the stolen work ...never had any valid title to the Painting
and therefore could not pass a valid title to [the lawyer making the claim]
adding that ...nemo dat quod non habet. While the reasoning in the judg-
ment is detailed and complex, the ultimate conclusion was that, particu-
larly given s27 or the Limitations Act in Victoria, and the specific provision
of s27(b) of that Act, the heirs of Mr. James Watt were entitled to retain
possession of the painting. This ruling has very recently been affirmed on
appeal (see Levy v Watt & Anos (2014) vsca 60).
In this case, we have a rare example of an Australian civil action which con-
cerns an art theft, and furthermore which hinges on rulings regarding time
limits. When confronted with the facts of this story, most Australians are sur-
prised to find out that the original owners do not have assured title to the work.
As a result of the six-year rule, in many circumstances the only possible result
would be that the title of the theft victims had been extinguished. In his con-
cluding comments that provide the basic supports for his determination, the
judge draws primarily upon the section (s27) of the Victorian Limitation Act
14 Polk and Chappell
that deals with fraud, rather than his earlier comments regarding the nemo
dat principle (although the comments seem to be explicit in this regard since
the Judge found that the person who previously had bequeathed the painting
never had any valid title to the painting and therefore could not pass a valid
title) (Levy v Watt [2012], p. 548).
A second Victorian case has not yet resulted in any formal action:
While there is much of interest in this account, it does not concern art theft.
However, it does bring us into the realm of art in the Holocaust, when the Nazi
regimes stole hundreds of thousands of art works. Often Jewish families were
placed in circumstances of economic stress where under duress they were
forced to sell off their possessions (including art works). When the heirs of
individuals caught up in the Holocaust attempt to recover their lost posses-
sions (including what often were clearly false sales), typically they run into
legal rules which state that the time period for lodging recovery actions long
ago has expired. In the case of the ngv work, however, there are many features
Art Theft and Time Limits for Recovery 15
of the account which would serve to provide secure title to the gallery. The
work was purchased some seven years after the original sale in 1933, presum-
ably on the open market (although by then in Europe wwii had begun, and
that would obviously create a distinctive set of conditions upon the market).
It also probably can be assumed that the ngv would be considered a good
faith purchaser. The gallery certainly had open and public possession of the
work, since it was displayed prominently in the European art section of the gal-
lery. Their open and notorious possession of the work for over seventy years
would pose major problems for any claimant. Further, the events of the 2006
and 2007 authentication review were widely known throughout the art world,
since the finding that a work held by a major art gallery was not authentic was
notably newsworthy. In short, that story was widely covered internationally.
Even the period of the finding that the work was not by Van Gogh (2007) to
the present time (2014) exceeds the six year rule, and it could certainly be con-
cluded that the claimants ought to have begun formal action in that period.
In fact, these heirs have brought a total of five claims forward that have been
considered by the Dutch Restitutions Committee, and, in a majority of these
claims (three of the five), the findings have not been favorable to the heirs. To
date, no formal claim has been made by the heirs to the ngv. Whether they
initiate legal proceedings or make an appeal directly either to the ngv or to
the Australian Government, only time will tell if the circumstances warrant
the surrender of title by the ngv (certainly the Australian Government has
indicated its willingness to cooperate with victims of the Holocaust).
The final case is one that has some similar features to the ngv matter:
At this point it is not possible to say what will happen to this treasure trove
of art. One factor that overrides many others is that in Germany, there is a
thirty-year time limitation that is absolute. If applied, this rule would mean
that all original ownership titles to works held for the lengthy period involved
here would be extinguished. A second factor is that prior to his death the pos-
sessor of these works appeared willing to consider or negotiate a resolution to
the title question using the 1998 Washington principles. A third issue is that
there is no clear pattern of provenance or ownership history to the individual
items in the hoard. It seems quite possible that some of the works might have
been either stolen from the German authorities or that at least the possession
of these paintings by Mr. Gurlitts father (from whom he inherited the hoard)
was problematic. At the same time, it also seems clear that for some objects,
Mr. Gurlitt had clear provenance and title (although there are few details avail-
able in the public media upon which firm conclusions regarding such observa-
tions might be supported).
Conclusions
There are two major observations that can be made on the basis of what has
been reviewed here. First, the accumulating data on art thefts indicates without
question that often thefts of art are not solved within the common time limita-
Art Theft and Time Limits for Recovery 17
tions set in civil laws of many countries, especially those such as Australia that
have a six-year limit. We have observed many instances where the works are
managed in such a way that either they are completely hidden away or have
only limited viewing by individuals not likely to report the existence of the
works. When a short time-limit period is imposed, these circumstances result
in a distinct disadvantage to the victims of the original thefts, even when they
engage in numerous activities in an attempt to find their stolen art (such as
advertizing or hiring of private detectives). Despite such activities by the Watts
family in the Levy v. Watt case reviewed above, had it not been for the specific
provisions of s27 of the Victorian Limitations Act, the six-year rule would have
resulted in their loss of title. While any corrective steps in terms of changes
to relevant law on limitation periods here would require involvement of both
lawyers and politicians, the direction of the necessary changes should be clear.
While maintaining the legal intent of limitation periods (avoidance of stale
claims, for example), the legal alterations would be in the direction of adding
into the limitation periods a provision that the time clock would only begin
to run when the original theft victims (or their heirs) might reasonably be in
possession of the knowledge of the location of the works in question.
Second, a glaring oversight in social policy has emerged in countries such as
Australia where there is no access to a theft register. In other countries, not only
has the vital presence of the Art Loss Register or the Interpol register of stolen
works resulted in the location of previously stolen works (see Webb, 2008), but
it also has come to provide an important step in 1) victims of theft demonstrat-
ing through consulting the alr the fact that they were not sleeping on their
loss, and 2) potential purchasers can consult such registers as a demonstration
of their due diligence in future cases where questions might be raised regard-
ing their pre-purchase care in terms of assuring that a legitimate title to the
work would result with the purchase. For a nation such as Australia, creating
such a register involves some complications. One, to be of any use, theft reg-
isters have to contain information regarding a reasonable number of objects
which have been stolen in the past. Therefore, a period of research prior to
the implementation of the register is necessary to collect information on past
thefts. Two, maintaining such registers involves costs, and these ultimately
involve some form of user pay system, combined perhaps with funding from
either governmental or business bodies. In any case, to date in Australia it has
been the costs involved that have prevented the development of a register of
known art thefts.
These two issues flow out of a criminological analysis of the workings of the
art market and the role of theft in that market. It constitutes an odd p
roblem,
18 Polk and Chappell
References
Shapiro, Ian (2014). Flea Market Renoir Ordered Back to Baltimore Museum of Art by
Federal Judge. Washington Post (11 January), 1.
United States Attorneys Office (2010). Artwork Stolen Over Three Decades Ago
Returned to Owner. Press Release of the United States Attorneys Office, District of
Massachusetts, Boston, Massachusetts (17 November).
Washington Post (2007). Stolen Rockwell Painting Found in Spielbergs Collection.
Washington Post (4 March), http//www.washingtonpost.com/wp-dyn/content/
article/2007/03/02/AR2007030202133.html (accessed 19 January 2014).
Webb, Jonathan, (2008). Stolen: The Gallery of Missing Masterpieces. Toronto: Madison
Press Books.
Part 2
CHAPTER 2
The possible connection between the illicit traffic in antiquities and the illicit
trafficking of narcotics is often discussed but poorly understood. It is clear that
many of the primary centers of narcotics cultivation and transport have also
experienced endemic looting of archaeological sites (e.g., Afghanistan, the
Andes, Central America, and Southeast Asia) and many of the primary cen-
tres for narcotics demand are also considered to be the demand end of the
illicit antiquities market (e.g., the United States, Europe). The susceptibility of
the market in illicit cultural objects to money laundering has been established
(Bowman 2008; Brodie 1999, 2009; De Sanctis 2013; Christ and von Selle 2012;
Mackenzie 2011; Ulph 2011). Of those organized trafficking groups involved in
a diversified portfolio of illicit activities, most are dealing in drugs as well as
other commodities (Mackenzie 2002: 2). The market prices obtained for antiq-
uities seem too high for such organizations to ignore. It makes sense that
organized criminal groups involved in drug trafficking would also engage in
antiquities trafficking when it was convenient. Yet, for the most part, assertions
that these two illicit markets are connected during sourcing, transit, or sale
remain speculative at best.
In this chapter I will present a preliminary evaluation of existing evidence
for the connection between antiquities trafficking and narcotics trafficking in
Central America, particularly through the Petn department of the Republic of
Guatemala, the heartland of the ancient Maya. I will begin with an overview
of what is known about the historic structure of Central American antiquities
looting and trafficking networks. Two phases of semi-organized and organized
* The author has received funding for this research from the European Research Council under
the European Unions Seventh Framework Programme (FP7/20072013) / erc Grant agree-
ment n 283873 gtico, the Leverhulme Trust, and the Fulbright Program.
looting in the region are identified, the shift occurring due to changes in regu-
lation and enforcement. This is followed by a discussion of the rise of narcotics
trafficking in the region as it relates to post-conflict land distribution: a situ-
ation that brings both narcotics traffickers and the victims of their support
economies closer and closer to archaeological sites. I will then present two
preliminary case studies of archaeological sites exploited, at least in part, as a
result of the activities of narcotics cartels. I will conclude with a short assess-
ment of what evidence exists for antiquities being looted and moved by nar-
cotics traffickers and what realistic connections appear to exist between these
two illicit networks.
of Art in 1976), can be seen as a watershed for the collection of Maya and other
Primitive cultural property. The Maya were on the market.
Available evidence, largely gleaned through the recollections of archaeolo-
gists, suggests that what we now see as the endemic looting of nearly every
known Maya site began roughly around 1960 (Coggins 1969). Collectors and
museums, inspired by such collections as Rockefellers and eager to fill the
Maya-shaped gap in their collections, demanded the absolute best that the
Maya had to offer. This meant that the large carved stone stelas that both
depicted the doings of Maya lords and recorded Maya history in a then-
undeciphered script, as well as large decorated architectural elements from
Maya temples, were looted, trafficked, and sold on the market.
Clemency Coggins, in a landmark paper that is often credited with expos-
ing the gravity of the looting situation, characterized the 1960s as a time
when bands of looters moved freely through the Maya region, particularly
the sparsely populated and heavily jungled regions of Guatemalas Petn
department, mutilating large stone monuments with power tools (Coggins
1969: 94). Well-recorded and officially-protected Maya sculptures were traf-
ficked into the United States, often in a heavily damaged state, where they
were bought by collectors and museums. Countless Maya sites, such as
Ixtontn and Site Q (La Corona), were looted before they were even located
by archaeologists. It was a terrible time.
The looting of the Petn in the 1960s and into the 1970s is intimately tied to
two deep-jungle economies: the trade in rare hardwoods and the tapping of
gum trees for chicle. In both instances, the people (usually men) at the bottom
of the supply chain moved through vast tracts of wilderness searching for spe-
cific types of trees. In doing so they encountered recorded but poorly protected
remote sites as well as Maya cities that were unknown to archaeologists.
In the first half of the twentieth-century archaeologists worked closely with
these men, paying them for information about new sites and carved monu-
ments. Chicleros (chicle hunters) are credited with locating many important
sites in the Petn (e.g., Uaxactn, Xultun, Naachtun; even the unesco World
Heritage Site Calakmul was discovered by an American chicle company bot-
anist in 1931). However, by the 1960s and 1970s, the market for Guatemalan
chicle had largely bottomed out, and the financial gains for participating in
the looting and trafficking of antiquities grew. Chicle hunters could expect
to report unknown sites to local trafficking intermediaries for rewards higher
than those archaeologists could pay, and they could participate in the looting
of sites themselves for further gain. For an ethnographic study on the connec-
tion between looting and chicle hunting, see Paredes Maury (1996).
26 Yates
1 A common rumor at archaeological sites in the Petn is that looters trenches are filled with
both ancient and modern burials.
28 Yates
In the wake of the Guatemalan Civil War (peace accords were signed in
December 1996 ending the thirty-six year conflict), the Petn region has
become a major international center for narcotics trafficking and related illicit
activities. Because of its isolation and status at the periphery of Guatemalan
society and governmental control, the Petn has become a favoured route
for the smuggling of cocaine, migrants, and other commodities across borders
(Briscoe 2008). This route became particularly important in 2006/2007 when
Mexican narcotics cartels moved much of their operations into the region
(Dudley 2011: 3; McSweeney et al. 2014: 489).
The territories directly corresponding to Guatemalas frontiers with Mexico
and Belize have seen the progressive encampment of armed groups, or heav-
ily armed criminal networks (Briscoe 2008: 5). These groups have consoli-
dated regional control with violence and by harnessing regional traditions of
quasi-legal or illegal but uncontrolled economic practices for their own gain.
Negligent and distant control from the central government has led to decades of
unauthorized logging, poaching, clearance of protected land, antiquities loot-
ing, and other illicit behaviour. However, the growth of narcotics cartels in the
Petn in recent years, particularly through the influence of controlled munici-
palities, has optimized and organized existing Guatemalan illicit economies
(Briscoe 2008: 5).
Government corruption has played a major role in the build up of these
networks in Guatemala. Organized crime permeates nearly all of Guatemalas
Displacement, Deforestation, and Drugs 29
government institutions (Zander and Drr 2011). Briscoe (2008: 7) records that
Guatemalas first major mafia network, Grupo Salvavidas, was an offshoot of a
group of corrupt customs officials. At the close of the civil war, large numbers
of Guatemalas terrifying Kaibiles, jungle-based troops trained in guerrilla and
counter-guerrilla operations, were purged and subsequently hired by the car-
tels (Briscoe 2008). Regular purges of Guatemalan military and police forces
result in former military personal joining narco-trafficking groups and com-
pleting training in Guatemala-based narcotics camps (Dudley 2011: 7).
One of the lasting issues of post civil war Guatemala has been contin-
ued dispute over land claims in, among other locations, the Petn. The 1996
peace accord sought to solve the countrys 40 years of violent, racially-based
land access discrimination with market based land reform aimed at giving
campesios (a difficult term to translate but usually rendered in English as
rural peasants) access to credit rather than effect reparations or land redis-
tribution (Ybarra 2009: 48; Zander and Drr 2011). This has since become an
unfunded mandate. Many indigenous and campesio communities were tar-
geted and displaced during the Civil War, the army having burned their [land]
titles along with their homes and, at times, their loved ones (Ybarra 2009: 48).
These people often moved north to the Petn seeking unsettled land. The larg-
est parcels of land in that region were awarded to generals and government
allies who still retain formidable power. At times these officers were able to
drop markers from helicopters to officially claim lands for themselves (Zander
and Drr 2011). Much of this land has been converted into cattle ranches, often
held by absentee owners.
Displaced campesios migrated to the Petn and moved from village to
village, often in family or village groups, in search of land that had not been
claimed by anyone else (Zander and Drr 2011). Upon finding an area that
appeared to have no other claims, they would work to register title, a process
that is both opaque and complicated. Educational and linguistic barriers have
prevented rural and indigenous access to required paperwork to make land
claims. Also, as it was nearly impossible to tell if land had been claimed by
others, migrants often had to move several times before successfully gaining
title to a tract of land (Zander and Drr 2011).
At present, all of the territory of the Petn has either been declared a nature
reserve (roughly 58% of the department) or has become official private prop-
erty. This means that competing stakeholders and groups are left scrambling
for what is already claimed. Once land claims are awarded to locals by the gov-
ernment, many campesios transfer title to that land to another entity and
then move on (Ybarra 2009: 49). These title transfers are extra-legal in that
this land is meant to be kept under the tutelage of the Guatemalan state for
30 Yates
twenty years (Zander and Drr 2011), but there is little or no enforcement of
this rule (McSweeney 2014: 490). There are a number of recorded reasons for
why campesios sell their newly awarded land. Some are economic, but most
relate to corruption and pressure from the powerful, often through threats of
extreme violence (Zander and Drr 2011).
Guatemalans stereotype inhabitants of the Petn as poor, ignorant, hav[ing]
never before seen large amounts of cash, or [as] incapable of permanent agri-
culture and the Maya in particular as barely above the level of beasts (Ybarra
2009: 49). They are regularly placed under duress to sell by, among others,
cattle ranchers associated with narcotics trafficking (called narco-ganaderos)
who use ranching as a front for narcotics-related money laundering and drug
plane landing and support (Ybarra 2009: 51; Zander and Drr 2011). The Petn
has been deemed an ideal location for planes transporting drugs from South
America to refuel and transfer drugs into trucks (oas 2013: 49). Numerous
landing strips have been built in cleared areas, including one with three run-
ways nicknamed the international airport (oas 2013: 49). In Southeastern
Petn in 2011, Zander and Drr recorded that just eight land owners own more
than 1000 ha of land, and five out of these eight were publicly known to be
involved in narcotics trafficking. In the municipality of Poptn (near the previ-
ously discussed site of Machaquil and its associated reserve), six percent of
land was held by three drug cartels.
Once their land titles are transferred, campesios who were pushed off
their land in Petn are likely to resettle in core areas of the [Maya Biosphere]
Reserve (which houses such sites as Tintal and Nakbe, looted to form the
November Collection) where they are labelled invaders by the government
(Ybarra 2009: 50). Some campesios erroneously believe that they may even-
tually be granted title to these protected lands as they were after their previ-
ous land grabs (Zander and Drr 2011). There is evidence that as campesios
push further into protected lands, the narcotics trafficking front organizations
follow close behind. Zander and Drr (2011) record that cattle farmers associ-
ated with illegal activities take campesio families up to the protected areas
to clear forest for their milpas [agricultural fields], in order to later convert
them into pastoral land. This pastoral land is, in turn, used for narcotics traf-
ficking activities. In Laguna del Tigre National Park (where the heavily looted
site of El Per-Waka and many other sites are located) and in protected areas
near Sayaxch (a municipality known to be largely in the control of narcotics
traffickers and located near the heavily looted site of Ceibal), the intensifica-
tion of drug trafficking has been concurrent with annual forest loss rates of
5% and 10%, respectively (McSweeney et al. 2014: 489). Thus protected land
Displacement, Deforestation, and Drugs 31
The question is, then, do narcotics traffickers also traffic in the looted cul-
tural objects of the Petn? A preliminary review of available information has
resulted in no obvious case study of Maya objects moving alongside drugs.
However, some interesting stories have emerged that hint at a degree of con-
nectedness that, in light of the past pattern of organized looting in the region
and the recent rise of the narcotics trade, requires a closer look. The following
are two of those stories.
in Daniel 2005). Sources within Guatemala stated that the traffickers were
heavily armed and linked to Mexicos Sinaloa cartel (Daniel 2005). Guillermo
Gonzlez, then head of Guatemalas drug police, stated that the site is essen-
tially only accessible by the river, making it difficult for police to approach, and
that whenever authorities did come near the site, the drug traffickers would
flee across the border into Mexico (Daniel 2005). In a post to the Mesoamerican
archaeology email list Aztlan, archaeologist Charles Golden emphasized that
the situation at Piedras Negras was dire: This could be the moment in which
Piedras Negras is lost to the looters for good...the Usumacinta is now a free
trade zone for looters, loggers, and narcos (Golden 2006). In 2008, reports con-
tinued to emerge of at least six groups of squatters occupying Piedras Negras
(Ramrez Espada 2008).
4.2 Cancun
Cancun is a Classic Maya site located in the Pasin region of the Petn that
was discovered at the start of the twentieth century. In 1967 an archaeological
team from Harvard discovered the remains of a palace at Cancun that, upon
subsequent excavation, turned out to be the largest known palace structure in
the Maya world, with over 170 rooms and 11 patios covering more than 25,000
square metres (Bower 2000).
Archaeologist Sylvanus G. Morley recorded several of Cancuns stone mon-
uments in 1915, including a ballcourt marker (Morley 1937), one of three that
would have been placed within each of the citys ritual ballcourts. Another of
the three ballcourt markers was located in 2004 by a team of archaeologists
from Vanderbilt University, the Universidd del Valle, and the Guatemalan
Ministry of Culture led by Arthur Demarest (Zender 2004). The third and final
ballcourt marker was looted from the site in 2001.
Reports indicate that heavy rains in October of 2001 exposed the marker
at a time when archaeologists were not present at the site (Maugh 2003). The
son of a local looter spotted the 600-pound piece. Looters removed it from the
ground and took it by boat down the Pasin River (Vanderbilt University 2003).
Photographs were taken of the marker in an effort to find a buyer, and local
narcotics traffickers eventually offered $4,000 usd for it. The looters held out
for more money (Maugh 2003; Vanderbilt University 2003).
In December 2002, the looters had a falling out, and four of them covertly
moved the piece across the river and buried it. However, the leader of the gang
retrieved the ballcourt marker after a gun battle that was heard by residents
of the nearby village (Maugh 2003; Vanderbilt University 2003). Eventually the
drugs traffickers became involved again: in January of 2003 a group of men in
balaclavas carrying submachine guns raided the village where they thought the
Displacement, Deforestation, and Drugs 33
ballcourt marker was hidden and savagely beat a woman who was not involved
with the looters (Maugh 2003). In February 2003 concerned village elders con-
tacted Demarest asking for help (Vanderbilt University 2003). Demarest met
with the district governor, who allegedly was also the head of drug trafficking
in the region, asking him to not prevent the recovery of the ballcourt marker.
The district governor was shot to death only hours later, allegedly by rival drug
traffickers (Maugh 2003; Vanderbilt University 2003).2
In March 2003 the theft was reported to Guatemalas Servcios de Investi
gacin Criminal (S.I.C.). In April, the S.I.C., Demarest, and archaeologist Marc
Wolf raided the looters camp, making several arrests, but the ballcourt marker
had already been sold to an unnamed antiquities dealer, who had moved it
about twenty miles south (Vanderbilt University 2003). A photo of the marker
was recovered and widely publicized in an effort to make the piece unsellable
(Vanderbilt University 2003).
By August, the antiquities dealer in possession of the ballcourt marker
changed his mind after moving it to the border town of Melchor de Mencos
with the intention of smuggling it into Belize. He sent the marker back to the
Pasin River region to be buried in the ground for a few years, planning to sell
it when the publicity surrounding the piece died down (Maugh 2003). Villagers
informed authorities that the piece was back in the area, and it was recovered
in September 2003. According to Guatemalan officials, this may have been the
first time that an entire looting and dealing network was exposed in the coun-
try (Vanderbilt University 2003).
2 I have not been able to verify this. It seems that the source may have meant Guillermo Segura
de la Cruz, who was killed in Sayaxch on 2 April 2003. He was the ex-mayor of the city and
was heavily involved in narcotics trafficking. According to several archaeologists consulted
during this research, his family has some connections to archaeology in the region.
3 The archaeologists wish to remain anonymous because of the dangers associated with the
narcotics trafficking groups.
34 Yates
felt that contemporary looting likely took place at sites with sellable pottery.
While these archaeologists believe that sites were still being looted, they feel
that the reasons were far more complex than organized drug gangs expand-
ing into a single alternative illicit commodity. Most of the archaeologists feel
that the story, here, was the multiple and diverse illicit economies that have
descended upon the Petn. Not just drugs, not just antiquities, but wildlife and
plant poaching; the previously mentioned illegal cattle ranching; deforestation
of reserves for agriculture and logging; and the illegal trafficking of persons.
Thus, based on the available evidence, it seems most likely that the actual
cartels are not actively or specifically engaging in the looting of Maya sites or
the trafficking of Maya antiquities. To put it simply, when these groups diver-
sify in the Petn, they do so in ways that help clean money. They invest in
licit businesses and consolidate power by extending their influence beyond
the criminal realm. Trafficking illicit antiquities simply cannot offer them the
type of laundering that they are looking for.
That is not to say that the booming narcotics economy in the Petn does
not lead to the looting of Maya sites. As the narcotics traffickers push poor, dis-
placed campesios further into protected areas, and as these people engage in
their traditional forms of swidden agriculture, they come closer and closer to
known archaeological sites and no doubt discover unrecorded ones. Yet, how-
ever logical it may seem for cartels to be involved in this other illicit market, the
evidence for a direct connection simply is not there, at least not yet.
References
Bower, Bruce (2000). Maya Palace Suddenly Expands. Science News 158: 184.
Bowman, Blythe A. (2008). Transnational Crimes Against Culture: Looting at
Archaeological Sites and the Grey Market in Antiquities. Journal of Contemporary
Criminal Justice 24: 225242.
Briscoe, Ivan (2008). Trouble on the Borders: Latin Americas New Conflict Zones.
Fride (July 2008).
Brodie, Neil (1999). The Concept of Due Diligence and the Antiquities Trade. Culture
Without Context 5.
(2009). Consensual Relations? Academic Involvement in the Illegal Trade in
Ancient Manuscripts. Pages 4158 in Penny Green and Simon Mackenzie (eds.),
Criminology and Archaeology: Studies in Looted Antiquities. Oxford: Hart, 4158.
Christ, Thomas and Claudia von Selle (2012). Basal Art Trade Guideline: Intermediary
Report of a Self-Regulation Initiative. Working Paper. Basel Institute on Governance,
http://obs-traffic.museum/sites/default/files/ressources/files/Basel_Art_Trade_
Guidelines.pdf (accessed 11 May 2014).
Displacement, Deforestation, and Drugs 35
CHAPTER 3
Thierry Lenain
bias may be, the case of art forgeries is special in that regard. Here the mean-
ings that the work is susceptible of conveying must be regarded as strictly sec-
ondary with respect to its intentional context, which itself is dependent on
the specific cultural horizon within which the object is put into motion. This
is because, unlike art-works in the proper sense, forgeries are meant to deceive
as to their very identity. They are made so as to conceal, as completely as pos-
sible, the intentional drive that has caused them to be there. Their real origin is
supposed to remain hidden behind a screen of signs, forms and material prop-
erties whose only aim consists in triggering the recognition of another origin.
This entails that, no matter how closely you look at it, an art forgery as an object
will not tell you much about the intentions of its maker. It will tell you even less
about the way it is supposed to function as a simulacrum, about the particular
notion of authenticity lying in the background of the attempt to pass for an
original and, last but not least, about the criteria that experts will apply in judg-
ing the works status. What should, first and foremost, be observed with the
greatest attention is the behavior of the forger as embodied in his interactions
with other agents within a given context. The object as such should certainly
not be overlooked, but it comes only second because its objective properties,
including its aesthetic features, however remarkable they may be, are essen-
tially, if not only, the result of the forgers duplicitous behavior.
This leads us right to a second reason not to focus too much on the objects
themselves. Forgeries should be described as chains of actions rather than
as things. What is really significant is the global operative schema through
which an object will be made to pass for something it is not. What we are deal-
ing with in every case of art forgery is, at base, a set of lies about the identity of
a hitherto unknown art-work. Since those lies must remain undetected as long
as possible (ideally forever) and, since art-works are prestigious goods com-
manding high prices and esteem, forgeries will have to withstand the scrutiny
of experts eager not to let anyone be fooled. In most cases, achieving this dis-
simulation involves different actors and means put together within the frame-
work of a carefully elaborated organizational schema.
The same holds for other types of forgery. In the last years of nineteenth
century, the American detective Robert A. Pinkerton provided a vivid descrip-
tion of the way in which forgers of checks, bonds, bills of exchange and similar
banking documents operate.1 His account shows that those forgeries are always
perpetrated by teams of criminals. These bands are unvaryingly directed by
1 Robert A. Pinkerton, Forgery as a Profession, The North American Review, vol. 158, n 449
(April 1894), pp.454463 (http://www.jstor.org/stable/25103313). Thanks to Ilsen About for
having drawn my attention on this article.
The Narrative Structure of Forgery Tales 41
someone who conceives the whole operation in all detail, hires the operators,
attributes the roles, covers the expenses and makes sure that the members of
the team remain unknown to one another. The other members are the actual
forger (i.e. the maker), the go-between (or middle-man) and the layer-
down (or presenter). The maker of the false documents, or scratcher in
appropriate language, is but one of several specialized agentsand not nec-
essarily the most important one among them. To detectives and justice offi-
cers, what really matters is the organizational structure and the global mode
of operating, including the technical tricks resorted to by the scratcher but
only as a part of the whole. What is more, Pinkertons study suggests that the
fight against forgers will not be won through the examination of the forged
documents, one possible reason being that this requires an expertise that can
hardly be expected from the average bank clerk. Success on the side of law
enforcers, Pinkerton argues, will rather depend on the understanding of the
operational schemas adopted by forgers and on the coordinated cooperation
of financial firms and institutions that should agree to systematically file suit
whenever a case occurs.
Affairs of art forgery do not reveal the same level of organizational sophis-
tication that is typical of full-fledged professional criminals such as money
counterfeiters or drug traffickers.2 Teams involved in cases of art forgery may
seem to operate somewhat more amateurishly by comparison. But this does
not make the issue basically different. Art forgery too should be looked at glob-
ally. What is relevant is, above all, chains of actions involving different agents
along with an object that is both ostensibly central (because the deceit is about
it) and essentially peripheral (because what counts is the act of deceit itself,
with respect to which the object is but a means to an end).
2 On the complexity and operational efficiency of the drug trafficking industry, see Michael
Kenny, When Criminals Out-smart the State: Understanding the learning Capacity of
Colombian Drug Trafficking Organizations, Transnational Organized Crime, 5, 1, 1999, 97119.
42 Lenain
3 See, among others, Barbara A. Schapiro, The Art Forger: a Novel, Algonquin Books, Chapel Hill
NC, 2012; Guy des Cars, Un faussaire, Flammarion, Paris, 1967; Georges Perec, Le Condottiere,
Editions du Seuil, Paris, 2012; William Gaddis, The Recognitions, Harcourt Brace & Co, San
Diego, 1955. More than forty fiction works involving art forgery could be mentioned here. A
website on the topic lists 41 titles but is incomplete (http://www.themodernnovel.com/lists/
mine/artforge.htm, visited November 2, 2013).
4 Steven Spielberg, Catch me if you can (2002, a biography of Frank Abagnale Jr); Lasse Hallstrm,
The Hoax (2006, about Clifford Irvings fake autobiography of Howard Hughes). There is a
funny figure of an art forger in William Wylers How to Steal a Million (1966), but it is a second-
ary character. Of course there is also Orson Welless classic film essay featuring Elmyr de Hory
(F for Fake, 1974). Peter Greenaways A Zed & Two Noughts (1985) introduces the viewer to a
Han van Meegeren only very partially inspired by the historical Van Meegeren. Let us also
mention three completely fictional movies: Wim Wenders, The American Friend (1977, based
on a novel by Patricia Highsmith, Ripleys Game, 1974; as in Greeneways film, the theme of art
forgery is peripheral); Alan Rudolph, The Moderns (1988); John Badham, Icognito (1998).
The Narrative Structure of Forgery Tales 43
While the most developed and explicit forms of art forgery as a motif are to
be found in the domain of narratives, this very motif materializes in the field
of facts as well. In one way or another, most cultural facts occur in anticipa-
tion of their narrative description: they happen as stories in-the-waiting, so to
speak, and they tend to reproduce patterns first found in literature. So, with
respect to the historiographical approach at least, facts must be treated as a
subset of narrativeseven when perfectly evidenced. Moreover, the lack of
hard evidence behind a story given as true does not make it irrelevant because
any story of that kind is at least an instance of what the narrator holds as possi-
bly true, and should be treated exactly as such.6 The distinction between differ-
ent discursive regimeslegend, fiction, anecdote, chronicle, historycomes
only second. This is why, as used here the phrase forgery tale does not pertain
only to more or less invented or embellished stories but also to strictly rigorous
factual accounts.
5 Thierry Lenain, Art Forgery. The History of a Modern Obsession, Reaktion Books, London, 2011.
6 This way of reading literary stories and anecdotes about art and artists was recommended
by Ernst Kris and Otto Kurz in their pioneering book of 1934, Die Legende vom Knstler:
ein geschichtlicher Versuch (Legend, Myth, and Magic in the Image of the Artist. A Historical
Experiment, Yale University Press, 1981).
44 Lenain
7 The original need not actually exist; the model can be generic or even completely invented.
But when there is no existing original corresponding to the deceptive imitation, the forger
must pretend that there is one (and that the imitation is precisely it). A forgery made to usurp
the identity of an existing original amounts to a copy meant (to be used) as a forgery. On the
distinction between referential and inventive forgery, see Jerrold Levinson, Autographic and
Allographic Art Revisited, Philosophical Studies, 38, 4 (November 1980), pp. 367-383 (http://
www.jstor.org/stable/4319427).
8 Algirdas Julien Greimas, Smantique structurale : recherche et mthode, Paris, 1966 (Structural
Semantics. an Attempt at Method, trans. Daniele McDowell, Ronald Schleifer and Alan Velie,
University of Nebraska Press, Lincoln and London, 1983); Actants, Actors, and Figures., in:
On Meaning: Selected Writings in Semiotic Theory, trans. Paul J. Perron and Frank H, Collins,
The Narrative Structure of Forgery Tales 45
Minneapolis, University of Minnesota Press, 1987, p. 106-120. Following the usage in English
translations, the word actant is used here despite its sounding somewhat odd (it is a neolo-
gism in French too).
46 Lenain
Many honest copies and altered objects have been turned into forgeries by just
re-labelling them as originals. Moreover, it may also turn out that the maker,
when there is one, does not belong to the group of secondary actants whose
combination constitutes the forger. A con man may very well have an arti-
fact made by someone who will remain ignorant of the way in which it will
be used later on. No matter how precise the instructions given by the pilot to
the maker, it is always possible to conceal the label that will be attached to the
artifact afterwards. This is what happened in the case of the so-called Tiara
of Saitapharnes, a fake antique piece of gold work that made the headlines in
the last years of 19th century9. Another problem with the usual identification
of forger and maker is that it tends to overlook the fact that forgeries often
involve not only the making of the art object but also peripheral yet instru-
mental artifacts such as fake certificates or archive documents constituting
what Noah Charney calls a provenance trap.10
Similarly, when the pilot decides to exert a very tight control on the opera-
tive chain, the maker tends to retreat to the inner margin of the principal actant
group and should then be defined as an acolyte. This genre of cases is well illus-
trated by the operating schema adopted by Fernand Legros, the French swin-
dler who, in the sixties and seventies, managed a whole workshop of painters
producing fake modern masterpieces. And when it so happens that the maker
actually is deceived, he cannot be considered as belonging to the main actant
group but must be affiliated to the category of mere passive means.
So, despite the fact that the maker has the lions share of the narrative inter-
est in most forgery tales, from a structural point of view this role is not neces-
sarily as crucial as the initiators and presenters. Then again, forgers often take
advantage of the tendency to exaggerate the importance of the production of
the object as opposed to other operations. When unmasked, they do their best
to present themselves mostly, if not exclusively, as makers, thus defining what
they have done strictly by what they have made.
The object itself can also rank among the forgers sub-actants. Each and
every forgery tale necessarily revolves around an artifact, be it purposely made
or not. Given the central position of this object, it may in some cases be
9 See Mark Jones, Fake? The Art of Deception, exh. cat., British Museum, London, 1990, p.
33; Andr Vayson de Pradenne, Les fraudes en archeology prhistorique, Grenoble, 1993
(original ed. 1933), pp. 399-437.
10 Noah Charney, The Book of Forgery, Phaidon (to appear). On the Myatt and Drewe affair,
a case involving the forgers special attention paid to archive documents, see Laney
Salisbury and Aly Sujo, Provenance. How a Con Man and a Forger Rewrote the History of
Modern Art, The Penguin Press, New York, 2009.
The Narrative Structure of Forgery Tales 47
origin, thus limiting the risks of being accused of wrongdoing). The third obser-
vation is that, according to my proposed terminology, the presenter is defined
by the fact that he or she shares the knowledge of the truth with the initiator
and the pilot. Should this not be the case, we will call the mediator an interme-
diary, meaning someone who functions as a mere instrument in the forgers
hands, thus not counting among the acolytes; this is also why the intermediary
is not a dupe either; while being ignorant of the real nature of the object, he or
she is not marked as a prey of the forgery scheme.
Han van Meegeren went down in history as a forger who devoted extreme
care to the presentation strategy. He had good reason to do so since he had
chosen to introduce his most important forgery himself, thus dangerously
combining the functions of initiator, pilot, maker and presenter. This was a
risky choice indeed, which had him resort to a first-class intermediary: a mem-
ber of the Dutch Parliament who was also a well-known patriot and a lover of
Dutch art. Having decided to do without a separate presenter, the forger had
to elaborate a complex and fine-tuned strategy involving two distinct layers of
lies, the first one being aimed at the intermediary and the second one tailored
for the expert.11
To sum up, all forgery tales structurally involve a main first-level actant split
into several sub-actantsthe initiator, the pilot, the maker, the object and the
presenter. These functions may be fulfilled either by one or by a number of dis-
tinct characters following different operative schemas. Note that the inherent
possibility of a casting call can be easily exploited by the suspects after the
unmasking as is the case in most criminal affairs (each member of the team can
deny that he or she was aware of what the others were doing). It should also be
highlighted that the forgers actant schema is asymmetrical. While the initiator,
pilot and presenter are necessarily part of it, the maker is not. Moreover, the
makers position within the structure can be located either at the very core of
the main actant group or at its outer margin, along with other means, or else
somewhere in between, with the acolytes.
11 See John Raymond Godley, aka Lord Kilbracken, Van Meegeren: A Case History, Thomas
Nelson and Sons, Ltd., London, 1967; on Han van Meegeren, also see Edward Dolnick; The
Forgers Spell: a True Story of Vermeer, Nazis, and the Greatest Art Hoax of the Twentieth
Century, Harper, New York, 2008; Jonathan Lopez, The Man Who Made Vermeers:
Unvarnishing the Legend of Master Forger Han van Meegeren, Harcourt, New York, 2008.
The Narrative Structure of Forgery Tales 49
12 See Guy Isnard, Vrai ou faux? Les enqutes du Sherlock Holmes de la peinture, Robert
Laffont, Paris, 1974, p. 171.
13 Abraham Bredius, A New Vermeer, Burlington Magazine, LXXI (November 1937), p. 211.
The Narrative Structure of Forgery Tales 51
of principle, the very existence of the forgers acts are supposed to remain con-
cealed to everyone but the initiator, presenter and acolytes. An exception can
be made when, after the unmasking, the defeated forger seizes the opportunity
to make a point about his neglected talent, the incompetence of experts, the
greed of amateurs and something rotten in the realm of art.
Another difference with the standard schema is the relative unimportance
of the opponent. Being the role of the one who confronts the hero and sets
obstacles on the path of his quest, the opponent is the second major actant in
most narratives. The popular saying according to which a good action movie
mostly needs a good villain is an application of this structural principle. Now in
forgery tales it so happens that the hero is the villain, whose tribulations form
the very core of the story. So much so that the opponent often appears to be a
strangely subdued figure, dwarfed and eclipsed by the protagonists radiance.
It is even quite frequent that, while the dupe usually receives much attention
on the narrators part, no character at all represents a sizable active counter-
part to the forger. This might be due to the fact that many cases of forgery come
to be solved through the convergence of minor clues noticed by several actors
with little prominenceand, more often than not, brought forth by chance. In
other words, it seldom if ever occurs that the opponent as an actant position
is occupied by a true discoverer, i.e. someone who may be credited with the
unmasking process. It can also happen that alarm bells rung by more clear-
sighted actors are not heard at all and count for nothing in the forgers final
defeat. This outcome is usually much less the result of a valiant resistance of
some white knight fighting on the side of truthfulness than the consequence
of an improbable string of accidents which, paradoxically, tends to enhance
the forgers stature. It goes without saying that forgers are masters in the art
of describing their unmasking as another demonstration of their superiority.
From their point of view, it is easy to maintain that their defeat by sheer luck
on the part of the opponents amounts to a victory of sorts. Be that as it may,
forgery tales are peculiar in that they tend to treat the opponent almost as a
non-actant.
5 Interactions
Such are the positions that can be occupied on the highly polarized checker-
board of forgery. Now, different interactions will occur between the forger and
the dupe. But the stream of interactions always obeys a dominant direction. It
mostly flows from the forger to the dupe. This means that the former manipu-
lates the latter much as he would an object. The dupe is in fact not exactly
52 Lenain
an active role in the usual sense of the word. Without even realizing it, dupes
behave like passive preys manipulated so as to do what the predator expects
them to, much more than as opponents capable of standing up to the enemy;
only very rarely does the unmasking occur thanks to the dupes own alertness.
To put it more accurately, the dupes action amounts to an unconscious form
of cooperation with the forger who, as a general rule, makes sure that the dupe
self-convinces of the objects authenticity. This loop-like interaction going from
the dupe to the dupe under the covert control of the pilot is not only an excel-
lent stratagem of whose efficacy there can be no doubt; it also generates highly
colorful situations with maximum narrative interest.
Another chief characteristic of forgery tales is that they can only be told
after the forgers failure. As long as the fake remains operative, it cannot be
revealed as such or, for that matter, become the subject of a story in the first
place. This is why the immense majority of forgery tales revolve around a key-
moment comprising the discovery of the fake and the subsequent unmasking
of the forger. Although partial exceptions might perhaps be mentioned, this is
nonetheless an iron rule rooted in the very structure of art forgery in general.
As for the unmasking itself, it proceeds either from the observation of anoma-
lies in the object, leading to the forger, or from clues in the forgers behavior,
leading to a revealing re-examination of the object.
The fact that forgery tales depend on the unmasking distinguishes art forg-
ery from other types of swindle. In most frauds, deceit works as a temporary
means to an enda scaffolding of sorts. When the truth finally comes to be
revealed, the evil is done and the culprit long gone. The dupe realizing his or
her misfortune can only witness the swindlers victory in dismay. In cases of art
forgery, by contrast, deceit as such must be regarded as the final goal or, at the
very least, the lasting backbone of the whole process. It has to keep working
as long as the fake achieves its specific goali.e. having an imitation take the
place of an original. Forgeries, as a general rule, are meant to avoid detection
if possible indefinitely and an art forgers dupe soldiers on in blissful delusion
as long as the fakery remains effective. If not, the case belongs to the category
of mere swindles.
In other words, the unmasking of an art forger almost always results from
causes outside the field occupied by the two main actants. This is also why forg-
ers can only savor their success in isolation, condemning themselves to remain
unknown until defeated. This constitutes the chief difference between forger-
ies and artistic mystifications or hoaxes.14 In these the deceit as to who made
6 Aftermaths
Saying that the unmasking corresponds to the end of the story is only partly
true, though. Not only is it quite rare that all the forgeries perpetrated by a
convicted swindler are brought under the light of truth,15 but forgers do not
always vanish from the scene after their defeat. They rather re-enter the stage
with some well-studied panache. As a general rule, they will do what is neces-
sary to capitalize on their stories. A prison term does not hurt, in that respect,
when it comes to selling the story to a publisher and trading interviews.
Wolfgang Beltracchi was seen handing out smiles, waves and business cards to
the journalists present in the courtroom during his trial.16 Some, like Thomas
Keating and John Myatt, were crowned with a TV series and almost all of them
wrote memoirs17 if not how-to manuals for apprentice forgers.18 As a matter
of fact, an art forgers future lies more in the glittery world of celebrities than
15 In the Beltracchi case, the arrangement immediately concluded between the accusation
and the culprit blocked any further investigation in the obviously important number of
fakes that were outside the charge of indictment; see Stefan Koldehoff and Tobias Timm,
LAffaire Beltracchi. Enqute sur lun des plus grands scandales de faux tableaux du sicle et
sur ceux qui en ont profit, Editions Jacqueline Chambon, Arles, 2013 (original German ed.
2012).
16 Ibid., p. 13.
17 To name some: Icilio Federico Joni, Hans Malskat, David Stein, Elmyr de Hory, Ral
Lessard, Tom Keating, Andr Mailfert, Eric Hebborn.
18 Eric Hebborn, The Art Forgers Handbook, Cassell, Londres, 1997.
The Narrative Structure of Forgery Tales 55
7 Tropes
This last particular case leads me to mention another important source of lit-
erary attraction: reversals that have actors play a role that is opposed to their
original stance. These rhetorical figures, or tropes, amount to second-level
operations on elements of the structure. They generate paradoxical inver-
sions or conversions that only enhance the interest of the story. Apart from
the forger becoming an expert, we have already met one of those figures in
passinga very important and recurring one. It is the figure in which the dupe
functions for the forger without in the least realizing hes doing soa direct
consequence of the manipulative nature of forgery, involving what Erving
Goffman calls fabrications.20 But there are several others.
For instance, every forger worth the name must learn from the experts and,
more generally, from the specialists who unknowingly provide him with essen-
tial knowledge. What the forger will learn through the existing art historical or
technical literature, or even through his personal contacts with connoisseurs,
19 I do not know of many examples of this sort of outcome in the field of art forgery, though
it has been instantiated in other related domains such as the counterfeiting of official
documents (see the above-mentioned story of Frank AbagnaleJr.). One example might
be Brigdo Lara. This Mexican artist made hundreds of fake Pre-Columbian artifacts sold
as genuine in the 1970s. He was convicted of smuggling antiquities but was released from
prison after having demonstrated that the objects were in fact his imitations. He was then
hired by the University of Veracruz in Mexico as a restorer and copyist of archaeologi-
cal objects. See Tom D. Bazley, Crimes in the Art World, Praeger, Santa Barbara Ca, 2010,
pp.71-72.
20 Erving Goffman, Frame Analysis. An Essay on the Organization of Experience, Harper &
Row, London, 1974.
56 Lenain
does not only pertain to artistic technique but also to methods of detection,
criteria of authenticity and the experts social as well as intellectual behavior.
Eric Hebborn stressed that a good expert is always to be treated as the forgers
best ally. This is because the experts very competence involves predictable
expectations that can be fulfilled. There is nothing worse, Hebborn added,
than the specialist with a sketchy knowledge and a fuzzy way of thinkingwho
will not even recognize what youve been trying to forge.21
The inherent necessity for the forger to appropriate some of the experts
knowledge can make for entertaining situations. Should the occasion arise, in
a court-room for example, the forger may engage in cerebral exchanges with
experts. He may even go with the flow and cooperate with the prosecution
just to show off his command of the matter. Caught up in his own narcissistic
game, an indicted Van Meegeren accused himself of being responsible for sev-
eral forgeries no one ever suspected and about which he certainly could have
kept silent.
Another way for the forger to self-redefine is to pretend to be a trouble-
maker whose intention was to confront the forces of corruption and deceit
that taint the art world at large. This amusing reversal, having the forger play
the role of the ultimate truth-teller, can be witnessed, among others, in Geert
Jan Jansens personal website:
Still other figures can exist. An expert can pass intentionally to the side of the
forger (or be his acolyte right from the start). So can intermediaries. This can
be done without even becoming an acolyte in the proper sense but instead an
21 Hebborn, Op. cit., p. 176. Also see his Confessions of a Master Forger, Cassell, London, 1997,
p. 234.
22 http://www.geertjanjansen.nl/biografie.html (visited November 3rd, 2013); my translation
from the Dutch.
The Narrative Structure of Forgery Tales 57
objective ally of the forgeras when a dealer with no connections with the
pilot conceals signs of counterfeiting to avoid losing a lucrative transaction.
So can the acquirer, in multiple ways. A forgers dupe may play the victim on
the public scene while secretly downplaying his role when he half-knowingly
endorsed the fake for such and such motive. Victims of art forgers can very well
wait a few years after the discovery and then sell their object as the genuine arti-
cle again, through complacent or ignorant intermediariesbetting that no one
will remember the unmasking and resultant scandal. Among other interesting
specificities of our way of dealing with art forgery, the Beltracchi affair turned
the spotlight on the fact that dupes may officially reclaim their fakes after the
closure of the case. This is how once discovered forgeries have been witnessed
to pop up again on the marketplace, possibly several times, and sometimes
quite successfully. The acquirer may also be part of the forger from the start,
acting as the initiatorhis agency as the dupe thus being a complete fabrica-
tion from the get-go. This might happen more frequently than one would imag-
ine because money laundering (possibly in relation with more serious criminal
activities) or insurance fraud rank high among the outlets for art forgeries.
Last but not least, it could also be pointed out, in a more general kind of
way,that the actors supposed to be interested in the uncovering of forgeries
contribute more or less passively to the forgers success. The art market being
a market, there should be no minimizing the grey zone between good prac-
tice on the part of dealers and experts, on the one hand, and blatant crooked-
ness, on the other. The collusion between forgers and their adversaries may
be malignant, passive or even systemic. As journalists Stefan Koldehoff and
Tobias Timm suggested in their account of the Beltracchi affair, even the judi-
cial system could, in some respects, be counted among the forgers objective
allies by default. The same could be said of more or less dubious ways that are
typical of the post-modern art world, such as the tacit social agreement allow-
ing experts to be paid a percentage of the selling price of works they them-
selves have authenticated. What better invitation to malpractice on the part of
the certifier? The result isor should bea suspicion that in such a case the
expert acts as one of the forgers means or intermediaries. Here again, narrato-
logical-oriented approaches may yield interesting results through the accurate
description of the actors, action-roles and interactions involved.
Many thanks to Dunja Hersak and Jerrold Levinson for having read the manuscript of this
article and made most useful suggestions regarding form and content.
58 Lenain
~general public
* agent / ~status
bold : necessarily part of the structure
+ means
object
forged documents
lies, staging
intermediaries, incl. expert, art dealer, auction house etc.
innocent maker
innocent helper
materials, tools, elements of stage-setting
etc.
+ opponents
main opponent: the discoverer (credited with the unmasking)
skeptics, dissenters
(lawyers, experts committed to the court etc.)
The Narrative Structure of Forgery Tales 59
2.Interactions
3.Aftermaths
4.Tropes
The acquirer fabricates his position as the dupe (either as the initiator or
as an acolyte).
The forger passes to the side of the opponents (by cooperating with the
accusation / becoming an expert).
1 Stefan Gruber (2014), Perspectives on the Investigation, Prosecution and Prevention of Art
Crime in Asia, in Saskia Hufnagel and Duncan Chappell (eds.), Contemporary Perspectives on
the Detection, Investigation and Prosecution of Art Crime (Ashgate).
2 Chinese Ming-era Chicken Cup Sells for Record $38.5 Million, Australia Network News
(9 April 2014), <http://www.abc.net.au/news/2014-04-09/an-chinese-ming-era-chicken-cup-
sells-for-record-2436-mi/5376638>.
3 Rare Ming Dynasty Wine Cup Expected to Fetch $38m at Auction, Australia Network News
(13 March 2014), <http://www.abc.net.au/news/2014-03-13/an-china-rare-tea-cup-goes-to-
auction/5317948>.
excellent opportunities for forgers and fraudulent antique dealers alike, which
leads to more fraud overall as a result. Either an irresistibly low price or the
desire of a collector for a particular piece can help criminals to convince buy-
ers that they are buying genuine pieces despite their suspicions that they are
being offered a fake.4
This chapter recognizes that there are many different interpretations of the
term fake in relation to pieces that are not genuine. The concept of a genuine
work and an imitation is by no means as clear-cut in China, and, as a result,
art forgery in China has never carried the dark connotations that it does in
the West.5 In fact, the conservation of cultural heritage through copying and
rebuilding has a long tradition in Chinese and other Asian cultures, which also
reflects a different perception of originals and copies.6 To copy masterpieces
was, and remains, widely practiced to train artists and to pay homage to artists
from previous generations. Historically, copying was as a stage in the learn-
ing process, giving value to the copyist; there was no demeaning the act of
copying for a lack of imagination thereby making any copy a forgery. A forgery
begins with the intention to deceive; of course, further problems arise when
the copies made for the purpose of study and practice merge with the ones
that intended to deceive.7
Striving for a definitive etymological definition of this term is beyond the
scope and purpose of this work. Nevertheless, fake may be synonymous with
forgery, but the word is also sometimes used to describe a copy or a reproduc-
tion. For the purpose of this chapter, the term fake is understood in the con-
text of counterfeitwhich implies that a piece is manufactured or altered
deliberately to be later used as a tool for deception. One example of a defini-
tion of counterfeit as used in the international art market can be found in the
conditions of sale by Sothebys:
4 Kimberly Alderman (2014), Art Crime, in Gerben Bruinsma and David Weisburd (eds.),
Encyclopedia of Criminology and Criminal Justice (Springer).
5 H.C. Luce (2000), Copying Chinese Paintings: Flattery or Forgery? ifar Journal (Spring): 10.
6 Stefan Gruber (2007), Protecting Chinas Cultural Heritage Sites in Times of Rapid Change:
Current Developments, Practice and Law, Asia Pacific Journal of Environmental Law 10: 253.
7 Toby Bull (2009), Lack of Due Diligence and Unregulated Markets: Trade in Illicit Antiquities
and Fakes in Hong Kong in Noah Charney (ed.), Art and Crime: Exploring the Dark Side of the
Art World (Praeger), 26, 28.
Forge and Export 63
8 This definition can be found in the conditions of sale in Sothebys catalogue for the auc-
tion Collections, held on 29 April 2014 in London, available at <http://www.sothebys
.com/content/dam/sothebys/PDFs/cob/L14304-cos.pdf>.
9 Christies, Auction Results, Imperial Chinese Ceramics from the Robert Chang
CollectionJade Shears and Shimmering Feathers, Lot 1309 (28 November 2006),
<http://www.christies.com/lotfinder/lot/a-fine-and-highly-important-imperial-famille-
4823606-details.aspx?intObjectID=4823606>.
10 Simon Mackenzie (2005), Going, Going, Gone: Regulating the Market in Illicit Antiquities
(Institute of Art and Law), 8.
11 John Henry Merryman (1986), Two Ways of Thinking about Cultural Property, American
Journal of International Law 80: 831.
64 Bull and Gruber
now becoming a market nation as many wealthy Chinese collectors and busi-
nessmen are involved in the repatriation of items that were once looted, thus
reclaiming the cultural heritage of their country. The ongoing export of cul-
tural items from China, particularly over the last 150 years, through looting and
legal export, and the loss of items through destruction, most notably during
the Cultural Revolution, has created an increasing shortage in items available
to the art market.
Generally, antiquities sold on the open market fall into the three categories
of licit, grey area, and illicit items.12 This chapter focuses on fakes as a fourth
category, which includes modern creations or reproductions of Chinese art,
which masquerade as antiquities. Fakes might masquerade as artifacts from all
the other three categories, as they are not exclusively sold on the open market.
In fact, it might in many cases be easier to sell fakes to buyers of potentially
illegally exported items, or at least artifacts with dubious provenance, as they
might hope to have encountered a once-in-a-lifetime chance or bargain, and
they cannot check the authenticity of the item as thoroughly as they could a
licit artifact.
Unsurprisingly, the high profits and prices achieved through the sale of Chinese
antiquities also attract criminals who try to take their share of the market.
While the most destructive forms of crime related to antiquities relates to loot-
ing and the illegal export of cultural artifacts, this chapter focuses exclusively
on the manufacture and sale of fakes. However, they are inexorably linked, as
they are in many cases committed by the same groups of criminals and are usu-
ally targeted at the same group of potential purchasers constantly competing
with others on the search for a bargain in the ever-growing Chinese art market.
Looted antiquities and fakes emanating from China both serve the same pur-
pose of sating a seemingly incessant demand for Chinese cultural artifacts: the
former type illegally excavated, whilst the latter created to deceive.
Several factors are aggravating the situation. Amongst them is a lack of
due diligence and in some cases fraudulent conduct by some auctioneers and
antique dealers. One recent example that highlights the level of unscrupulous-
ness of some involved in the market relates to the sale of a set of two pieces
labelled as a stool and dressing table carved from jade during the Han dynasty.13
Both items were sold at auction in Beijing for $33 million in 2011. Once histori-
ans questioned the authenticity of the pieces by pointing out that the Chinese
sat on the floor and did not use chairs during that era, representatives from
the jade industry in Pizhou in Jiangsu Province confirmed that they had been
manufactured by local craftsmen in 2010, but stressed that it was only the art
dealers who decided to offer them as antiquities on the Chinese art market.14
Fakes of various quality have been flooding the market for Chinese art and
antiquities for years, which is also damaging the general faith of customers
in the authenticity of objects and potentially harming the market long-term.
While buyers can generally demand compensation under the Auction Law of
the Peoples Republic of China of 1996 if items turn out to be fakes after the
auction15 and most of the large Western auction houses offer a buy-back guar-
anty in such cases, buyers nevertheless risk a significant financial loss if they
accidentally purchase an expensive fake item.16 Many auctioneers will usually
rather invest resources in proving that the item was genuine than acknowledg-
ing own faults and refunding the customer.
As one of the major players in Chinas art market, the president and director
of the auction house China Guardian, Wang Yannan, was quoted stating [t]his
is the challenge right now...in the mind of every Chinese, the first question
is whether its fake.17 Such concerns coincide with an increasing number of
failed transactions, where the buyer refuses to pay. This is a problem not exclu-
sive to China, although it is occurring there much more frequently. A porcelain
vase allegedly made for the Qianlong Emperor during the eighteenth century
was auctioned by Bainbridges in London in 2010 for a record price of $83 mil-
lion. However, the Beijing-based bidder refused to pay, and, after a settlement
could not be reached, the vase was sold in a private transaction to another
Asian collector for slightly less than half the original bid in early 2013.18 It is
14 David Barboza, Graham Bowley and Amanda Cox (2013), A Culture of Bidding: Forging
an Art Market in China, The New York Times (28 October), <http://www.nytimes.com/
projects/2013/china-art-fraud/>.
15 Auction Law of the Peoples Republic of China of 1996, Article 61.
16 Generally regarding the protection of buyers and authenticity of art, see Carolyn Olsburgh
(2005), Authenticity in the Art Market: A Comparative Study of Swiss, French and English
Contract Law (Institute of Art and Law).
17 Ibid.
18 Scott Reyburn (2013), Chinese Vase Resold for Less Than Half $83 Million Record,
Bloomberg (15 January), <http://www.bloomberg.com/news/2013-01-14/chinese-vase-
resold-for-less-than-half-83-million-record.html>.
66 Bull and Gruber
interesting to note that a bbc expert had reportedly declared the vase a very
clever reproduction forty years ago.19
Closely connected to the issue of authenticity is that of provenance, which
is of great importance when selling pieces as genuine. Impeccable provenance
along with a solid and verifiable sales record history will also ensure higher
prices as such pieces are much less likely fakes. However, provenance can also
be faked.20 For example, in 2013, an item was sold as an eighteenth-century
Chinese vase for $1.7 million by an auctioneer in Norwood, ma. However, the
same vase had been sold by a different auctioneer in Iowa as a twentieth-
century replica for only $3,840 in 2012.21 The seller of the vase claimed that it
had last been auctioned by Christies in England in 1989 and even attached a
sticker from Christies with an auction number on the bottom of the vase as
proof. None of these claims were checked by the auctioneer before the sale.22
While records of previous sales generally increase the price of an item as they
provide provenance, such records should be examined thoroughly. This par-
ticularly applies to records from overseas that cannot easily be verified, as, for
example, some reports suggest that many reported sales in China did actually
not take place at all.23
Faking and forgery is hardly a new phenomenon in the art world, and China
has a rich history in this area. This has been going on for so long that some
experts suggest that 7080 percent of the antiquities sold in China are fake.24
While such claims are very difficult to prove due to a lack of sufficient data,
one of the authors of this chapter carried out an experiment in 2013 to test the
hypothesis. He purchased an antiquity for sale from a gallery on Hollywood
Road in Hong Kongchosen for its location in one of the citys hot spots for
19 Peter Dominiczak (2010), bbc Antiques Expert Said 53Million Chinese Vase Was a Very
Clever Fake, London Evening Standard (12 November), <http://www.standard.co.uk/
news/bbc-antiques-expert-said-53million-chinese-vase-was-a-very-clever-fake-6535652.
html>.
20 Kenneth Polk and Duncan Chappell (2009), Fakes and Deception: Examining Fraud in
the Art Market, in Noah Charney (ed.), Art and Crime: Exploring the Dark Side of the Art
World (Praeger), 74, 76.
21 Sean P. Murphy and Andrea Estes (2013), Vase that Drew $1.7m Bid also Drawing Federal
Scrutiny: Antique and Invaluable or New and suspect? Boston Globe (12 May), available at
<http://www.bostonglobe.com/metro/massachusetts/2013/05/11/real-replica-norwood-
art-auctioneers-defend-value-chinese-sold-for-stunning-million/GXyFnnL5BatTu
DPRE4OzhP/story.html>.
22 Ibid.
23 Barboza, Bowley, and Cox, supra note 14.
24 Ibid.; Murphy and Estes, supra note 21.
Forge and Export 67
the trade in Chinese antiquities, its average size, and ceramic items on display
for saleand then subjected the piece to forensic testing. The authors were
able to compare the sales patter of the dealer and the provided gallery certifi-
cate with the actual results from an independent testing laboratory. Although
such random samples are not necessarily representative of the overall num-
bers of fake antiquities being in circulation, the experiment provided some
interesting insights.
The item was sold with a Certificate of Guaranty (sic) with the following
description: One pc. of very fine quality antique painted pottery figure of a
warrior horse. Circa: 618906 A.D. 10th Century. Tang Dynasty. From: Luoyang,
China. We hereby certify to the best of our knowledge that the one piece of
painted pottery figure is a genuine antique. The certificate contains a photo-
graph of the antiquity purchased and is signed by the gallery owner. The object
is aesthetically pleasing, looks old, and has a cold, clammy feel to it. There are
even some bits of dirt stuck within the small nooks and crannies. Its stylistic
features certainly made it look like a Tang Dynasty horse, although its long
caparisoned saddle can also sometimes be seen on pieces from the Northern
Qi period (550557). All this made it an ideal item for independent testing.
The horse was taken to the Hong Kong agent of Oxford Authentication Ltd
(uk), one of the worlds leading testing facilities, for a Thermolumonescence
(tl) Analysis. This test measures the radiation level emitted by a tiny sample
(weighing about 100 milligrams) drilled from the object. When heated, the
powder emits a faint light signal, which can indicate when the pottery was
last fired in a kiln. If the measurements are consistent with the reported age
of the antique, a certificate of authentication will be issued. Evidently, the test
itself is a destructive one, as it requires the samples (usually at least two) to
be extracted from the object. However, most owners will not want a sample
drilled from an area that would be clearly seen on the object and might spoil
its aesthetic and monetary value. Consequently, owners often only ask for sam-
ples to be taken from the base of the piece, or inside a rim, or near the blow-
ing hole in order to leave no marks visible when on display. But this is a fact
the manufacturers of fakes know only too well and use to their advantage. In
many cases, they work old shards, usually collected from around the area of the
old imperial kiln sites, such as those at Jingdezhen, into the objects during the
manufacturing stage. For the purpose of the experiment, the two samples were
deliberately taken from under the head of the horse and from the left buttock
area. The samples were taken under laboratory conditionsin red light,
placed in a vial, sealed in an envelope, and couriered to the main testing labo-
ratory in Oxford in Great Britain. The results were delivered one month later.
The one-page report stated what the object was presumed to be (a painted
68 Bull and Gruber
pottery horse from the Tang dynasty), where the samples were taken from, by
whom, and included a statement concluding [u]sing standard methods and
techniques it was estimated that the date of last firing was: Less than 100 years
ago. Note: Both samples yielded a similar result. INCONSISTENT with the sug-
gested period of manufacture. The report is signed by the owner and founder
of Oxford Authentication.
Similar fakes can also be found in well-known public collections. For exam-
ple, it was revealed in early 2014 more than three quarters of the Chinese paint-
ings from the Ming and Qing dynasties owned the Victoria and Albert Museum
in London have been identified as not genuine and are therefore not on public
display.25 An even more dramatic case led to the closure of a private museum
in Hebei province in 2013 after it was found that almost all of the 40,000 pieces
on exhibit were in fact fakes.26
25 Richard Brooks (2014), Merciless Ming Swamps V&A with Forgeries, The Sunday Times
(2 February), <http://www.thesundaytimes.co.uk/sto/news/uk_news/Arts/article1370672
.ece>.
26 Chris Luo (2013), Hebei Museum Mocked Online over Fake National Treasures, South
China Morning Post (9 July), <http://www.scmp.com/news/china/article/1278836/hebei-
museum-mocked-online-over-fake-national-treasures>.
27 Martin Praetsch (2006), Van Gogh from the Sweatshop, Spiegel Online (23 August),
<http://www.spiegel.de/international/0,1518,433134,00.html>.
28 Ibid.
Forge and Export 69
hundreds of reproductions are being churned out by artists who have almost
perfected the centuries-old Asian tradition of faithfully copying their masters.29
For example, Dao Hai Phong (born 1965) is a Vietnamese contemporary art-
ist who graduated from the Hanoi College of Fine Art in 1987. He specializes
in village scenes and depictions of Hanoi streets, which are executed in oils
in his trademark primary colours. He has held exhibits across Asia, Europe,
and the United States. His work is sold for thousands of dollars. As an estab-
lished Asian contemporary artist, his style is being copied and peddled at the
street stalls of Dafen as well in Hong Kong. Fishing Boats, which was painted
in 2002 and is one of his most seminal works, is also one of the most-copied
ones. Almost before the paint had dried on the original, renditions of this
work were already readily available. Indeed, one version of itsigned by the
copyists own handwas seen by one of the authors on sale for less than $50
soon after the original was painted. Notwithstanding the intellectual property
issues involved in this subterfuge, it would not be too difficult for an art dealer
or gallery worker of less than perfect repute to offer such a copy as an original
to a nave art buyer just starting a collection. The situation has worsened since
then, with even more replicas and forgeries of better quality copying many of
the regions most famous contemporary artists available on the market.
Meanwhile, the Chinese authorities are attempting to tackle the most bla-
tant of cases of art piracy and copyright infringements with establishment
of the Dafen Intellectual Property (ip) Office in 2007,30 whose area of respon-
sibility is to investigate and prosecute copyright violations. Despite efforts to
obtain data, the authors have been unable to verify the number of cases it has
flagged which led to prosecutions. Nevertheless, the mere existence of such an
organization shows the intentions to at least attempt to alleviate the problem.
Modern technology has enabled objects to be reproduced with far greater
accuracy. For the last twenty years, copies of various art forms have appeared
from China of a previously unseen quality, particularly in porcelain and
pottery.31 However, while the top forgers seemingly master many stylistic traits,
know how to fool a wide range of potential buyers, and produce antique items
to pass a tl test in the way described above, it is nevertheless very difficult to
produce pieces of such detail to fool the experts working in the top auction
houses or galleries with their years of academic training and experience.32
Jingdezhen, a leading centre of pottery, where Ming porcelain was pro-
duced in the fourteenth and seventeenth centuries,33 has now developed into
an international art centre similar to Dafen Village. In addition to well-known
Chinese artists, such as the controversial Ai Wei Wei, creating, firing, and glaz-
ing their works,34 many forgers are producing thousands upon thousands of
copies of seemingly genuine pottery items with great skill and sophistication.35
However, it is the modern pieces designed to deceive and made to order, with
potters copying pieces straight out of the auction catalogues, which pose dan-
ger to the art market. These items not only look convincing, but can pass the
industry standard scientific tl test (as described above), which is the most
commonly used method in dating porcelain and pottery. Another method for
testing items, though not an industry norm and much more expensive than
a tl test, is the use of Computed Tomography (ct) scans. This is a medical
imaging method using special x-ray equipment to obtain cross-sectional and
three-dimensional pictures of an object, allowing better visualization of the
inner state of the piece.36 This is not a dating test, but can show how a work of
art was made, giving vital clues as to the various stages of manufacture. This
is a very expensive test and therefore hardly used; the testing of a 50cm piece
or smaller costing around $1350, increasing by $250 for each additional 30cm
to be tested. Neither the tl test nor the ct scan option are widely offered by
galleries to those purchasing artifacts, as enlarging the knowledge of a pro-
spective buyer might in some cases be rather counter-productive. Certainly,
no possibility of any type of forensic testing was mentioned during the buying
process of the authors Tang-dynasty horse. Nevertheless, many art galleries
on Hollywood Road in Hong Kong have tl certificates attached to some of
their pieces on sale and give great prominence in the display.37 However, it
should be noted that all the tl test pertains to is that the sample examined is
of a certain age and not that the piece itself is genuine. It may well be genuine,
but buyers are advised to be cautious about the validity of such certificates.
The issues related to the manufacture, movement, and sale of fake Chinese
antiques should not be looked at in isolation from other forms of art crime,
as these pieces are created to satisfy the international demand for Chinese
antiquities and art in a similar way as the trade in illicitly exported items. It is
generally fair to claim that the trade in and production of fake antiquities on
a industrial scale is tied to organized crime in a similar way as the large-scale
trade in illicitly exported antiquities. There are many similarities between both
criminal activities in terms of their modi operandi, transportation, organiza-
tion, and the ways in which the items are introduced into the art market. Hong
Kong, as an ideally located transit hub and free port, has been playing a central
role in the smuggling and sale of genuine, illicitly looted antiquities and their
modern-day doppelgangers. Looted antiquities are typically smuggled across
the porous borders between Mainland China and its Special Administrative
Region, often acquiring fictitious provenance along the way. Documents claim-
ing false authenticity and providing assurances that the items have not been
looted are also common practice.
Organized criminals have been increasingly diversifying their operations
and are often involved in several criminal activities simultaneously. A recent
report by the Australian Crime Commission confirmed that [o]rganised crim-
inals who may once have been involved in traditional illicit markets, such as
drugs, are now expanding their interestsoften across a range of illicit activi-
ties or sectorsin order to maximize their profits.38 The same applies to orga-
nized structures in art crime, which has been an increasing focus of research
generally39 and of research in Asia.40 Illicit art trafficking and the trade in looted
antiquities is often used for laundering profits from other illegal activities due
to the high profits from organized crime.41 Also, the transportation routes used
for smuggling one particular kind of illegal good can usually also be utilized
for moving other contraband once the mechanisms for bribing officials at the
port of call and border crossings, falsifying documents, and modes of transpor-
tation are in place. This also applies to smuggling operations across the Hong
Kong border, which have become increasingly efficient and sophisticated due
to the long experience of drug trafficking and smuggling of other goods by the
local criminal organizations. In December 2013, Chinese customs officers dis-
covered a forty-meter underground tunnel with a rail track and wagon crossing
the border between Shenzhen and Hong Kong, which could be used for smug-
gling an unlimited variety of contraband.42
On 18 June 2011, a 20 container bound for Taiwan arrived at the River
Trade Terminal in Tuen Mun, Hong Kong. It had been loaded in Huangpu in
the Pearl River Delta, and its cargo was described as Tupperware and plastic
items. However, a random check disclosed that the container was packed with
thousands of fake Chinese antiques, including ceramics, paintings, scrolls,
and stoneware. The fakers even developed false provenance for the items and
placed them in artificially aged crates bearing labels identifying them as part
of a shipment of treasures taken from the Palace Museum in Beijing by the
Kuomintang forces. Some of those shipments were reportedly lost when the
Kuomintang fled Mainland China in 1949. Experts would have been able to
notice the difference from the real crates, boxes, and packaging that were
used to transport treasures from the Forbidden City to Taiwan, as they were
manufactured with an impressive quality of craftsmanship with cushioned silk
linings inside and cutouts of perfect proportions to house the revered and trea-
sured antiquities. However, the items intercepted in Tuen Mun were manu-
factured for the quick sale, to produce large margins, and above all to exploit
the greed of the purchaser. The fake provenance was aimed at adding to the
mystery surrounding the items and convincing prospective collectors that they
had the once-in-a-lifetime opportunity to get their hands on the bargain of the
century. If the container had not been selected for random inspection, these
Professional Advisory Council of the United Nations Crime Prevention and Criminal
Justice Programme), 119.
41 Stefan Gruber (2013), The Fight against the Illicit Trade in Asian Cultural Artefacts:
Connecting Domestic Strategies, Regional Cooperation, and International Agreements,
Asian Journal of International Law 3: 341, 347.
42 Smugglers Built Secret Tunnel Leading to Hong Kong, Border Official Discovers, South
China Morning Post (25 December 2013), <http://www.scmp.com/news/hong-kong/
article/1389781/smugglers-built-secret-tunnel-leading-hong-kong-border-officials>.
Forge and Export 73
items would then have acquired their export certificates and been shipped
to Taiwan and beyond, with many of the best pieces entering the art market
with their provenance showing that they had come from a private collection in
Hong Kong. The amount of items, sophisticated fake provenance, and method
of smuggling clearly indicates that this was not the work of a small group of
perpetrators, but clearly links it to organized crime.
In fact, the trade in antiquities, be they real or fake, is part of highly orga-
nized criminal enterprise structures. For example, tomb robbing in China
involving diggers, equipment, and middleman to sell the objects requires a
multi-layered network, just as the manufacture and movement of fakes. Unlike
other type of trafficking, the criminals involved face far less harsh penalties
if caught than those with drugs, for example, while those orchestrating those
operations are hardly ever caught or prosecuted at all.43 The problem is exac-
erbated by a lack of awareness and resources assigned by the authorities to
combatting illegal trade via Hong Kong. For example, the officers of the Hong
Kong Customs and Excise Department (hk C&E) can only carry out random
checks on 1% of the containers shipped via the Port of Hong Kong. According
to information provided by the authorities to the authors on request, the value
of antiquities seized by hk C&E and returned to China between 1992 and 1996,
approaching the end of British rule on 1 July 1997, was hk$15 million. In the
following ten years (19972006) the value decreased to hk$2.3 million, and
between 2007 and 2012 there were no recorded cases at all.
In 1997, many art dealers fled Hong Kong fearing the change of sovereignty,
believing the harsh and strict export embargos of the Chinese system would be
applied to Hong Kong and kill the trade in Hong Kong.44 Once the announce-
ment was made that Chinese laws on the protection of cultural relics would not
be applied to Hong Kong, business carried on unabated, and the reputation of
Hong Kong as the place to buy Chinese artifacts and antiquities solidified. Of
particular importance in this context is Hong Kongs status as a transport hub,
and particularly as a free port. If a cultural artifact is not proven to be stolen, it
can be legally exported, changing the status from illicit to licit. Once entered
into auction catalogues, the object is often described as part of a private collec-
tion in Hong Kong. That is certainly the story for many illicitly smuggledand
poorly provenancedantiquities, with the best fakes often passing muster and
following this same path. However, as the due diligence provided by Western
auction houses is generally significantly higher than in China, where more and
more auction houses are opening for business. It is therefore far easier for a
fake to gain a record of sale and, therefore, a provenance through a local sale.
The question needs to be asked whether or not greater due diligence or
some form of regulation amongst the local art dealers in Hong Kong could
be introduced to help diminish and eventually stop the trade in illicit antiq-
uities and their modern equivalent pieces, recently manufactured to defraud
buyers and sate the ever-increasing demand. The authors conducted their own
original research on the success of a self-regulatory approach for the Hong
Kong market: twenty-five mainstream art galleries in the main antiques area of
Hollywood Road in Hong Kong were asked to complete a questionnaire with
fourteen questions about the level of fakes in the market, as well as questions
about looting and whether greater due diligence and a degree of self-regulation
could help quell the problems experienced in the market. Only four galleries
returned the questionnaire, and even those four that did answer did so with
rather spurious replies. These results seem to indicate that there is little inter-
est from the art trade to self-regulate, nor is there any lead from the govern-
ment to tackle, or even recognize, the problem. It appears that there is simply
too much money at stake. The Hong Kong Government is planning to make
the city an art hub, as seen in the recent arrival of the mega Art Basel exhibi-
tion in May 2013. The acknowledgment of a high number of fakes being traded
in Hong Kong is seen as jeopardizing this plan. Nevertheless, there is a real
danger that more genuine smuggled pieces and the fakes that always follow
will find their way into Hong Kong and from there into the international art
market. This is a very dangerous path, as the high amount of fakes and illegally
exported items in circulation does not only cause serious damage to Chinas
cultural heritage, but also destroys trust and confidence in the art market.
References
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Organization and Control of the Illicit Traffic in Antiquities in South East Asia.
Page 119 in Stefano Manacorda (ed.), Organized Crime in Art and Antiquities.
International Scientific and Professional Advisory Council of the United Nations
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Alderman, Kimberly (2014). Art Crime. In Gerben Bruinsma and David Weisburd
(eds.), Encyclopedia of Criminology and Criminal Justice. Springer.
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Commonwealth of Australia, https://www.crimecommission.gov.au/sites/default/
files/acc%20OCA%202013-1.pdf. Australia Network News (2014). Rare Ming
Dynasty Wine Cup Expected to Fetch $38m at Auction, Australia Network News
Forge and Export 75
Kleutghen, Kristina (2010). Ai Wei Wei, Sun Flower Seeds. Modern Art Asia 5, http://
modernartasia.com/ai-wei-wei-sunflower-seeds-5/.
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1278836/hebei-museum-mocked-online-over-fake-national-treasures.
Murphy Sean P. and Andrea Estes (2013). Vase that Drew $1.7m Bid also Drawing
Federal Scrutiny: Antique and Invaluable or New and Suspect? Boston Globe
(12 May), http://www.bostonglobe.com/metro/massachusetts/2013/05/11/real-replica-
norwood-art-auctioneers-defend-value-chinese-sold-for-stunning-million/
GXyFnnL5BatTuDPRE4OzhP/story.html.
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oil-paintings-chinese-village-mao-tse-tung.
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leading-hong-kong-border-officials.
Part 4
Art and White-Collar Crime
CHAPTER 5
In a very obvious way art and money are strongly connected: art is a coveted
commodity which has its price. Psychologically we may not want to see them
as overly connected since they are experienced as at a different mental or spiri-
tual level. Nevertheless the earthly and the elevated meet in every transaction
and artistic occupation. Art is for sale, and being a professional artist is a job
for money whether one is a composer at the court of Esterhazy, a painter in
the service of the Vatican, or a free artist depending on the local Maecenas.
Given this commodified facet, art is subject to all varieties of human conduct:
adoration, inflation and speculation, greed, and even crimenot an aberra-
tion, but the logical consequence of coveted objects of value. Motivated by
greed, art crime has diverse manifestations, but common themes can be found.
First, since time immemorial, objects of art have been stolen by individuals
as well as by states (Charney, 2009). Western museums exhibit the historical
loot of the erstwhile colonial powers or audacious generals such as Napoleon,
still to the regret of the dispossessed nations. The most recent massive art
plunder took place after the occupation of Baghdad in 2003, when under the
eyes of the us troops the Baghdad museum was systematically stripped of its
assets.1 Other forms of art theft include illegal excavations yielding such trea-
sures as the Nok statues from Nigeria or artifacts from the Cambodian Angkor
Wat Temple.
Second, forgery of objects of art is as old as art itself. For example, in
fifteenth-century China, pottery was made to look older to fool contemporary
collectors. Forgery requires a high degree of craftsmanship and a feeling for
how the product can radiate genuineness. It is art crime, but not destructive
or predatory. However, it undermines the very important principle of authen-
ticity and thereby the trust of the public (buyers and museum visitors) that an
object of art is what it pretends to be. Not all forgers cheat for money alone: a
craving for recognition plays a motivating role too, as has been the case with
Van Meegeren (Kreuger, 2007).
Third, there are direct, destructive threats to objects of art: revenge, patho-
logical urge of destruction, or politically driven rational motives to destroy
objects of art which are strongly connected to the opponents national identity.
Religion-driven destruction, such as occurred in Mali (2013) and Afghanistan
(2001), can be considered as sub-category of political, willful art crimes, which
have no relationship with our theme: art, crime, and money. This facet of art
crime, serious by its nature, will not be the subject of this chapter, which deals
with art and finances.
Fourth, a new relationship between art, crime, and money has come into
being with the criminalization of money laundering, or, in more neutral terms,
criminal money management. Objects of art may be of interest to criminals with
a surplus of criminal income they want to invest. Naturally, criminals buying art
is not a threat to art itself. However, paying for objects of art with criminally
earned money goes against the basic principle that crime should not pay. In
addition, buying art with illicit money implies another criminal offence: money
laundering. This has various meanings. In the first place, it refers to the very act
of buying with tainted money, and in the second place, it refers to cleaning the
tainted money (implied in the meaning of laundering) through an art deal.
The latter art-crime interaction has raised concern among the authorities.
The world of art could be exploited by money-launderers for their criminal
purposes: either it is an outlet for the illegal proceeds of rich criminals or
worseit is a component in a laundering construction. It is even rumoured
that organized crime specifically makes use of art to launder part of their crim-
inal proceeds. According to Nelson (2009), examples of art used for laundering
abound, though he refers to only two cases in 2002 and 2008. At least these
cases underline its existence.
Once criminal proceeds are transformed into art, it is thought that its price
is manipulated to make an even bigger profit and leave less of an audit trail
(fatf, 2010).2 For these reasons, the fatf recommended including the art and
antique sector in a short list of enterprises that can be vulnerable to money
2 This observation misses the point that for laundering purposes (whitening of tainted
money), one actually needs a (fraudulent) audit trail for proving a licit origin. Otherwise one
has only converted an unexplainable token of wealth into another unexplainable one.
Money, Art, and Laundering 81
In the literature on organized crime and money laundering, art hardly plays
a role. Those examples that do mention a connection are usually not more
than anecdotal evidence or semi-political statements without substantiation
(Calvani, 2009). In fact, they are little more than examples of affluent crimi-
nals dabbling in arts, such as the notorious Dutch drug wholesaler Bruinsma,
who invested in unprofitable art gallery (Van Duyne, 1995). Investment in art is
also put forward as an illustration of a foolproof way to invest money in that it
would be difficult for the authorities to detect. Such anecdotes and theoretical
examples, however, do not give an indication of how big or serious this prob-
lem is because empirical data, especially quantitative data, are absent. Even
though Nelson noted that examples of art used to launder money abound, he
does not present any figures and mentions just two examples in 2002 and 2008
(Nelson, 2009; 199200). This scarcity is probably due to several factors.
First of all, compared to other criminological fields, research on organized
crime is of relative minor interest to criminologists, despite the high-level
political interest. This is probably due to the fact that it is hard to gain access
to offenders involved in criminal organizations or, in most countries, relevant
police data. Researching the intersection of organized crime and art is also
82 van Duyne et al.
3 Volkskrant (2000).
84 van Duyne et al.
Keeping these difficulties in mind, we take a closer look at the data sources
on crime and money that were available to us.
Methodology
Data Sources
As mentioned in the previous section, there are no suitable databases on
money laundering and art, at least not in the Netherlands. Therefore we turned
to five different official sources that can be tentatively used to approach this
subject. The first three of these sources were fully accessible to us. The remain-
ing two were checked by a close reading of their yearly and other reports,
and by accessing their websites. In addition, we held several interviews. The
sources are the following.
The first data source is the central database of the Public Prosecution Office
that records all assets seized by the Dutch authorities: in short, the confisca-
tion database. This database in our possession covers the period from 1994
2007. It is an extensive database with over 30.000 entries,4 covering all kinds
of confiscated criminal assets like houses, cars, cash, credit cards, and all other
possessions as trivial as guitars, lamps, bicycles, fishing rods, and cd-players.
In an earlier research (Van Duyne et al., 2009), we categorized the objects
under common denominators like house, apartment, car, cash, jewelry, and art.
The total amount of confiscated assets in euros is unclear because not every
object had a monetary value attached. For example, of the 717 houses registered,
only 170 had a money value mentioned (totalling over 31 million). In addition,
the database was polluted by manual data-entry mistakes. For example, entries
of confiscated cash were mentioned in detail, but in conversion from another
currency many manual mistakes were discovered. In the end we could deter-
mine that over 100 million euros were confiscated from 30.043 offenders.
A second source we used is a database of the Central Recovery Agency. This
is a database that tracks the amount of money convicted offenders owe or paid
to the Dutch state. It also records the crimes for which the offenders were con-
victed. We used this database to check for a possible bias in the first database,
e.g., an over-reliance on drug crimes as compared to fraud.
A third database consists of the records that are kept by a special police
team on art and antiquities crime. The records were used to identify incidents
in which criminal proceeds were used to buy art. From these records, eighteen
4 All figures in this chapter are in standard European writing: the commas stand for the deci-
mals and the dots for the thousands.
Money, Art, and Laundering 85
cases were selected for more in-depth analysis. The statements of all people
involved were carefully screened for background information on object cat-
egories, value, process of purchase, and relation to the crime. The full database
was not disclosed, however, because of restrictions applied to outsiders. As a
result, information was not gathered on high profile cases, pending investiga-
tions, or cases with possible sensitive information, e.g., corruption cases.
The fourth database with potential information on art and crime can be
found in the public records of the fiu. We scrutinized the yearly reports and
public tables of this organization to find indications of art and crime. In the
Netherlands, art dealers are obliged to inform the fiu of dubious transactions
of over 25.000. Furthermore, art dealers are also encouraged (but not obliged)
to inform the fiu of what they feel to be suspicious transactions between
15.00025.000.
A fifth source of information is the Heritage Inspection Board (Erfgoe
dinspectie). This is a governmental organization that keeps oversight on a
national level of an important part of Dutch historical heritage. We used their
yearly reports and searched their website to look for evidence of a link between
art and money laundering.
It should be stressed that the databases are not designed to shed light on the
relationship between art and money laundering. However, they are available
and can be used to extract indications of such a relationship.
In addition to these databases, in-depth interviews have been carried out
with interviewees in the know, like art and antique dealers or traders and
other stakeholders. In the beginning, the respondent group of dealers was
extremely hard to access, and people were hesitant to talk about crime, even
when anonymity was guaranteed. Thanks to the help of a family friend with
contacts in the art dealing scene and reliance on a snowballing effect, five art
and antique dealers or traders were willing to be interviewed. In addition, con-
versations of about an hour-and-a-half were held with two private detectives,
four law enforcement officers specializing in art and antique crime, and an art
insurance agent. In this way, information given by one respondent could be
put into a different light by statements of other interviewees. The interviews
were semi-structured to maintain an open conversation where interviewees
could feel free to give any information they felt to be relevant.
Results
The results can be divided in a quantitative and a qualitative part. The quan-
titative part shows that criminal proceeds and art do not form a predominant
86 van Duyne et al.
Tableware45 entries
The highest recorded amount of money is 394 for an unknown piece of
Versace crockery. In several cases in which the court handed the convict
a recovery order of millions of euros, complete sets of Versace, Rosenthal,
and Royal Albert tableware were confiscated, apparently insufficient to
cover the recovery order.
Tapestry14 entries
The most interesting entries concern six Persian tapestries. Their mon-
etary values were not entered. These tapestries were confiscated in cases
with high recovery sums to cover part of the debt in case the criminal
debtor would default. In these cases the recovery orders were in rising
order: 18.151; 402.251; 13.000.000; and 24.957.912.
Paintings314 entries
In this category the highest recorded figure is a lot consisting of fifty-nine
paintings with a total value of 45.000 euro. Descriptions of the contents
were not entered. The next most expensive item in another case is a
painting by Herman Brood (a Dutch singer annex painter) worth 4200.
Apparently he is a popular artist among our targeted criminals; his paint-
ings and silk-screen prints were mentioned twenty-one other times. Next
are Peter Donkersloots paintings of the movie Scarface; they were listed
nine times.5 One offender collected paintings like Woman with Dinosaur,
5 Other names of painters are J.Sap (2x), A. Vrolijk; J. Verbruggen; Corneille (four times); Carla
Raadsveld; Ton van Ee (four times); Oscar Coller; Rousseau (two times); Van der Zander
(etching, painting, aquarelle); Nico Vrielink (two items); Anton Heijboer (four items, three
with chicken); twenty-three Paul Bodifee (description: etching from 1891, sixteen found
with the same person); M. Brouwer (two items); flower still life of M. van Regteren-Altena
(18681958). Jan van Loon from 1906yellow painting with certificate; Josien Broeren (two
items); O. Eertman (two items); Lemair; B. Herkelman; R. Faeber collection, Fruit June 1732;
Hiakdie; J. Koeman; W. Smits; E. Le Mair; Meyrink from 1986; Arno Huitinga (two items); Bob
Verstraeten from 1986; Wessels from 1985; Yneke Petriet Visser; Karel Appel; Fernandito; tem-
mino (two items); C. Leickert; F. Leger; Andre Verlein; A. ten Oever; J. Frederiks; I. Dubois;
A. Clein, reproduction of the Nachtwacht; L. Donsaert.
Money, Art, and Laundering 87
Woman with Unicorn, Naked Women with Pig, etc.; these descriptions do
not immediately suggest a high artistic value, let alone taste.
Other wall decorations9 entries
A couple of wall clocks (one dated 1972, one with the note clock is bro-
ken), two mirrors, and a brown, round wall decoration were listed with-
out further description or recorded monetary value.
Jewelry6,163 entries
The entries are related to 665 criminal owners. The largest amount
of monetary value related to one convicted person is an entry labelled
jewelry and watches worth 190.780.6 The single most expensive item
entered is a golden necklace worth 68.000, and a mans chain with a
cross worth 45.000.
6 It should be noted that this person was suspected of laundering only 21.547, which makes
the size of confiscation look disproportional, though we cannot rule out typing errors.
88 van Duyne et al.
Sculptures83 entries
This category is connected with only sixteen defendants and contains
several African wood carvings and Buddha statues. One offender was
registered for thirty-nine sculptures, including woman on barstool
with glass in hand, woman lying on a cushion, lamp with three naked
women, female bronze Samurai, woman lying down (five times), and
Indian in canoe. Again, the descriptions do not directly hint at objects
of higher-level art. It is most likely the authorities acted very thoroughly
in their confiscation procedure because these sixteen defendants were
suspected of laundering on average over 1,5 million euros.
The results in the confiscation database clearly show that the quality, number,
and monetary value of confiscated objects dart are negligible.
Other available sources provide the same result. For example, the fiu reports
hardly mention the art and antique sector as an important player. From 2010
2012, only ten unusual transactions were reported by art and antique dealers, of
which the fiu considered two as suspicious (fiu Netherlands, 2013).
The reports of the Heritage Inspection Board also do not reflect the opinion
that crime-money infiltrates the art and antique sector. It even publishes on its
website a synopsis of a study (Tijhuis 2006) that likewise found no evidence of a
connection between organized criminals and money laundering in the art sec-
tor. It is important to note that Tijhuis in his research project had access to all
the raw data (files) of the Heritage Inspection Board. To quote a part of Tijhuis
thesis that is published on the website of the Heritage Inspection Board:
No leads were found, except a few isolated incidents, for the often sup-
posed connection between illegal art and drugs. Not a single shred of evi-
dence was found for the often supposed role of stolen art as vehicle to
launder criminal money.
To strengthen this view, the Heritage Inspection Board also referred to the
results of a later study (Bieleman et al., 2007) that also found hardly any evi-
dence of such connections. Again, the study concludes that it is not very likely
that the art and antiquities market in the Netherlands is used to launder money
on a large scale.
Our own qualitative sources also seem to support the view that organized
crime and the art sector are not particularly interwoven. This does not exclude
the incidental connections that we found in several police files. These files
concerned illicit narcotics traffic investigations and connections to antique deal-
ers who were aware of, or even heavily involved in, money laundering schemes.
Money, Art, and Laundering 89
In one case, the art gallery was even in the same premises as an amphetamine
laboratory, separated only by a plasterboard wall. A typical example would be a
case in which non-existent art was used to fake a sale for which the dealer paid
the seller approximately 40.000. Instead of giving the dealer a real piece of art,
the seller gave the dealer 50.000 in cash; this was recorded in the books as the
purchase of a Chagall. Thus it cost the seller 10.000 to launder 50.000. The art
dealer performed this kind of money-laundering various times. In the report he
was described as being the go-to-guy when someone needed to find a way to
convert illicit money into legal wealth.
Furthermore, the police files generally show that although art can some-
times be found in the houses of criminals, it was generally of a recent date and
not very expensive. As a result, such items could not be interpreted as demon-
strating a connection between organized crime and art.
Interviews with art and antique dealers go some way to explain these find-
ings. According to the interviewees, it is in the Netherlands very unusual to
pay large amounts of cash for art, allowing of course for exceptions illustrated
above. In general, dealers do not want to be paid in cash as it creates all kinds
of hassles for them. First, they are afraid to get robbed when carrying large
amounts of money. Second, when they deposit so much cash, they feel embar-
rassed when a bank official raises questions about its origin. For example,
one interviewee mentions that one, eighty-seven-year-old client is a bit old-
fashioned and preferred to pay in cash. After the dealer deposited the money
in his bank account, he got a telephone call from his bank asking him where
the money came from. Third, their accountants advise against cash transaction
as they create all kinds of control uncertainties. Art and antique dealers are
subject (in theory) to control by external accountants, and cash always raises
eyebrows in the financial and accountancy sector. After all, these sectors are
submitted to regulations and laws themselves and do not want to run risks of
losing their reputation, let alone their licenses.7
Dealers are also protective of their business reputation and are well aware
that they may lose it all by accepting bad clients. This reputation is crucial as
the art and antique business in the Netherlands is a small world, and dealers
often refer items to each other. As part of their service, they also introduce
their wealthy clients to other people (during soirees or in committees) with
similar interests. Introducing the wrong people would be economic suicide.
Established dealers therefore have social ways and methods to screen cli-
ents. For instance, one interviewee states that he talks about new clients with
other dealers in order to find out background information.
7 Such accountants rather belong to small offices than to the big firms.
90 van Duyne et al.
The interviewees also stated that, although bona fide dealers would not
report their mala fide colleagues to the police, the latter would slowly find
themselves shunned and without any opportunity to rebuild their business
network. It is generally felt that a bad reputation of one art dealer radiates to
respectable dealers as well because it is a small business environment.
One dealer in precious prints even thinks that most organized criminals are
not interested in his type of objects. He thinks of them as a kind of nouveau
riche who are more interested in extravagant possessions. It has to sparkle and
glitter; where else does criminal money come from?
Of course, the interviewees acknowledge that their business is not immune
to criminal proceeds. They admit that a lot of transactions can be done with-
out a formal contract, and they would not object to handing over an expen-
sive painting without obtaining payment first. One of the reasons, as they
explained, is that buying art is supposed to be a hobby, something to indulge
in without giving a client the feeling that he is doing a business transaction.
This sometimes makes the art business a business that does not follow overly
formal procedures. The interviewees who were not involved in dealing art
emphasized that exactly this informal trading style may serve as a cover for
cash transactions and money-laundering schemes. One interviewee even
deemed the tefaf art fair in Maastricht as the biggest money-laundering
event in the world.
But then again, according to the interviewed dealers, important transac-
tions are done by using bank accounts. And if a bank account holds criminal
gains in the first place, it is not the art sector that is to be blamed for that.
Limitations
The tentative conclusion based on the material above is, of course, that crimi-
nal proceeds are hardly ever laundered by using art and antiquities. However,
there are (as always) some limitations to the data that prevents a definitive
judgement.
An important caveat that should be mentioned first is that the data and
findings all pertain to the situation in the Netherlands. Maybe art and laun-
dering are not a good combination in the Netherlands because of too much
supervision on the art market or because of cash thresholds. The situation in
other countries might simply be different and might make laundering criminal
funds with art objects much more attractive.
Second, what you see is what you get. It is possible that the Dutch authori-
ties are not well-skilled in recognizing expensive art or detecting laundering
Money, Art, and Laundering 91
constructions that use art when investigating a case. They may confiscate the
obvious assets like expensive cars and watches but overlook the painting on
the wall or the Ming vase on the cupboard. On the other hand, judging from
the asset-forfeiture database, it seems that police investigators can sometimes
also be overzealous and strip a whole house bare. Otherwise, how is it possible
to explain the cheap paintings or furniture of naked women in the database?
Third, the selection of the interviewees can be biased, they could not tell the
truth, or they could have a biased memory.
Fourth, it is possible that art and money laundering occur in specific subsets
of crime that are less-often investigated. For instance, the police give priority
to drug crimes, not fraud. Maybe fraud offenders tend to launder more money
via art than drug criminals.
Fifth, the data dealt with established art. Factious constructions, in which
worthless paintings suddenly became millions of euros on paper, were not
included.
In our research on the Dutch art and antiquities market, we did not find much
evidence of criminal proceeds being laundered. Nevertheless, the art sector
has been brought within the orbit of regulated business obliged to comply with
Anti-Money-Laundering regime. This is not surprising: the development of the
anti-laundering regime has been characterized by a continuous expansion of
predicate crimes as well as commercial sectors that were considered relevant
for preventing crime-money flowing into the financial system. This expansion
started quite early: first the financial industry was targeted and then gaming
houses were mentioned (1985) in the preparation of the us anti-laundering
law. Subsequently, all private commercial sectors dealing with objects of value,
real estate agents, and dealers of cars and boats were included in the regulated
sector. Eventually also the art and antique sector were brought within the orbit
of obliged institutions.
This is a logical outcome of a line of reasoning, starting with the us Bank
Secrecy Act of 1970, namely that the private sector had to assist law enforce-
ment to fight organized crime by informing on financial transaction. It is a
rational law enforcement line of reasoning: catching criminal fishes requires an
ever widening andat the same timetightening of the legal net. However,
are the results of this widening and tightening balanced by the costs imposed
on the regulated sectors? For the institutions functioning as stakeholders in
the anti-laundering policy, there is no doubt that the benefits outweigh the
92 van Duyne et al.
costs. But what is the underlying evidence of this conviction? To address this
question we should look at the evidence at macro-economic level where most
sweeping statements and assumptions have been put forward.
We conclude that irrespective the prevalent imf dogma, there is little evidence
to fill the cost variable versus the crime result variable with empirical data.
Put simply, the question what do all these efforts accomplish? cannot be
answered from the data underlying the imf-consensus. Lacking empirical sub-
stance, we have to admit that there is only one simple answer: crime should
not pay. When we then put forward the principle of proportionality, we have
serious reasons to doubt the rationality of imposing a heavy burden on the
non-financial sector of valuables to contribute to the hunt of criminal money.
References
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Impacts of Money Laundering. Cheltenham: Edward Elgar.
Calvani, S. (2009). Frequency and Figures of Organised Crime in Art and Antiquities.
In S. Manacorda (ed.), Organised Crime in Art and Antiquities. Milan: Ispac.
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Entrepreneurialism. Oxford, Oxford University Press.
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(2013). National Money Laundering and Terrorist Risk Assessment. Paris:
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Nelson, D. (2009). Economic Woe, Art Theft and Laundering: A Perfect Recipe. In
N. Charney (ed.), Art and Crime: Exploring the Dark Side of the Art World. Santa
Barbara: Praeger.
Quirke, P.J. (1996). Macro-Economic Implications of Money Laundering. imf work-
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CHAPTER 6
Introduction
1 For a critical discussion of the role of organized crime see, for example, K. Alderman (2012),
Honour among Thieves: Organized Crime and the Illicit Antiquities Trade, Indiana Law
Review (45): 602627; M. Soudijn & E. Tijhuis (2004), AnalyseDe transnationale illegale
handel in kunst en drugs, Ciroc Nieuwsbrief 4: <http://www.ciroc.nl/nieuwsbrieven/nieuws
brief%20aug04.html> [12 juni 2014]. A.J.G. Tijhuis (2006), Transnational Crime and the
Interface Between Legal and Illegal Actors: The Case of the Illicit Art and Antiquities Trade
(Nijmegen: Wolf Legal Publishers).
3 See also: N. Passas & N. Goodwin (2004), Its Legal but It Aint Right: Harmful Social
Consequences of Legal Industries (Ann Arbor: University of Michigan Press).
Art Crime as White-Collar Crime 99
behaviors are defined as legal while similar ones are not. In that sense, it has an
impact on why people are defined as criminals while others are not (Bernard,
Snipes & Gerould, 2010).
These three frames of references can be divided in two bigger perspectives:
the consensual perspective clusters theories from the classical and positivist
tradition as they assume that practically everyone is in agreement of the laws
and there is no conflict in attitudes regarding the laws and rules of society
(Akers, 1997; Barkan, 2012). The conflict perspective, however, argues that most
people disagree on what the law should be and that the law is used as a tool by
those in power to subdue other, less-favored groups (Akers, 1997).
Criminology has offered a growing body of research related to white-collar
crimes. Recently, Schoepfer and Tibbets (2012) conducted a review of the
potential explanatory capability of several criminological theories: the theories
that best explain this form of crime, based on previous research, were learn-
ing theories and neutralization techniques. The first are a set of theories that
assume that the criminal behavior of individuals is due to a process of learn-
ing from others the motivations and techniques for engaging in such behavior;
the second is a theory that explains how individuals, especially in their teen-
age years and early adulthood, make excuses to alleviate guilt over committing
certain criminal acts. With regard to white-collar crimes, supervisors and col-
leagues are likely to affect decisions that prompt a person to act illegally in the
business world, and neutralizing excuses are likely to follow.
Cultural and subcultural theoriesa set of theories that assume that
offenders believe in a normative system different from the one accepted by
most of ushelp explain motivations to commit crime. The (sub)culture of
helping the company to generate profits is an ultimate goal. As such, other
value systems will not be enforced as much as the one that backs up the loyalty
to the business as the person starts working there and shapes their ways of act-
ing to the ones of the company that provides for their livelihood.
A final theory from the positivist cluster that has also potential explana-
tory power is institutional anomiethe American Dream generates a cultural
ethos that produces intense cultural pressures for monetary success, trumping
other important social factors like families or education, the strain for suc-
cessfully making it and the greed for more money (Messner & Rosenfeld, 2012).
Within the classical frame of reference, two particular theories give an
explanation for white-collar crime. The first is rational choice theory, which
considers how potential offenders weigh the costs and benefits of committing
a crime in order to determine how those situations may be changed so that
potential offenders will decide not to commit crimes. This theory explains how
violating ethical business conduct has a high yield in terms of financial profit
Art Crime as White-Collar Crime 101
The concepts discussed in the two previous sections provide a useful tool to
label and explain particular art crimes as white-collar crimes. At the same
time, it enables comparisons with similar crimes in other fields, which can also
help in finding explanations for the art crimes discussed.
When cases of corporate crime are handled in the criminological litera-
ture, they usually involve lager companies where, incidentally or structurally,
crimes are committed. These crimes generally take place besides regular, legiti-
mate, business activities. Many examples of corporate or related types of crime
may be found in the art trade. However, in at least two respects many of these
cases do not fit the standard definitions of corporate types of crime. First of all,
the corporation will in general not be more than an art or antiquities dealer
surrounded by a small staff or nobody at all. For this reason, crimes commit-
ted by these corporations, or the people working for them, will come closer to
occupational crime. Corporate crime, enterprise crime, and entrepreneurial
crime also cannot always be separated in these cases as it is unclear (1) who is
involved in the crime (besides the dealer) and (2) whether the dealer started
his business for criminal purposes or whether the crimes are committed along-
side a legitimate trade. Finally, depending on the specific jurisdictions involved
and its applicable laws and regulations, it may not always be clear whether one
should speak of crimes or so-called corporate transgressions.
Given the lack of empirical studies into art crime, and the worldwide varia-
tion of applicable regulations, laws, and treaties, differing in almost every
country, achieving a systematic catalogue is simply impossible. Until now
there has not been much literature devoted to analyzing and classifying the
possible criminal actions perpetrated in the art world: after all, conducting
research in the secretive environment that is the art market it is nothing short
Art Crime as White-Collar Crime 103
1. Collectors
a. Passing bad checks
b. Insurance fraud
c. Tax fraud
d. Investment fraud
e. Fraud by corporate collectors
2. Dealers
a. Fraud against artists
b. Fraud against other dealers
c. Fraud against auction houses
d. Fraud against collectors
e. Fraud against museums
f. Fraud against insurance companies
3. Auction houses
a. Bidding practices
i. Bidding off the chandelier
ii. Secret reserves
iii. Announcing sales
b. Insider trading
c. Erroneous appraisals
d. Selling stolen and counterfeit art
e. Consignment fraud
4. Museums
a. Customs violations
b. Buying stolen art
c. Abuse of collectors
d. Collusion in tax fraud
e. Inflation of attendance figures
4 For a discussion of the problems facing art crime scholars, see Tijhuis (2006).
104 Balcells
In the present chapter I have opted for classifying a number of cases after
the subdivisions used in the preceding section as a catalogue of subtypes of
white-collar crime, adapted to the art world. This discussion is by no means
complete and does not pretend to be representative of the whole field of
art crime.
To begin with, an example of a case that may be understood either as cor-
porate crime or as a mixture of the other types is the Fredrick Schultz case.
Schultz was an antiquities dealer from New York and former president of the
National Association of Dealers in Ancient, Oriental, and Primitive Art. A us
court found him guilty of conspiring to receive and handle stolen Egyptian
antiquities.5 He bought antiquities that were smuggled out of Egypt. An antiq-
uities restorer from the uk, Jonathan Tokeley-Parry, organized the smuggling.
They smuggled more than 2000 items out of the country until Tokeley-Parry
was caught and prosecuted in the uk (Tijhuis, 2006; Watson, 2002). According
to Watson (2002), Schultz had been found handling stolen antiquities before
in 1991. In this case, it is clear that a legitimate art dealer was involved in art
crimes, but it remains to be seen what crime type best explains this case.
The case of Frederick Schultz has been tremendously important for the
trade in illicit antiquities. It ruled on the issue of the ownership of antiqui-
ties vested in a nation, in this case Egypt. According to the court, antiquities
that are excavated and removed from a country with this kind of legislation,
without permission, are stolen property as defined in the us National Stolen
Property Act (Gerstenblith, 2003). As Gerstenblith (2003) points out, in con-
cluding that such antiquities are stolen, the Second Circuit reiterated that
this rule of law applies in the New York area, the heart of the antiquities mar-
ket in the United States. This is an important step away from the widely held
belief that state-property legislation should be seen as a kind of hidden export
restriction which does not have to be respected abroad, or, more specifically, in
the market countries for these antiquities. In fact the Schultz decision follows
on a much older case, United States v. McClain, which dealt with objects from
Mexico.6
5 United States Court of Appeals, Second Circuit. No. 02-1357, see <http://caselaw.findlaw
.com/us-2nd-circuit/1456261.html> [12 June 2014].
6 And besides this case there is still an older decision of the Ninth Circuit located in California,
United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974). As Gerstenblith points out: the
regions with the most active markets in antiquities are now clearly encompassed with the
McClain / Schultz doctrine interpretation of the National Stolen Property Act (Gerstenblith
2003).
Art Crime as White-Collar Crime 105
7 http://www.drouot.com.
106 Balcells
Frances art police report to one of the branches of the Police Nationale, the
Judiciary Police. This office is linked to the Gendarmerie, Customs and the
Ministries of Culture, Justice and Foreign Affairs (Ministre de la Culture, 2010).
The agents at the ocbc in Nanterre received an anonymous phone call report-
ing that a painting by Courbet, Paysage de mer au ciel dorage (A Seascape with
a Stormy Sky,) was stolen in 2003 and could be found in the possession of a
col rouge,8 also known as a Savoyard.9 Col rouges or Savoyards are colloquial
names referring to the team of porters at Drouot, whose duties include the
transportation and custody of the works of art. The police, following the lead,
discovered on 24 February that indeed the painting had an ownera wealthy
surgeon by then deceased. The owners nephew (and only heir), however, was
able to confirm that the Courbet disappeared after his uncles death, along with
a drawing by Picasso and other artworks (Delan, 2011). After more investiga-
tive work, the Courbet was found in the hands of one of Drouots porters, who
made quite a shocking confession in front of the investigative team: all auc-
tioneers participated in the trafficking of first stolen, and then resold, works
of art (Delan, 2011). What initially looked like a one-man operation involving
art theft led to an entire official investigation of occupational crime within an
auction house.
For researchers interested in antiquities looting, the case of Giacomo Medici
is well known. However, this case, involving two Italian antiquities dealers and
a later conspiracy that involved other international dealers, galleries, collec-
tors, and museums, can be seen as a case of enterprise crime.
Giacomo Medici was an Italian antique dealer convicted of receiving stolen
goods, illegal export of goods, and conspiracy to traffic; for these crimes he was
sentenced in 2004 to ten years in prison (the court of appeals later reduced
this sentence to eight years) and a fine of ten million euros (close to $14 mil-
lion). For four decades he had been involved in the traffic of illicitly obtained
Italian antiquities that he sold mostly in Europe and North America to muse-
ums, auction houses, dealers, and private patrons. One of the most important
elements in the case was what it is called in Italian a cordata: in other words,
Giacomo Medici, along with another dealer, Gianfranco Becchina, devised
a network of tomb raiders and middlemen that provided the goods to their
clients (Watson and Todeschini, 2007; Silver, 2009). A joint operation between
Swiss and Italian police led both forces to the free port in the city of Geneva.
In a storage room belonging to Giacomo Medici, they found not only a trove
of antiquities (most of them with dirt still on them, implying that they were
excavated recently), but also invoices linking the selling of these antiquities to
art dealers and museums in Europe and America. Further investigations led to
a piece of paper depicting a diagram of the whole organization (the cordata):
the diagram ranged from the lowest echelons (the tombaroli, or tomb rob-
bers) to the biggest clients. In what was called the Medici conspiracy, Italian
prosecutor Paolo Ferri charged Medici along with art dealer Robert Hecht and
curator of the Getty Museum in Malibu, Marion True, of smuggling (Watson
and Todeschini, 2007; Isman, 2009). As Chappell and Polk (2011) indicate on the
Medici case, it is perhaps the most compelling evidence to surface to date of
the manner in which looted antiquities are routed through labyrinthine chan-
nels and across international borders to the high demand markets centered in
places like London, Paris, and New York. The market, with an insatiable appe-
tite for antiquities which is seemingly oblivious to the questionable origins of
the artifacts on display, at present represents a highly organized but largely
unregulated multibillion dollar transnational industry. (p. 101)
With regard to the last category of state and state-corporate crimes, a very
interesting case was analyzed by Tijhuis (2006) involving an organization cre-
ated in the 1970s that combined the opportunities of white-collar crime, the
secret service, state control of the economy, and secrecy jurisdictions in Europe
(Von Blow, 2003). This organization, called Kommerzielle Koordinierung10
(shortened to KoKo), was set up by Schalck-Golodkowski, a senior state-
intelligence officer. He wrote a doctoral dissertation about ways to earn foreign
currency by imports and exports from East Germany. The result was a range
of organizations that were involved in illicit trade in arms, waste, metals, and
other commodities. To enable the illicit activities and to keep them out of sight
from domestic and foreign observers, an intricate web of companies was used
in places like Liechtenstein, Luxemburg, and Switzerland, countries not par-
ticularly known for their role in the global trade of raw materials. One of the
organizations was aimed at the sale of works of art that were confiscated from
East German citizens and museums during the 1970s and 1980s.
KoKo had developed an efficient way to confiscate art and antiquities
from its citizens and institutions. The first step was a burglary carried out by
members of the organization targeting homes of an undetermined number of
wealthy citizens from the German Democratic Republic and taking jewelry,
works of art, stamp collections, and other valuables. A second phase involved
art experts from the state intelligence agency, who made an estimate of the
value of the works of art. Thereafter, the owners received a notice that they
were due to pay taxes. Coincidently the amount of taxes was equal to the value
10 Commercial coordination.
108 Balcells
of the works of art that were seized. Large quantities of works of art were
thus sold abroad, while the authorities told the victims that the items would
go to museums in the German Democratic Republic. In the end, Schalck-
Golodkowski was to funnel more than dm50 million out of the beleaguered
East German economy each year. Almost all of the property, the value of which
historians have been unable to determine, was first sold to KoKos holding
firm Art-and-Antiquities-GmbH before flowing into West-Germany (Bischof,
2003; Blutke, 1990).
Conclusions
There are also important research priorities: to begin with, as stated through-
out this chapter, there is a need for more focused and up-to-date research about
the intersection of white-collar crime and art crime. The impact of the regula-
tion of the art market and its opacity as a catalyst for the perpetration of these
forms of crimes needs to be researched. The study of laws and other legislative
instruments in order to see if the existing legislation suffices or requires a bet-
ter interpretation or combination with more effective laws is also pressing.
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110 Balcells
Saskia Hufnagel
1 Introduction
Art Crime is today more prominent in the German media than ever before. The
major reasons for this development were mainly cases of art fraud that have
surfaced in the last five years. However, many other incidents, ranging from
criminal damage of paintings in museums to recent World War ii restitution
cases have contributed even more to a significant popular focus on this area.
Art crime, and in particular art fraud, is not a new area of crime in Germany.
Many prominent art forgers have come from Germany or committed their
crimes in Germany. Lothar Malskat, for example, fooled the German art world
with his forgeries in the 1940s and 50s. Edgar Mrugalla, a prominent German
forger in the 1970s and 1980s, forged everything from Rembrandt to Franz Marc.
Wolfgang Lmmle and Rdiger Faller worked throughout the same period and
distributed a significant number of forgeries throughout the world before
being caught by German police. Forty years later, Tom Sack invented names
of painters for his works and gave each a very impressive vita to sell the paint-
ings for more money than his own work would draw. However, none of these
cases reached the popularity of the more recent art crime cases such as the
Beltracchi case or triggered the media hype of the currently debated Gurlitt case.
This article will give an overview of a significant number of German art
fraud cases throughout history. The most popular cases are discussed in more
depth to determine why they received such prominent public attention. The
two most popular cases are the rather recent Beltracchi Case and the 1980s
scandal of Hitlers forged diaries. The question is what makes such cases
appear and reappear in the media and whether this has in any way influenced
the art market (buyers, experts, galleries, museums, etc.) or the criminal justice
system in its approach to preventing, detecting, investigating, and prosecuting
art fraud. The chapter finishes by providing a discussion of the popular and
forgotten cases in comparative perspective to determine how the portrayal
in the media and ensuing public attention can potentially help or hinder the
fight against art fraud.
Art fraud has not received prominent attention in Germanys legal system.
There is no criminal law prohibiting and punishing art fraud as its own legal
offence. The offences that are potentially applicable are fraud ( 263 German
Criminal CodeStrafgesetzbuch or StGB), falsification of documents ( 267
StGB), and infringement of copyright laws ( 106 ff. German Copyright
CodeUrheberrechtsgesetz or UrhG). The maximum penalty for fraud is five
years imprisonment or the equivalent fine, but for serious cases of fraud the
penalty is ten years imprisonment. Serious cases entail that the fraud is com-
mitted by the offender as part of an art crime gang and for commercial gain.
A major differences between the unknown and well-known German art fraud
cases could be that the latter fall under the definition of serious fraud and are
therefore more significantly punished by the courts and interesting to the gen-
eral public. However, as the analysis will show, severity of punishment is not
correlated with public interest in these cases. The low sentences given in the
two most famous German art fraud cases disappointed police and prosecution
involved in the investigation and trial. In fact, the low art fraud sentences have
led academics and practitioners to criticize the German criminal legal system
as incomplete with a view to art crime (Lffler: 1993).
Light sentences in recent cases of art fraud in Germany have been particu-
larly criticized, especially by those prosecuting them. The most significant of
these recent cases is the Beltracchi case, which resulted in very low sentences.
Wolfgang Beltracchi received a maximum of six years imprisonment; his wife,
Helene Beltracchi, received four years; her sister, Jeanette Spurzem, received
a one-year-and-nine-month suspended sentence; and the logistical expert
Otto Schulte-Kellinghaus received five years imprisonment. Considering that
the damage caused was estimated around the sixteen million Euro mark, these
sentences are still minimal (Deutsches Presse Amt: 2011). With a view to the
efforts of the police investigators and prosecutors involved, these sentences
are simply dissatisfactory. Compared to other cases that occurred at the same
time (and received much less public attention), the Beltracchi sentences are
also very low. In the 2009 Count of Waldstein case, a dealer of fake Alberto
Giacometti sculptures received a nine-year jail term; the damage caused was a
fraction of that in the Beltracchi case (Rbel and Sontheimer: 2011).
In the other famous German art fraud case, the Hitler diary forgeries, the
sentences were even lower. Konrad Kujau, the forger of the diaries, received a
two-year-and-six-month imprisonment sentence and his accomplice, the jour-
nalist Gerd Heinemann, was convicted to two years and eight months impris-
onment (Vensky: 2010).
Art Fraud in Germany 113
Hence the puzzle of the stardom of some art forgers cannot be explained by
differences in prison sentence severity. Explaining the creation of the myth of
the art forger in Germany requires an overview of art fraud cases in German
history. The protagonists in many of these cases did attempt to create their per-
sonal myth or legend and some acquired a certain amount of national fame;
however, most of them, even those who committed crimes fairly recently, are
now forgotten by the general public.
The oldest known case involves Albrecht Drer (14711528). He lived at a
time when the copying of art was not considered to be forgery as such; many
artists welcomed copying of their works for wider distribution. The master
allowed the copying of his works, but did not permit the reproduction of his
signature. The woodcut The Apocalyptic Woman, for example, is displayed in
the original in the National Museum in Nuremberg, Germany. Its legal repro-
duction can be seen in the City History Museum in Nuremberg, but is signed
ad ivf (Iheronimus von Frankfurt). Iheronimus was allowed to create the
reproduction, but had to mark it with his own name. Drer had created this
process to ensure that his original works would retain a higher value than the
reproductions (Schreiber: 2009).
One of the oldest German legends of a Drer forgery, however, can still
be found in art-history literature. The legend involves his Self-Portrait (in a
Fur Jacket), which was created in 1500. 300 years later, the painter Abraham
Wolfgang Kfner was commissioned to create a copy. There are several differ-
ent versions of what happened next. In the first legend, Kfner split the 2cm-
thick wooden plank on which the portrait was painted and sold the original
painting without the seal of authenticity on the back. On the part of the plank
that retained the seal, he then painted the copy. Another story is that he did not
split the plank, but separated the seal from the original and attached it to the
copy. The front and probable original of the portrait is today one of the main
attractions in the Old Pinakothek in Munich. The back with the remains of
the seal is still in Nuremberg, and the museum is eager to keep the myth alive;
averring on the museum website that the original is not actually in Munich.1
In this case, it is the museum that keeps the legend alive to raise the value of
its probably fake Drer. So forgeries do not always have a detrimental impact
on the art market and their buyers: in this case, the forger legend made both
the fake and the original much more mythical. The buyer of the fake 200 years
ago, however, is very unlikely to have benefited from receiving the forgery. This
shows that the meaning of a fake can change over time and in different con-
texts. What might have been a significant loss 200 years ago is an asset today.
Another, more recent, German forgery story revolves around the Cranach
painting Madonna under the Fir Tree. This painting, circa 1510 ad, was painted
for the Breslau Cathedral (at that time Breslau was in Germany; today it is in
Poland). The painting remained in the cathedral for about 430 years. In 1961
it was discovered that the Cranach in Breslau was no longer the original. The
odyssey of the painting probably began in 1943 when it together with other
Breslau art treasures was hidden in a Cistercian cloister in the countryside.
Three years laterthe story goesthe chaplain of the Breslau Cathedral
commissioned the painter Georg Kupke to make a copy of it, which he did,
though poorly. It is alleged that the chaplain wanted to save the original from
the Russians and to take it with him to the West. Until 2012 the original kept
resurfacing on different occasions, usually in an offer for sale. It only made its
way back to Breslau in 2012. The heir of the Swiss collector who had last owned
it returned it to the Polish Government, which in turn gave it back to the cathe-
dral. The identity of the final owner is still unknown. Apparently the disclosure
of the identity would infringe on confessional confidentiality. Whether or not
the Madonna is the original has also not yet been confirmed (Schmitter: 2012).
While this story is an interesting criminology puzzle that could tell a reveal-
ing story about the art market (once it is fully uncovered), the odyssey of the
painting was not a major news item until it was actually returned. Additionally,
the forger, Georg Kupke, was not a charismatic personality who could serve as
the center of a scandal like, for example, Wolfgang Beltracchi today. Experts
want to find out more about the authenticity of the returned Madonna, and
there is a growing interest in its journey before finding back home. However,
it is unlikely that the Madonna will resurface in the news. The full story will
remain interesting only to researchers and art crime enthusiasts. But an impor-
tant aspect of the case is that an original was replaced by a forgery to keep it
safe from theft and damage. The forgery appears yet in another context: it is
not a criminal act as such but a means to save the original. The criminal energy
is much lower if not non-existent in such cases.
Another German forgery scandal relatively unknown to the general public
(although more than 700 articles and papers were published on it) involves the
Bode Museum in Berlin. The wax bust of Flora had been acquired by the then-
director of the Berlin Museum, Wilhelm Bode, in 1909. Bode was convinced
that the bust, which had only shortly before surfaced on the English art mar-
ket, was an original Leonardo da Vinci. He stuck to this belief although there
were clear warning signs that the bust had actually been created by the English
artist Richard Cockle Lucas and his son, Albert Drer Lucas, had confirmed
Art Fraud in Germany 115
2 See http://www.rosenheim24.de/rosenhsim/Ik-rosenheim/paul-gaugin-echt-oder-gefaelscht-
ro24-502694.html.
116 Hufnagel
Figure 7.1 The wax bust of Flora Staatliche Museen zu BerlinPreuischer Kulturbesitz,
Skulpturensammlung und Museum fr Byzantinische Kunst. Photo: Jrg P. Anders,
Berlin.
that for art fraud to receive public attention, police must be unsuccessful in
preventing it and the defendant needs to be open about his crimes to the media.
A German art fraud case from the start of the twentieth century only made it
to the attention of some researchers as it involved, very peripherally, the prom-
inent non-German art forger Elmyr de Hory. In the newsletter of the German
Museums Association to its members of 24 July 1911,3 the editors write that
the German art dealer Max Heimann and his accomplice Viktor Batteux of
Brussels were each sentenced to one year in prison for fraud and attempted
3 http://digiview.gbv.de/viewer/fulltext/PPN616534280_191108/8/.
Art Fraud in Germany 117
Chagall, Munch, Pechstein, and Utrillo. His friend Dietrich Fey sold them, and
it is possible that Malskat at first did not know they were sold as real works of
the artists. The enormous amounts of money Fey made with them should have
indicated this, however. After the German currency reform the sales became
more difficult. Malskat and Fey were then commissioned to restore murals in
the Marienkirche in Lbeck. They restored what they could, but some remains
were so badly buried under plaster that they would have been destroyed in
the process of uncovering them. Malskat therefore painted twenty-one new
figures instead of revealing the old remains. When the church was reopened in
1951, Fey received much praise for the restorations, but Malskat was not signifi-
cantly acknowledged. Angry about the lack of acknowledgement for his art, he
demanded that Fey reveal the secret of the twenty-one figures in the church,
but Fey refused. Malskat then turned to the press in an attempt to become
famous for his art. Since Fey kept denying the crimes and the church and jour-
nalists did not believe Malskat, he turned himself and Fey in to the police in
1952. Even the police did initially not believe Malskat, and he had to hire a
lawyer to substantiate his case. Both Malskat and Fey were finally arrested and
tried and received minor jail sentences of eighteen and twenty months respec-
tively. Malskat first fled to Sweden, but later returned to Germany and went
to prison. When he was released, he settled down in Lbeck and became a
relatively well-known German painter, at least regionally. Malskat was never
really a prominent forger. He never received a significant jail sentence. He was
also never the only culprit in reinventing church decorations. His name is not
known to the general public today. Some art experts still claim that he was one
of the main forgers of the last century, but closer research reveals that he was
nothing but a very good painter who, unfortunately, was never internationally
recognized except through a couple of unfortunate blunders in his early career
(Keats: 2012). The reason why this case is important for the present chapter is
again the behavior of the victim. Had Malskat not vehemently pushed for his
own conviction and recognition as major forger, the church and state would
have happily continued to believe in the authenticity of the paintings, despite
the obvious turkeys.
Another forger who was relatively well-known to the German public was
the son of a scrap metal merchant who first took on his fathers trade and
later dealt rather unsuccessfully with paintings and antiques; this was Edgar
Mrugalla. He is still alive today, and several of his paintings, his biography,
and articles written about him can be accessed on his website (www.mrugalla
.de). His biography is rather unspectacular, and, unlike modern forgers such as
Beltracchi or the Count of Waldstein, there is no embellishment or sensational
element to be found. However, the website appears to be rather inaccurate,
Art Fraud in Germany 119
seeing that even the sentence he once received for fraud is listed incorrectly (it
must have been two rather than three years, as was claimed on the website).
In his biography, which appeared in 1993, he claims that he was forced to forge
paintings and never really wanted to be a criminal. Nevertheless, he titled his
book King of Forgers, which might be seen as a stark contrast to his rather hum-
ble curriculum vitae (Mrugalla: 1993). It is assumed that he made about 3000
forgeries, many of which are claimed to still be part of important museum col-
lections, and so he was again briefly mentioned in the media when the inves-
tigations around the Beltracchi case started to come to light (Hlsmeier: 2010).
Mrugalla painted nearly everything, from Picasso to Lesser Ury. There is no
evidence that he made a fortune with his sales, but an interesting observation
in comparison to the very famous German art fraud scandals is that he sold
far more paintings than, for example, Beltracchi, many of which are probably
still in museum collections. He, like Beltracchi, wrote a book about his life and
work, and yet very few people not involved in art research have ever heard
about him. A simple answer to this enigma could be that the German media
today has a much stronger position and is much more accessible than in 1993.
However, every average English person knows John Myatt. No average German
knows Edgar Mrugalla.
Four other German forgers of the nineteenth, twentieth, and twenty-first
century will be mentioned as they might be known to the expert reader. The
first is Wolfgang Lmmle, a forger of the 1970s and 80s who forged southern
German painters of the nineteenth and twentieth centuries. Police tracked
him down in 1988 and he received a suspended sentence but little fame. In
2007 he emigrated to Australia. While his Wikipedia entry compares him to
Mrugalla, none of the current websites on his work and life point out any link
to his previous occupation as a forger. In Australia he is known as a painter and
teacher of arts and no reference is made to his shady past.
The other painter of note is Rdiger Faller. He specialized in paintings by
Otto Dix, which he composed according to the real drafts of the painters art-
work. This method made them appear very realistic while saving the forger the
hassle of being overly precisea painting is rarely executed exactly like the
draft. In 1983 the police seized twenty Dix paintings in his house, but returned
them after they were examined by experts who were convinced that they were
genuine. However, in 1986 he was arrested and sentenced to a three-year jail
term. Despite his initial success in fooling the police experts, he said in an
interview in 2002 that he was not a great painter. Nevertheless he does today
live on his own art, which is displayed on his personal website (Rossner: 2002).
The youngest forger discussed in this chapterand probably the young-
est known in the history of German art forgery more generallyis the now
120 Hufnagel
thirty-one year old law student Tom Sack. According to his website, he was
born in 1982 and, unlike his forger compatriots mentioned so far, he did not
only copy known artists, but also specialized in creating paintings along with
the vita of invented artists. The latter cannot, however, be called fraud; his
works could be acknowledged as concept art. He was apparently sentenced
to a minor fine for painting the prosecutor responsible for his case without
his consent and trying to sell the painting and a video of the police search of
his house over the Internet. He allegedly also received a suspended sentence
of one year in 2011 for selling forgeries of known artists over the Internet. It
has been claimed that the sentence was deliberately mild as to enable him
to finish his law degree and gain admission to the bar, which is not possible if
the sentence is higher.4 Tom Sack is a curious person to write about as there
is not much information available on him. The main source of information is
his website, which needs to be treated with extreme caution. He is a relatively
unknown (potential) forger who seems to self-promote more than he receives
media attention. Unless one is really looking hard for German forgers in his-
tory, he will probably not be noticed.
Reinhold Vasters (18271909) should also be mentioned here. He is not well
known, but he is a major German forger of metal works. He worked in the nine-
teenth century and was known then for his forgeries rather than his own pieces.
Vasters lived as a metal smith in Aachen, Germany and restored several pieces
in the Aachen Cathedral. After the significant destruction and dislocation of
works of art by the Napoleonic conquests, there was a new interest in arts and
antiques in Europe. Vasters specialized in restoring damaged works of art, in
particular metal works, but prevaricated about their provenance, adding inac-
curate descriptions and pedigrees when selling them. The wealthy buyers were
happy to shut their eyes to the discrepancies in provenance, and Vasters works
became very popular (Krautwurst: 2008). Apart from the museums with a spe-
cialized interest in these objects, few people and certainly no Germans know
his name. However, some New Yorkers will remember that, in the early 1980s,
one of the Metropolitan Museums admired Renaissance treasures was discov-
ered to be fake. The Rospigliosi Cup turned out to be the invention of Vasters.
The object had been bought in 1913 as a work of Benvenuto Cellini. Several
years after the Rospigliosi Cup entered the Metropolitan, a significant amount
of Vasters drawings were handed over to the Victoria and Albert Museum in
London, but not analyzed. Only in 1975 did experts discover among the drawings
the Rospigliosi Cup. After that dozens more purportedly Renaissance jewels in
distinguished private and public collections the world over were determined
to be created in Vasters workshop (Grassi: 2013). From his own records it can
be concluded that there are still many pieces under names like Celllini that
were in fact created by him. Museum collections are still wary about renais-
sance metal works for this reason. This case therefore had a significant impact
on the practice of museums with regard to artisan renaissance metal work.
Two of the most recent art fraud scandals discussed here were prominent in
the media in 2011 and 2013 respectively and have since not reappeared in the
public attention. The first was the Count of Waldstein case and the second the
case of the Russian avant-garde. In the first matter a self-proclaimed Count,
also known under the name of Lothar Senke, had, together with his business
partner Herbert Schulte and two other accomplices, sold Giacometti sculp-
tures over a period of seven years, amounting to an estimated damage of eight
million Euros. During the search of a storeroom in Mainz, police found 1,000
sculptures. To their surprise, each of them was different, indicating sophisti-
cated and efficient work on the part of the forgers. Although it was later claimed
by experts that the pieces were easily recognizable as forgeries, the amount of
the damage and significance of the stock show that many buyers did not see
through the scam. Der Spiegel5 claimed that this was the largest art fraud case
in the history of the German art market. However, many of the cases discussed
above would belie this assertion; in both the Mrugalla and the Beltracchi cases,
e.g., many more pieces of art were sold for higher amounts of money. The case
is, however, outstanding in that, in 2009, Lothar Senke received the highest
known jail sentence for art fraud in Germany: nine years. Another intriguing
fact is that the workshop where the sculptures were created has never been
found (Rbel and Sontheimer: 2011). Following the logic established above as
to why a case becomes prominent, the fact that Senke never admitted to the
crimes (he consistently claimed the sculptures were real Giacomettis), and
the fact that the modus operandi was never fully uncovered is probably also the
reason why the media have not held on to the story and it is, only several years
later, nearly forgotten.
The last case that needs to be mentioned as it is, at least volume-wise, by far
the greatest art fraud affair occupying police, prosecutors, museums, and gal-
leries in Germany, is the case of the Russian avant-garde. In Germany alone this
international art forger ring is alleged to have sold 1000 paintings of Russian
avant-garde artists, such as Malewitsch, Popowa, Puni, El Lissitzky, and many
more. In Russia, Spain, France, and Switzerland there are further cases that
have been uncovered. The forgery ring is said to have operated from Israel. In
5 Source: <http://www.spiegel.de/international/germany/art-forgery-scandal-ringleader-reveals-
he-faked-many-more-works-a-819409.html> [24 July 2014].
122 Hufnagel
June 2013 two suspects were arrested in Wiesbaden (Germany) for allegedly
selling forgeries from their gallery between 2006 and 2010. It is claimed that the
gallery was only established to enable the sale of fake works of art. However,
after the defendants had to close the gallery down in 2010, they continued sell-
ing their forgeries to collectors for an estimated two million euros (Timm: 2013;
Kurianowicz: 2013; Koldehoff: 2013). This forgery ring focused on the Russian
avant-garde as these works of art are relatively easy to forge and introduce to
the market due to the often very patchy provenance and lack of documenta-
tion for this art. It is very difficult to determine provenance for genuine works
of the Russian avant-garde since many of them have never been catalogued
and/or had vanished during World War ii. This was a major case, so it is very
surprising that this scandal was not more prominent in the news. Beyond June
2013, there are very few reports that discuss the issue. Like the cases above,
therefore, this case illustrates that unless the entire story is narrated by the
perpetrators, media interest dies very quickly.
This is the end of the historical overview on German cases that are known to
the expert reader but have never made it to the wider German public attention.
This is somewhat surprising as the forgeries of Mrugalla and Vasters, though
from significantly different time periods, are still circulating in museums today
under names like Picasso or Cellini. However, their fame was fleeting. In the
next part we will examine two cases that are currently debated in a media on a
regular basis and that the German Public knows inside out.
story was a disaster for Der Stern. It lost a significant sum of money and some
of its highest-ranking staff. This case proves again that more than the criminal
energy of the forgers, it is the will to believe (beyond reason) of the buyers that
makes offences possible. Here it was the significant historical value that led
to the acquisition of the blatant forgeries by a German prominent magazine
(Vensky: 2010).
The forger, Konrad Kujau, who like Wolfgang Beltracchi was formerly
known by the surname Fischer, was born in 1938 and worked as a dealer in
Nazi mementoes during the 1970s. Throughout his career as a dealer he had
occasionally supplemented genuine artifacts with forgeries. In the late 1970s
he offered to supply a client with a Hitler diary. A Der Stern reporter, Gerd
Heidemann, found out about this and wanted to close the deal for the maga-
zine. He was aware that the diaries were not authentic, but wanted to go ahead
regardlessfor a significant commission. Kujau started to work on forging a
significant number of volumes of diaries. His knowledge in forging artifacts
from the era helped him to make the diaries appear old, but they contained
major historical and technical flaws; for example, when Kujau ran out of the
letter A for Hitlers initials on the cover of the diaries, he replaced it with F.
Even that did not attract Der Sterns attention. He even managed to convince
handwriting experts of the authenticity of the books by providing forged
examples of Hitlers handwriting (ibid.).
After the fraud was discovered in 1983, Kujau confessed to the crime and, dur-
ing a search of his home, police found further evidence of his fraudulent activi-
ties, such as forged works by Drer, Rembrandt, and Goya. In 1985 Kujau was
convicted of fraud and given a four-and-a- half-year jail sentence. Heidemann
was sentenced to four years and eight months imprisonment (ibid.).
After his release from prison, Kujau opened a gallery in Stuttgart special-
izing in fakes of works by famous artists. He became extremely popular in the
German media and appeared regularly on the most well-established tv shows.
However, his case received the most publicity when the famous German direc-
tor Helmut Dietl converted the real life farce into a movie titled Schtonk (after
Charlie Chaplins The Great Dictator in which the dictator frequently utters
this invented word). Dietl gathered a number of very well-known and popular
actors to represent the main characters and the movie became a cult hit of the
1990s (ibid.).
The popularity of this case can be explained by three factors. First, the forged
items were items of historical interest for the German people at the time. The
trauma and fascination with the recent past were the main reasons why even a
serious political magazine such as Der Stern shut its eyes to clear evidence that
the diaries were fake. Second, the forger was a charismatic personality who
124 Hufnagel
became prominent in the German media and knew how to put himself into
the limelight. Third, the case itself was immensely entertaining (as evidenced
by the success of the comedy movie portraying the story), and the psychology
of it made the Germans, perhaps for the first time after the war, laugh about
their own World War ii trauma. The main reason for the importance of this
forger story is hence the historical context in which the crime was committed.
However, these reasons do not explain the second case that reached vast
popularity in German post-war history, the Beltracchi case. In 2011, Wolfgang
Beltracchi (born 1951), his wife Helene, her sister Jeanette Spurzem, and Otto
Schulte-Kellinghaus were accused of fourteen counts of fraud in conjunction
with forgery of documents. Wolfgang Beltracchi was born Wolfgang Fischer in
Germany. He was expelled from school at the age of seventeen and went to art
school but never completed his studies. Between 1972 and 1983 he travelled
as a hippie and sold some of his (original) paintings. In 1992 he met his wife
and future co-defendant while working on a documentary movie. The couple
had a daughter; Beltracchi also had a son from a previous relationship. The
family ultimately settled in the south of France in 2000. They also bought and
renovated another home in Freiburg, Germany, for about 5,000,000 in 2007.
Beltracchi had no criminal record at the time of his arrest in Freiburg in 2010.6
Some reasons can already be given here as to why this case has enjoyed
popularity since 2011. First, Beltracchi has a very charismatic personal-
ity. Throughout the reporting on his criminal trial, he became a memorable
figure. He has long hair and a cheerful and flamboyant style. He repeatedly
claimed that he did not forge paintings for the money, but as a prank to fool
the art world, which made him a likeable character to the media, so much so
that he was given the nickname Robin Hood. More cynical voices, however,
claim that Beltracchi might have felt frustrated with the lack of recognition
of his own original pieces and therefore wanted to get back at the art world
(Hammer: 2012).
Since his trial, Beltracchi has been a prominent figure in the popular media,
and, even though he received a six-year jail sentence, he is already work-
ingand has completeda number of new projects that are hotly debated
in the press and on tv shows. With his colleague, Manfred Esser, he has pro-
duced composite paintingsphotographic works by Esser painted over by
Beltracchi. He also published two books with his wife Helene. The first book
is about his story as a forger; the second about his relationship with his wife
while in prison. Also soon to come out is a movie on his life BeltracchiThe
Art of Forgery.
6 See the facts of the judgement: Urteil Landgericht Kln vom 27/10/2011, Az. 110 kls 17/11.
Art Fraud in Germany 125
Figure 7.2 Helene Beltracchi, posing as her grandmother, in a pseudo-antique photo staged to
lend credibility to the fictional provenances of Wolfgang Beltracchis forgeries. ddp
images.
It was alleged by investigators that the sum earned by the group totaled 35 mil-
lion, but there is every reason to believe that the real income was significantly
higher (Huth: 2012). Considering the damage, the sentences were surprisingly
low. Beltracchi was sentenced to six years in jail; his wife Helene received a
four-year term; her sister Jeanette was given a suspended twenty-one-month
sentence; and the accomplice Otto Schulte-Kellinghaus was sentenced to five
years. A total of fifty-three cases of suspected fake paintings by Beltracchi were
investigated, but only fourteen could ultimately be established as forgeries in
order to bring criminal charges (Sontheimer: 2011).
Another reason why the case was and still is very popular is that many of
the victims and experts were well known, and there are still civil claims before
the courts against galleries and experts. Also, the prices for the paintings were
exorbitant, attracting significant public attention. One of Beltracchis paint-
ings was, for example, purchased by an ex-publisher and art collector, Daniel
Filipacchi in New York, for 5.5 million. The prominent German Max Ernst
expert Werner Spies said that he had been amazed by the quality of the paint-
ings and even pointed to one of them as being a masterpiece in the artists
oeuvre (Koldehoff and Timm: 2012, 113115).
Along with the Hitler diaries, the Beltracchi case seems to have elicited con-
siderable alarm in the art market regarding the risks associated with purchas-
ing high value art and has prompted fresh searches for technological devices
that might minimize these risks. It has been reported, for instance, that the
German auction house caught up in the Beltracchi affair, Kunsthaus Lempertz,
has invested in an expensive Thermo Scientific Niton X ray fluorescence
analytic machine, which may be used in the future on a routine basis to exam-
ine the types of pigments used in a painting and to match them with those
known to have been used by a particular artist. However, such testing will only
be of assistance if the forger did not use the correct pigment.
It can be concluded from the two very prominent cases that there is no cor-
relation between popularity and impact on the art market or police attention.
While the Beltracchi case set a number of important developments in action
and was a fantastic vehicle for the German art crime unit to promote their
work, no such movements can be determined after the forgery scandal of the
Hitler diaries.
4 Conclusion
What can be concluded from the numerous cases discussed above? First, there
is no correlation between the sentence and the popularity of a case. There is
also no correlation between the sentence and the impact on the art market. The
Art Fraud in Germany 127
sentence in the Beltracchi case was very low, as was the sentence in the Vasters
(metal smith) case. Nevertheless, these two cases can be said to have had a
significant impact on the art market. The main reason for this is the damage
that these cases caused to the art market. The higher the damage, therefore,
the more likely a case is to impact art market practices. Changes in criminal
law could not be detected as a result of any of the cases, not even the very
popular ones.
A reason for the popularity of a case is a charismatic forger. This has no
impact on practices in the art market, though. It also seems that criminal moti-
vation has no impact on either art market practices or the popularity of a case.
Whether a work of art is forged to save it from war crimes or to sell the original
does not seem to matter.
Victims also play an important role. The more prominent the victim, the
more likely it is that practices will change. If the Metropolitan Museum in
New York or the art dealer Filipacchi are the victims, the art world and police
seem to take notice. Victims, however, also play a major role in covering up
the crimes. They do not want to admit their mistakes and want to believe in
certain myths created by the forgeries. This psychology has been exploited by
a number of forgers in this chapter.
What seems to make an art crime case popular is first and foremost the
openness of the forger. A forger who reveals his modus operandi and takes his
sentence good-humoredly seems to have a high chance of being remembered
by the German public. Also, the forger must be successful. Mere attempts at
selling forgeries do not seem to interest the media.
An interesting point that can be made is that while the financial damage
seems to be important, the total number of forgeries brought onto the market
does not seem to be a deciding factor for popularity and impact on the art mar-
ket. Although Mrugalla sold about 3000 forged paintings, the impact of his case
on the market could not be seen. The skill of the forger also does not seem to mat-
ter. Although Fallers case seems extraordinary as he even fooled police experts,
this has not led to changes in police procedure or to the popularity of his case.
Finally, that a case has a vast response in the media does not mean that it
will change investigative or art market practices. I would welcome analysis of
more unknown cases in order to determine potential problems and solutions
for the art market and police investigators.
References
Effern, Heiner (2011). Die geflschten Bilder des Herrn S. Sddeutsche Zeitung
(7 September).
Friedrichsen, Gisela (2011). Eulenspiegel oder Knstler. Der Spiegel 43: 148, 149.
Grassi, Mario (2013). Nothing More Than Weeds: A Review of Caveat Emptor: The
Secret Life of an American Art Forger by Ken Perenyi. The New Criterion (February).
Hammer, Joshua (2012). The Greatest Fake Art Scam in History. Vanity Fair
(10 October), <http://www.vanityfair.com/culture/2012/10/wolfgang-beltracchi-helene-
art-scam?currentPage=all> (accessed 10 March 2014).
Hlsmeier, Dorothea (2010). Knig der Kunstflscher. Frankfurter Rundschau
(24 October).
Huth, Markus (2012). 35 Millionen Euro Schaden. Mz-web.de (27 January).
Keats, Jonathon (2012). Art Forgery: Lothar Malskat was a Master at Forging
Restaurations, Old Master and Modern Paintings. Art and Antiques (February).
Koldehoff, Stefan (2013). Die Leinwand ist alt, das Kunstwerk nicht. Frankfurter
Allgemeine Zeitung (16 June).
Koldehoff, Stefan and Tobias Timms (2012). Falsche BilderEchtes Geld (Galiani
Berlin).
Krautwurst, Miriam (2008). Reinhold Vasters (18271909) an Aachen Catholic and
ForgerEcclesiastical and Sacred Goldsmiths Art for Church and Commerce. In
Wolfgang Cortjaens, Jan de Maeyer, and Tom Verschaffel (eds.), Historism and
Cultural Identity in the Rhine-Meuse Region. Leuven University Press.
Kurianowicz, Tomasz (2013). Massenweise Malewitschs. Der Tagesspiegel (21 June).
Lffler, Joachim (1993). Knstlersignatur und KunstflschungEin Beitrag zur
Funktion des107 UrhG. Neue Juristische Wochenschrift 22: 1421.
Mrugalla, Edgar (1993). Knig der Kunstflscher. Ullstein.
Partsch, Susanna (2010). Tatort Kunstber Flschungen, Betrger und Betrogene.
Verlag C.H. Beck.
Rbel, Sven and Michael Sontheimer (2011). Sculptures in a Suitcase: The Fake Count
Who Flogged Giacometti Forgeries. Spiegel Online (18 May) <http://www.spiegel.de/
international/sculptures-in-a-suitcase-the-fake-count-who-flogged-giacometti-
forgeries-a-763170.html> (accessed 11 March 2014).
Rossner, Christel (2002). Otto Dix hat mich verfhrt. Sdkurier (6 December).
Schmitter, Elke (2009). Besoffen vor BegeisterungDie berhmte Madonna unter
den Tannen von Lucas Cranach d. ., seit Jahrzehnten verschollen, ist wiederaufge-
taucht: unter mysterisen Umstnden. Der Spiegel 36: 133.
Schreiber, Susanne (2009). Andere Disziplinen, andere Sitten: Flschung, Kopie und
Aneignung in der Kunst. Churer Schriften zur Informationswissenschaft 33: 21.
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Seals the Deal. Spiegel Online (27 October), <http://www.spiegel.de/international/
germany/0,1518,794454,00.html> (accessed 3 March 2014).
Art Fraud in Germany 129
1 Introduction
Much has been said and written about Marion True, the Getty Museums
ill-fated curator. Charged with conspiracy to receive illegally excavated and
exported Italian antiquities, True was on trial for five years in an Italian court
until the case expired due to the statute of limitations in late 2010. Though
not convicted, the damage to her reputation and career was devastating. The
Getty and other prominent museums were compelled to repatriate several
important objects to their home countries, and a chilling message reverber-
ated throughout the world of antiquities collecting (True 2011).
But the bulk of the Gettys problems began with J. Paul Getty himself. He
set the stage by creating an environment of favouritism that eroded account-
ability and encouraged corruption to flourish under a succession of unethical
managers. It was precisely in that environment that True allowed herself to be
corrupted; while in public she was one of the strongest proponents of mea-
sures to curtail illicit antiquities trafficking, privately she was acquiring looted
items for the museum.
This may explain why she was targeted; but Trues sins pale in comparison
with those of others who, as is demonstrated below, were guilty of offences
including the extensive misuse of Getty resources, blatant cronyism, accept-
ing kick-backs for acquisitions, and tax fraudnot to mention facilitating (or
tacitly enabling) the purchase of looted antiquities.
The Getty Museum is the poster child of an organization burdened with a
legacy of clientelism that survived its progenitor. In spite of Gettys death in
1976, the institution still battles with the repercussions of his bequest. As a
relatively young organization, the Getty is a particularly attractive case study
because such an important amount of contemporary resources are available.
These two accounts based on extensive research, review of internal docu-
ments, and interviews with most of the relevant players in this drama are used
to provide a window into the Getty organization, its culture, and the events
surrounding the True case.
Possibly the most intriguing question not only for a scholarly but also for a
general audience is what went wrong at this bastion of philanthropy, educa-
tion, and supposedly enlightened collecting? The present chapter seeks to gain
further insight into how the Getty became an incubator for unethical behav-
iour and to evaluate the effectiveness of the Van Duyne model in describing
this process.
Two of the most paradigmatic cases involve two American museums: the
present chapter will analyze in-depth the wrongdoings committed by the Getty
officials. However, the Metropolitan Museum of Art, in New York City, was
also embroiled in what is known as The Medici Affair, referring to convicted
Italian antiquities dealer Giacomo Medici. In 1972, the museum announced
the acquisition of a Greek vase by Euxitheos painted by the famed artist
Euphronios. The dealer Robert Hecht offered the vase to curator Dietrich von
Bothmer; the sum paid was one million dollars. Some suspected that the vase
was illicitly excavated from a tomb and smuggled out of Italy. They were right:
the vase was indeed plundered by Italian tomb raiders from the necropolis of
Cerveteri (Watson and Todeschini 2006; Chappell and Polk 2011).
In addition, museums have a lengthy history of interaction with auction
houses, which may influence their ethical standards of acceptable behav-
iour. Many scholarly and journalistic accounts have addressed the innumer-
able forms of crime associated with auction houses. For example, Burnhams
account (1975) describes how auction houses sometimes publicize inaccurate
figures for annual sales and seasonal turnover in order to encourage more
buying/investing. Conklin (1994) and Naylor (2008) refer to several scenarios
in which an auction house may participate in fraudulent activities: bidding
practices, erroneous appraisals, and consignment fraud, among others. These
authors cite several examples in their books and articles.
Another major case was the price fixing scandal between Sothebys and
Christies. It involved both chairmen (A. Alfred Taubman for Sothebys and Sir
Anthony Tennant for Christies) meeting a dozen times between 1993 and 1996
to agree not to negotiate the seller commissions they charged to their respec-
tive clients. The case ended in a settlement regarding their respective us and
European class-action and antitrust suits: both houses jointly agreed to pay 512
million dollars in penalties to those clients who had consigned or purchased
art during the established period.
Perhaps most importantly, Watson (1997, 2006) concentrated on Sothebys
as an example of wrongdoing through the selling of looted art. In 1995, a tip
to the author by a former employee convicted of stealing two antiquities (and
false accounting) revealed a mountain of documents exposing how thou-
sands of antiquities were funnelled to the London branch for auction without
legitimate provenance or import/export permission. All these examples of art-
world misconduct involve high-ranking officials working in these institutions
who likely maintained persistent links with museum colleagues. This may well
have influenced the development of a corporate museum culture exemplifying
the theory of differential associationit was tolerant of behaviour not accept-
able outside the art-world professional sphere.
Corruption from the Top 133
In the present chapter, we have decided to use the model on corruption used
by Petrus Van Duyne (2001). This theoretical perspective offers a model of
five stages of corruption. By analyzing the progression of Getty staff behav-
iour within the rubric of this model, we have a real-world example of this
phenomenon.
The definition of corruption as outlined by the author is as follows:
Why the Van Duyne model? Brodie and Proulxs recent article (2013) addressing
the Getty debacle argues compellingly that the criminological theories of dif-
ferential association and anomie explain why unethical practices were allowed
to flourish at the Getty. Differential association fostered the supremacy of a
corporate culture that was tolerant of deviant practices beyond the norms of
acceptable behaviour in a non-work environment. Meanwhile, anomie theory
describes how the disconnect between corporate goals and the realistic means
to achieve them lead to deviancy. While these are both excellent explanations
for why the Getty veered off course, the Van Duyne model describes behaviour
that often accompanies corruption. By identifying the symptomatic stages of
corrupt behaviour, organizations can be empowered to take counter-measures
to terminate its progression.
In reading Felch & Frammolinos Chasing Aphrodite (2011), the parallels
between the Van Duyne model and staff behaviour at the Getty are striking.
This chapter proposes that the model merits additional study to be added to
the arsenal of tools to identify and prevent corruption in other organizations.
Though the Getty example takes place in the art world, other institutions, be
they corporate or government, are vulnerable to a similar fateespecially
when valuable resources are involved.
However, it must be noted that in gathering information for this analysis,
and trying to allocate various examples of behaviour to van Duynes five cate-
gories, the first category (the phase of extravagance) quickly became problem-
atic. It seems clear that erosion of accountability should come first, and only
then would such extravagance be tolerated. Also, it duplicates the behaviour
described in the ownership phase, where organizational assets are considered
possessions. Therefore, this chapter abandons the phase of extravagance as a
separate category.
4 Methodology
The data used in the present chapter is based on information obtained from
journalistic accounts. Research on criminal issues in general (such as orga-
nized crime, for example) has also relied mainly on journalistic sources. The
argument for this method is an alternative approach involving direct access
to hidden or inaccessible populations is outright impossible since successful
Corruption from the Top 135
5 Disciples of Caligula
Since the Van Duyne (2001) model focuses on the importance of the individual
decision maker, let us now examine some of the most influential figures whose
actions shaped the Getty culture.
made his fortune in the oil industry, he was wily and parsimonious both with
his money and his favours. He alienated his family and rotated through a suc-
cession of wives and young mistresses. The museum itself started as a tax
shelter. Rather than donating pieces of his collection to other museums, his
accountant suggested Getty start his own non-profit museum in his home and
take bigger deductions for operating expenses, purchase of art, etc. (Felch and
Frammolino 2011). When building what would become known as the Getty
Villa, the oil magnate questioned the need to include air conditioning, consid-
ered adding electronic bugs to listen to patrons conversations, and scrutinized
every expense, down to the cost of pencil sharpeners. His frugality led to some
unintended consequences.
Getty was also stingy in his purchase of artleaving at his death what was,
at best, a mediocre collection and a staff that had endured twenty-five years of
pent-up frustrations. After his death, armed with Gettys bequest of the bulk
of his oil wealth, the Getty became richest art museum in the world with the
means and a sense of entitlement to achieve all that had been denied them in
the past. The first thing they did, in complete disregard of their founders con-
cerns about price and permission from Italy, was proceed with the purchase
of the Getty Bronze (The bronze was an important Greek sculpture found by
fisherman off the coast of Italy and allegedly illegally exported). Thus began
the museums string of questionable purchases (Felch and Frammolino 2011).
J. Paul Getty also openly played favourites with family and staffsetting
people against each other. From the time he joined the Getty as its first antiq-
uities curator, Jiri Frel enjoyed a closer relationship with J. Paul Getty than
most of his colleagues. He was allowed free reign and is described as parad-
ing around the museum like an emperor (Felch and Frammolino 2011). After
the death of his benefactor and the enormous endowment, he was left as one
of the few experienced museum professionals to guide a board of trustees
with little knowledge of art in building a world-class institution (Felch and
Frammolino 2011).
The scene was set. J. Paul Getty left the museum with an emperor in place
with little accountability, an entire management determined to acquire what
they were owed, and the means to do it.
Gallerya front for the illicit antiquities dealer, Bob Hecht. The gallery was
able to move its backlog of lesser works, its clients made money on the tax
donation, and Frel built his study collection. He also appeared to benefit per-
sonally via kickbacks as evidenced by $25,000 cash loan from the gallery to
build a swimming pool and his unexplained acquisition of a new bmw around
the same time that the owner of the dealership made a $761,000 donation to
the Getty (Felch and Frammolino 2011).
Frel had established a cozy position for himself and could operate with
impunity. He was seen arriving and departing the museum with his pockets
crammed with artifacts. He demanded ever-higher appraisals for donations
from the antiquities expert the Getty worked with in New York to the point
that the appraiser refused to sign the forms; Frel began to forge the signature. A
suspicious number of donations began to be funnelled through Frels young
wife and her family (Felch and Frammolino 2011).
Meanwhile, Stephen Garrett, the museum director, applauded Frel for his
ingenuity in securing donations. Frels immediate boss, Burton Fredericksen,
expressed concern, but received no support from the board. Fredericksen felt
so strongly about Frel that he requested a demotion so as not to be held liable
for Frels actions should he ever be investigated (Felch and Frammolino 2011).
Here we see that Frel was operating with little or no accountability; he acted
as if he owned the organization, so that use of its funds and assets blurred
with those of his own; and any dissention was quashed. The transition to court
building had begun.
Having overcome his previous boss, Burton Fredericksen, Frel faced a new
challenge in 1981. The Getty Endowment had grown so large that the board
decided to replace the current museum director with someone experienced
in managing massive sums of money and to establish an umbrella trust that
would fund other arts-related institutes in addition to the museum. Harold M.
Williams was hired to head the trust. He then hired John Walsh to be the new
director of the museum.
Frel decided he needed a buffer between himself and the new management.
He hired an East Coast blue-blood, Arthur Houghton iii, to act as his deputy.
Marion True started as a deputy around the same time. Frel hoped to build
his own court, but Houghton was no yes-man. Almost immediately the scale
of the tax fraud and other improprieties became evident. Frel brushed aside
Houghtons concerns, so he felt compelled to bring them to the attention of
the new director, John Walsh. An internal investigation was made and all alle-
gations were substantiated, but Frel was not fired. He was put on paid leave
and fled the country for Europeabandoning his wife and children in the
process.
138 Lervik and Balcells
Having come to this point in the Gettys history, corruption had indeed taken
on a life of its own. The seeds of favouritism planted by J. Paul Getty had born
fruit in the form of an organization where individuals are more concerned
about establishing their personal fiefdoms and making decisions to benefit
themselves rather than the organization. Entrenched rationalizations justify
such behaviourIf they could, why shouldnt I? I deserve it. The sense of
entitlement continues.
The question of the Gettys historically questionable acquisition practices is
more of an amalgam of influences. They were under pressure as a new organi-
zation to build an important collection in an era of limited supply. They could
argue that many of their competitor organizations were doing the same thing.
And again, as the wealthiest of these competitors they felt entitled to acquire
the best. Early staff members whose hands had been tied for so long under
founder J. Paul Getty intensified this sense of entitlement. Additionally, and
perhaps most importantly, their personal prestige and success was tied to suc-
cessful acquisitions.
Corruption from the Top 143
The idea that the Getty is the richest museum and deserves the best seems
to have translated into the individual staffers feeling that they deserved the
best as well. When the goals of society at large clashed with those of the orga-
nization, the tendency was to side with the organization (as with Houghtons
optical due diligence policy). But when personal goals collided with the best
interest of the organization, the tendency was to favour personal interest (as
with Munitz and his raise during a period of cutbacks). Lack of accountability
due to the establishment of Caligula courts allowed such unethical decision-
making and broader corruption to flourish.
7 Conclusion
In his 2001 article published in the Forum on Crime and Society, Van Duyne
proposed that corruption within an organization often spreads from top lead-
ership down within the general ranks. He described five phases of this pro-
gression. In applying this framework to an analysis of the Getty Trust and
Museums, this chapter found that one phase, the phase of extravagance to be
redundant, but that the other four were extremely apt in describing peoples
behaviour and the development of Getty corporate culture.
Additionally, the Getty case demonstrates that this process is not limited by
the departure of an original corrupt individual. Once begun, corruption seems
to be self-propagating. This raises the question: what can be done to stop it?
Numerous examples exist, such as the Enron scandal or the irregularities sur-
rounding Blackwaters activities in Iraq. Politics is notoriously rife with crony-
ism and corruption (see former French President Jacques Chiracs on-going
case dating back to his time as mayor of Paris).
Surely the first step is to be able to identify and describe the process, and
the Van Duyne model does that well. Accountability, or rather the lack thereof,
is key as it is the main counterbalance to self-interest. A next step would be
to see how accountability could be strengthened or effectively reintroduced
into organizations where it is lacking. For example, Brodie and Proulx (2013)
highlight the importance of maintaining a clear separation of responsibili-
ties between those identifying potential objects to acquire and those approv-
ing acquisitions based on their legality. Such a measure can only be positive,
though it does not preclude the possibility of collusion between those respon-
sible or complacency on one half of the equation.
Meanwhile, the Van Duyne model serves as an effective tool to identify orga-
nizations at risk or wrestling with dysfunctional, corrupt behaviour. By recog-
nizing the symptoms, steps can be taken to reestablish controls and rebuild an
ethical structure.
144 Lervik and Balcells
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Bazley, T.D. (2010). Crimes of the Art World. Santa Barbara: Praeger.
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St. Martins Press.
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(2006). Investigators Secretly Mined Munitzs Records. The Los Angeles Times
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Corruption from the Top 145
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jai Press.
CHAPTER 9
This chapter, written by journalist Henk Schutten and criminologist Petrus van
Duyne, presents two very interesting points. On one hand, there is the con-
cept of white-collar crime; on the other, the usage of journalistic accounts
serving as sources and, simultaneously, as a way to overcome the difficulties of
researching the secretive and closed environment of the art world.
The case presented in this chapter about art dealer Robert Noortman is
an example of what criminologists label white-collar crime. Defining a social
construction like crime is always complicated: particular crimes, such as orga-
nized crime, looting, or terrorism, can be difficult to define. One can have an
abstract image or a socially influenced idea of what these crimes are and entail,
but constructing a scholarly and legally sound definition is much more of a
challenge.
White-collar crime was not properly studied until 1940, when sociologist/
criminologist Edwin Sutherland published about the subject under the
title White-Collar Criminality in a short article for the journal American
Sociological Review. In short, Sutherland unified under this label a series of
illicit behaviours as conducted by the business community. More importantly,
Sutherland (1940) called attention upon the fact that, until that point in time,
crimes committed by the upper class in relation to their businesses were not
being subjected to scrutiny by criminologists. Because of this omission, the
criminological image presented to that point was biased and skewed towards
lower-class criminals. As this case and the chapter by Balcells (2014) in this
volume proves, the current situation has not changed much, and this includes
white-collar crimes in the art world. Following the common perception of
the art market as a secretive and little-regulated environment (described fre-
quently by the trust required in a gentlemens agreement), this secrecy allows
for the occultation of criminal activities. Bazley (2010) makes a legitimate com-
parison between cultural property crimes and white-collar crimes when he
states Sutherlands framework for reorienting attention to upper class offend-
ing can be similarly applied when arguing for a greater recognition of miscon-
duct in the art world.
Balcells) that are easily accessible via the Internet; journalistic accounts are
swiftly becoming a data source for the criminologist alongside sources deriv-
ing from the new social media and networks. Another consideration to take
into account is that relevant case studies have to be published to provide schol-
ars with the needed caseload to analyze and study new types of crime as well
as keep track of developments in known criminal activities.
In fact, an entire field of research within criminology has been devoted to
media and crime, since, as Newburn (2007) states, what we know about crime
is hugely influenced by what we see on television and film and what we read
in newspapers and magazines. In that sense, journalistic sources have been an
ally when trying to reach hidden populations such as criminals, and indeed it
has worked for art criminals. If one examines the books written on the topic,
most of them come from journalists, not criminologists. And as von Lampe
(2008) states regarding organized crime, research in that field (as in many other
fields within criminology) has, in the past, primarily relied both on official and
journalistic sources. In some instances, this is out of mere convenience; at
other times, the justification has been that direct access to organized criminals
is outright impossible. Furthermore, it is the position of some authors (Kraska
and Neuman 2008) that journalists also conduct crime and justice research
using multiple field research or collecting and analyzing quantitative data,
noting that oftentimes they even manage to obtain sensitive documents from
government officials thanks to the available legislation.
However, researchers must not forget about potential pitfalls of journalistic
accounts: summarizing these, Galliher and Cain (1974) refer to the tendency of
journalistic accounts to lean towards the sensational (in other words, sensa-
tionalist reporting has also helped generate a vast fascination with crime that
has led to fantasy depictions of it); or as Arsovska (2008) puts it, writers looking
to sell newspapers, books, and lightweight academic publications unquestion-
ingly accept poor empirical data.
Of course, these opinions do not mean that journalistic accounts are bad
data sources per se, only that scholars must be aware of their pitfalls and be
cautious when using them. That is why a chapter written by a journalist and a
professor makes it the holiest of all alliances.
On the 17th of February 1987, an art theft was reported at the police station
in Maastricht, a large city located in the southern part of the Netherlands.
An Inside Job ? 149
Nine paintings were reported missing from the gallery of 40-year-old art
dealer Robert Noortman. The list of assumed stolen objects included works by
renowned artists such as Meindert Hobbema, Pierre-Auguste Renoir, Camille
Pissarro, David Teniers, Willem van de Velde, Jan Brueghel the Younger, Pierre-
Auguste Renoir, Paul Desire Trouillebert, and Eva Gonzales. The estimated total
value at the time of the alleged theft was about 5.2 million Dutch guilders.1
The owner of the stolen object was Robert Noortman, a former carpet sales-
man, who established himself, in less than twenty years, as a very successful
art dealer. In 1968 he started his first art gallery in the Netherlands, which was
followed by a branch in London in 1974 and, a few years later, by another in
New York. Noortman was also the founder and chairman of The European Fine
Art Fair (tefaf) in Maastricht, an event that took place for the first time a few
months after the theft and has developed into one of the worlds leading art fairs.
Zuidema started his own investigation. He found that the paintings were too
well-insured. Normally works of art are insured at the owners purchase price.
This time the objects were insured at the anticipated and estimated selling
price of 5.2 million guilders.6
According to Zuidema, during his investigation, something strange hap-
pened. He received a phone call from an employee of Lloyds, who introduced
himself by the name of Davis. The man told the detective that Noortman paid
$200,000 for the Hobbema painting, but insured it for more than ten times that
amount, almost 2.1 million guilders. Lloyds suspected Noortman had concealed
important information in his application, which could be a reason to reject the
claim. Davis even promised to pay Zuidema 500,000 guilders if he was willing
to testify against his client, but the private detective ignored the offer.
Case Closed?
Robert Noortman was not going to be prosecuted, nor was there going to be a
tax evasion investigation. Soon the art theft was forgotten.
In the following years Noortmans reputation in the art world kept rising.
He became one of the most respected art dealers in the world. For ten years
he was the chairman of tefaf, an event that established an unrivalled reputa-
tion as the worlds leading fair for art and antiques.15 He also became a bene-
factor to some of the most important museums in the world, including the
Metropolitan in New York, the Rijksmuseum in Amsterdam, and the National
Gallery in London, which still has a Noortman Room of Dutch paintings.
The gallery owner made international headlines in December 2000 when he
paid $28.6 million for Rembrandts Portrait of a Lady, Aged 62, at Christies in
London, a record price for the Dutch master.16 And if that was not enough, he
bought Rembrandts 1633 Man in a Red Doublet in January 2001 for $12.6 million
at Christies in New York.
12 Ibid.
13 Julian Radcliffe (2007), kro Reporter (7 June), <http://tvblik.nl/reporter/het-noortman-
imperium> (accessed 5 May 2014).
14 Statements Wim Vermazen, Art Loss register, R1067, file note 24 November 2009.
15 Acronym for the The European Fine Art Fair.
16 See <http://www.forbes.com/2007/01/23/robert-noortman-sotheby-face-lead-cx_avb_0123
autofacescan01.html> (accessed 15 March 2014).
An Inside Job ? 153
For nearly twenty years, Noortman held the most coveted position at the
tefafthe front corner boothwhere he could usually be found shrouded
in a plume of cigar smoke. Colleagues and collectors considered him one of
the most impressive power brokers in the art world. Julian Radcliffe noted
that from an international perspective he is the most renowned dealer for
Old Masters and has established himself, not only in terms of the number and
value of pieces he sells but also as a major influencer in circles of top level
international art dealers.17
In June 2006, Noortman surprised the entire art world by selling his gallery
to Sothebys.18 The assets of Noortman Master Paintings were acquired by the
auction house for $56.5 million in stock, or 1.95 million shares at $29.01 per
share. Under the terms of the deal, the auction house assumed about $26 million
of debt from the gallery and Noortman received 3.2 percent of Sothebys stock.19
He also was appointed a member of Sothebys international advisory board.
Six months later the situation changed radically. On 14 January, Noortman
died at his castle in Kuttekoven in the Belgian countryside. The sixty-year-
old art dealer had been suffering from pancreatic cancer. Two days before his
death, he received an award from the city of Maastricht for his positive influ-
ence on Maastricht and its area. Earlier in his life he was bestowed with the
titles of Honorary Liveryman of the City of London and Chevalier de lOrdre
des Arts et des Lettres in France.
In a short statement, Sothebys expressed its confidence that the gallery
would survive under the leadership of Noortmans twenty-five-year-old son
William. But two years later the reputation of Robert Noortman was shattered
to pieces.
In March 2009, more than twenty-two years after they were stolen from the
Noortman Gallery in Maastricht, eight paintings were recovered after a sting
operation by the Dutch police. Three people were held in custody. The suspects
were a forty-five-year-old German man who lived in Dubai, his sixty-two-year-old
mother, and a sixty-six-year-old man. Two of the arrests took place in the town
of Valkenburg, located in the south of the Netherlands. The suspects carried six
of the paintings in a suitcase. The other two works were found in the house of
the sixty-six-year old suspect in Walem, a village in the south of the Netherlands.
All the objects were badly damaged by being folded. One painting, The
Water Mill by Meindert Hobbema, was still missing. The police succeeded in
tracking down the pieces after an attempt was made to sell them to an insur-
ance company. A sting operation was set up in cooperation with Ben Zuidema,
the private detective who was initially hired by Noortman immediately after
the theft in 1987.
According to Zuidema, Jo Meex, the sixty-six-year-old suspect, had watched
a Dutch television documentary about Robert Noortman two years earlier.
In the program the gallery owner was portrayed as a generous family man
obsessed with art. The only person in the documentary who was critical of
Noortman was private investigator Zuidema. Meex was very annoyed by the
flattering portrait of Noortman and decided to contact Zuidema. He also wrote
down all his memories of what happened in the Maastricht gallery 22 years ago:
Friday 13 before closing the gallery. Alarm is off, Robbie Noortman cuts
one painting from the frame. The other eight paintings are removed from
their frames by Robbie and put in two garbage bags. Two paintings on
canvas are folded by Robbie and damaged put in garbage bag 1. Painting
An Inside Job ? 155
Meex showed his written testimony, forty sheets of paper with incriminating
information about Noortman, to Eckart Pruy, the son of his female friend, and
told him the paintings had been hidden on his attic since the theft. The two
of them decided that after twenty-two years the time had come to sell them.
Zuidema claims he was contacted in November 2008 by someone using the
name Khan, who wanted to speak to him about the Noortman case. A meeting
was arranged for the fifth of December in a hotel in Roermond. When Zuidema
arrived, there was also a lady present who called herself Frau Berger. Kahn
told Zuidema he had a client who knew everything about the criminal past of
Robert Noortman. According to this client, Noortman himself had ordered the
theft in 1987 and he personally took care of burning the Hobbema painting,
planning to destroy the others later.21 Later that same day, Zuidema informed
the police that Kahn wanted to extort 5 million euros from the Noortman
family in exchange for the paintings and silence about Noortmans criminal
past. Kahn and his companion wanted the detective to act as an intermedi-
ary. According to Zuidema, the suspects believed that he would be prepared to
help them. Immediately after hearing this new information the detective not
only alerted the police, but also the Art Loss Register (alr), the worlds larg-
est international private database of stolen art. The alr represents the insur-
ance companies that paid Noortman 1.1 million pounds. On the 31 December
2008, Zuidema travelled to London to meet alr-director Julian Radcliffe and
Antonia Kimbell, an alr-manager who also happened to be a special agent for
Scotland Yard.22
The alr got the go-ahead from the insurance companies. If the firm suc-
ceeded in bringing back the paintings, it would receive thirty percent of a max-
imum amount of 1.5 million pounds. If the paintings were worth more, the alr
would get on top of that another twenty percent of amounts between 1.5 mil-
lion en 5 million pounds. One third of the fee had to be shared with Zuidema.23
On 5 January 2009, Zuidema met Kahn again in a hotel in the German
town of Aachen. Kahn told Zuidema that his client was willing to sell the
painting for one million euros. He was even prepared to testify to the police
about Noortmans activities, as long as he could remain anonymous. Kahn told
Zuidema that his client was under the impression that the crime was too old to
be prosecuted. At the occasion Kahn also showed an identification card with
his real name: Ekhard Pruy.24 The police began to tap Pruys phone and quickly
discovered the names of the two other accomplices. They were his sixty-two-
year-old mother, Caterine Drooghaag, and the sixty-six-year-old Jo Meex.
On 26 February 2009 in Hamburg (Germany), Pruy met an undercover police
officer, who pretended to be a representative of Lloyds Insurance. According
to this undercover agent, Pruy demanded ten percent of the paintings auction
value. The police officer said that he was willing to negotiate if Pruy could pro-
vide evidence that he really was in possession of the eight paintings.25
On 5 March, another meeting was arranged in a hotel room in Valkenburg. A
team of police officers was standby. Shortly after they displayed the paintings,
Pruy and Drooghaag were taken in custody. Meex was arrested at his home
in the nearby village of Walem. When officers brought him to the police sta-
tion, Meex complained that he should have left the paintings where they were:
That would have saved me a lot of worries. Meex also asked the police officers
if they searched his home: Did you see the wooden chest in the attic? Thats
where the paintings were hidden all those years.26
The discovery of the paintings was announced just a few days before the
tefaf opened its doors for the twenty-second time in Maastricht. A spokes-
woman of the tefaf expressed her sympathy with William Noortman, the sec-
ond-born of seven children, who had taken over Noortman Master Paintings
after his father passed away.27
The Noortman family refused to comment on the emerging scandal.
But managing director Peter Paul Guthman of Noortman Master Paintings
released a short statement: We havent seen any proof regarding events that
took place more than twenty years ago.28 Friends of Robert Noortman, among
them museum directors, collectors, and ceos, responded with utter disbelief.
Its really outrageous to damage someones reputation like this after his death.
For the family this is unacceptable, said real estate agent Cor van Zadelhoff.
Noortman part of a conspiracy about the theft of his own paintings? I can-
not imagine something like that at all. The evil in this story is that he cannot
defend himself anymore. The dead dont answer. As his friends we will defend
him.29 When journalists asked the mayor of Maastricht, Gerd Leers, about the
possibility of the withdrawal of the city medal awarded to Noortman, he found
the evidence insufficient. Maastricht University needed more information
to decide on whether or not to continue the Chair dedicated to the art dealer.30
Nevertheless, it soon became clear that many people had been aware of the
shady past of one of the worlds most prominent dealers in Old Masters for
some time.
Rise
32 Ibid.
33 Janssen 2001.
34 De Limburger, 8 February 2011.
An Inside Job ? 159
The Trial
The criminal case against the three theft suspects was unique in many ways.
Dutch prosecutors were not willing to investigate the role of Noortman because
35 Statement Vermazen, Art Loss Register, R1067, file note 24 November 2009.
36 kro Profiel, 5 March 2007.
37 Forbes, 23 January 2007.
38 nrc Handelsblad, 24 November 2000.
39 Dutch newspaper Het Financieele Dagblad, 3 March 2001.
40 kro Profiel, 5 March 2007.
160 Schutten and van Duyne
Philip Houben and Dutch business tycoon Leon Melchior. In court, Vermazen
denied that he ever said something like this, but in an interview by Antonia
Kimbell of the Art Loss Register, the former police officer is quoted: Noortman
was in bed with the Mayor, the local horse racing syndicates, everyone who
could protect him. Noortman had every angle covered.44
The lawyers also wanted to hear Houben and Melchior as witnesses, but
their request was denied; the judges did not find these testimonies to be rel-
evant for the trial.
The defence went at great length to incriminate Ben Zuidema, the private
detective who played a key role in solving the crime. According to the defence,
Zuidema was unreliable because he had a criminal record. Former police offi-
cer Vermazen was willing to confirm this. He testified that Zuidema had a bad
reputation with the Heerlen police and was known as a compulsive liar.45 On
Tuesday 8 February 2012, almost four years after they were arrested, the sus-
pects finally stood trial. Only Pruy was present since Meex and Drooghaag
failed to appear.
The suspects had withdrawn many of their statements. Meex, who in his
handwritten statement spoke of we three accomplices, now denied being
involved in the scam in 1987. It was his wife, he claimed, who had passed away
a few years before.
The lawyers questioned the reliability of key witness Zuidema, who alleg-
edly was only interested in the finders fee. According to the defence, Zuidema
came up with the idea to contact the insurers and he even prevented the defen-
dants from contacting the police.
Nevertheless, district attorney Mr. I.C.M.E Meissen thought that there was
sufficient evidence to confirm that the suspects had tried to profit from works
of art they did not rightfully own. In addition, they did not use their real names,
and their initial statements largely corresponded with Zuidemas testimony.
Meissen considered three years jail to be an appropriate sentence for the three
of them. But the Court decided otherwise: the defendants did not have to go to
jail, but got away with a fine.
Fall
After the scandal, Noortman Master Paintings quickly moved from Maastricht
to Amsterdam, where business turned out not to be as good as before.
44 Art Loss Register, R1067, file note of meeting Vermazen, 24 November 2009.
45 Statements W. Vermazen, Art Loss Register R1067, 24th November 2009.
162 Schutten and van Duyne
Immediately after the death of Robert Noortman, his gallery lost the prime
booth on the Maastricht fair to London rival Richard Green. In an interview,
William Noortman admitted that it was difficult to step in his fathers shoes.
Even though having been groomed to assume the family business, he was not
yet confident in his new role. I always knew that Id be taking over. Ive just
taken over five to ten years earlier than expected, which is a pity.46
In 2011, five years after the acquisition by Sothebys, the gallery suffered an
$8.3 million loss. According to Sothebys, William Noortman did not achieve
the minimum level of financial performance. Under the terms of the original
deal, up to twenty percent of the initial consideration must be transferred back
to the auction house in case the dealership fails to reach the agreed objec-
tives. Following the five-year review, the gallery had to transfer 147,352 shares,
or seven-and-a-half percent of the original amount, back to Sothebys by the
fourth quarter of 2011.47 In order to meet this obligation, Noortman needed
to sell off a large collection of lower value works at various auction houses.
Sothebys itself did not want to sell the bulk of the work. Its not all the sort of
material we handle, its not our brief and its not what we do best, said chief
executive Bill Ruprecht.48 The Noortman gallery also shifted its focus to art
from the first half of the twentieth century, and possibly even some classic
contemporary artworks, according to Anthony Crichton-Stuart, director of
Noortman Master Paintings in London.49
In 2012, the Amsterdam office closed, and the gallery moved to London.
A year later, on 31 December 2013, the London office also closed. William
Noortman informed his clients: This is a significant decision and it brings to
an end the life of an illustrious gallery that has occupied a pivotal position in
the global art market for almost a half century.50
Endgame
Until the London office closed, the Art Loss Register negotiated with the
Noortman family and Sothebys to no avail. There is still no legal proof that
Noortman orchestrated the theft, and there probably never will be. Nevertheless,
Julian Radcliffe thinks theres very strong evidence that Noortman was behind
the theft and its highly likely that the insurance companies expect that their
claims will be awarded.51 If the pictures can be restored adequately, they will
be worth somewhere between 2 and 3 million British pounds, according to
Radcliff. He emphasizes that this really regrettable incident should not affect
the long-term nature and value of Noortmans or Sothebys position in the art
market. Provided of course, he adds, that the Noortman-family and Sothebys
cooperate with the underwriters. If they refuse to return the money, legal
actions will be unavoidable. And that could be very damaging because in a
legal action a lot of publicity and a lot of further information will come out in
the open.52
References
CHAPTER 10
1 Introduction
* The author wants to thank Karl von Habsburg-Lothringen for his help to make the research
for this chapter possible.
1 Symmetric warfare is conventional warfare against an opponent of comparable might,
using similar weapons on a known battlefield. See http://www.worldwidewords.org/turn-
sofphrase/tp-asy2.htm (accessed 6 June 2012). In asymmetric warfare, defenders fight on
their own terms not those of the enemy all guerrilla activity, especially urban terrorism,
falls within this definition. See Michael Quinion <http://www.worldwidewords.org/turnsof
phrase/tp-asy2.htm> (16 August 2013).
present in the background; one can wonder if identity is not a resilient form of
intangible heritage.
Immaterial or intangible heritage, e.g., national hymns, languages, music,
etc., which can also be subject to attack and abuse, is to certain extent pro-
tected by author rights and international agreements such as the Convention
for the Safeguarding of the Intangible Cultural Heritage from 2003.2 Conflicts
outside the Western hemisphere, such as in Africa, can involve types of heri-
tage that are a mix of cultural, natural, and intangible heritage; an example that
comes in mind is Ayers Rock or Uluru located in central Australia. This cultural
property is a natural heritage, a sacred place for the Aboriginals, a source of
legends (narratives as intangible heritage), and contains both archaeological
sites and works of Aboriginal art.
The scope of objects subject to cultural property crimes in the event of con-
flict widened from typical works of art like paintings, drawings, sculptures,
and archeological artifacts to the broader construct of cultural properties.
Therefore it seems useful to give an overview of current categories and illus-
trate this, where possible and appropriate, with examples. It must be men-
tioned that overlap can occur; for instance, a statue can be a work of art and at
the same time a memento or even a religious object. Still, we can distinguish
between classifications such as natural monuments, historic sites, cultural
objects, historical objects, and memorials. While doing this, semantic conno-
tations, sometimes containing potential legal consequences brought about by
the use of such terms as cultural property and cultural heritage, will be signaled
and discussed briefly, hopefully triggering more research by legal experts.
Not all cases of cultural property damage and devastation in the event of
conflict qualify officially as crimes; this depends on military circumstances,
their legal interpretations, and implications such as the possible application
of the principle of military necessity, which will be discussed in the paragraph
about legal considerations, justifications, and obligations for military in con-
flict situations that include cultural property.
The term art crime is well known,3 but it does not cover todays situation and
perception. There are multiple reasons for this; first is the term art; what is
art? This is an ongoing debate. Some even consider works of art they do not
2.1 Iconoclasm
Iconoclasm is an atypical example of misconduct in the event of conflict that
can be difficult to prosecute under legislation designed for the protection of
cultural property in the event of conflict. First it is important to establish what
is meant by iconoclasm and in addition what construct or interpretation of
this term is relevant for the scope of this chapter. The literature shows dif-
ferent perspectives on the term iconoclasm; literally it means image break-
ing and refers to a recurring historical impulse to break or destroy images for
religious or political reasons.11 Another description considers iconoclasm as
strongly opposing generally accepted beliefs and traditions.12 In general the
8 Gunn (2006).
9 See Pierre Bourdieu and Jean-Claude Passeron (1979), The Inheritors: French Students and
their Relation to Culture, Chicago.
10 Article 25, individual criminal responsibility.
11 See Sarah Brooks, http://www.metmuseum.org/toah/hd/icon/hd_icon.htm (accessed
18 October 2013).
12 See http://dictionary.cambridge.org/dictionary/british/iconoclastic (accessed 21 October
2013).
From Crimes against Art to Crimes against Cultural Property 171
that idols can possess an autonomy or a power over the human imagination,17
one can conceive of a possible intrinsic quality existing in works of art. It has been
established that, for instance, graffiti art and certain conceptual art works can
provoke aggressive reactions. Examples include the famous case of the German
conceptual artist and ex-military Joseph Bueys. In 1986, a grease stain by Joseph
Beuys valued at about 400,000 was mopped away at the Academy of Fine Arts
in Dsseldorf.18 This needs some explanation: Bueys, who served as a Luftwaffe
fighter pilot in World War ii, looked upon the felt and grease that served as recur-
ring themes and materials in his oeuvre as symbols of nutrition and warmth.
They had become essential to him after his Luftwaffe bomber crashed in the
Crimean mountains in 1943 and the Tatars who rescued him wrapped him in
fat and felt to keep him warm.19 A cleaning lady did not recognize the grease
substance (some sources speak of a bathtub smeared with grease, while others
mention a sculpture made of fat; the cleaning lady is also sometimes referred to
as a cleaning team) as a work of art and it was washed away.20
Another example: in this case a devestating reaction destroyed a painting
and answered the question in the paintings titleWho is Afraid of Red, Yellow
and Blue iii, one of a series of four large-scale paintings by Barnett Newman
painted between 1966 and 1970. This 1967 painting is part of the collection of
the Stedelijk Museum in Amsterdam. It was attacked with a knife by Gerard
Jan van Bladeren in 1986 and restored by Daniel Goldreyer in 1991.21
Following Freedbergs fear argument, it seems logical that the question in
the titlewho is afraid of red, yellow, and blue?can trigger (as an answer to
the paintings title) a destructive reaction by someone who actually is afraid
of the painting. The offender, an unknown Dutch realistic painter, later stated
17 Ibid.
18 <http://www.theguardian.com/artanddesign/2011/nov/03/overzealous-cleaner-ruins-
artwork> (accessed 15 November 2013).
19 <http://articles.latimes.com/1986-01-31/local/me-2695_1_joseph-beuys> (accessed 15 Novem
ber 2013).
20 By comparison, in 1986 Joseph Beuys sculpturea dirty bathtub with a layer of grease on
the insidewas scrubbed clean by an employee of the Academy of Fine Art in Dsseldorf.
See <http://art-damaged.tumblr.com/page/7> (accessed 17 November 2013).
21 The restoration of the Newman work was almost as controversial as the actual crime. The
restoration cost somewhere between $300,000 and $400,000, yet critics claimed that subtle
variations of color had been lost and that house paints and a roller were used. Lawsuits
followed when the restorer, Daniel Goldreyer, took offence to the museum director call-
ing his work a botched job. After a $100,000 settlement, the cost of the restoration and
the subsequent legal costs totaled around $1 million; see <http://www.artcrimes.net/
who%2526%2523039%3Bs-afraid-red,-yellow-and-blue-111> (accessed 16 November 2013).
From Crimes against Art to Crimes against Cultural Property 173
that he perceives abstraction in art as a plague he actually is afraid of. The per-
petrator was also found to suffer from anxiety attacks and paranoia.
It seems justified to assume that fear also plays a role in current cases of
iconoclasm seeming to come from a variety of motivations, from religious rea-
sons like (supposed) idolatry22 (fear for God), politically driven identity dev-
astations or obliterations (fear of extinction), and acts of vandalism driven by
anger. The fear argument does not count for cases of outright theft. This raises
the question whether an act against cultural property during an armed con-
flict is permissible, for instance, when the excuse is military necessity. I want
to stress that even in times of conflict there are crimes committed by normal
criminals. Still, there are situations in which inflicting damage to cultural prop-
erty is permissible. This is the case when an object, site, or monument has been
made into a military target. In such an event, we speak about attacking cultural
property, legitimized by military necessity.
Sometimes the damaging of cultural objects had to do with erasing an iden-
tity. This was already practiced by the Pharaonic Egyptians: numerous bas
reliefs and statues, still in situ, have cartouches with exised names, e.g., the
names of Queen Hatshepsut and King Akhenaten, who both fell from grace.
The phenomenon was known by the Romans as well under the name damna-
tio memoriae, a posthumous dishonour.23
Many such incidents have taken place throughout history. A plain exam-
ple is what has become known as the first Byzantine iconoclastic outbreak.
Sometimes between 726730 bc, the Byzantine Emperor Leo iii, who was
against the worship of images, began this iconoclast campaign ordering removal
of an image of Jesus prominently placed over the main ceremonial entrance
to the Great Palace of Constantinople also known as the Chalke gate. In the
Netherlands, the iconoclastic outbreak of 1566 known as the Beeldenstorm
and caused by a religious conflict between Calvinists and Catholics resulted
in large scale damaging of church interiors and monasteries. Because of this
22 David Morgan (2005), The Sacred Gaze: Religious Visual Culture in Theory and Practice
(Berkeley and Los Angeles), 117.
23 Condemnation of the memory; ancient Roman processes dealing with individuals
judged unfit to be members of a community. This posthumous dishonor was considered
the worst thing that could be done to a former senator. Tacitus describes in Tacitus Annals
3.17 what was done to condemn the memory of Piso. Acts included scratching names
and titles from inscriptions, defacing likenesses, confiscation and destruction of the con-
demned man or womans writing, annulling of wills, mutilation of corpses, and more.
The condemnations could be started by the senate, the emperor, or the army; <http://
ancienthistory.about.com/b/2010/01/14/thursdays-term-to-learn-damnatio-memoriae
.htm> (accessed 14 January 2010).
174 Kila
historical trend from time to time initiatives were taken to promote protection
of cultural objects.
24 Defenders of faith, the group seeks to impose sharia law across Mali and is accused of
having links with Al-Qaeda.
25 See, amongst others, <http://news.nationalpost.com/2012/07/02/islamist-fighters-in-tim
buktu-continue-destruction-of-citys-mausoleums-heritage/> (accessed 7 February 2012).
26 See <http://m.bbc.co.uk/news/world-africa-18657463> (accessed 3 July 2012).
27 See the report on http://www.blueshield.at/.
28 Next to these two there was another damaged because Jihadists had booby-trapped it; the
explosives could not be removed without damage. The three shrines were only indicated
by three small round holes in the wall.
29 See http://www.nytimes.com/2012/07/03/world/africa/mali-islamists-exert-control-with-
attacks-on-mosques.html (accessed 3 July 2012).
30 Based on information from Dr. Thomas Schuler in his North-Mali: Heritage Reports No. 1
and 2. (16 May and 6 July, 2012)reports for internal use from the icom Disaster Relief
Task Force (drtf).
From Crimes against Art to Crimes against Cultural Property 175
Figure 10.1 The destroyed door of the Sidi Yahya Mosque in Timbuktu ( January 2014). Picture
by Joris Kila.
also a huge collection of texts called the Timbuktu Manuscripts. These manu-
scripts consist of medieval African documents, ranging from scholarly works
to short letters that have been preserved by private households in Timbuktu.
The manuscripts, dating back to the thirteenth century of the common era
and passed down for generations in Timbuktu families, are mostly in poor con-
dition. Many documents were kept in libraries including a new large library
(built with the support of South Africa), three new major private but publicly
accessible libraries, and up to sixty other private libraries.31 There were fears
that either these documents would suffer attacks, damage, or neglect caused
by the armed struggles or that they would be stolen and end up in antique mar-
kets. This could cause additional safety and security liabilities since thieves,
iconoclasts, groups of opposing forces, or, in this case, Islamist extremists
with connections to Al Qaida in the Islamic Maghreb might find sale of the
manuscripts profitable. The revenues would then be used for buying arms and
ammunition. Though Ansar ad-Din took over the new building of the Ahmad
Baba library and removed all the computers and other equipment, no major
losses were reported. In January 2014 we found the library in a reasonable
condition; though the laboratory was empty and most of the collections gone,
31 Ibid.
176 Kila
many objects were brought to the capital Bamako before the Jihadists could
touch them. unesco and many other organizations protested without imme-
diate results; however, as an additional measure, unesco worked together
on the matter with its counterpart the Islamic Educational, Scientific, and
Cultural Organization (isesco).32 From the legal front, Ms. Fatou Bensouda,
the International Criminal Court (icc) prosecutor stated that those respon-
sible could face prosecution as their actions constituted a war crime. However
in this context the Hague 1954 did not seem applicable from a practical view.
Although Mali, since 1961, has been a state party to The Hague Convention of
1954 and its First Protocol, the Muslim extremist group that seized power in
the northern part of the country was not an internationally recognized Mali
governmental party and therefor does not classify as a state party. However,
the (then) transitional government in the capital, Bamako, that is a recognized
state party, requested unesco World Heritage Committee to place Timbuktu
on the list of endangered unesco sites due to unrest in the north. unesco
agreed and stated that its decision to place both the town and the nearby
Tomb of Askia in Gao on its list of World Heritage in Danger, aims to raise
cooperation and support for the sites threatened by the armed conflict. The
request to unesco made by Malis transitional government was reportedly
what angered Ansar ad-Din, who then accused unesco of cooperating with
the Mali government.33
It seems fair to say that in the Mali cases once more history repeats itself; for
instance, the Talibans destroying the Bamiyan Buddha statues in Afghanistan
is very similar. In both cases, the acting partys excuse for the destruction is
idolatry. In addition it forms more proof for what I argued in Heritage under
Siege: cultural property is vulnerable and available for politicization and
manipulation, which can be clearly seen in Ansar ad-Dins accusation that
unesco was prejudiced in favor of the transitional government and the appar-
ent use of cultural property to damage the opponents identity.
stored; the same goes for prisoners and hostages that can be used as human
shields.
Works of art, books, manuscripts can have propaganda value or can be con-
sidered as icons from certain ethnic, religious, or political groups within a soci-
ety. Even natural monuments can for fill such a role, e.g., the tree behind the
Anne Frank house in Amsterdam34 and the already mentioned Uluru (Ayers
Rock), the sacred rock of the aboriginals in Australia.
There is a distinction between material and immaterial35 heritage; as
examples of the latter, we can list performing arts such as music and theatre,
national anthems, dialects, languages, oral history, certain traditional perfor-
mances, and tribal rituals. These also can have links to propaganda, national
pride, etc., and therefore can be relevant for military intelligence and give valu-
able information for the planning phase of an operation. Certain ethics and
procedures should be developed and codified for scientists, subject matter
experts, militarized experts, cpp officers, and the like to avoid them getting
compromised, similar to ethical codes developed for military medical experts.
Heritage Sites are divided into cultural heritage and natural heritage sites.
Different properties recommended by each country are included in the World
Heritage List after being screened according to strict criteria defined by the
World Heritage Committee.36
To illustrate the continually changing appreciation of cultural heritage and
property, some clarification seems relevant about what classifies under todays
perception of cultural property and then specifically objects and sites that are
vulnerable in the event of conflict and turmoil. The categories mentioned are
just an indication and do not aim at providing a complete picture. For a com-
prehensive categorization reference is made to the definition of cp according
to the Hague Convention of 1954 as listed above under 2. Where possible and
appropriate legal consequences including (potential) prosecutions and penal
sanctions will be presented in the context of case examples.
34 In 2007 there were major protests when the municipality of Amsterdam wanted to cut
down a sick tree that was mentioned in Anne Franks Diary.
35 See the Convention for the Safeguarding of the Intangible Cultural Heritage (Paris,
17 October 2003).
36 Founded 1976 in Nairobi and aiming at identification, protection, and preservation for
future generations of the cultural and natural heritage, including buildings, monuments,
and landscapes important from a historical, art-historical, and scientific point of view and
placed on the World Heritage List by the Committee. The properties are cultural, natural,
or mixed.
From Crimes against Art to Crimes against Cultural Property 179
3.1 Monuments
There are various types of (and overlaps between) what are currently charac-
terized as monuments. These can be natural monuments, historic testimoni-
als, or objects and places designed as or changed into memorials, sometimes
referred to as lieux de memoires. The latter can also be a mix between memo-
rials and, as they are called in the current heritage debate, traumascapes,37
which can be monuments in memory of victims of genocide and war crimes
located in the actual environment or actual locations where such crimes took
place. Examples are concentration camps like Auschwitz but also locations
like Ground Zero, Guernica, and the killing fields in Cambodia.38 But a lieu
de mmoire does not necessarily has to be a physical location. According to
Pierre Nora,39 it is all about the connection between memory and identity;
remembrance days, symbols, persons, and even songs can trigger memories
to a specific historic event. Consequently symbolic places of memory are impor-
tant parts to construct an identity such as a national, local, or cultural distinctive-
ness. Examples are Frances le 14e Julliet and the 9/11 tragedy in the United States.
Nevertheless places, objects, and immaterial expressions of the categories
described above can be highly sensitive, and any change or manipulation, par-
ticularly for political reasons, can have severe consequences. An example of
fierce reactions following relocation of a memorial is the case of the controver-
sial Bronze Soldier monument that was removed from downtown Tallinn (the
capital of Estonia) in 26 April 2007, which led to heavy rioting in which one
man was killed and many were injured.40 Still, traumascapes and other memo-
rials can be subject to ordinary crimes as well; a clear example took place in
Auschwitz in December 2009, when the famous Arbeit macht frei sign was
stolen from the main gate of the camp. Five thieves were captured and, accord-
ing to the local police chief in Krakow, the theft was financially motivated, but
it remained unclear whether it was carried out by order.41
The intersection of art crime, traumascape, financial gain, and terror can be
even more puzzling as the 9/11 Twin Towers disaster illustrates: reportedly the
total value of art lost from the collapsed Twin Towers exceeded $100 million.
Among lost art objects were Alexander Calders sculpture wtc Stabile, Joan
Mirs epic World Trade Center Tapestry, a painting from Roy Lichtensteins
Entablature series, and others by Picasso and David Hockney.42 Another source
states that the offices occupied by the brokerage house Cantor Fitzgerald con-
tained some 300 sculptures and drawings by Rodin that are now lost. So far, the
company has not issued a complete inventory of the collection or declared its
value for insurance purposes.43 The Twin Towers housed hundreds of compa-
nies including a lot of investment firms, trusts, and hedge funds. In this con-
text, one can expect that some of these institutions possessed objects that had
no provenance or were in some other way illegal. Of course we will never know
how many and which illegal art objects were lost.
42 See <http://www.telegraph.co.uk/news/worldnews/september-11-attacks/8722638/21-awful-
truths-about-911.html> (accessed 19 November 2013).
43 See <http://worldtradecenterart.blogspot.nl/> (accessed 19 November 2013) and <http://
www.dailymail.co.uk/news/article-2020808/Mystery-lost-art-records-vanished-9-11-
attacks.html> (accessed 19 November 2013).
44 See Historic Cities Support Program, Conservation and Revitalization of Historic Mostar,
Aga Khan Trust for Culture, World Monuments Fund (Geneva, 2004).
45 See <http://www.icty.org/x/cases/prlic/cis/en/cis_prlic_al_en.pdf> (accessed 24 November
2013).
From Crimes against Art to Crimes against Cultural Property 181
Group formed by the Yugoslav Peoples Army (jna). The charges concerned
his legal and effective responsibility for the military campaign against the
Dubrovnik region of Croatia. In the verdict, the Hague 1954 convention was
cited throughout. The former Lieutenant-General of the jna, Strugar was spe-
cifically charged for the shelling of the old town of Dubrovnik on 6 December
1991, which took place under his responsibility. The allegation against Strugar
stated that damage or destruction carried out in the course of the shelling was
a crime of devastation, not justified by military necessity, and the destruction
of cultural property. For the charge of devastation, the court found that the Old
Town sustained damage on a large scale in the shelling. The charge of destruc-
tion of cultural property drew its releveance from the fact that the Old Town
of Dubrovnik in its entirety was entered onto the unesco World Heritage List
in 1979, so every building of the Old Town was already properly identified and
listed as cultural property.51
In addition it was found that there were no military objectives in the
immediate vicinity of the buildings and structures destroyed or damaged, nor
were they present in the Old Town or in its immediate vicinity. Therefore the
destruction or damage of property in the Old Town on 6 December 1991 was
not justified by military necessity.52 On 31 January 2005, Strugar was sentenced
to eight years imprisonment. Of additional interest is that in recent scientific
literature on this case, a plea is made for the constitution of a cultural swat
team consisting of experts from various disciplines (forensic, art, architecture,
archaeology, etc.) to perform investigative workboth forensic investigation
and the identifying of damaged or destroyed objects. This work would signifi-
cantly assist investigations and any subsequent prosecution. It is also recom-
mended that military experts should be part of such swat teams.53
3.3 Museums
The definition of a museum according to the International Council of Museums
(icom) Statutes, adopted in 2007, is as follows: A museum is a non-profit, per-
manent institution in the service of society and its development, open to the
public, which acquires, conserves, researches, communicates and exhibits the
tangible and intangible heritage of humanity and its environment for the pur-
Conflict and its Two Protocols for Sub-Saharan African Countries (Vienna, 3 December
2013).
51 See http://whc.unesco.org/pg.cfm?cid=31&mode=table (accessed 30 July 2012).
52 See <=http://www.icty.org/sid/8655 (accessed 30 July 2012).
53 Susan Somers (2010).
From Crimes against Art to Crimes against Cultural Property 183
poses of education, study and enjoyment.54 All of this makes the museum a
target in times of conflict or turmoil, either to damage the identity of a (local)
population or to steal objects that can be sold to buy weapons and other means
to prolong a conflict. In fact, there are military, economic (tourism), financial
(theft), and identity (reconstruction of society) elements at stake. Sometimes
a blend of these elements is present, making issues of protection, prosecution,
and restoring quite complicated as is illustrated in the following case exam-
ples. A well-known contemporary case of breaking in a museum, though insig-
nificant compared to the widespread looting of archaeological sites all over the
country, was the looting of Iraqs National Museum in Baghdad. Before the war,
archaeologists and cultural specialists had warned that this museum and Iraqs
cultural heritage in general were vulnerable, but nobody was prepared for the
plunder that eventually took place.55
Between 8 April 2003, when the museums staff vacated the museum, and
12 April, when they returned, thousands of valuable historical items were taken
and destroyed by looters. Some of the plunderers were professional thieves
who stole specific artifacts from the storerooms. A second group stole objects
from the galleries and storerooms. They also ransacked the museums archives,
offices, and laboratories. All of this theft and ransacking in the museum
had already taken place by the time us troops, engaged in toppling Saddam
Hussein, arrived to protect it on 16 April 2003. An estimated 15,000 items, many
of them choice antiquities: ritual vessels, heads from sculptures, amulets,
Assyrian ivories, and more than 5,000 cylinder seals were looted. On 12 April
museum staff drove the looters out and four days later us forces secured the
building. Starting 22 April 2003, Colonel Matthew Bogdanos led the us investi-
gation of the looting at the museum while museum staff began the enormous
tasks of assessing the damage, and recovering and restoring objects.56
In Iraq, the sale of looted artifacts and the sale of illegal weapons were
linked; the profits from selling looted artifacts were used to buy weapons. The
continued looting of antiquities and their sale in other countries directly con-
tributed to the cycle of Iraqs internal violence. Cultural objects that are first
looted and then smuggled out of conflict zones usually end up in the antique
and art markets of the Western hemisphere. Profits stimulate belligerent and
rebelling parties to continue stealing and looting to generate funds for weapons
57 The term force multiplier refers to a capability that, when added to and employed by a
combat force, significantly increases the combat potential of that force and thus enhances
the probability of successful mission accomplishment.
58 See <http://www.deredactie.be/cm/vrtnieuws.english/news/1.592370> (accessed 22 July
2011).
59 Olbrys (2007).
60 Professor of Mesopotamian Archaeology at Stony Brook University.
61 http://www.digitalglobe.com.
62 As described in: Elizabeth C. Stone (2008), Archaeological Site Looting: The Destruction
of Cultural Heritage in Southern Iraq, in Geoff Emberling & Katharyn Hanson (eds.),
Catastrophe! The Looting and Destruction of Iraqs Past (Chicago).
From Crimes against Art to Crimes against Cultural Property 185
their blackness on the imagery; they indicate deep trenches that reach down to
the earliest stratum of human history in the specific area.)
When looking at historical places, we find vulnerable objects such as murals
(the Matejce Monastery case in Macedonia), temples (Babylon in Iraq, Palmyra
in Syria), antique fortifications (Krak des Chevaliers in Syria), religious monu-
ments, artifacts, libraries, and archives and their respective contents.63
Typical art objects and their vulnerability to criminal acts are addressed
throughout this book in various sections, but this chapter aims at introducing
and, to an extent, defining types of cultural properties that can be damaged
or stolen in the event of conflict and insurgency. This has consequences for
the market; e.g., changes in known strategies and, if applicable, methods of
distribution. Nevertheless the term crime also gets a wider meaning since we
consider, for instance, damaging objects and monuments not only for financial
gain but sometimes for unlawful political and strategic purposes in the context
of conflict, as a form of crime. A classic example is the phenomenon of icono-
clasm. But also the question is raised whether an act against cultural property
is committed as a permissible deed, for instance, when the excuse is military
necessity. For more on military necessity see paragraph 5.
The problem of art crime is already of a different nature when compared to
the more classical perception and prosecution of art crime defined as thefts
of paintings and precious artistic objects by common criminals. Given this
hypothesis it can be argued that cultural property crime is, in the legal sense,
a generalis in which art crime is a subdivision dealing with civilian criminal
actions that involve paintings, sculptures, antique books, etc., and therefore
should be seen as a specialis.
63 For the Matejce and Babylon cases see Joris Kila (2012), Heritage under Siege (Leiden),
chapter three.
186 Kila
Property in the Event of Armed Conflict of 1954 and its two protocols. The key
elements to determine the degree of proportionality or the excessiveness of an
attack in relation to the concrete military advantage anticipated are (defen-
sible) military necessity and whether the cultural property was made into a
military target. This is the case when, for instance, an anti-aircraft gun is placed
on the roof of a temple or church. Today, military reuse of fortified cultural/
historical sites is still going on. The recent shelling of national heritage sites in
Syria, including the twelfth-century crusader fortress Krak des Chevaliers and
the Citadel, the medieval fortress at the center of Aleppo, happened because
these places were being used by modern soldiers (of both sides). This is an
indication that it is wise to give higher priority protection to such sites in risk-
preparedness plans while taking into account the so-called military necessity
implications they can evoke.64
64 In this situation, military necessity forms part of a basic conflict of interest between mili-
tary necessity that is used as a reason to solve (or end) a conflict as soon as possible and
civil interests in cpp related to matters like identity, economy, and science in post-conflict
conditions.
65 This classification was given in a presentation by Astrid Reisinger Coracini (2013), Penal
Aspects of the Protection of Cultural Property in the Event of Armed Conflict at the
International Seminar on the Implementation of the 1954 Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict and its Two Protocols for
Sub-Saharan African Countries (Vienna, 3 December).
From Crimes against Art to Crimes against Cultural Property 187
It should be noted that icl is a subset of public international law. As such, its
sources are the same as those that comprise international law. While interna-
tional law typically concerns inter-state relations, international criminal law
concerns individuals. Basic sources of icl generally are the five sources used
by international and hybrid66 criminal courts:
66 Treaty-based, hybrid courts with national and international elements were proposed
to help create efficient, locally based courts to address serious international crimes.
Generally, both international and national judges and practitioners are employed in
the administration of hybrid courts. The Special Court for Sierra Leone (scsl) and the
Extraordinary Chambers in the Courts of Cambodia (eccc), are examples of hybrid
courts. See <http://wcjp.unicri.it/deliverables/docs/Module_4_International_war_crimes_
courts.pdf> (accessed 24 December 2013).
67 See <http://wcjp.unicri.it/deliverables/docs/Module_2_What_is_international_criminal_
law.pdf> (accessed 24 December 2013); I also rely on information given by Marc Balcells.
68 See Catrina Stewart (2014), Egyptian Tomb Raiders Persist under Poor Economy, usa
Today (24 March) http://www.usatoday.com/story/news/world/2013/03/24/egypt-tomb-
looting/1956693/ (accessed 19 February 2014).
188 Kila
69 See Martin Bailey (2011), Details of looting of Cairo and other Egyptian Museums:
Jewellery the Main Target in the Egyptian Museum, but Mummies Also Damaged, The
Art Newspaper (31 January; only only).
70 Curiously Dr. Hawass, the chair of the sca, was involved in a (legal) dispute over how the
contract for this new gift shop was awarded that threatened to land him in jail. See http://
www.nytimes.com/2011/07/13/world/middleeast/13hawass.html?pagewanted=all&_r=0
(accessed 5 January 2014).
71 See <http://www.zeit.de/politik/ausland/201101/interview-el-saddik> (accessed 3 January
2014).
72 See http://www.worldarchaeologicalcongress.org/home/63-press-releases/519-the-situa
tion-in-egyptian-antiquities-today (accessed 25 February 2014).
From Crimes against Art to Crimes against Cultural Property 189
73 See http://english.alarabiya.net/en/News/middle-east/2013/08/16/Egypt-s-Malawi-museum-
looted-amid-violence-says-ministry.html (accessed 2 January 2014).
74 See Salima Ikram (2013), Cultural Heritage in Times of Crisis: The View from Egypt,
Journal of Eastern Mediterranean Archaeology & Heritage Studies 1: <http://www.jstor.org/
stable/10.5325/jeasmedarcherstu.1.4.0366> (accessed 4 January 2014).
75 See <http://www.ibtimes.com/malawi-national-museum-looting-condemned-unesco-
amid-fears-egypts-cultural-heritage-danger-1391295> (accessed 4 January 2014).
76 Sources include email correspondence of the author with Dr. Thomas Schuler Disaster
Relief Task Force (drtf) of icom, Cori Wegener usbs and Dr. Peter Lacovara; see also
Joris Kila, Can White Men Sing the Blues? Cultural Property Protection in Times of Armed
Conflict Deploying Military Experts, in Laurie Rush (ed.), Archaeology, Cultural Property
and the Military (Woodbridge 2010), 4159; Idem. (2012), Heritage under Siege: Military
Implementation of Cultural Property Protection following the 1954 Hague Convention
(Heritage and Identity 1; Leiden-Boston); Ahram Online, (16 February 2013) <http://www
.egy.com/gardencity/97-02-08.php> (accessed 1 January 2014); Sara Hashash (2013),
Looters Smash Jewel of Cairos Colonial Past, The Sunday Times (10 February); Back to
School for Museum Staff, Al-Ahram Weekly On-Line 1048 (May 2011): 1925.
190 Kila
figure 10.2 The looted and partially burnt Villa Casdagli in January 2013. Picture by Joris
Kila.
Fire was still smoldering in the upper floors, and smoke coming out through
the windows, as of 4:30 in the afternoon of 4 February. At the same time, there
seemed to be plunderers at work ripping out anything of value still in the inte-
rior. Dr. Lacovara asked the fire department to revisit the premises, but they
refused to do so as there was no roaring fire apparent, and they didnt want to
venture out and possibly cause another violent demonstration. They believed
protection was needed to undertake this job, and the security forces were dis-
inclined to break the calm that prevailed in the area over the last thirty-six
hours counted from 4 February.
On Saturday 9 February, I together with Tilly Mulder, who is an advocate
for Blue Shield in Egypt, went to the Midan Simon Bolivar to find the build-
ing unprotected and consequently open for looters since most of the antique
fences and the gate were already stolen. Later we were joined by Ahmad
Al-Bindari, an Egyptian architectural researcher. The team went inside and
looked on all floors; the devastation was terrible. The Byzantine hall with its
depiction of Saint George in both the celestial ceiling and the halls extraordi-
nary cloister or chapel was severely damaged. The monumental staircase was
destroyed by fire and completely lost. Marble ornaments and fireplaces were
192 Kila
78 On February 10, 2013, Joris Kila and Ms. Mulder attended a meeting of the so-called
Friends of Manial Palace Museum. This ngo has good relations with the Antiquities
Ministry (formerly Supreme Council of Antiquities); proof of this is that the meeting was
held in the premises of this ministry in Zamalek. During the meeting it was understood
that the ownership of the Casdagli villa was transferred from the Ministry of Education to
the Antiquities Ministry, which makes real-estate speculation less likely.
79 See <http://hebdo.ahram.org.eg/NewsContent/961/32/97/1682/D%C3%A9claration-du-
Caire-Conserver-le-patrimoine,-un-d.aspx> (accessed 1 January 2014).
From Crimes against Art to Crimes against Cultural Property 193
distributed widely in the south and published in the Iraqi press. As a result
some of the looting stopped. Islamic leaders can have a major positive impact
on protecting cultural heritage.
80 During an assessment in 2011, the majority of guards we spoke to complained about this;
see <http://www.blueshield.at/egypt_2011/mission_report_egypt_02_2011.pdf.> (accessed
1 December 2013).
194 Kila
offered during the Bright Star exercise of 2009.81 As a result, Egyptian military
were not trained to safeguard their cultural heritage when turmoil started in
2011, and consequently they did not act or did too little too late. The situation
has not changed; the latest break-in, this time of the Museum of Aswan, was
reported on 1 January 2014. According to the Egyptian Ministry of Antiquities,
ninety-six artifacts, mostly small figurines and beads, disappeared from the
Aswan Museums storehouse. Employees noticed artifacts missing, the state-
ment said. A committee looking into the objects disappearance checked the
storehouses inventory and found that the lock on the inner door had been
broken. They said evidence pointed to an insider theft.82 The latest general
incident took place in Cairo where the faade and part of the interior of the
Museum of Islamic Art and the National Library of Egypt Bab al Khalq were
partly destroyed by a car bomb that exploded on 24 January 2014.
81 Laurie Rush (2010) notes that the Egyptians pointed out that people responsible for
destroying Babylon should not be teaching anyone about cpp. Teaching Cultural
Property Protection in the Middle East: The Central Command/Cultural Advsiory Group
and International Efforts, in idem. (ed.), Archaeology, Cultural Property and the Military
(Woodbridge: The Boydell Press), 103. See also Kila (2010b).
82 See <http://bostonherald.com/news_opinion/international/middle_east/2014/01/egypt_
96_artifacts_missing_from_museum> (accessed 2 January 2014).
83 Just War Theory has three main components: 1) jus ad bellum: the justice of going to war;
2) jus in bello: the means by which war is conducted; and 3) jus post bellum: the means by
which the war is concluded and the peace restored.
From Crimes against Art to Crimes against Cultural Property 195
Military necessity acknowledges that even under the laws of war, winning
the war or battle is a legitimate consideration, though it must be put alongside
other considerations of ihl.84
This does not mean that military necessity gives armed forces immunity for
taking actions that would otherwise be impermissible for it is always balanced
against humanitarian requirements of ihl. Three requirements or constraints
upon exercising military necessity are of importance:
First: any attack must be intended and tend toward the military defeat of
the enemy; attacks not so intended cannot be justified by military necessity
because they would have no military purpose. Second: even an attack aimed
at the military weakening of the enemy must not cause harm to civilians or
civilian objects that is excessive in relation to the concrete and direct military
advantage anticipated. Third: military necessity cannot justify violation of the
other rules of ihl.
Aside from all this, there are related aspects regarding military necessity
such as the principle of proportionality or, to put it simply, the amount of force
to be used. Proportionality is difficult to interpret in relation to the protection
of cultural property. Nevertheless, if in an armed conflict situation cultural
property is damaged by a military party and the appeal to military necessity is
proven invalid, a responsible commander can be tried and sentenced.85
An almost creative variation in the (ab)use of cultural property in the
context of armed conflict involving official combatants were the acts of the
Russian (Soviet) Trophy Brigades (Akinsja, Koslov 1996) who were ordered
to retrieve equivalents of the artworks destroyed or removed from Russia dur-
ing the War as a form of reparation.86 This appropriation of cultural objects as
84 See Franoise Hampson, Crimes of War, Crimes of War A-Z Guide <http://www.crimesof
war.org/a-z-guide/military-necessity/> (accessed 9 August 2013).
85 The former jna (Yugoslav Peoples Army) General Pavle Strugar was convicted by the
International Criminal Tribunal for the former Yugoslavia for the destruction or willful
damage done to institutions dedicated to religion, charity and education, the arts and
sciences, historic monuments, and works of art and science (among other war crimes)
in connection with the shelling of the Old Town of Dubrovnik, a site listed on the World
Heritage List. Strugar was sentenced to eight years in prison. Another commander,
Miodrag Jokic, pled guilty to similar charges and was sentenced to seven years in prison.
See <http://www.cemml.colostate.edu/cultural/09476/laws13afghenl.html> (accessed
9 October 2013).
86 These included German state-owned cultural objects, objects taken from churches and
synagogues, and a great deal of private property looted by the Germans from individu-
als. The art works taken back to the Soviet Union were held in relative secrecy for years,
until the final years of glasnost. As European countries started to demand their cultural
196 Kila
treasures and archives, Russian legislators passed a law that potentially nationalizes all
cultural treasures brought to Russia at the end of World War ii. In 1999, the Constitutional
Court issued an opinion basically upholding the law. How do these actions comport with
international law? What are the chances for restitution of these displaced cultural valu-
ables? See announcement conference Spoils of War Versus Cultural Heritage (Harvard,
February 2008), <http://www.commartrecovery.org/events/spoils-war-v-cultural-heritage
(accessed 15 October 2013).
87 See Elina N. Moustaira International Protection of Cultural Property in the Event of
Armed Conflict, <http://users.uoa.gr/~emoustai/Hague_1954-Moustaira.pdf> (accessed
13 October 2013).
88 Wilfried Fiedler, Safeguarding of Cultural Property During Occupation = Modifications of
The Hague Convention of 1907 by wwii?
89 This Convention replaced The Hague Convention on Land Warfare (1899).
From Crimes against Art to Crimes against Cultural Property 197
during conflict.90 On the contrary, illegal digs become more intense during
conflict when there is lack of site protection (guards and police). A contempo-
rary phenomenon that has already been mentioned is that opposing forces in
a conflict (rebels, terrorists, jihadists, etc.) take advantage of cultural property
as a means to increase their income either harvesting the goods themselves or
commissioning locals to loot or dig. As stated by Alderman, generally, such
illegal excavators receive less than one percent of the final market value of
their discoveries, but the proceeds are a boon to them.91 Nevertheless, there
are also recent criminal cultural property incidents that seem to combine the
civilian and (military) aspects of conflict. An example of such cultural prop-
erty abuse is the case of the Benghazi Bank robbery.
90 A good example are the Tombaroli, tomb-robbers operating in Italy. See <http://trafficking
culture.org/encyclopedia/terminology/tombarolo/> (accessed 9 January 2014).
91 Alderman, Kimberly (2011), Honor Amongst Thieves: Organized Crime and the Illicit
Antiquities Trade Indiana Law Review (July 25); see <http://papers.ssrn.com/sol3/papers
.cfm?abstract_id=1872726> (accessed 9 January 2014).
92 Sources include Looted Libyan treasure in Egypt, http://www.bbc.co.uk/news/world-
africa-15517886 (accessed 27 October 2013); <http://traffickingculture.org/encyclopedia/
case-studies/benghazi-treasure/> (accessed 27 October 2013).
93 See <http://magharebia.com/en_gb/articles/awi/features/2013/11/29/feature-01> (accessed
25 January 2014).
94 See Donna Yates in http://traffickingculture.org/encyclopedia/case-studies/benghazi-
treasure/ (accessed 17 February 2014).
198 Kila
figure 10.3 Joris Kila (left) in the burnt Benghazi bank where the gold treasure was stolen
through the hole in the floor. Photo by Hafed Walda.
excavated from the Palace of Columns in Ptolemais in 1937, which date to the
Hellenistic period; and third, the Meliu collection of 2,000 coins.95
In the same article, and in a piece in the Artnewspaper by Martin Bailey
(Bailey 2011) it is said that Italian archaeologists sent the treasure in 1942 to
Rome packed within military chests as the allies forced on Libya and in 1944
the trunks were moved first to Cremona and then to Val Brenta. After the war,
they were brought back to Rome and were deposited in the Museo Coloniale
(Bailey 2011). In 1961 the collection, still in the two military chests, was returned
to Libya and an inventory compiled; however, photographs were not taken
(Bailey 2011). The trunks were moved to two safes within a bank vault in the
National Commercial Bank on Omar al-Mukhtar Street, Benghazi, where they
remained untouched for several decades. In 1980, more archaeological material
was added to the chests and again they were sealed in the vault (Bailey 2011).
The rest of the story remains a bit vague; apparently the robbers drilled
through a concrete ceiling in the National Commercial Bank of Benghazi. In
the vault they smashed metal storage cupboards and opened the sealed trunks
that contained the Treasure of Benghazi.96 Before or after the break-in, the
building was set on fire and it burned out completely. On 12 November 2011,
I was able to go into the damaged building since I was part of an a assessment
mission to Benghazi. Normally it is impossible to get access to the bank, but it
was opened up especially for the mission. The thieves had drilled a hole from
the cashier room right into the safe, through the floor of approximately sev-
enty centimeters of steel-reinforced concrete. As can be seen in the picture,
the hole was so small that the thieves had to use somebody extremely small or
a child to climb down and get the treasure.
In an article in the Art Newspaper, Italian archaeologist Serenella Ensoli,
the Naples-based director of the Italian Archaeological Mission to Cyrene, says
that the two chests and the safe were apparently moved out of the vault on
25 May 2011 without proper authorization and sent to another bank building
near the Hotel Dujal. Only one of the chests arrived; the other chest and the
safe went missing. To make matters worse, Ensoli suspects that the thieves
went through the containers, looting the gold and silver and leaving the lesser
material in the remaining chest, which went to the new location. Interpol was
alerted about the theft only in July. It is unclear whether the incident occurred
in March or in May.97
There are early reports indicating that 500 coins from the Benghazi collec-
tion turned up in Egypt and that others have appeared on the black market in
Libya (Bailey 2011). Various commentators described the Libya/Egypt border
as penetrable at the time of the theft and speculated that this was the route
the looted material would take out of Libya (Allsop, 2011). Nick Meo of The
Telegraph reported that in the months since it happened, ancient gold coins
have turned up repeatedly in Benghazis gold market, and an Egyptian farmer
was caught with over 500 coins and a gold figurine that may have come from
the Benghazi Treasure theft (Meo 2011).
As indicated, there are semantic aspects that can especially make any legal
interpretation complex. Terms like culture, cultural heritage, cultural affairs,
cultural awareness, cultural property, cultural identity, and cultural diplomacy
are rather vague. The terms heritage or property, when used in the context
of safeguarding cultural objects in the event of conflict, have legal and material
97 See <http://www.coinsweekly.com/en/Treasure-Stolen-in-Benghazi-or-Hollywood-the-
Libyan-Way/4?&id=856> (accessed 9 January 2014) and <http://www.theartnewspaper
.com/articles/Interpol+confirms+Libyan+treasure+was+looted/24900> (accessed 9 January
2014).
200 Kila
6.1 Looting
Looting has military parallels dating to the ancient Romans, who allowed their
soldiers to plunder as a form of wages. In more recent times, the traditional
tribal militias in Afghanistan and Pakistan (the Lashkar) are not paid salaries,
but share in loot captured from the enemy. This form of pay is, of course, not
permitted under international law, but it occurs (though rarely) nonetheless.
Looting, stealing, and smuggling of artifacts are, of course, market-driven and
based on the international rising demand for antiquities. Since there is only a
finite supply of legal objects that are available for trade, any increase can only
come from illegal sources (OKeefe 1997). Cultural objects that are first looted
and then smuggled out of conflict zones end up in the antique and art black
markets of the Western hemisphere.
Profits stimulate belligerent and rebelling parties to continue stealing and
looting to generate funds for weapons and ammunition, thus prolonging a con-
flict. As already mentioned in paragraph 3, in this context cpp is an instrument
to deny resources to the opponent consequently reaching the end state of a
military operation sooner by creating a military force multiplier.
Here too we can draw a parallel with the past when soldiers (often merce-
naries) were allowed to plunder as a form of wages. Still, it should be stressed
that motives for plunder and looting differ. Mac Ginty gives a more nuanced
perspective on looting; he finds the terms looting and looters generally to
be considered pejorative.99 From this perspective, the negative label prevails
98 Gillman (2010).
99 Mac Ginty (2004).
From Crimes against Art to Crimes against Cultural Property 201
Policy makers are gradually becoming aware of two important factors in the
assessment and study of international cpp cooperation. First, cooperation
brings efficiency; second, it enhances cultural diplomacy, loosely defined as
the exchange of ideas, information, art, and other aspects of culture among
nations and their peoples in order to foster mutual understanding.103 cpp as
part of Cultural Diplomacy also provides the means to restore old or develop
new contacts after conflict with countries with subversive governmental sys-
tems or ideology. Cultural diplomacy is the first resort of Kings, says Diplomat
Richard Arndt.104 It seems clear that international cooperation to establish
military responsibility in cpp is necessary. In most cases, financial and person-
nel resources are insufficient to achieve a comprehensive solution for each sep-
arate nation. Via combining forces it will be possible to achieve cost-efficient
training, exercises, interagency cooperation, sufficient research, academic
education, in-theater assessments, and the development of educational tools.
Benefits of such an approach will include timely implementation and effective
synergy, which is important given the current conflicts where cultural heri-
tage is at risk and efficiency at a low (tactical) level. Overall, cpp can generate
important force multipliers for military that help end military missions sooner.
students obtain academic degrees while continuing with research. Last but not
least, such an institution should be instrumental and coordinating in issues
like cultural no-strike lists. It would be highly desirable that the creation of
such entities will not be restrained by political motives, competence struggles,
and bureaucracy.
References
Akinsja, K. and G. Kozlov (1996). Operatie Kunstroof. De lotgevallen van het goud van
Troje, de Koenigscollectie en andere Russische oorlogsbuit. Amsterdam.
Allsop, Laura (2001). Looting of Libyan Treasure Highlights Illicit Antiquities Trade.
cnn.com, http://edition.cnn.com/2011/11/11/world/europe/looted-treasure-libya/index
.html (accessed 17 February 2014).
Arndt 2005. Arndt, Richard T. Cultural Diplomacy: The First Resort of Kings, American
Cultural Diplomacy in the Twentieth Century. Dulles, va.
Bailey, Martin (2011). Interpol Confirms Libyan Treasure Was Looted. The Art
Newspaper 229 (November), http://www.theartnewspaper.com/articles/Interpol-
confirms-Libyan-treasure-was-looted/24900 (accesssed 17 February 2014).
Bevan, Robert, The Destruction of Memory, Architecture at War, London 2006.
Elkin, Mike (2012). The Libyan Job: Insiders used War to Steal Priceless Artifacts.
Wired (16 March), http://www.wired.com/dangerroom/2012/03/libyan-job/ (accessed
7 February 2014).
Emberling, Geoff and Katharyn Hanson (eds.) (2008). Catastrophe! The Looting and
Destruction of Iraqs Past. Chicago.
Freedberg, David (1989). The Power of Images in the History and Theory of Response.
Chicago.
Gamboni, Dario (2007). The Destruction of Art. Iconoclasm and Vandalism since the
French Revolution. London.
Gillman, D. (2010). The Idea of Cultural Heritage (revised edition). Cambridge.
Gunn, Simon (2006). History and Cultural Theory. Harlow.
Kila, Joris (2012). Heritage under Siege: Military implementation of the 1954 Convention
for the Protection of Cultural Property. Leiden.
Mac Ginty, Roger (2004). Looting in the Context of Violent Conflict. Third World
Quarterly 25: 857870.
Meo, Nick (2011). Treasure of Benghazi Bank Vault Raided. The Telegraph 20 (October),
http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/
8858415/Treasure-of-Benghazi-bankvault-raided.html (accessed 17 February 2014).
Morgan, David (2005). The Sacred Gaze: Religious Visual Culture in Theory and Practice.
Berkeley.
From Crimes against Art to Crimes against Cultural Property 205
Nora, Pierre (19841992). Les lieux de memoire (7 vols.) Bibliotheque illustre des his-
toires. Paris: Gallimard.
(19961998). Realms of Memory. New York.
Olbrys, M. (2007). Archaeologists on Duty in Iraq: Polish Approach to the Protection
and Salvage of Archaeological Heritage in Central South Iraq (November 2003
April 2005), in Conservation and Management of Archaeological Sites (cmas) vol. 8,
88108.
OKeefe, Patrick J. (1997). Trade in Antiquities. unesco. Paris.
Somers, Susan (2010). Investigation and Prosecution of Crimes against Cultural
Property. In L. Lijnzaad and N. van Woudenberg (eds.), Protecting Cultural Property
in Armed Conflict: An Insight into the 1999 Second Protocol to the 1954 Hague
Convention for the Protection of Cultural Property in the Event of Armed Conflict.
Leiden.
Tumarkin, Maria (2005). Traumascapes: The Power and Fate of Places Transformed by
Tragedy. Melbourne.
CHAPTER 11
John M. Fossey
Canada was able to formally accept the unesco convention on 28 March 1978,
and it thus came into effect in our country on 28 June of that year. The act
was revised a few years later, and it is the resultant version of 1985 that is still
in effect.2 Canada was thus some five years in advance of our neighbour the
United States, which only passed its enabling act on 12 January 1983, bringing
the convention into effect in that country on 2 December 1983.3
Unfortunately Canada did not follow the United States in their subsequent
elaboration of bilateral agreements with some countries of Latin America4
or the more generic law covering some broad categories of Pre-Columbian
artifacts,5 now extended by several bilateral agreements with European coun-
tries such as Greece, Cyprus, Italy, and Bulgaria along with with Asian coun-
tries like Azerbaijan, Irak, and China. Nor did they follow the United States
and Australia in participating with many other European, Asian, and Latin
American countries in adherence to the much stronger unidroit convention
on stolen or illegally exported cultural objects, a convention open for signa-
ture on 24 June 1995.6 In fact, Canadian interest in the whole problem was
strong under the Liberal government of the 1970s, but seems largely to have
evaporated since that period. Material continued to arrive in Canada, espe-
cially Montral, and the Investigation Service of Customs tried to handle what
it could, but the traffic through the citys large international port is of such
dimensions that in the early years of this millennium it was estimated that
less than one in every eighty containers could be properly examined. The situ-
ation was compounded by the quantities of material arriving by international
mail and by air-freight. In short, inadequate funding and insufficient personnel
rendered the task overwhelming, a common excuse for governmental inaction.
Nonetheless, several successes were achieved by investigators, and for
a brief while there were officers specializing in questions of cultural prop-
erty. Unfortunately the tragic events of 9/11/01 led to an almost paranoid
2 Cultural Property Import and Export Act, Canada: Consolidated Statutes of Canada,
[R.S. 1985. C. C-51], with revisions to section 43.
3 Partial Text of Public Law 97446 [H.R. 4566], 96 Stat. 2329, approved January 12, 1983; as
amended by Public Law 100204 [H.R. 1777], Stat. 1331, approved December 22, 1987.
4 With Mexico in 1971 (even before elaboration of the unesco convention) and again with
Peru in 1981 (before us ratification of the unesco convention), then with Guatemala in 1997;
with Nicaragua in 2000, with Honduras in 2004, and with Columbia in 2006. For a complete
list, see http://eca.state.gov/cultural-heritage-center/cultural-property-protection/bilateral-
agreements (accessed 25 January 2014).
5 p l92-581 Title ii, Regulation of Importation of Pre-Columbian Monumental or Architectural
Sculpture or Murals.
6 www.unidroit.org (accesssed 12 January 2014).
208 fossey
This project, the subject of the initial request for my expertise, fell in the years
when our customs agents and investigators had fair success in intercepting
some important shipments of Old World antiquities. Although the request
came to me in February 1996, the story began some five years earlier. In the
winter of 1990/1991 a container holding fifty-four portions of Palaeochristian
floor mosaics had been held by customs in the Port of Montral, but they
were released shortly afterwards by the short-sighted decision by a civil ser-
vice bureaucrat in Ottawa who simply accepted the claim of the importer that
the bill of lading showed that the objects had been transported from Lebanon.
This was a facile decision for Lebanon was not at that time a signatory to the
unesco convention and so was a legitimate country of exportation. The officer
Illicit Traffic in Antiquities 209
who made the decision plainly was not reliably informed by specialist knowl-
edge and just released the material to get the file off his desk. While in the port,
however, the mosaics had been photographed with a polaroid camera by one
of the customs agents who was attracted by their unusual nature and beauty.
Those polaroid photographs were to play an important role a few years later;
when a second container with thirty-two similar pieces was definitively seized
by Canada Customs, again at the Port of Montral, and I was called in to give an
assessment of them, I was also shown the 1990/1991 photographs and realized
without hesitation that the material was related to the 1996 lot. We thought, of
course, that the first group was probably lost to the antiquities market, but an
investigator of the customs service had kept the file open and, in 1998, as the
result of a tip-off, thirty-nine of the original fifty-four 1990/1991 pieces were
finally seized, still in Montral. A further five were, at the same time, inter-
cepted by our us colleagues at the border. This meant that, of the original fifty-
four, we now held again forty-four. Of the missing ten we had, of course, the
Polaroid photographs. We also found that one of them had indeed escaped
the net and had safely crossed the border to the United States where it was
sold in an auction at Sothebys, New York; the other nine have probably disap-
peared into private collections in the United States or elsewhere.
In 1996 I was asked to write an evaluation of the thirty-two pieces, and
I was able by stylistic and epigraphic analysis to establish that the pieces had
all come from North West Syria, probably near Hama and the massif calcaire.
My conclusions were endorsed by assessments made by several colleagues
who are active in the field of Late Antiquity in the East Mediterranean. The
Civil Arbitration accepted my report and awarded ownership of the thirty-
two pieces to the Syrian-Arab Republic to which they were repatriated late in
the summer of 1996. When the 1990/1991 material was seized in the summer
of 1998, I was again asked to produce an expert report on both lots together
since a) it was obvious that there might be connections between them and
b) because my 1996 report, although accepted by the arbitration process, had
been brief by necessity. Now I was to produce a full assessment of the two
lots, covering their date, place of origin, and historical and artistic significance.
Since on this second occasion I had the good part of a year with two assistants
to study the material and write the report, the result was a 200-page evalua-
tion of all eighty-six pieces comprising the two lots, including the missing ten
pieces on the basis of the Polaroid photographs. Again the Civil Arbitration
accepted my report and awarded ownership to the Syrian-Arab Republic but,
unlike the situation in 1996 when the importer also accepted the arbitration
decision and relinquished any claim to the mosaic pieces, the importer of the
1990/1991 lot continued for some while to contest the decision. As a result many
210 fossey
of the pieces were again repatriated to Syria but, at the same time, Syrian diplo-
matic authorities in Canada retained eleven pieces in case they should become
necessary as evidence in any criminal proceedings that might result from
the importers position. In the end the case was settled out of court; the
remaining pieces could be repatriated, but the same Syrian diplomatic officers
arranged with their government that I might choose up to three pieces to stay
on long-term loan to the Montral Museum of Fine Arts in recognition of the
work done by Canada Customs and my team in Montral to preserve these
valuable examples of Syrian cultural heritage. In the end I selected two pieces
that make up a complete floor mosaic (Pl. 11.1) and they were installed in the
new galleries of Mediterranean Archaeology that we opened at the museum in
February 2004.
In one sense the end of the story should come with the publication of the
full account of these mosaics currently being prepared by my colleague George
Kellaris and me. At the same time, this is not the end of the story. In late 2004
we were able to visit Syria and view the material on which we had worked for
so many months. What we saw was not entirely encouraging. The mosaics that
were returned in 1999 were entrusted to a new mosaic museum at Maaret al-
Numan where they were carefully mounted on the walls of the old caravanserai
that had been converted into the museum, but the pieces that were repatriated
in 1996 had gone to the recently created museum at Hama. There two different
fates had met them. On the one hand, several groups of pieces that could be
reassembled to form whole floors had been joined up in the museums garden
under ineffectual thatched roofs near a busy road intersection; these included
the floors of the narthex (Pl. 11.2), the western nave of a fifth-century ad church
(Pl. 11.3), a large floor with an octagonal pattern centring on the representa-
tion of a zebu (Pl. 11.4), and another complex floor with an animal carpet so
organized as to be viewable from any one of its four sides (Pl. 11.5). As a result
of their placement, they were so covered in dust that they were indistinct for
us who knew them well, and they could not be adequately photographed due
the dust and the low roofs. The remainder had received worse treatment in
that they had simply been piled one atop another (to some extent still in the
same packaging in which they had left Canada). Larger pieces were piled on
top of smaller so that they were bending towards the edges under their own
weight; we were not at all sure how long they could survive (Pl. 11.6). The last
lot that had been repatriatedin 2003, when they were no longer needed as
court evidencehad also been entrusted to the Hama museum, but these had
at least been unpacked and were placed in the largely empty display rooms of
the museum. Although they were clean and could be properly viewed, many of
Illicit Traffic in Antiquities 211
them were leaning at an angle against the walls with much of their bulk unsup-
ported and thus subject to buckling.
This was the sad fate of cultural objects of beauty carefully saved and
returned by Canada to their country of origin. The country of origin showed
itself little concerned with the preservation of those pieces not lucky enough
to go to Maaret. The ultimate fate of the mosaics was not the only discouraging
aspect of the projectt. While the Syrian diplomatic personnel at the Consulate
General in Montral and at the Embassy in Ottawa all helped wherever pos-
sible, there was little collaboration from the Syrian archaeological authorities.
So little was the interest in the country of origin that the first, 1996-repatriated
lot was packed and shipped at Canadian expense. During the second phase
of the project over the winter of 1998/1999, we requested from the Syrian
Antiquities Service good topographic maps in order better to understand the
terrain around Hama and the adjacent massif calcaire where so many sites
of the palaeochristian period that provided comparanda for our work are
located; the only result was the receipt of a simple outline map of main roads
with absolutely no topography. What is more, this map had been sent by fax
and was accordingly rather blurred. Fortunately the map library in the McGill
University Department of Geography had a series of the old staff maps that
were able to serve our purpose.
At no point did the Syrian Antiquities authorities show any concern with
what we were doing. At least, however, the last two lots to be repatriated were
packed and shipped at Syrian expense. Amid this general indifference it is a
pleasure to recall the concern and support provided by the Syrian diplomats;
it was they who negotiated with their home government the possibility of the
long-term loan of the two pieces previously mentioned. If it were not for them,
our entire impression of Syrian concern for its cultural heritage would be some-
what depressing, especially when compared with the reactions from other East
Mediterranean countries such as Israel and Cyprus when we appeared to be
dealing with material that might have derived illegally from their territories.
Some Reflections
The overall reaction to the situation is that, if countries of origin want coun-
tries of arrival to work for the preservation of their cultural, material they must
be prepared to be fully supportive of such efforts.
It is obvious that the material must be dealt with according to the legal pro-
cedures of the country of arrival in order to establish the origin and authenticity
212 fossey
of the material and this absolutely must be carried out by independent experts
to avoid any questions of conflict of interest. It thus cannot be undertaken
by specialists from the possible country of origin. At the same time, there is
no reason why the country of origin cannot contribute, retroactively at least,
to the costs of such expertise once the need for any continuing need of inde-
pendent witness has passed. It is, moreover, the country of origin which must
defray all cost of packing and shipping for the repatriation of the material once
officially handed over to its diplomatic representatives.7 One would hope that
there would also be a moral onus on the country of origin to accord proper pro-
fessional treatment to the material once it arrives home, but no international
instrument can coerce a country in the ways to protect and handle its own
cultural heritage. Even such documents as the Code of Ethics developed by the
international museums council cannot be coercive, but is merely a statement
of agreed standards, adherence to which is far from uniform.
All of this recalls the statements made in the early years of the unesco con-
vention by museum personnel (especially in the United States during debates
at meetings of the Archaeological Institute of America) to the effect that it was
the duty of the countries of origin to protect their heritage against theft and
illegal removal and nobody else had any related responsibility. This attitude
plainly came from biased interest in maintaining the sourcesalbeit illegal
of enrichment of museum collections and can no longer be seriously defended,
but, at the same time, the sort of disregard for cultural material shown in the
case of the Syrian mosaics does little to encourage efforts by authorities in
countries of arrival.
A further observation came out of this case. In the case of the 1990/1991 lot
where the arbitration was contested for some while by the importer, part of
the justification for importation was that the mosaics came from Lebanon. It is
indeed very likely that they had been exported from Syria by way of Lebanon,
but the reason for the importer to claim that they actually came from that
country was that, at that stage, Lebanon was not yet a signatory to the unesco
convention and thus material could legitimately be imported from there.
Our examination, however, made it quite clear that the pieces originated in a
particular area of Syria and not the Lebanon. It was amusing to note that the
piece that slipped through the net and was sold at Sothebys in New York was
described as Syrian in the auction catalogue; obviously the importer did not
send the claim of Lebanese origin of the small panel down the line!
7 See unidroit Convention, Article 6, section 4 (4) The cost of returning the cultural object
in accordance with this article shall be borne by the requesting State, without prejudice to
the right of that State to recover costs from any other person.
Illicit Traffic in Antiquities 213
This case has other sides to it. As stated, some of the repatriated material
went to the mosaic museum at Maaret and some to the museum at Hama. In
the subsequent civil war, Hama has been extensively bombed by government
forces, while the old caravanserai at Maaret has become an armed base of
insurgent groups.8 Who knows what the state of our material is now? Much of
it may have been extensively damaged, destroyed, or even relooted as appears
to be happening widely in the context of the war.9 We are often tempted to
ask why we made such effort to save the mosaics when they may now have
been subjected to all sorts of ill treatment. Such speculation is, of course, use-
less but it reflects our bitterness at the result of our work. Ironically, the only
pieces whose survival is guaranteed are the two parts of the panel lent by the
Syrian government to the Montral Musem. We may also hope for the few that
slipped through the net between 1991 and 1998 and were presumably sold on
the market.
8
See http://www.aawsat.net/2012/10/article55240201 (18 October 2012; accessed 18 June
2013);http://blogs.sacbee.com/phoyos/2013/03/syrians-find-makeshift-homes-l.html
(accessed 18th June 2013)
9
http://archaeolaw.com/2013/07/31/shocking-pics-of-looting-in-syria/ (accessed 25th January
2014);http://archaeolaw.com/2013/03/12/civil-war-causes-irreprable-damage-to-syrian-
treasures/ (accessed 25th January 2014); archaeolaw.com/2013/02/20/some-days-we-are-fighters-
others-we-are-archaeologists/ (accessed 25th January 2014); http://archaeolaw.com/2013/02/14/
syrian-artefacts-seized/ (accessed 25th January 2014).
214 fossey
10 For the coins, see Bulgarian Repatriation Like an Action Film says Culture Minister,
Archaeolaw (22 June 2011; accessed 25 January 2014). It is there pointed out correctly that
the large number of coins did not constitute a hoard as had previously been said, but
rather an accumulation of material recovered by metal detector vel sim. It is amusing to
note that our part in this is ignored! What is also ignored is the nature of the report that
must have eventually been produced for judicial purposes in Canada.
11 For coins, cultural property, Eastern Europe, and Trafficking, Ancient Roman and
Byzanrine Coin Hoard Seized in Lesovo, Archaeology Law (31 August 2012; accessed
25 January 2014).
Illicit Traffic in Antiquities 215
were not properly declared to Customs at entry into Canada, so full examina-
tion was necessary. Our specialist in Ottoman coinage was able to identify each
coin and to show that pieces in the group had been minted all over the Empire;
it was thus impossible to say whence they came as a group or whether they
even constituted a real group. In short, there was no possibility of establishing
a paper-trail for the coins and certainly no way of repatriating them: to which
of the half dozen contemporary countries that contained various of the places
of minting would we return them? In general this is why coins are often actu-
ally or tacitly ignored in considerations of illegal traffic. The Bulgarian case just
mentioned was an exceptional one: the coins were tied to a particular area of
origin, so the other small metal (largely bronze) objects in the lots we exam-
ined those in the larger groups, the exact treatment of which is unclear, could
be assigned to that country as well.
Further Thoughts
The Bulgarian coin case might have been lost because of insufficient funding
and Canada might have failed in its duty as a signatory of the unesco con-
vention, but this whole commerce has not escaped entirely we may be sure
that it even continues. Countries that sign the convention have to be prepared
to observe their obligations even when it costs a considerable sum of money.
Police work is not carried out free of charge, and experts have to be paid for
their time. This again underlines the need for countries of origin to be obliged
to contribute to the costs of investigation as well as covering all the expenses
of repatriation. If they are not prepared to pull their weight in this way, they
cannot expect countries of arrival to do everything for them and should be
prepared to forgo all claim to the seized material which should then accrue to
the enrichment of museum and teaching collections in the country of arrival.
At the same time, the country of arrival should not be allowed to dispose of
such material in any other way and should definitely not to let it disappear into
the market. Thus the true identity of the material and the information that can
be gleaned from it would be preserved in a consistent manner. Otherwise there
will always be dealers (and even auction houses) that are not entirely consci-
entious about provenience for material in which they deal.
In conclusion, it should be said that a lot of the incentive to the illicit trade
in antiquities would be nullified if countries of origin would take action not
just to ensure better protection for their cultural resources at home, but also
to share something of their superfluous riches with others. It appears that this
is the case with Cyprus, which has a state-controlled market for antiquities
216 fossey
with export permits. The weakness of this system is that such goods can be
purchased by individual collectors and thus lost to the broader public and aca-
demic community. If countries of origin would institute a system of legitimate
sale to and export from foreign museums and similar institutions of teaching
and research, providing the latter had incontrovertible statutes of nonalien-
ation, not only would the cultural wealth of humanity be more widely appre-
ciated, but the overcrowded reserves of museums small and large in original
countries would be relieved of space, and all such material would be prop-
erly recorded and its location clearly known. At the moment, as anyone who
has worked in various Mediterranean museums will know, chaos and lack of
control predominate. It does not encourage others to respect cultural heritage
when a country of origin does not respect its own material. Why accumulate
row after row of similar object in storerooms when they are never going to
be seen by other than the odd specialist visitor? Properly documented and
protected by non-alienation agreements, this material can enrich the lives
of people abroad and thus act as ambassadors for the cultural heritage of the
countries from which it derives, and thus remain in the public record for spe-
cialist. Such a change would, of course, require some loosening of thoughtless
nationalistic feelings!
Whatever moves are made, they should have as a common aim to avoid all
cultural goods falling into the hands of private collectors; the latter are the
greatest threat (together with a few unscrupulous museums) to the proper pro-
tection of human heritage.
On Sunday 2nd March 2014 my friend Ral Thibault died at the age of only 47.
That occurred exactly the weekend when I was putting final touches to the images
for this paper. When I learned of his passing a few days later, I felt it would be only
too appropriate to dedicate this paper to his memory since he was the investigator
at Canada Customs who first called me in February 1996 to ask me to investigate
the mosaics. It was he who first involved me in cultural property protection and
started me on the work described in this paper.
Illicit Traffic in Antiquities 217
Plate 11.1 Two parts of a mosaic floor reassembled and mounted together in the Montral
Museum of Fine Arts. Photo: John M. Fossey.
Plate 11.2 The floor of a churchs Western nave. Photo: George Kellaris.
218 fossey
Plate 11.4 Mosaic with zebu in octagonal frame. Photo George Kellaris.
Illicit Traffic in Antiquities 219
Plate 11.6 Mosaics piled in basement of Hama museum. Photo George Kellaris.
CHAPTER 12
For the law among all people is eternal, that when a city is captured by ene-
mies, both the bodies of those in the city and their goods belong to those who
capture it (Miles: 2008 at 13 citing Xenophon).
The plunder of art has a long if less than venerable history, as Miles reminds
us in her scholarly account of the subject. From Greek and Roman times, as
the quotation above indicates, victorious conquerors enjoyed the right to seize
their defeated foes together with their goods and chattel including works of art
of all sorts. However, this permissive attitude, while surviving for at least two
millennia, has not proved to be eternal. At the conclusion of the Napoleonic
Wars, the victorious British military leader, the Duke of Wellington, not only
took the unprecedented step of ordering the return of art looted systemati-
cally by the French from the countries they had conquered but also refrained
from sacking the remaining art treasures which lay in the Louvre Museum and
elsewhere in France (see in general Miles: 2008 at 319348).
This magnanimous act by Wellington near the beginning of the nineteenth
century marks the general commencement of a new era of forbearance regard-
ing the retention of art and other cultural heritage by defeated powers, and the
repatriation of any such property acquired as a result of conflict to their estab-
lished owners. Unfortunately this forbearance was not necessarily agreeable to
everyone at that time or since, and the plunder of art during periods of conflict
has continued until the present day despite the best efforts of the international
community to establish universal norms regarding the protection of cultural
heritage. Nowhere has this been more graphically illustrated than in the era
leading up to and including World War ii, when the Nazi regime in Germany
engaged in what was without doubt the most egregious and widespread loot-
ing of art in human history.
The nature and extent of this looting has been very well-documented else-
where (see, for example, Nicholas: 1994), as have the efforts made since the
defeat of Germany in 1945 to repatriate this art to its rightful owners, many of
whom were Jewish and among the millions who perished in the Holocaust.
This repatriation has continued into the twenty-first century as the heirs of
those whose property was forcefully acquired by the Nazis have sought to
establish their legal claims to specific works in public and private collections
across the globe. Even so, the great majority of legal claims have tended to take
place before European and North American courts, where the most substantial
and rich art collections and collectors tend to be found.
Most of the contemporary efforts at repatriation have taken place without
great fanfare or publicity beyond those intimately and immediately involved.
However, three recent but quite unrelated incidents have quite swiftly placed
the whole issue of the repatriation of Nazi looted art squarely on the agenda of
a number of nations and the worlds media.
First and foremost, authorities in Bavaria announced in November 2013
that they had discovered and seized a collection of more than 1500 works of
art believed to have been confiscated by the Nazis in the 1930s and 1940s. The
collection included works by such renowned artists as Matisse, Picasso, and
Chagall and was said to be valued at $1.35 billion. Some of the works were
thought to be among those declared degenerate by the Nazis while others
were stolen from or forcibly sold by Jewish art collectors. The collection had
been found in the possession of a reclusive and elderly man, Cornelius Gurlitt,
who was suspected of tax evasion (bbc: 2013).
Following this announcement, massive media attention was given to the
discovery which, if the paintings were proved to be genuine, amounted to
one of the largest troves of Nazi looted art unearthed since World War ii. This
attention was magnified by the release (the second incident), early in 2014,
of a new American and German film titled The Monuments Men and directed
by and starring, among others, the us actor George Clooney. The film, which
was heavily publicized and screened in many countries, was based loosely on
a popular book (Edsel: 2009) describing the work of the men and women from
thirteen nations who served between 1943 and 1951 in the Monuments, Fine
Arts, and Archives (mfaa) section of the Allied forces in Europe. Their initial
remit was to mitigate combat damage, primarily to buildings of cultural sig-
nificance, but as the war progressed, their focus shifted to locating and pro-
tecting art and other cultural heritage items stolen or otherwise missing. At
the conclusion of the war the mfaa spearheaded the huge restitution process
for the art and allied works they had discovered (see in general Nicholas: 1994;
Edsel: 2009).
The third incident was the timely opening in March 2014 at the Neue Galerie
in New York City of an exhibition titled Degenerate Art: The Attack on Modern
Art in Nazi Germany, 1937 (Peters: 2014). The Neue Galerie show, which had
The Gurlitt Case 223
been in development for a quite lengthy period, was the most extensive exhi-
bition on this subject to take place in the us in several decades. In a foreword
to the fulsome catalogue published for the exhibition, the Neue Galerie
Director, Renee Price, acknowledged the associated Gurlitt discovery in the
following terms:
In this chapter we are concerned primarily with the first of these incidents, the
Gurlitt case, and what the ultimate fate is likely to be for the works of art that
have been discovered. But we believe that it is essential to first understand the
broader historical and associated context in which this discovery took place
before turning now to consider the international actions and principles which
have been established to guide the repatriation process for identified Nazi-era
art. We then proceed to examine in much greater length the German response
and legal provisions applying to this case, and to some possible conclusions
that may be drawn from our analysis.
There is no doubt that the Gurlitt case has opened up many questions about
why both Allied forces and the mfaa, as well as German authorities, have
seemingly done so little, or been so ineffective, in finding art works stolen
by the Nazis. It seems that Cornelius Gurlitt acquired his long-hidden collec-
tion from his father, Hildebrand Gurlitt, who died in a car accident in 1956.
Recent investigative reporting by the German magazine Der Spiegel appears
to establish that Hildebrand, even though he had some Jewish ancestral con-
nections, had deep Nazi ties and was an associate of Karl Haberstock (Bohr
et al.: 2013). Haberstock was Hitlers private art collector and for years engaged
in the ruthless seizure of art treasures from occupied countries as well as Italy
and Switzerland. After the conclusion of World War ii, Hildebrand Gurlitt was
questioned at length by mfaa officers about his association with Haberstock
and his dealings with looted art. He was placed under house arrest, but he
224 chappell and hufnagel
was eventually released without any convictions, and the art he possessed,
which had been seized, was returned to him in 1950. Hildebrand Gurlitt, like
Haberstock, who was also exonerated of any criminal charges, then resumed
work as an art dealer in postwar West Germany.
Cornelius Gurlitt, following the seizure of his collection and the revelation
of its existence, initially insisted that all of the works were his and petitioned
for their return. Later, in April 2014, Gurlitt entered into an agreement with
the Bavarian authorities that more than 1200 of the paintings that might have
been illicitly obtained could be evaluated by a specially established taskforce
of fifteen experts within a period of one year. He also pledged to return all
works of dubious provenance to their rightful owners in return for keeping the
balance of his collection. On 6 May 2014 Cornelius Gurlitt died. His will left
all of his collection to the Kunstmuseum Bern in Switzerland (see in general
Chase: 2014).
The Kunstmuseum in Bern has indicated that before it accepts any of these
works it will conduct a full review of their provenance to ensure that they
acquire no looted items. In conducting this review, the museum will no doubt
pay attention to the so called Washington Principles. These Principles were
established by forty-eight nations, including Germany, who attended a meet-
ing on Holocaust Era Assets convened in Washington dc in 1998. The meeting
had been preceded by expressions of international concern that many of the
thousands of works of art stolen by the Nazis had still not been restored to
their original owners following the cessation of hostilities in 1945.
Washington participants agreed on a set of non-binding principles to assist
in resolving disputes over Nazi-era art (Washington Conference on Holocaust
Era Assets: 1998). These principles emphasized among other things the need
for nations to develop alternative dispute resolution processes to resolve own-
ership issues wherever possible; to provide resources and personnel to facili-
tate the identification of all art that had been confiscated by the Nazis and not
subsequently returned; to establish a central registry of such information; to
make every effort to publicize art that was found to have been confiscated by
the Nazis and not subsequently restituted in order to locate its true owners;
and to take expeditious steps to achieve fair and just solutions for the claims
made by prewar owners of confiscated art.
In addition to the Washington Principles, two leading organizations of
museums in the United States, the American Alliance of Museums (aam)
and the Association of Art Museum Directors (aamd), also developed sets
of guidelines for their members that were far more specific and directive in
their scope and content. Both sets of guidelines emphasized the need for
museums to use mediation wherever possible to resolve claims, and to offer
The Gurlitt Case 225
3 German Responses
decision (bgh Urt. v. 16.03.2012, Az. V zr 279/10), which determined the via-
bility of special restitution rights beyond civil law, concerned claims that the
extensive poster collection of the Jewish dentist Hans Sachs, which had been
confiscated by the Nazis in 1938, should be returned from the German History
Museum in Berlin. Hans Sachs had managed to flee Germany and immigrate
to the United States during the war. After his death his heirs demanded the
return of his very valuable poster collection (or at least some of the posters)
before the German courts. The court decision is of importance for this assess-
ment of the Gurlitt case as it determines the hierarchy of claims under German
law. In particular, the decision rules that even though administrative claims
under special provisions on restitution claims in cases of Nazi injustices are
available, the heirs can resort within this to civil claims against private parties
(here the museum), which will not be precluded by the statute of limitations.
It follows that the heirs of previous owners in the Gurlitt case would likely
have had similar rights against Gurlitt before his death and will now be able to
claim these rights against Gurlitts heirs. The German law is hence not power-
less in cases of restitution for Nazi injustices. However, based only on German
civil law, there is no right to restitution. This seems to be a lacuna in German
civil law when considering art crime cases that cannot be traced back to Nazi
injustices. Whether this lack of legal protection is significant and should be
remedied will be discussed in this part of the chapter.
The present assessment will also consider German criminal and criminal
procedural rules in relation to the Gurlitt case as it could be doubted whether
the German state dealt with this matter in an appropriate manner. As in most
common law systems, German (civil law) criminal procedure requires a rea-
sonable suspicion that the suspect has committed a crime to search a home.
Furthermore, confiscated objects need to be related to the crime committed.
If someone is suspected for murder and police are searching for a knife, they
cannot confiscate a flower vase. The present part of the chapter will hence
also assess the police and prosecutor behaviour in the Gurlitt case in light of
German criminal procedure and try to find any overlaps.
To put another caveat before the assessment of German civil restitution law,
it also needs to be noted that Gurlitts actions during his lifetime indicated
that he would be willing to return the paintings under the requirements of
the Washington Principles. In April 2014, he signed an agreement to return
property with the Bavarian state and the Federal State of Germany under the
Washington Principles. It could hence be assumed that even without court
procedures, paintings proven to unjustly have changed owners during the war
would have been returned to the previous Jewish owners.
The Gurlitt Case 227
The questions considered here are therefore only whether under German
civil law Gurlitt would have had to return the paintings and whether there
was any rightful action depriving him of his property (the paintings) in the
first place.
The answer has already been given to the first question. There are no German
civil law provisions that could have forced Gurlitt to return the paintings. The
possible provisions under which such restitution could have been achieved are
very diverse. The present chapter will hence only address the most prominent
ones. First, a right to restitution under German civil law could have been justi-
fied as Gurlitt might never have become the rightful owner of the paintings.
According to 1006 i 1 bgb (German Civil Code) the assumption is that the
actual owner of an object is also the rightful owner. As Gurlitt was in posses-
sion of the paintings (they were found in his flat), it can be assumed that he
was also the rightful owner. However, he could have lost possession when the
paintings were confiscated. Through seizure of the paintings, the Bavarian state
could have assumed actual possession of the paintings, and Gurlitt could have
lost his possession and thereby his ownership. Yet under 1006 i 3 bgb, Gurlitt
would have remained in indirect possession of the paintings, and under 1006
i 2 bgb it can be assumed that indirect possession still gives rights to owner-
ship and that this right had not been transferred to the state. Gurlitt had hence
not lost ownership when the paintings were confiscated.
An exception to ownership exists under 1006 i 2 bgb if the former
owner has lost the object. In these cases the assumption of ownership of the
previous owner prevails for the duration of Gurlitts possession, and Gurlitt
never acquired ownership through possession. Another exception to Gurlitts
legal ownership could exist if the legal act under which his father acquired
possession of the paintings was void. In these cases he would have never
become the legal ownerdespite actual possessionand the original owner
(before Gurlitts father acquired the paintings 1922 bgb) would always
have remained the rightful owner.
There are various possible scenarios under which the legal act leading to
ownership of Gurlitts father (Hildebrand Gurlitt) could have been void. First,
Hildebrand Gurlitt might have acquired the paintings after the previous own-
ers were dispossessed through a German law on degenerate art (for example).
Had the previous owners been dispossessed, they would never have lost own-
ership as the dispossession laws are in conflict with legality. In this scenario,
Gurlitts father could also not have acquired ownership in good faith as this
possibility is excluded under German civil law if the objects are lost. In cases
of Nazi dispossessions (as illegal state acts) the object is legally considered to
228 chappell and hufnagel
be lost and can therefore not be acquired in good faith. Gurlitt therefore might
not have become the rightful owner of the paintings if his father acquired
them after acts of Nazi dispossession.
However, Gurlitt could still have ownership through acquisitive prescrip-
tion (adverse possession) according to 937 bgb. Under this provision of the
German civil code, an object transfers into anybodys ownership after ten years
possession. It does not matter whether the original possession was in good
faith or not. The only exception to this rulewhich has been introduced into
German civil law to create legal certainty and reliabilityis the force majeure
argument ( 939 ii iVm 206 bgb). Had the paintings been transferred into
Gurlitts possession through force majeure, adverse possession would therefore
not be possible, and the original owners would have preserved their rights.
However, this argument would unlikely be applicable if the paintings had
been sold to Gurlitts father. Acquisitive prescription after ten years can only
be excluded if Gurlitt (the son) had not been in good faith. Despite assump-
tions about Gurlitts knowledge of the paintings provenances, his bad faith
remained difficult to prove. It is hence most likely that Gurlitt would have been
considered the rightful owner of most paintings in his possession had the mat-
ter reached the German civil courts.
Gurlitt furthermore could not have acquired ownership of the paintings
if the legal act by which ownership was transferred from the original owners
to his father (e.g., by sale) had been void or could be challenged according
to 138 bgb. Under this provision of the German civil law, the act by which
ownership is transferred could have been immoral. For example, if a Jewish
family wanted to flee Germany and was forced to sell all their belongings,
buying such items from them could from todays perspective be considered
an immoral act and render the legal transaction void. However, the buyer at
the time would have to have been aware that their actions were immoral, and
this is highly unlikely as these acts were not considered illegal or immoral
at the time. However, in most of these scenarios, the fleeing families would
have sold their possession for far under market value, and the act could there-
fore be considered immoral, even for that time, because of so-called fault of
equivalence (mismatch between the price and the actual value). If the rela-
tionship between price and value is significantly out of proportion, the legal
act is considered void. If Gurlitts father had exploited the desperate situation
of Jewish families at the time by offering low prices for their artwork, Gurlitt
would not have acquired ownership of the paintings through legal transfer of
ownership by the original owners.
If the legal act transferring ownership to Gurlitts father was challenged
because of unlawful threat ( 123 i Var 2 bgb), the act may have been rendered
The Gurlitt Case 229
void for this reason as well. Had the Jewish owners sold their property to
Gurlitts father because the situation under the unjust regime threatened them
or because they were more directly threatened to sell their property by the
German government at the time, these legal acts would also have been void.
However, for these claims, the statute of limitation starts when the threat ends,
hence, with the end of World War ii (wwii). According to 124 i bgb, the legal
act needs to be challenged within one year after the end of the threat. This
was obviously impossible considering the situation of potential Jewish claim-
ants at the end of the war. Even if the statute of limitations is precluded under
124 i 2, 206 bgb (force majeure), that only gives a timeframe of ten years
for the legal acts to be challenged, which, under the circumstances at the
time, was equally impossible in most cases. Due to the statute of limitations in
German civil law, Gurlitt would in these cases have become the rightful owner
of the paintings.
It follows from the assessment so far that restitution according to 985 or
1007 ii bgb is most likely to be an impossible claim as Gurlitt has become the
rightful owner of the objects. An exception can be considered the challenge
of the statute of limitations if the loss of the paintings was related to force
majeure. However, if there had been a legal (or even illegal) act to transfer own-
ership rights between the original owners and Gurlitts father, it is highly likely
that German civil courts would have decided in favour of Gurlitts ownership.
This is further supported by the argument that Gurlitt most likely acquired
adverse possession after ten years according to 937 bgb, which will in most
cases not be challenged by the force majeure argument.
However, if the paintings had been acquired by Gurlitts father through an
illegal act, there could be a possible right to compensation (which is the fall-
back position in German law if restitution is impossible) under 989, 990 bgb.
However, claims for compensation are subject to statute of limitations of
thirty years. Considering that thirty years had long passed since the illegal act,
there is also no right to compensationat least not under the German civil
code alone.
Another possibility, although this construction is the most far-fetched of all
scenarios considered so far, is that Gurlitts father never himself became the
owner of the paintings as he was acting on behalf of the German state and
therefore the objects could still belong to the current German state as legal
successor of the German government at the time under 667 (and 1922)
bgb. Had Gurlitts father been commissioned by the government to buy the
paintings, neither he nor his son would have acquired ownership and restitu-
tion under 985 or 1007 ii bgb could be possible. However, under 199 V or
937 bgb the statute of limitations to claim property back from Gurlitts father
230 chappell and hufnagel
evasion, let alone the level of suspicion needed under German law to justify
the granting of a search warrant for his flat by a German court. The right to
privacy, especially of the home as the most private space, is a longstanding
civil right in Germany that can only be breached in extreme cases (Article 13
German Basic Law or Grundgesetz). It is rather surprising that a German judge
allowed the search of a flat under the circumstances.
However, even if the search warrant was legal, the confiscation order cer-
tainly was not. According to the German Constitutional Court, all items to
be confiscated need to be defined in the search warrant (Beschluss vom
03.09.1991-2 BvR 279/90-NStZ 1992, S. 91). Considering that in the present case
police were looking for evidence of tax evasion, they would not have specified
more than 1200 paintings in the warrant. Gurlitts lawyers put in a complaint
against the warrant that encompassed forty-five pages and named various rea-
sons for the illegality of the confiscation.1 For any criminal lawyer the illegality
of the warrant appears blatantly obviousapart from the Augsburg prosecu-
tion services. Most striking is the infringement against the principle of pro-
portionality. This principle prescribes that a state measure that infringes basic
rights needs to be proportionate to the crime committed. The possible tax eva-
sion of a train traveller with 9,000 Euros in his pocket is likely to be dispropor-
tionate to the emptying of a whole flat of valuable paintings to which a fragile
old man feels very connected. In the end, even the Bavarian prosecutor might
have felt a bit uneasy about this and ordered all paintings that were not sub-
ject to restitutions to be returned to Gurlitt. By that stage, it was unfortunately
too late for both Gurlitt and the German state. While Gurlitt died before the
paintings had been returned to his home, he also determined in his will that
all of his paintings should be given to a museum in Switzerland (Rbel and
Sontheimer: 2014). None of his valuable paintings will benefit Germany or its
citizens.
4 Conclusion
It is striking that the representatives of the German state could make mistakes
like these in such a significant and widely publicized case. One of the prin-
ciples of Germany and, indeed, part of its international reputation today is
legality and sticking to the rules. It is interesting to see that when the panic of
bad publicity with regard to the World War ii legacy strikes, even judges and
1 See at <http://www.gurlitt.info/de/pressemitteilungen/pressemitteilung-19-02-2014.html>.
232 chappell and hufnagel
References
Gerstenblith, Patty (2008). Art, Cultural Heritage, and the Law: Cases and Materials.
Durham, nc: Carolina Academic Press.
Gezer, zlem (2013). Interview with a Phantom: Cornelius Gurlitt Shares His Secrets.
Spiegel Online (17 November), <http://www.spiegel.de/international/germany/
spiegel-interview-with-cornelius-gurlitt-about-munich-art-find-a-933953.html>
(accessed 23 July 2014).
Miles, Margaret (2008). Art as Plunder: The Ancient Origins of Debate about Cultural
Property. New York: Cambridge University Press.
Nicholas, Lynn (1994). The Rape of Europa: The Fate of Europes Treasures in the Third
Reich and the Second World War. London: Borzoi Books.
Peters, Olaf (ed.; 2014). Degenerate Art: The Attack on Modern Art in Nazi Germany 1937.
New York: Prestel and Neue Galerie.
Plundered Art. Revisiting the Washington Conference Principles on Nazi confiscated
art- 13 years later. Plundered Art- a perspective from the Holocaust Art Restitution
Project 25/06/2011 <http://plundered-art.blogspot.com.au/2011/06/revisiting-wash
ington-conference.html> accessed 31/07/2014.
Rbel, Sven and Sontheimer, Michael Kunsterbe Cornelius Gurlitt: Tod eines
Phantoms Spiegel Online 6/5/2014 at <http://www.spiegel.de/kultur/gesellschaft/
nachruf-auf-cornelius-gurlitt-a-967943.html> accessed 23/7/2014.
Selle, Dirk van and Claudia van Selle (2012). bgh-Urteil zur Sammlung Sachs
Eigentum an ns Raubkunst kennt keine Fristen. Legal Tribune (19 March), <http://
www.lto.de/recht/hintergruende/h/bgh-urteil-zur-sammlung-sachs-eigentum-an-
ns-raubkunst-kennt-keine-fristen/> (accessed 23 July 2014).
Washington Conference on Holocaust Era Assets (1998). Washington Conference
Principles on Nazi Confiscated Art. us Department of State (3 December 1998),
<http://www.state.gov/p/eur/rt/hlcst/122038.htm> (accessed 31 July 2014).
Part 6
Archaeological Looting
CHAPTER 13
The first secure online retail transaction took place in August 1994 (Ariguzo
et al. 2006: 240). The following year saw the establishment of Internet sales as
a viable commercial strategy with the launch of Internet retailer Amazon and
Internet auction site eBay (Krishnamurthy 2004: 3233). Amazon and eBay also
pioneered two alternative models of online commercial interaction: business
to consumer (B2C) in the case of Amazon, and consumer to consumer (C2C)
in the case of eBay. By 2011 it was estimated that at least 2.3 billion people had
access to the Internet, and even with over sixty percent of that figure in the
developing world (unodc 2013: xvii), the residue of potential customers in the
developed world is an attractive prospect for any commercial venture.
The rapidly expanding world of Internet commerce offered new opportu
nities for antiquities merchants and for criminal abuse of the antiquities
market. Traditionally, antiquities collecting and trade had been high-class
affairs, with rich museums and collectors served by a small number of well-
established dealers and auction houses. Yet already in the 1990s, moves were
afoot to commercialize the antiquities trade by offering poorer quality or less-
expensive antiquities to a broader and economically more diversified customer
base, by developing transactional spaces outside the traditional andfor
inexperienced customersintimidating contexts of merchant galleries and
auction rooms, and by emphasizing the decorative and financial rather than
aesthetic and scholarly attributes of the antiquities for sale. Small trade fairs
offered the enticing prospect of a pleasant day out, and mail-order schemes
allowed purchases to be made in the reassuring comfort of the customers own
home (Brodie 2004: 8991). These tentative moves to grow the customer base
by expanding downmarket were soon overwhelmed by the growing opportu
nities of Internet commerce, however, and it was not long before an online
antiquities market became an established reality, with both B2C and C2C sales
strategies allowing the participation of collectors from a much broader range
of socioeconomic backgrounds than had previously been the case. The emerg
ing Internet market also worked against traditional merchants who maintain
galleries in expensive locations like New York or London and favored a new
business model whereby large inventories can be stored in low-cost locations
(McAndrew 2012: 104).
With regard to cultural objects proposed for sale, and before buying
them, buyers are advised to: i) check and request a verification of the
licit provenance of the object, including documents providing evidence
of legal export (and possibly import) of the object likely to have been
imported; ii) request evidence of the sellers legal title. In case of doubt,
check primarily with the national authorities of the country of origin and
interpol, and possibly with unesco or icom.1
1 http://portal.unesco.org/culture/fr/files/21559/11836509429MesuresTraficIlliciteEn.pdf/
MesuresTraficIlliciteEn.pdf (accessed 14 January 2014).
240 Brodie
local eBayers and craftsmen can make more money cranking out cheap fakes
than they can by spending days or weeks digging around looking for the real
thing (Stanish 2009: 58). For the importer, fakes could be imported legally pro
vided they were described accurately as the replicas they are (Stanish 2009:
59). The increasing market penetration of fakes was also driving down the
prices of genuine pieces (Stanish 2009: 58). Stanish had first-hand knowledge
of workshops in Peru and Bolivia (Stanish 2009: 58), and provided the example
of a price mark-up for a recently fabricated Moche iii Fineline piece that would
sell for $223 on eBay but could be bought from a street vendor in Peru for $15; a
genuine piece would cost about $15,000 (Stanish 2009: 66). Stanish concluded
that For most of us [archaeologists] the web has distorted the market in a
positive way (Stanish 2009: 66).
At the time of its publication, Stanishs paper attracted a good deal of media
coverage (e.g. Palmquist 2009; Boehm 2009), and his argument was echoed
from within the antiquities trade. Bob Dodge, for example, founder of Artemis
Gallery, was quoted as saying Anybody who knows anything avoids eBay...the
handful of legitimate [online] dealers, were just pulling our hair out, trying to
discourage people from throwing money away on cheap tourist crap (Boehm
2009). Jerome Eisenberg, proprietor of New Yorks Royal-Athena Galleries,
added that anybody with a decent amount of intelligence isnt going to buy on
eBay unless they know who they are dealing with (Boehm 2009). It wasnt hard
either to find on the Internet cautionary tales for potential eBay customers. In
2013, for example, Dodges Artemis Gallery had on its website a piece headed
How to buy ancient art, emphasizing the prevalence of fakes, and warning:
DO NOT BUY YOUR FIRST PIECE OF ANCIENT ART ON EBAY! That may
sound harsh, and I would be lying if I told you there are not good buys to
be had on eBay despite all the fakes being sold, but if you do not know
what you are doing or do not personally have the eye to tell authentic from
fake, avoid eBay like the plague! Based on current estimates, somewhere
around 95% of all items listed under the category Ancient Egyptian, 99%
of all ancient Chinese and perhaps as much as 75% of all ancient Roman
(with over 95% fakes in anything made of metal) and 75% of all Greek
materialare just plain fake. The Pre-Columbian category is a wee bit
better, but at best you are still looking at a 50/50 chance of buying some
thing that is actually an authentic piece of Pre-Columbian art. End of
story; do not let yourself be tempted to buy from eBay...at least not yet!2
In support of that statement, Fay (2011: 459) reported that in 2009, eleven out
of ninety-nine antiquities vendors were suspended by eBay for selling fakes.
Thus Stanishs message fell on fertile ground, reinforcing and perhaps even
encouraging from his authoritative standpoint of official archaeology the
narrative already established by dealers that eBay was a malign force in the
antiquities market, undermining customer confidence in the broader antiq
uities market by seemingly tolerating the large-scale sale of counterfeit arti
facts. For Stanish, this was a reason to stop worrying about the antiquities
trade causing the large-scale looting of archaeological sites, but it might also
3 Availableathttp://www.landsbeyondprecolumbian.com/articles/articles.cfm(accessed
14 January 2014).
4 Available at http://www.collector-antiquities.com/44/ (accessed 14 January 2014).
5 Available at http://www.thefakebusters.com (accessed 14 January 2014).
6 Available at http://groups.yahoo.com/neo/groups/Ancientartifacts/info (accessed 14 January
2014).
The Internet Market in Pre-Columbian Antiquities 243
have been a reason for merchants to stop worrying about the possible impact
of fakes on market confidence as this active ringfencing of blame deflected
scrutiny and criticism away from their own inventories and towards eBay. It
was, perhaps, a welcome diversion for them. Kelker and Bruhns (2010: 4558)
believe that only the more blatant fakes are sold on eBay; they give examples of
more convincing forgeries and pastiches sold by other merchants and bought
by wealthy collectors and museums. Nevertheless, not surprisingly, established
auction houses and dealers recommend merchants, especially merchants who
are members of professional associations, as an alternative to eBay, and fur
ther recommend buying from merchants offering unconditional guarantees
of authenticity for sold objects. (These guarantees are misleading, however,
in that they only guarantee the return of purchase price should a purchased
object subsequently be discovered to be fake. Since this would require the pur
chaser to pay for a costly examination of the object by an expert or a labora
tory, it is an unlikely eventuality. Thus in the absence of pre-sale authenticity
testing, the guarantees do not actually guarantee authenticity). Trocadero
and VCoins also seem concerned about the debilitating effect of fakes on mar
ket confidence. Both have strongly proscribed misrepresentation of objects
offered for sale and reserved the right to discontinue members who fail to com
ply with their rules on the issue.
eBay was also perceived to be causing problems in the domain of policy,
though more because of the sale of stolen or illegally traded objects than the
sale of fakes. Several governments have now reached agreement with eBay
about rules intended to prevent the sale of illicit material, including Germany,
Switzerland, France, Austria, the United Kingdom, and the United States (Kre
der and Nintrup 2013). These agreements are generally aimed only at antiqui
ties originating in the country served by the associated national eBay platform.
On eBay uk, for example, sale restrictions are placed only on antiquities legally
protected under the law of the United Kingdom or Ireland.7 eBay usa seems to
be an exception, asserting that we consider antiquities to be items of cultural
significance and can come from anywhere in the world. For eBay usa, antiqui
ties have to be authentic as described and accompanied by an image of an offi
cial document showing details of legal sale and export/import.8 Nevertheless,
the effectiveness of these eBay policy agreements is thought to be limited. The
rules are not in plain sight but hidden away in an AZ index reached through
a link on policies at the foot of the home page. It would be possible to buy and
sell antiquities without being aware of the policy (which is quite literally the
fine print). eBay rules are further weakened by the apparent absence of i nternal
eBay oversight and enforcement; the rules must be enforced by continual and
time-consuming monitoring by outside agencies (Bland 2009: 8896).
The views put forward by Stanish were born out of personal experience and
so unavoidably and understandably were anecdotal and impressionistic. As
he himself wrote, it is virtually impossible to obtain reliable quantitative data
(Stanish 2008: 82), either about the magnitude of illicit trade or the incidence
of fakes. Thus it is difficult if not impossible to marshal the evidence needed
to test his thesis. Even if he is correct, however, and the production of fakes is
acting to curtail looting, archaeological sites are still being looted and the illicit
trade in authentic antiquities is continuing. On the ground, reports of loot
ing in countries such as Bolivia (Quispe 2012) and Columbia (Muse 2004) con
tinue to accumulate. The website of the Fundacin Nacional de Arqueologia
de El Salvador (fundar) reports damage to six different sites in El Salvador
since 2000.9 Satellite imagery of two sites in the Lambayeque region of north
Peru shows evidence of looting between 2003 and 2010 (Lasaponara et al. 2013:
1920). Between 2008 and 2012, us Immigration and Customs Enforcement
(ice) reported the return of more than 4525 authentic antiquities from at least
twenty-six separate customs seizures and investigations within the United
States to eight different Latin American countries (ice 2008a, 2008b, 2010a,
2010b, 2010c, 2010d, 2010e, 2011a, 2011b, 2011c, 2012a, 2012b, 2012c). Some of this
material had been put up for sale on the Internet, though seems to have been
smuggled into the United States first. In 2010 a collaborative investigation
begun in 2007 between us Immigration and Customs Enforcement and the
Salvadoran police resulted in the arrest of two people in El Salvador and the
return of dozens of artifacts from the United States to El Salvador. Material
had been entering the United States through the mail for subsequent sale on
the Internet (ice 2010c). Unfortunately, there is no comparable historical data,
so it is not possible to judge the significance of these figures in a longer time
frame. In other words, by themselves, they cannot establish whether the inci
dence of looting and magnitude of illicit trade are increasing or decreasing as
a result of the expanding Internet market.
Twenty years after the first appearance of Internet commerce the size, scope,
and organization of the Internet market in antiquities are still matters for spec
ulation. There is a regrettable lack of systematic research providing answers
to even basic questions about the number and types of Internet businesses,
the physical locations of vendors, the origins and prices of material sold, the
standards of provenance, and the appropriateness and effectiveness of amelio
rating regulation. For many commentators and authorities, the Internet seems
to begin and end with eBay. Archaeologists and policy makers have largely con
fined their attention to the activities of eBay, thus inadvertently supporting
the message propagated by merchants and collectors that eBay is the main
site of wrongdoing, particularly with regard to the sale of fakes. Implicitly, for
potential customers, the message is that antiquities sold outside eBay are more
likely to be authentic and legitimately on the market. It is not clear whether
the policy focus on eBay is productive in diminishing fraud and illicit trade or if
it is merely diverting attention away from and perhaps even promoting the sale
of faked or trafficked artifacts through other outlets. This research shortfall is
surprising because, as Bruhns (2000) noted, the transparency of the Internet
offers a good opportunity for investigating the antiquities market. This chapter
takes advantage of this opportunity to establish the volume, value, and struc
ture of the Internet market in antiquities by collecting different types of sales
information with a view to answering the following questions:
Methodology
Auctions), from eBay usa, from other Internet auction sites, and from Internet
dealers (including the websites of dealers with physical gallery spaces). It was
a straightforward task to tabulate sales information available on eBay and two
other B2C Internet auction sites, Arte Primitivo and Antiquities Saleroom. (For
eBay usa, the prices of lots sold Buy it Now which did not appear on the eBay
website were available on WatchCount.com).10 It was harder to acquire infor
mation from Internet dealer sites as they usually only contain clear records of
objects offered for sale, not objects sold. An Internet search in early 2011 discov
ered the sites listed in Table 13.1 offering for sale more than five pre-Columbian
antiquities each. The search probably was not exhaustive, but at the time it
was thought to have recovered most significant Internet traders. To achieve
some approximate statistics describing the number and nature of objects sold,
the dealer sites were inspected once annually for three years.
The sheer volume of material offered for sale required the implementation
of a sampling strategy and the calculation of average statistics to describe the
volume, value, and nature of annual sales. eBay was visited several times in
2012 and 2013 and sales information was tabulated for a total period of thirty-
three days. The figures were then multiplied up to provide estimated annual
averages. Sales information for six out of seven annual auctions over the period
20122013 at Antiquities Saleroom and three out of five at Arte Primitivo over
the same period was similarly tabulated and multiplied up to provide esti
mated annual averages. The Internet dealers were divided into two groups. For
the first, intensively monitored group, each site was visited once in 2011, 2012,
and 2013. The first year, information for all lots offered for sale was tabulated.
For the following two years, all removed and new lots were noted. Removed
objects were interpreted as sales that had occurred during the intervening
interval, causing their removal from the website. The two years total sales
information was then divided by two to produce estimated annual averages.
The only exception was the Barakat Gallery. The exceptionally large amount of
material available for sale meant that only about half of it could be recorded
intensively, and then multiplied up. For the second, extensively monitored
group of Internet dealers, each site was visited once in 2011, 2012, and 2013,
and on each occasion the number of lots offered for sale was tabulated. The
averages obtained for the intensively monitored group were then used to
estimate average sales information for the extensively monitored group. For
Bonhams and Sothebys, estimated annual averages were calculated from all
sales in 2012 and 2013. For Heritage Auctions, sales information was tabulated
for one out of two annual auctions in 2013 and multiplied up to provide esti
mated annual averages.
Dealers
The overwhelming majority of Internet dealers and auction sites identified in
this study as selling pre-Columbian antiquities are based in the United States.
The only exceptions are Mermoz, based in France, and Barakat, with galleries
in the uk and Abu Dhabi as well as the United States. As regards eBay usa, for
478 sold lots where location data was recorded at time of sale, 452 lots were
situated in the United States, fourteen in various European countries, four in
Canada, and three in Argentina. Presumably, more material located in Europe
might have been sold locally on the various national eBay platforms. Thirty-six
different vendors were responsible for the sale of 192 of the lots located in the
United States for which vendor name was recorded. The results for eBay usa
are broadly in line with those reported by Fay (2011 454) for antiquities more
generally. There was nothing to suggest, contra Stanish, that vendors based in
Peru or any other Latin American country are a significant presence on either
eBay usa or anywhere else on the Internet market for that matter. eBay does not
host sites for any Latin American countries. Instead, eBay notes its presence
in Latin America through its investment in MercadoLibre.11 MercadoLibre is
an Internet auction company with a similar international partition strategy
to eBay, offering individual, country-specific platforms. When visited in 2013
as part of this research, MercadoLibre Per was not offering for sale any pre-
Columbian antiquities12 and listed only a few replica antiquities.13 Thus there
was no evidence to support Stanishs contention that Peruvian vendors are
using eBay in Peru to sell significant quantities of replicas that might be fraud
ulently resold in the United States or other countries as genuine antiquities.
11 Availableathttp://pages.ebay.com/aboutebay/thecompany/companyoverview.html
(accessed 14 January 2014).
12 Available at http://home.mercadolibre.com.pe/arte-antiguedades/ (accessed 14 January
2014).
13 Available at http://arte-antiguedades.mercadolibre.com.pe/artesanias/ (accessed 14 Jan
uary 2014).
248 Brodie
1. Most of the sales recorded took place in the United States, though sales
would also have taken place in other countries. For example, the March
2013 auction of the Barbier-Mueller collection at Sothebys Paris, which
sold for 10,296,300 euros ($13,385,190) was not included because it was a
one-off event, and the intention was to estimate average annual figures.
The Internet Market in Pre-Columbian Antiquities 249
Alongside these possible causes of underestimation, there are also two pos
sible causes of overestimation:
1. Not all lots removed from Internet dealers websites were necessarily
soldsome might have been removed for other reasons.
2. Some of the Internet dealers might also have bought or sold material at
Internet auction or on eBay. Thus some lots might have been counted as
sold twice, once on a dealers site and once at auction.
describing Internet and physical auction sales that are more secure. There is
a greater likelihood of serious underestimation, because of the existence of a
market outside the United States and the possible but unknowable existence
of even a small number of high-value, private, invisible transactions. Taking
both of these considerations into account, a best guess estimate of the average
annual value of the market in pre-Columbian antiquities would be more than
$7,032,708, but is unlikely to be more than double that amount.
are those with a post-1970 provenancein other words, objects with a prov
enance that would be considered unacceptable by the aamd and as advised
by some members of the trade. The smaller and least expensive objects are
those with a pre-1970 provenance, one that would be considered acceptable.
Objects with no provenance are midway in both size and price, suggesting they
comprise a mixture of pre-1970 and post-1970 objects. These statistics go some
way towards confirming a subjective impression formed during data collation
that many of the smaller pre-1970 objects offered for sale were in fact only frag
ments of objects, and that as associated descriptions often claimed, they were
surface finds collected by visitors during the 1960s and earlier. The larger and
more valuable pieces were most probably looted.
Thus customers are not targeting antiquities with a long (pre-1970) prov
enance. In no case is the percentage of pre-1970 objects sold higher than the
percentage of post-1970 objects sold. These refined statistics strongly suggest
that within a given market tier, the better quality antiquities in circulation are
those with a short (post-1970) provenance, and thus tainted by the suspicion of
illicit trade. The fact that they are not being discriminated against by custom
ers, despite this taint, indicates either ignorance or insensitivity on the part of
customers towards issues of provenance and illicit trade.
Mayan are used honestly in object descriptions when the country of origin is
uncertain, not because of any intention to deceive. (There is one exception to
this general observation. One merchant consistently failed to name Peru as the
country of origin of lots that in cultural terms were clearly from Peru. Peru has
had a bilateral agreement with the United States since 1997. Lots from Mexico,
which does not have an agreement, were described by the same merchant as
coming from Mexico. Nevertheless, even in this case, the cultural terms used to
describe lots from Peru were transparent and would not mislead even a mini
mally knowledgeable collector about country of origin.)
Tables 13.7 and 13.8 provide a breakdown according to country of origin of
a sample of unprovenanced lots offered on the Internet for which relevant
information was recorded, with an asterisk marking those countries which in
2013 had bilateral agreements with the United States. Clearly, merchants were
not shy about selling material from countries with bilateral agreements. This
data set cannot be used to assess the overall effectiveness of import controls
enacted under bilateral agreementsalthough there are a large number of
unprovenanced lots offered for sale and ascribed to Peru, for example, there is
nothing to say that without a bilateral agreement the number might be higher.
What Tables 13.7 and 13.8 do show, however, is that there is no real evidence
of customer caution or restraint when faced by unprovenanced material from
countries with bilateral agreements. The percentages of lots sold from coun
tries with agreements compares well to the percentages sold from countries
with no agreements. Thus once unprovenanced material is available for sale
within the United States, a possible history of illicit import is not seen as an
impediment to purchase. Again, as in the case of provenance, customers seem
unaware of or unconcerned about the possible illicit origins of their purchases.
Conclusion
For people who are not antiquities merchants it is hard to say anything that
is constructive or productive about the present state of the Internet market
in pre-Columbian antiquities. Pre-Columbian antiquities have been collected
seriously as art since the early decades of the twentieth century (Boone 1993)
and there is a history of looting and illicit trade to match (Coggins 1969; Atwood
2004; icom 1997), not to mention the associated forgery culture (Bruhns and
Kelker 2010; Kelker and Bruhns 2010). The large majority of objects offered for
sale in 201113 without provenance were in all probability not recent arrivals
on the market; many had most likely been out of their country of origin for ten,
twenty, or more yearsand an unknown proportion were probably fakes. But
The Internet Market in Pre-Columbian Antiquities 253
Nevertheless, the experience of eBay usa and eBay uk shows that effective
regulation requires external oversight, and concerned public or professional
bodies need to step forward and respond to the challenge. In January 2014,
for example, it was reported that eBay usa had agreed to suspend the sale of
Egyptian antiquities in response to a request from the Egyptian Embassy to
the United States (mena 2014). As regards law enforcement, there are many
traders on eBay offering small quantities of low-priced objects, but they are the
small fish of the antiquities market pond. What scarce resources are available
to law enforcement agencies would be better expended on chasing the bigger
fish, including perhaps eBay itself (Kreder and Nintrup 2013: 1833), and on
generating more publicity for successful convictions. One or two high-profile
prosecutions for illicit trade might send a chastening message, alerting cus
tomers who choose to ignore warning statements to the financial and legal pit
falls of the Internet market, something that the poorly publicized convictions
of small-time eBay traders has signally failed to do.
Acknowledgments
The research leading to these results has received funding from the European
research Council under the European Unions Seventh Framework Programme
(FP7/20072013)/erc Grant agreement no. 283873. Thanks are due to Will
Korner for collating the Sothebys and Bonhams data.
table 13.1 Internet dealers offering more than five pre-Columbian antiquities for sale in 2011.
Ancient Resource
Apolonia Ancient Art
Arte Xibalba
Artemis Gallery
David Bernstein
Galeria Con-Tici
Griffin Gallery
hd Enterprises
Lands Beyond
Lost World Artifacts
Howard Nowes
Barakat Gallery
Galerie Mermoz
The Internet Market in Pre-Columbian Antiquities 255
Ancient Artifacts
Edgar Owen
Galleria Delvecchio
Galleria Verges
Genius of Man
Haigs of Rochester
Hundred & One Antiques
New World Antiquities
One of a Kind
Riverbend Gallery
table 13.2 Estimated material volume and financial value of Internet market in pre-
Columbian antiquities: Internet dealers. (All prices in usd). The average
thirty-eight percent lots sold is the average of percentage lots sold for each
dealer, and is higher than the overall figure (of twenty-three percent lots sold)
because of the low percentage sold figures of two dealers with large inventories.
The figures in square brackets for the extensively monitored group are
estimated from information obtained for the intensively monitored group.
table 13.3 Estimated material volume and financial value of Internet market in pre-
Columbian antiquities: Internet and physical auctions. (All prices in usd.)
Internet auctions
Arte Primitivo 1,060 960 1.7 91 992,693 1,034
Antiquities Saleroom 629 335 1.1 53 433,367 1,294
eBay usa No data 5298 No data No data 655,175 124
Physical auctions
Bonhams 94 51 1.2 54 359,736 7,054
Sothebys 46 35 1.1 77 1,644,032 46,972
Heritage Auctions 394 256 No data 65 375,574 1,467
Total 7,680 5,508,558
80
Internet dealers Internet auctions
70 ebay Sothebys
60
Percentage lots sold
50
40
30
20
10
0
0-100 101-500 501-1,000 1,001-5,000 5,001-10,000 10,001-50,000 >50,000
Price range ($)
figure 13.1 Range of prices of individual sold lots of pre-Columbian antiquities.
The Internet Market in Pre-Columbian Antiquities 257
table 13.4 Earliest verifiable provenance of lots offered and sold. (All prices usd.)
eBay 19141945 0 0
19461969 18 154
1970 8 482
None 453 116
table 13.5 Earliest verifiable provenance and mean size of single ceramic object lots offered
for sale.
table 13.6 Earliest verifiable provenance and mean price of single ceramic object lots offered
and sold. (All prices in usd.)
table 13.7 Countries of origin of lots offered and sold by Internet dealers. Asterisk indicates
a country with a bilateral agreement with the United States.
Bolivia* 1 1 100
Brazil 2 1 50
Colombia* 17 7 41
Caribbean 2 0 0
Costa Rica 25 8 32
Ecuador 71 7 10
El Salvador* 3 0 0
Guatemala* 22 1 5
Honduras* 4 1 25
Mexico 175 37 21
Peru* 136 73 54
Panama 3 1 33
Venezuela 2 0 0
table 13.8 Countries of origin of lots offered and sold by Internet auctions (not including
eBay). Asterisk indicates a country with a bilateral agreement with the United
States.
Argentina 3 1 33
Belize* 1 0 0
Brazil 7 6 86
Colombia* 36 28 78
Costa Rica 54 41 76
Ecuador 24 19 79
El Salvador* 7 4 57
Guatemala* 21 13 62
Honduras* 14 9 64
Mexico 276 168 61
Peru* 128 63 49
Panama 11 7 64
Venezuela 2 1 50
260 Brodie
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the Antiquities Market. Culture Without Context 9: 412.
Coggins, Clemency (1969). Illicit Traffic of Pre-Columbian Antiquities. Art Journal
(Fall): 9499.
Cooper, Renae, and Katina Michael (2005). The Structure and Components of E-mall
Business Models. University of Wollongong, Research Online. http://ro.uow.edu
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temporary Criminal Justice 27: 449464.
Cacho, Silvia, and Leonardo Sanjun (2000). Site Looting and Illicit Trade of Archaeo
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Gerstenblith, Patty (2004). Art, Cultural Heritage, and the Law. Durham: Carolina Aca
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Gilgan, Elizabeth (2001). Looting and the Market for Maya Objects: a Belizean Per
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in Illicit Antiquities: the Destruction of the Worlds Archaeological Heritage. Cam
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ice (2008a). ice Returns Ancient Marble Sculpture of Roman Emperor to Alge
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(2008b). ice Returns more than 60 Pre-Columbian Artifacts, Gold Pieces and
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(2011b). ice and cbp Return 67 Artifacts to the Dominican Republic (press
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(2012a). ice and cbp Return Illegally Exported Cultural Artifacts to Guate
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(2012b). ice Returns Stolen and Looted Art and Antiquities to Peru (press
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(2012c). ice Returns Stolen and Looted Archaeological Art and Antiquities to
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262 Brodie
Introduction
The prehistoric and ancient historic periods that chronicle the presence of
H. sapiens within Southeast Asia from circa 30,000 years bp to the firstsecond
millennia ad (the early historic period), are increasingly becoming crucial to
understanding the global past, with numerous comprehensive overviews avail-
able (e.g. Higham, 2002; OReilly, 2006; Bellwood & Glover, 2004; Stark & Allen,
1998), and new research progressing rapidly (ippa, 2014). A general chronology
for the region posits that the pre-agricultural Paleolithic period lasted from
first human/hominid occupation until circa 4,000 bp. The Neolithic period
saw a transition to settled life, the onset of agriculture, the mixing of geneti-
cally distinct populations, and the expansion of regional trade by coast and
river, and lasted until circa 3,500 bp. The Bronze Age (in northern, mainland
Southeast Asia at least) saw initial experiments in bronze casting from copper
antecedents and the distinct material cultural assemblage of tools, weapons,
jewelry, molds and slag, accompanied by new ceramic vessel forms, lasting
until circa 2,500 bp. The Iron Age (known as the ng Sn period in north-
ern Vietnam) continued these trends in material culture, stratified societies
increasingly, and lasted until circa 50 ad when the first Eastern Han invasion
in Vietnam brought the rise of proto-historic, state-level societies elsewhere.
Within this general framework, new excavations continue to demonstrate
the importance of sites along Vietnams major river tributaries and extensive
coastline in clarifying numerous issues in Southeast Asian regional prehistory.
Illicit Traffic in Vietnamese Cultural Property 265
artifact deposits, especially rare drums, weapons, jewelry and sculpture, has led
to the occasional reported instance of looting, and sometimes the salvaging of
unique finds if the destruction is stopped in time (Bellwood et al., 2007). There
is even a thriving collecting and trading community for ancient and historic
coins, sometimes with decidedly nationalistic motives (Viet Nam News, 2013a;
Vinh, 2011; Barker, 2011). The illicit trade in antiquities and the collecting com-
munity that sustains it is not the only example of a transnational organized
crime in which Vietnam participates (Roberts, 2014). All such forms of illicit
trade require continued exposure, documentation, monitoring and outreach
to create and enforce effective policy changes and raise public awareness.
Fortunately, in regard to the Vietnamese illicit antiquities trade, public
awareness and scholarly attention is beginning to reveal the existence of the
problem to the local and international public (e.g. Boom, 2012; Thanh Van,
2012; An, 2013; Flecker, 2002; Poser, 2012). Coupled with an increased push by
the Southeast Asian archaeological community for the community benefits
that preventing looting on the ground bring in favor of better conservation,
on-site museum development, and managed tourism (Viet Nam News, 2010),
the situation is beginning to change. It is our belief that the new data pre-
sented here adds significantly to the knowledge base needed to address this
problem. However, before this research and the results generated from it can
be discussed, the legislative framework that is meant to govern the acquisi-
tion, private ownership, display and trade of Vietnamese antiquities needs to
be outlined.
2 Legislative Framework
Vietnams turbulent past under French colonial rule has been well-docu-
mented, as has its successful efforts to break free of these colonial shackles
and ultimately achieve full independence as the Socialist Republic of Vietnam
(srv) in 1976 (e.g. Harrison, 1989; Pike, 1977). During the French colonial period,
the occupying powers legal system prevailed. Many archaeological sites were
identified and excavated throughout what was then French Indochina, com-
prising Cambodia and Laos in addition to Vietnam (see in general Chapman
2013). These archaeological endeavours were significant in giving impetus to
the development of museums and other repositories within Indochina for
antiquities collected during this colonial period. Many of these artifacts, of
course, found their way back to France where they continue to be displayed in
places like the Louvre in Paris.
Illicit Traffic in Vietnamese Cultural Property 267
During the years of war that followed this edict, H Ch Minh and his col-
leagues were able to give little attention to these principles as they fought for
their independence. As a result, most of Vietnams ancient sites and monu-
ments slid rapidly into decay and ruin. Many sites were also badly damaged or
destroyed by bombing and other forms of armed conflict.
Following unification of North and South Vietnam in 1976, the new srv
passed its first Ordinance on the Protection of Historical Cultural Relics and
Scenic Sites in 1984. Conservation and associated activities began with for-
eign assistance; this was given primarily by Poland, which was also a socialist
state at the time (Chapman 2013: 117). The protection of the cultural heritage
of the Vietnamese nation was also reflected in its constitution; Article 34
provides that:
The State and society preserve and develop the national cultural heritage;
historical or revolutionary monuments, cultural relics, works of art and
beauty-spots shall be maintained, restored, protected and their impact
fostered. Due attention shall also be granted to preservation and museum
work. All acts causing damage to or prejudicial to historical or revolu-
tionary monuments, works of art and beauty spots are strictly prohibited
(Constitution of the Socialist Republic of Vietnam 1992).
To begin to understand the nature of the current antiquities trade, both licit
and illicit, within and from Vietnam, we collected data in two ways. First, to
collect qualitative data, we conducted unstructured interviews or solicited
Illicit Traffic in Vietnamese Cultural Property 269
4 Preliminary Findings
We now turn to consider the preliminary results of our research. The section is
structured so as to progress from general to more specific observations. It will
begin with discussion of the frequency and location of looting, what looting
entails in Vietnam specifically, observations of the street-level trade in urban
Hanoi, observations of forgery, less-obvious differences between the trade in
antiquities derived from terrestrial sites vs. maritime sites, and, finally, the
subjective assessment of the on-the-ground impact of current legislation and
local attitudes towards heritage preservation.
Illicit Traffic in Vietnamese Cultural Property 271
All over the country where you have sites with gold or salable objects.
Certainly, in Vietnam are areas which were more densely populated in
past and present like the river deltas in northern Vietnam than other
areas like the mountain areas. Sites before the Bronze Age are not so in
danger of looting.
Where I live (Tuyn Quang Province), this phenomenon does not exist.
Locations with archaeological sites are places that people believe to be
272 Huffer and Chappell
sacred and would not dare to steal from. If this problem occurs, it is only
(due to) people from elsewhere coming here.
If the balance of evidence we have gathered so far suggests that looting in some
form occurs throughout the country and off its coast where shipwrecks can be
located in shallow water, then the next questions to be asked is how frequently
this looting occurs and what it looks like on the ground.
4.2 How Often Does Looting Occur, and What Do Looting Events Entail?
Anecdotal evidence from our informants suggests that the detection of looting
events and apprehension of perpetrators frequently proves to be extremely dif-
ficult. Such evidence also suggests that much more looting occurs, especially
in rural areas, than is routinely observed by archaeologists or reported to pro-
vincial or national authorities. One informant (Archaeologist 1) observed that
approximately twentythirty percent of looting occurs at sites already known
to the archaeological community, leaving seventyeighty percent that occur
at archaeologically unknown sites. If correct, this assessment makes damage
mitigation much harder given no preexisting knowledge of site location or the
nature of the archaeology involved. This assessment, nonetheless, does make
sense in light of this same informants stated personal viewing of tentwenty
instances of looting over twenty years field experience. What very few pub-
lished accounts there are suggest that small, portable antiquities such as gold,
silver, and bronze jewelry (in addition to beads, bronze and iron tools, weap-
ons, and even the occasional figurine) are the primary targets of late prehis-
toric and historic period site looting (e.g., Thosarat, 2001a).
In terms of what looting events entail, numerous similarities can be seen in
Vietnam to looting in Cambodia, Thailand, and likely elsewhere in Southeast
Asia (Thosarat, 2001a,b). Some of our informants (e.g., Archaeologist 5, who
has excavated early prehistoric burial sites in northern Vietnam over four field
seasons) suggested that deliberate looting does not seem to target pre-Bronze
Age sites. Thus the appearance on the market of any genuine prehistoric
antiquities made of nephrite or ceramic would be due almost exclusively to
chance finds during plowing and allied agricultural activity that went to
antiquities dealers rather than being reported to the government. Another
informant who responded to our questionnaire and sat for an interview in
Hanoi (Archaeologist 11, an expert in ng Sn drums and the Metal Age in
general) suggested that late prehistoric ng Sn tombs are occasionally bro-
ken into so as to recover intact ng Sn drums (Heger ii type especially), as
well as early Han Dynasty brick tombs (to remove intact ceramics), and even
Illicit Traffic in Vietnamese Cultural Property 273
more recent burials of the Muong ethnic minority. For a recent example of sal-
vage excavation of a unique ng Sn burial, see Bellwood et al. (2007).
Another informant (Archaeologist 2, a specialist in historic-period Cham
archaeology) noted that ancient Cham tower sites, both those previously
excavated and those archaeologically unrecorded, have been damaged to both
acquire gold and silver artifacts as well as to reuse bricks in modern construc-
tion projects. A stark example of prehistoric (Bronze and Iron Age) site looting
specifically within a recently urbanized district of Hanoi itself was also docu-
mented during the period of our preliminary fieldwork. The site complex of
Vn Chui (Hoi c district) has been excavated since 2004, but scientific
excavation (of domestic and mortuary features) has been accompanied by
illicit excavations off-season, including the use of metal detectors from 2009
until very recently. While this particular example will be discussed in more
depth in a forthcoming publication, it would not be unrealistic to suppose that
other incidents of metal detecting occur elsewhere. How this relatively novel
method of looting is monitored and controlled elsewhere in Vietnam is an as
yet unresolved question.
Figure 14.1 Overview of relevant locations mentioned in text outside of the Old Quarter
(Hon Kim District). Xs mark locations of specific establishments. 1=shop fronts
and private collectors along Nghi Tm Rd; 2=approximate location of antique/
antiquities fair preceding the Tt holiday; 3=arrow points towards the H Ni
Museum.
Figure 14.2 Gallery/dealer locations recorded within the Old Quarter (Hon Kim) district.
Illicit Traffic in Vietnamese Cultural Property 275
We did not press our informants to name the Big 5, but during the course of
our preliminary research the potential identities of two were alluded to while
the others remain anonymous. All of our informants confirmed that it is very
difficult to obtain information about how the Big 5 acquired their wealth and
what other affiliations they hold. The most visible example we found of this
top-tier level of collectors, although, according to our informants, not one
of the Big 5, came in the form of the ng Sn Drum restaurant, a massive
dining and entertainment complex on the edge of Hanoi owned by a wealthy
local businessman. We visited this complex during our field research and were
amazed by its dazzling and professional display of Vietnamese antiquities
(http://www.dongsondrum.com.vn). It would seem that one of the main func-
tions of the establishment is to serve as the largest private museum display-
ing prehistoric (ng Sn) material culture in Vietnam. The full extent of this
individuals collection is unknown, but its ornateness and rarity have not gone
unnoticed. Archaeologist 11 attested via interview to the authenticity of the
artifacts on display there, while Archaeologist 6 noted:
In summary, the evidence from both our street-level survey and our qualita-
tive database suggests that a small but active trade in antiques and antiquities,
both licit and illicit, does exist in Hanoi. It exists as a loose affiliation of deal-
ers with no distinct geographic center, and many dealers appear to operate
fronts to disguise the presence, or scope, of antiquities collections for dis-
play or sale. Some dealers and gallery owners attested to the use of spotters
to locate rare objects, but several of our archaeological informants suggested
that, especially in cases of illicit excavations within urban areas (prompted by
construction activities exposing new sites), dealers or private collectors would
purchase directly from the leaders of looting gangs. The urban trade in real,
and forged antiques and antiquities is sanctioned enough that fairs exist on
the grounds of the new Museum of Hanoi and as the daily display of numerous
vendors and private collectors wares during a month-long event leading up to
Tt (see Fig. 14.1 for location).
As one of us experienced when exploring this fair, it is relatively easy for a
foreigner to arrange private sales, often in the houses of individual vendors,
especially if Vietnamese is spoken and the vendor has rarer items at home. The
authenticity of items proffered in private deals remains an issue. Given that the
Illicit Traffic in Vietnamese Cultural Property 277
While this observation could describe the generic process of looting in many
locations, with increasing media scrutiny of the illicit salvaging of shipwrecks
off the Central and Southern Vietnamese coasts, one would surmise that the
illicit trade in maritime antiquities would be more clandestine, replete with
household-level retention of artifacts discovered on private property, as was
documented by Archaeologist 13 in discussing the use of intact Han Dynasty
ceramic vessels as flower pots by villagers in H Tnh Province as recently
as 2013.
However, two interviewees (Vietnamese maritime archaeologists) suggested
that the discovery of new shipwreck sites is still primarily accidental or due
to authorities intercepting illicit village-level salvage operations after dealers
278 Huffer and Chappell
have already purchased the rarest items, usually with no interference by the
Vietnamese Navy or other authorities with law enforcement capability. Each
passing storm reveals new artifacts for the taking from known wreck sites. In
some situations land and water buffer zones can be established around a ship-
wreck site, controlled at the Commune level. This then allows more systematic
salvage work to take place with an archeological input. The Vietnamese gov-
ernment has opted on several occasions to arrange joint ventures with private
maritime salvage companies to conduct such work. These companies then
participate in the sanctioned sale of recovered shipwreck antiquities at public
and private auction, often times as a means to fund the initial salvage work
or further scientific excavation once illicit activity has ceased. These arrange-
ments can cause problems. Archaeologist 6 among our informants summed
up the main problem in the following way, with particular reference to the
discovery of new wreck sites off the Qung Ngi coast in 2012:
There are differences in the process, especially the fact that maritime looting
involves public-private sector partnerships whereas trafficking in materials
from terrestrial sites does not. But the overall route that looted and laundered
antiquities take from the ground (or seabed) to market is more or less the same.
Copper cash is sold in many stores but some are legitimate copies and
it is difficult to draw a line between what is forgery and what is [intended
as] souvenir.
(in this informants case, of Cham temple sites), but had instead increased the
caution of perpetrators.
Some informants, however, (Archaeologists 6 and 7, both maritime special-
ists) were more cautiously optimistic. Archaeologist 6 noted:
The police and authorities are trying to prevent large scale looting, but
(according to some news reports and personal stories) their presence
seems to create more problems.
The law as passed only reduces the frequency of buying and selling
antiques in public, but does not reduce the theft of antiquities or the ille-
gal transportation of antiques inside and outside Vietnam. Because this
transport and exchange still occurs, but less publicly, poor people who
find antiques are less likely to be aware of this law, and they just think
antiques are for earning money, and are very proud of it.
The few government officials who did respond to our questionnaires or who
have agreed to be interviewed to date (Ministry of Foreign Affairs, and the
Ministry of Culture) supported the general findings we have presented above.
Official 1 (MoFA), when asked to describe the impact (or lack of) current
cultural heritage legislation on illicit antiquities markets, reported
(paraphrased):
The Law on cultural heritage was adopted in 2001, but its impact is very
limited, with the illegal trade of antiquities and conflicts between the
Illicit Traffic in Vietnamese Cultural Property 281
state and other actors remaining prevalent (e.g., the case of the excavation
of an old sunken trade ship and destruction of the Trm Gian Pagoda).
This concern over the impact of the 2001 law also extended to enforcement
practices, but both Ministry representatives interviewed for this project
stressed that any solutions must first solve structural problems between vari-
ous Vietnamese Government Ministries and Departments so that legal reform
can result in better monitoring on the ground. Other informants, such as a
Commune-level former Chief of Police who now guards the Vn Chui site
complex (Hoi c Distric, Hanoi), spoke of a marked disconnect between
Commune-, District-, and Provincial-level officials as a major barrier to effec-
tive enforcement of existing legislation, and a way for Provincial or District
officials to strip heritage status from a site in advance of construction (as was
alleged to have occurred in the case of Vn Chui and nearby sites).
It [the divide] varies a lot. In Qung Ninh, the local people in the province
seem to be proactive about trying to collect cultural heritage material
and either donate it to a local museum or to a local (official or respected)
person some of whom seem to act as stewards for the material until (or in
case) a museum can be established. There is recognition that the cultural
282 Huffer and Chappell
The major site (Bch ng River battle field site) I am working shows less
looting activities due to the background of the site and the worship of the
historical victory. While the deity of a i Vit general, who led the battle
to win, is observed in the area, [although] it does not necessarily relate
[to] the protection of the site/archaeological objects.
In rural areas, people just simply do not know how old things are. Some
of them will tell that the artifacts are from Chinese Han dynasty, and they
know the age, but do not grasp the significance. If we tell them, most of
them will understand the importance (or seems to understand). What we
need is a good education program that teaches people the importance
of protecting these sites. I find it easy for the people in the rural area to
grasp the connection between the ancient and the present. In the cities,
however, this may not be the case.
Some informants took a more optimistic view, suggesting that rural and
urban Vietnamese citizens would readily identify the criminal aspects of the
illicit trade in antiquities as a crime against both the state and their own
national heritage (Archaeologist 5), even if local field finds are kept when
discovered. In national park areas currently being nominated for World
Heritage Status (such as the Tam Cc area in which Archaeologist 8 had
conducted excavations of ancient rock shelters), another perspective was
suggested:
Thus, while local attitudes to heritage preservation are arguably diverse and
varied, in general all of our informants suggested that more needs to be done
to fight this trade in all its forms.
5 Conclusions
In its report to unesco, the srv also admitted that it had very little infor-
mation concerning the size and scope of this illicit trade, and that when it
came to regulating the illicit export of antiquities the provisions of the
lch 2001 and later revisions were both inadequate and incomprehensive
(srv 2013: 10).
284 Huffer and Chappell
Our own research findings confirm the veracity of these admissions, but we
would add to them the statement that the provisions of the lch 2001 seem
equally deficient in their regulation of the internal illicit trade in antiquities. It
is our impression that this trade is probably much more extensive and lucrative
than the illicit export market. The lch 2001 certainly allows for the licit own-
ership and trade of antiquities, and an extensive internal network of antiqui-
ties collectors exists in Vietnam who trade amongst themselves as well as with
public museums and galleries. Some of these collectors have also established
their own museums, like the one referred to earlier that we observed when vis-
iting the Dong Son Drum restaurant or the non-public museums on display
in the homes of some collectors along Nghi Tm St. These collectors are also
encouraged to display portions of their collections in public institutionsa
practice we also observed at the quite new Museum of Hanoi.
While all of these activities are permitted within the lch 2001 framework,
what is not legal is the private excavation or acquisition of new antiquities. All
such excavation can only be done under license and any new object discov-
ered in the country, whether by digging or by chance, belongs to the srv. Any
discovery of this nature should be reported to the authorities, and any objects
obtained should be handed to them or to the nearest provincial museum. In
reality the tentative evidence we have uncovered suggests that these provi-
sions are in practice largely ignored. At the lowest level of the discovery chain,
the individual who discovers an antiquity purely by chance, perhaps while
plowing a field or fishing near a shipwreck, may decide to keep the object per-
sonally. More likely, however, the discoverer will seek to benefit in some way
economically from the find and traffic the object to a dealer or someone else
willing to offer some financial benefit. Depending on the nature of the object
and its presumed value, the antiquity may eventually be passed into the hands
of a collector, including one of the Big 5 mentioned above.
We do not know as yet how many layers of dealers and middlemen there
are in this local illicit antiquities trading cordata, but we were told by several
of our informants that spotters were employed by some collectors and deal-
ers (these roles undoubtedly overlap to a degree) to advise them when new
objects were available and to acquire them where appropriate. All of these
arrangements take place outside the official regime devised to regulate the
antiquities trade. They may also involve corrupt practices where officials are
paid to ignore illicit activities. Such corruption seems endemic not only in the
internal illicit trade in antiquities, but also in the extension of that trade to
the export of antiquities. As we noted above, the lch 2001 provisions relating
to the export of antiquities from the srv require the provision of an export
Illicit Traffic in Vietnamese Cultural Property 285
license, and those which are national precious objects may not be exported
at all. We were told by several dealers we encountered during our street survey
in Hanoi that the obtaining of an export license was no problem at all through
payment of what was generally referred to as a facilitation fee to the relevant
officials involved.
Our preliminary research did not uncover much significant information
regarding the volume, value, or primary destination(s) of exported antiqui-
ties from the srv, nor the importation of any antiquities from elsewhere in
the region including neighboring countries like Cambodia and Laos. Several
of our informants suggested that there are very wealthy expatriate Vietnamese
residing in the us and elsewhere who maintain very extensive antiquities col-
lections derived from local sources. It was also suggested that some illicitly
obtained objects came across the border from both Cambodia and Laos (see
Fig. 14.3 below). We did not detect any such objects on open display, but it is
quite possible that a cross-border trade does exist, given the long and porous
borders the srv has with both of these nations as well as the historical and
regional connections existing between them.
Looking towards the future there are clearly many important questions that
remain unanswered by our research, but we believe sufficient information is
now available to justify concerted action by the srv to enhance the protection
afforded to the nations tangible and portable cultural heritage. Law reform
may be required, but far more important in our view is the need to provide for
adequate enforcement of the existing legal regime and to better inform the
Vietnamese public about the importance of preserving the nations cultural
patrimony. There is no doubt the srv Government is very much aware of these
needs, as they informed unesco:
INDIA
CHINA
JAPAN
TAIWAN
MYANMAR Hanoi
LAOS Halong Bay
Luang Prabang
Chiang Mai Vientiene
Rangon
THAILAND Hoi An
Manila
Bankok Siem Reap VIETNAM
CAMBODIA SOUTH CHINA
ANDAMAN SEA
SEA
PHILIPPINES
Phnom Penh Ho Chi Minh City
Mekong Delta
Songkhla
MALAYSIA BRUNEI
Kuala Lumpur
MALAYSIA
SINGAPORE
Acknowledgements
The authors would like to thank all of our informants; both archaeologists and
government officials alike within Vietnam, as well as everyone who assisted
with our street-level survey and responded to our questionnaire. It is to you
whom we owe a debt of gratitude for making this exploratory study possible.
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Illicit Traffic in Vietnamese Cultural Property 291
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CHAPTER 15
As we are seeing now with the Arab Spring, and have seen throughout history,
cultural destruction is often a handmaiden to conflict. In the Southeast Asian
nation of Cambodia, fighting erupted between government forces and the
communist Khmer Rouge in 1970 and did not end until the 1998 death of Pol
Pot and subsequent surrender of his remaining forces. While contemporary
accounts and photographs confirm the countrys ancient Hindu and Buddhist
temples were largely intact before the war, most were then cut off from the
outside world for decades, and some remain difficult and even dangerous to
reach today due to poor roads, jungles, landmines, and unexploded ordnance
(uxo). It is thus only now becoming possible to systematically investigate the
wartime plunder of Cambodias antiquities, an undertaking that is growing
more important each year as the country steps up efforts to recover its stolen
treasures from overseas collections.
Cambodia is internationally celebrated for the twelfth-century ruins of
Angkor Wat, the crowning achievement of the Khmer Empire, which ruled
much of Southeast Asia from the ninth to fifteenth centuries. But this temple
said to be the largest religious monument in the worldis just one of many in
the country. While only the size of the us state of Oklahoma, Cambodia boasts
4,000 known prehistoric and historic sites, with more discovered each year
(mocfa, 2013). But despite a long tradition of archaeology dating back to the
French colonial era (18671953), only a fraction has been thoroughly surveyed,
and even fewer scientifically excavated. So when looters reach them first, the
only evidence of theft is often an empty hole in the ground, or an empty space
on a temple wall. Calculating how many antiquities have been stolen and their
value is thus very difficult.
Still by 1993the same year as the United Nations-sponsored elections
that some credit with putting Cambodia on the road to stabilitythe Phnom
Penh Post estimated that almost 80% of all temples had been looted (Channo,
1993). Twelve years later in 2005, noted art historian Helen Jessup went
further by stating, there is not a single site that is not affected (Perlez, 2005).
While these figures are clearly subjective, it is theoretically possible to mea-
sure the extent of looting, and this has been done for select sites. The conclu-
sions from these studies suggest that nationwide statistics, if they existed,
would be grim.
For example, in 2006, the nongovernmental organization (ngo) Heritage
Watch conducted a looting survey at the 2,000-year-old burial ground of Wat
Jas in northwestern Cambodia. During rescue excavations, a team of archae-
ologists extensively recorded the damage, mapping and taking aerial pho-
tographs to fully illustrate the scale of destruction (Heritage Watch, 2014).
Afterwards, the ngos founder and archaeologist Dr. Dougald OReilly said
Wat Jas has been completely decimated. Not one of its estimated 1,000 graves
remains undisturbed (ap Worldstream, 2006).
That same year, Heritage Watch completed an additional two-year study of
looting at temple sites throughout the country, including Banteay Chmmar,
Beng Melea, Koh Ker, Phnom Banan, Phnom Chisor, and Tonle Bati. These sur-
veys were originally meant to map the extent of plunder, but the damage was
so ubiquitous that plotting it would simply have created overlays of the temple
layouts. Therefore, for the purposes of the report, the few remaining architec-
tural elements and statuary were plotted and photographed, along with partic-
ularly egregious incidents of theft. Without exception, all of the sites surveyed
had been pillaged, and extensively.
Before and after the above topical studies, general archaeological surveys
and excavations have also frequently recorded evidence of looting. While
these references are often just footnotes to other research, they still demon-
strate that none of Cambodias historic periods or geographic regions has been
spared since the 1970 outbreak of civil war. Plunder appears in the pages of
OReillys (2004; 2006) reports from Iron Age cemeteries in the northwest,
Miriam Starks (1999) at Pre-Angkorian sites in the Mekong Delta, and Eric
Bourdonneaus (2011) at the tenth-century capital of Koh Ker.
When taken together, these scattered reports paint a picture of a cultural
tragedy that reduced Cambodias templessome of which had stood for a mil-
lenniumfrom open-air museums to riddled shells within decades. Due to
the reach, scale, and speed of this devastation, experts have long believed it
is the work of organized trafficking networks. However, for those supporting
this belief, it has been difficult to move beyond anecdotal evidence to more
systematic or scientific data.
294 davis and Mackenzie
(including Banteay Torp), Beng Mealea, Koh Ker, Phnom Banan, Preah Khan of
Kompong Svay (the Bakan), and Sambor Prei Kuk. Instead of the northwestern
trafficking route through Sisophon and Aranyaprathet, however, these statues
were routed directly northwards, through the deep forests of the Kulen region
and former Khmer Rouge stronghold of Anlong Veng, across the Dangrek
Mountains forming the due northern border, to Khun Han and Kantharalak
on the Thai side. Again, from there the statues moved to Bangkok and onto the
international market.
In summary, Channel 1 was controlled by local mafia, thrived in areas long
after peace returned, and exploited main highways and commercial routes.
Channel 2 instead snaked through the minefields and jungles of northern
Cambodia, a region controlled by the Khmer Rouge on and off until their 1998
surrender. These differences lend support to our approach in looking at the
former from an organized crime standpoint and the latter from an armed con-
flict standpoint. Of course, some of the key players along Channel 1 were affili-
ated with armed factions, and Channel 2 was not the exclusive purview of the
Khmer Rouge so the distinction we make is to some extent reified for analytical
purposes.
The Khmer Rouges trafficking of arms, gems, and timber is well documented
(see Global Witness, 1995; Le Billon, 2000; Fafo Institute, 2002), but their role
in the illicit antiquities trade has remained controversial. Given their mission
to obliterate traditional Cambodian culture and replace it with a new revolu-
tionary culture, it seems only natural they would have targeted the countrys
archaeological heritage. A prominent collector of Cambodian art has certainly
employed this argument, defending his dealings in looted Cambodian art as
necessary to rescue it before Khmer Rouge cadres shot it up for target prac-
tice (Mashberg and Blumenthal, 2013).1
Alongside the Extraordinary Chambers in the Courts of Cambodia (eccc),
the ongoing and still-struggling tribunal that Phnom Penh and the United
Nations first established in 1997 to try the most senior members of the regime,
1 It is worth noting he has also used another justification, telling the New York Times that in
a previous life I had been Khmer, and that what I collect had once belonged to me (http://
www.nytimes.com/2012/12/13/arts/design/us-links-collector-to-statue-in-khmer-looting-
case.html?pagewanted=all).
296 davis and Mackenzie
Sarah J. Thomas (2006, p. 29) researched the Khmer Rouges destruction of cul-
tural property and found:
Following its seizure of power in April 1975, the Khmer Rouge regime
proclaimed a return to Year Zero and set about demolishing links to
the past, to the outside world and to religion. As part of their systematic
attack upon Buddhism, the Khmer Rouge desecrated or destroyed most
of Cambodias 3,369 [contemporary] temples, inflicting irreparable dam-
age on statues, sacred literature, and other religious items. Similar dam-
age was inflicted on the mosques of the Cham, some 130 of which were
destroyed. The Khmer Rouge regime attacked Christian places of wor-
ship, even disassembling the Catholic cathedral of Phnom Penh stone by
stone until only a vacant lot remained. The Khmer Rouge destroyed all
73 Catholic churches in existence in 1975.
Villagers at temples across the country repeatedly told us that organized loot-
ing and trafficking started in approximately 1970, the same year that war offi-
cially erupted between the Khmer Rouge and Cambodian government. This
emphasis on organized trafficking is necessary, as looting certainly took place
in the colonial era and the early years of independence, the most infamous
example of which was conducted by young Frenchman Andr Malraux at the
temple of Banteay Srey in 1922. Malrauxs subsequent trial and conviction
made headlines throughout Indochina and even back in Paris. The scandal is
still remembered today since he went on to become one of Frances most cel-
ebrated writers and its first Minister of Culture. However, our sources reported
without exception that, despite such incidents of thefts, the temples were
largely intact before the war. This is confirmed by photographs taken at the
time by the cole Franaise dExtrme-Orient and by scholars like Madeleine
Giteau, which show the sites rich in statuary.
Sources at Anlong Veng, Banteay Chhmar, Phnom Banan, and other sites
described heavy and methodical plunder from around 1970, which they attrib-
uted to the state forces of General (and subsequently Prime Minister) Lon Nol.
A former soldier in his armywhose position allowed him to mix with the
Lon Nol elitetold us that as many as eighty percent of senior officers were
involved. He and others were even able to name some of the guiltiest officials,
some of whom are now living comfortably in the United States (which backed
Lon Nols rule). These reports are not surprising, for even though we have not
yet found anything in the existing literature specifically linking Lon Nols army
to the illicit antiquities trade, much has been written about his administrations
notorious and unparalleled corruption. Lon Nol took power in a us-backed
coup in 1970 and ruled until the Khmer Rouge victory in 1975. Becker (1998)
details his appalling practices, noting his army drafted children to inflate its
numbers, padded payrolls with phantom soldiers to pay off rapidly promoted
and corrupt officers and that he himself permitted other forms of wholesale
corruption (p. 123). All in all, she summarized his Khmer Republic as a brief
and corrupt experiment (p. 189).
In addition to Lon Nols government forces and the Khmer Rouge, the
Northern Vietnamese Army (nva) were also operating in Cambodia during the
early 1970s. Moreover, even then, there were credible reports of nva involve-
ment in antiquities trafficking. A former us intelligence officer who had been
assigned to the region told us:
298 davis and Mackenzie
The nva presence at Angkor has since been corroborated, for example, in
the acclaimed memoir Le Portail by anthropologist Franois Bizot (the only
Westerner to have survived capture by the Khmer Rouge). The former us intel-
ligence officer to whom we spoke felt Bizots account confirmed that my agent
report about the nva capturing and looting the Angkor Wat area was likely
correct. He added, Having some experience in these matters and routes, my
guess is the nva moved their covered antiquities booty...to Aranyaprathet,
Thailand (a key stop on what we have identified as Channel 1). The border
there has been (and is) very porous, and armed nva/[Viet Cong]/Sihanouk
Liberation Front fighters, or western or other civilians hired for the purpose,
with two or more trucks of loot could easily bribe their way across the border
to Thailand....Smuggling has gone on for centuries in the area, and these are
routes that could have been used by smugglers for years, so the border crossing
scenario was well-rehearsed and well-greased.
In marked contrastaccording to accounts from our fieldworkthe
Khmer Rouge did indeed protect (or at least did not target) Cambodias ancient
temples in this 19701975 phase of the Civil War. While rogue soldiers or units
certainly may have trafficked antiquities, doing so would have defied the party
leadership. Both Khmer Rouge victims and perpetrators also consistently
reported to us that the regime continued this stance towards ancient temples
during the 19751979 Killing Fields (even while slaughtering the descendants
of those who built them). Angkorian heritage was a key part of the Khmer
Rouge narrative, and the party strictly controlled this narrative from the top
down. Moreover, the Khmer Rouge sealed Cambodias borders immediately
upon their victory, halting most legal trade, and illegal trade with it.
The situation changed after the 1979 Vietnamese invasion. Interestingly,
we received few reports of looting by Vietnamese forces then or during their
subsequent decade long occupation, even though they certainly would have
had the opportunity. But as the Khmer Rouge went from a governing force to
a fragmented army and news of their atrocities spread, they began to lose key
temple looting in Cambodia 299
country that had been inaccessible to the outside world since 1970. In another
example, we were told that a high concentration of landmines perversely pro-
tected the temples of Koh Ker from thieves well after the conflict ended, but
a heavy round of looting immediately followed demining efforts in the mid-
2000s (one of the authors even photographed vast pits at the site during this
time). The sad truth may be that antiquities trafficking did not slow thanks to
peace, but because after the war there was little left to steal.
Le Billion (2000) has also noted that cultural and natural resources, timber,
in this case, can be protected by conflict as well as destroyed by it: Ironically,
twenty years of war saved Cambodias forests from the destruction associated
with economic growth in the asean [Association of Southeast Asian Nations]
region. Despite heavy us bombing and the murderous agrarian utopia of the
Khmer Rouge, forests survived the 1970s. Their exploitation during the 1980s
remained limited, the result of continuing war and a trade embargo by the
west. By the late 1980s, nearly two-thirds of Cambodias surface was covered
by forests; a key asset for a country among the poorest of the world. Since
then, however, much of Cambodias forests have been exploited by intensive
commercial logging as the country progressively reintegrated into the global
economy (pp. 786787).
The best illustration of the Khmer Rouges ambiguous, and shifting, relation-
ship with antiquities is the general known as Ta Mok. He is a shadowy figure,
so much so that even today, scholars differ on his real name and birth year. Ta
() means grandfather, a friendly honorific belying his other nom de guerre,
The Butcher. That he would earn such a distinction amongst a whole regime
of murderers speaks to his major role in the Khmer Rouge purges. As late as
1997, he reportedly continued to orchestrate massacres from Anlong Veng, kill-
ing some 3,000 people outside the town (Rowley, 2009). Some even suspect he
poisoned the head of the Khmer Rouge, Pol Pot himself, on 15 April 1998.
A former monk, Ta Mok fought for Cambodias independence in the 1950s
and joined the Khmer Rouge in the 1960s. Over the decades, he rose through
their ranks. He was never one to lead from behind; he lost a leg during com-
bat in 1970. He eventually became the partys Brother Number 5. After the
Vietnamese invasion and occupation, he retreated to Anlong Veng, and he
and his followers waged war from there for another twenty years. Government
forces captured him near Thailand in 1999, and he died in a Cambodian prison
in 2006 still awaiting trial for genocide and crimes against humanity. He main-
temple looting in Cambodia 301
tained his innocence until the very end and even afterwards in a statement to
be read upon his death (Aglionby, 2006). Becker (p. 487) thus calls him a true
veteran of every phase of the revolution.
Ta Moks former lakeside villa in Anlong Veng is now an historical monu-
ment, even listed as an architectural and cultural attraction in Lonely Planet
(2014). This open-air concrete complex is empty today save for brightly
coloured murals of Angkor Wat and Preah Vihear temples that still adorn its
walls. When Ta Mok lived here, however, it would have looked more like a
storeroom. After his arrest, government forces found and confiscated sixty-one
Khmer sculptures weighing in the tons. The same had also happened in 1994,
when they briefly captured Anlong Veng and with it another haul of art from
Ta Moks house (Dodd, 1994).
That such a cache would be found just kilometres from the Thai border and
its ready art market would suggest that Ta Mok was an active participant in the
illicit antiquities trade. But his family and supporters, some of whom remain
in the area as caretakers of the property, disagree. One of Ta Moks sons in law
told the anthropologist Timothy Dylan Wood (2009):
Ta Mok used to capture things from smugglers which he would then put
in the house...When the government came, they took some of these
things. When Anlong Veng was liberated again, he tried to collect the old
things again. Finally, the government army came and took all the things.
Thus, he said the house on the lake is no longer his house and that he
wants it to become a museum with ancient artefacts such as statues,
busts, etc. captured from Thai smugglers (pp. 158159).
A caretaker at the villa todaya man who had served in the Lon Nol army as
a young man before joining the Khmer Rouge and eventually becoming a stal-
wart follower of Ta Mokechoed this sentiment to us. He told us that Ta Mok
was a guardian of antiquities. Yes, he did confiscate pieces from looters, but did
not loot himself, and in fact he punished looters with death. The collection of
sixty-one statues in his personal house in the warzone of Anlong Veng was a
collection for the local people.
The similar claim was made by another former comrade of Ta Mok, who now
holds a prominent position in the regional government. He too said Ta Mok
did not loot or traffic antiquities himself and that the sixty-one statues were
seizures from actual looters and traffickers. Moreover, these looters and traf-
fickers were said to have no ties to the Khmer Rouge, but were instead soldiers
from the Cambodian military and paramilitary groups. He did not explain why
such enemies of the Khmer Rouge would traffic antiquities directly through
302 davis and Mackenzie
their territory instead of going around it. Ta Mok intercepted them when they
were trying to cross the border into Thailand to meet buyers and dealers.
Interestingly, this individual and others also note that when the government
captured Ta Moks house in 1999, some of his best pieces disappeared before
making it to the Angkor Conservation.
Wood (p. 160) remarks that, Beyond revering Ta Mok as a local and indeed
national hero, [such] assertions cohere around a particular nationalist senti-
ment that portrays him and the Khmer Rouge loyalists in Anlong Veng to be
defenders of Khmer sovereignty as well as conservators (and potential cura-
tors) of its glorious past. It is possibleeven very likelythat Ta Mok did
begin as a preserver of antiquities, especially when doing so meant toeing the
party line as described earlier by Becker. At the Khmer Rouges height of power,
during the 19751979 Killing Fields, he and the other Khmer Rouge certainly
would have had both the motivation and means to enforce such a policy.
Woods (p. 161) notes However, the view of Ta Moks greatness does not meet
with unanimity among Anlong Vengs former Khmer Rouge. Nor, as we discov-
ered, was there a consensus among Ta Moks former business associates. A num-
ber of individuals from both these groups have now gone into hiding along the
Thai border, serving as monks or taking on legitimate professional roles. They
admitted organizing antiquities trafficking with Ta Mok using the route we have
identified as Channel 2, noting that it was hardly their most serious crime.
According to these former associates, Ta Mok entered the trade as a looter-
for-hire for dealers from Thailand. This is not surprising given his close rela-
tionship with members of the Thai army and criminal gangs, which allowed
him to orchestrate a lucrativeand well-documentedcross-border trade in
gems and timber, and even led to rumours that he had been granted Thai citi-
zenship (Phnom Penh Post 1998). But upon seeing the profits Thai middlemen
were making, he decided to cut them out and forged links himself with buyers
further up the chain.
It is not difficult to find an explanation for Ta Moks change of heart, if
indeed one did occur, as he and the Khmer Rouge would have needed the
money. Throughout the Killing Fields (19751979) and even into the subse-
quent Vietnamese occupation (19791989), the Khmer Rouge survived with
backing from China and others (in what is still a source of embarrassment for
the international community, they also retained a seat at the United Nations
until 1993). But when these allies finally began to pull their support, the Khmer
Rouge were forced to find other means of arming their cause. Anlong Veng was
rich in gems and timber, as well as antiquities, and all were apparently sold to
the highest bidder.
Those farther from Anlong Veng and with no personal relationship to Ta Mok
also speak openly today (and in years past) of his role in the illicit antiquities
temple looting in Cambodia 303
2 http://www.museum-security.org/97/19111997.html.
304 davis and Mackenzie
More work on this topic is needed, but if the Butcher of Cambodia were
indeed responsible for some of the plunder at Koh Ker and other temples,
it means that prominent masterpieces now on the international art market
may have passed through his very hands. This possibility certainly gives added
moral context to Cambodias ongoing efforts to recover its statutes. But regard-
less of Ta Moks own role, which perhaps will never be perfectly clear, our
research and that of others is beginning to reveal the bigger picture of wartime
looting in Cambodia, confused as it is.
Conclusion
The illicit trade in Cambodian antiquities that we detail here shares many sim-
ilarities with that now being reported in Egypt, Libya, Syria, Iraq and Tunisia.
It thus serves as a warning that armed forces in these conflicts may indeed
be funding their operations through antiquities trafficking. Regional looting in
war-torn Cambodia by various military forces seems to have been an exploita-
tion of available resources to provide necessary financial support for ongoing
participation in conflict. This helps to explain why (for example) there were
reports of Vietnamese looting in the early 1970s but not in the 1980s. During
the former, the Vietnamese were a struggling guerrilla force, but during the
latter, they were a state power with many sources of income at their disposal.
Similarly, the Khmer Rouge apparently did not loot during the 1970s while in a
position of power, but turned to it only after being reduced to jungle f ighters.
Of course, these are generalities and oversimplifications, but they warrant
further research.
Cambodias story likewise serves as a caution for another reason: it reminds
us that the illicit antiquities trade stemming from the Arab Spring will likely
continue well after the fighting ends. Peace opens up new avenues for busi-
ness while closing others. The corruption and instability endemic in post-war
countries like Cambodia creates an environment amenable to antiquities traf-
ficking and other organized crime.
The combined results of our studies of the conflict channel reviewed here
and the organized crime channel outlined here and reviewed more fully else-
where suggest that alongside individual, low-level subsistence smuggling, the
illicit trade in Cambodian antiquities has been the enterprise of both orga-
nized crime and of groups involved in armed conflict in the decades since 1970.
The line between mafia and soldiers was often blurred, and even when the two
groups were distinct, they still worked closely together. This gives important
context to the movement of looted antiquities from Cambodias warzones to
temple looting in Cambodia 305
the art market (cf Davis 2011), calling to mind comparisons with other trau-
matic origins in transnational precious goods markets like the issue of blood
diamonds. The question to what extent it is appropriate to speak of blood
antiquities calls out for more research.
References
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Times (9 May), http://www.nytimes.com/1993/05/09/world/chinese-support-for-
khmer-rouge-grows-cooler.html.
Le Billon, P. (2000). The Political Ecology of Transition in Cambodia 19891999: War,
Peace and Forest Exploitation. Development and Change 31: 785805 (doi: 10.1111/
1467-7660.00177).
Lonely Planet (2014). Ta Moks House, http://www.lonelyplanet.com/cambodia/
northwestern-cambodia/anlong-veng/sights/museums-galleries/ta-moks-house.
Mashberg, T. and R. Blumenthal (2013). The Met Will Return a Pair of Statues to Cam-
bodia. The New York Times (3 May), http://www.nytimes.com/2013/05/04/arts/
design/the-met-to-return-statues-to-cambodia.html.
Mackenzie S. and T. Davis (2014). Temple Looting in Cambodia: Anatomy of a Statue
Trafficking Network, British Journal of Criminology Vol. 54 (5): 755-740.
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of America Concerning the Imposition of Archaeological Material from Cambodia
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The Phnom Penh Post (1998). The Life and Crimes of Ta Mok. The Phnom Penh Post
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http://search.proquest.com/docview/304989019.
CHAPTER 16
Introduction
This court orders the seizure of the statue named Victorious Athlete attrib-
uted to the Greek sculptor Lysippos, currently held by the J. Paul Getty
Museum, or wherever it is found.2
Il Giudice Dott.ssa Lorena Mussoni
The Bronze in question has many names. It has been called the Getty Bronze,
the Bronze Statue of a Victorious Youth, and Italian officials calling for its return
name it la atleta di Fano, or athlete from Fano. It was the first bronze antiquity
dating from the 4th century b.c. that could have gone up for sale in the mod-
ern antiquities market.3 A decision by the Tribunal of Pesaro in Italy, which has
ordered the forfeiture of the Bronze, signals a fundamental shift in the basic
assumptions governing contested objects.4 This forfeiture has taken place
under the jurisdiction of the Italian judicial system, despite the absence of the
statue in Italy. Cultural heritage advocates have been hampered in their efforts
* This chapter has been previously published in the Cardozo Arts and Entertainment Journal.
1 Associate Professor, South Texas College of Law, Ph.D. University of Aberdeen. Thank you
to Sharon Cohen Levin, Stefano Alessandrini, Patty Gerstenblith, Neil Brodie, Jason Felch,
Paolo Ferri, Stephen Clarke, and Maurizio Fiorilli for helpful conversations or reading drafts
of this work. Kind thanks to all the participants where I was fortunate to present versions
of this essay: the Vulnerability and Cultural Heritage conference at Leicester; the annual
Association for Research into Crimes against Art conference held in Amelia Italy; and the
South Texas Scholarship forum. Many thanks go to Chiara Morini Mazzeri for translating the
2012 Ordinanza, and Robert Medina and Taylor Roznovsky for helpful research assistance.
2 Translation of the holding from the 2010 Italian seizure proceeding in Pesaro. Ordina la con-
fisca della statua denominate L Atleta Vittorioso attribuita allo scultore Greco Lisippo attu-
almente detenuta dal J. PAUL GETTY MUSEUM ovunque essa si trovi. Tribunale ordinario di
Pesaro, Uficio del Giudice per le indagini preliminary in funzione di Giudice dellesecuzione,
Ordinanza del 10 fevvraio 2010, No. 2042/07 R.G.N.R. No. 3357/07 R.G.I.P. at 36 [2010 Ordinanza],
available at http://www.europeanrights.eu/index.php?funzione=S&op=2&id=1387.
3 Jeannette Smyth, A Bronze Antiquity Turns to Pure Gold, Wash. Post, Nov. 22, 1977, at B2.
4 See 2010 Ordinanza, supra note 2.
to secure the repatriation of looted objects that have been illegally exported
based on the old taboo that a nation will not enforce the public or penal laws of
another nation. But quietly, with little notice of cultural heritage lawyers, the
United States has entered into Mutual Legal Assistance Treaties with a number
of nations of origin, notably Italy, which challenge this old prohibition.
Italy, in attempting to secure the repatriation with a transnational forfei-
ture, is once again pioneering repatriation law. Will more nations of origin
use domestic courts to repatriate objects that have been smuggled, looted, or
removed? Will courts in so-called market nations enforce these foreign judg-
ments? By examining the story of this bronze statue, one can see an important
new strategy that nations of origin may employ. The piece proceeds in four
parts. First, the artistic and historical merit of the statue are examined, as well
as the story of the discovery of the statue, the initial prosecution of the find-
ers, and the acquisition of the statue by the Getty. Second, the piece exam-
ines recent efforts at forfeiture of the Bronze since 2007, and discusses what
substantive Italian laws serve as the basis for the Italian forfeiture. Third, the
use of Mutual Legal Assistance Treaties (mlats) is examined, and the specific
treaty between Italy and the United States is discussed in detail. Finally, the
piece makes some general observations about how the use of mlats signals an
important change in international cultural heritage law.
Early studies of the Bronze named its sculptor as Lysippos, a renowned sculp-
tor of the 4th century b.c., but more recent studies place its creation in the
second or third century b.c.5
The school of Lysippos strove to both idealize and capture the appear-
ance of the subject. The slightly small head and slim body gives the viewer an
impression of greater height, and we imagine the figure is taking a momen-
tary pause before springing back into his athletic pursuit. The statue was prob-
ably cast in Greece, removed at some point in antiquity. We cannot know for
sure, but it may have been removed by agents of the Roman Empire.6 During
its transit by ship to an unknown destination, it was lost at sea;7 its location
5 Elisabetta Povoledo, Italy Presses Its Fight for a Statue at the Getty, n.y. Times (Jan. 15, 2010),
http://www.nytimes.com/2010/01/16/arts/design/16bronze.html?_r=0.
6 Memorandum from Ronald L. Olson & Luis Li to the Delegation from the Italian Ministry of
Culture 4 (Nov. 20, 2006) (on file with author).
7 Id. at 5.
Transnational Forfeiture of the Getty Bronze 309
The number of ancient Greek bronzes that have survived to present day is
small. Greek cities and public spaces would have been filled with these lifelike
statues, but over the centuries many bronzes were lost to iconoclasm, and the
mundane fact that bronze was and is a useful metal with many applications.10
Sadly, many of these bronzes were melted down. As a result, many of the
bronzes that have survived from Greece were lost at sea and later recovered; or
would have been widely copied by Roman artists.
9 David L. Shirey, Greek Bronze on Sale for $3.5-Million, n.y. Times, Mar. 10, 1973, at 37.
10 For a photo essay showing the recent Greek exhibition of the Antikythera Wreck which
shows the full context and range of objects which an ancient vessel may have been
transporting (including bronzes, marble figures) and the ways in which the ocean floor
destroyed or preserved the works, see Dorothy King, The Antikythera Wreck: Photos,
Dorothy Kings PhDiva (Feb. 6, 2013), http://phdiva.blogspot.com/2013/02/the-anti
kythera-wreck-photos.html.
11 Memorandum from Olson & Li, supra note 7.
Transnational Forfeiture of the Getty Bronze 311
Ralph Frammolino for the l.a. Times and their work focusing on another illicit
object acquired by the Getty, the so-called Getty Goddess, since repatriated and
now called La dea di Aidone.12
One summer evening in 1964 a.d., the Italian trawler Ferrucio Ferri dropped
line near a rocky outcropping in the Adriatic Sea, about halfway between Italy
and Yugoslavia13 and about 32 nautical miles14 from its Italian port of Fano.15
Early the next morning, the fishing nets caught and brought up what appeared
to be a human figure, covered with a thick layer of encrustation.16
Trawlers in the Mediterranean will occasionally bring up ancient urns and
amphora, but the crew had apparently never seen a figure like this before.17
They had brought up one of the most important archaeological discoveries of
the 20th century. The nearly life-sized figure weighed 300 poundsand given
its encrustations appeared as if it had rested on the ocean floor for centuries.18
Rather than report their discovery to the Italian authorities for conservation,
the fishermen elected to sell it and divide the proceeds.19 To accomplish this,
they brought the statue to shore in the middle of the night, at 3 a.m., using a
handcart and hiding the barnacled statue under a pile of nets.20 This failure to
report the find, in a kind of illegal importation from international waters to the
Italian port, was the first of many violations of Italian law.
At first, the crew hid the statue in the home of Felici Dario, a friend of
Captain Ferri Guido, one of the captains of the two ships involved.21 A few
days later, with word of the statue spreading throughout the town, the owners
son decided to move it a few kilometers inlandand bury it in a cabbage
12 Jason Felch & Ralph Frammolino, Chasing Aphrodite: The Hunt for Looted
Antiquities at the Worlds Richest Museum (2011).
13 Id. at 910.
14 For a general discussion of international maritime law as it relates to salvage and historic
wrecks, see Craig Forrest, Historic Wreck Salvage: An International Perspective, 33 Tul.
Mar. l.j. 347 (2009).
15 The ship had ventured so far as to fish in a rocky outcropping that rose from the seabed
where octopuses and schools of merluza and St. Peters fish gathered in the summer heat.
Felch & Frammolino, supra note 12, at 10.
16 Jason Felch, The Amazing Catch They Let Slip Away, l.a. Times, May 11, 2006, at A1, avail-
able at http://articles.latimes.com/print/2006/may/11/local/me-bronze11 [hereinafter The
Amazing Catch]; Felch and Frammolino, supra note 12, at 9.
17 The Amazing Catch, supra note 16.
18 Felch and Frammolino, supra note 12, at 10.
19 The Amazing Catch, supra note 16.
20 Felch and Frammolino, supra note 12, at 11.
21 2010 Ordinanza, supra note 2, at 23.
312 Fincham
field.23 Once the statue was hidden, the crew contacted Giacomo and Fabio
Barbetti, two brothers who bought and resold ancient objects discovered by
fishermen or farmers.24 The brothers bought it in early August for 3.5 mil-
lion lire.25 The Barbetti brothers temporarily hid the statue in the church of
a local priest, Father Giovanni Nagni, who later moved it beneath his wooden
staircase.26 There the statue was hidden until May 1965, at which point it was
believed to have been moved elsewhere in Gubbio.27 At no time did anyone
inform the Department of the Ministry of Cultural Heritage or the Fano cus-
toms authorities that the statue was on Italian soil.28 The accuracy of the
fishermens accounts was confirmed in 1989 when one of the fishermen who
discovered the Bronze gave a local official in Fano a calcium deposit which had
the impression inside of a mans upper leg and thigh and traces of bronze. It
should fit the leg of the Getty bronze like a discarded plaster cast.29
26 The Amazing Catch, supra note 16. The Los Angeles Times spells the priests surname
Nanni, but the Italian court spells it Nagni. The Italian court spelling is used throughout.
27 2010 Ordinanza, supra note 2, at 5.
28 Id.
29 George Armstrong, The One That Almost Got Away, The Guardian, Aug. 29, 1989. At the
time the fisherman had a photograph of what may have been the Bronze under heavy
encrustation, and the fishermen expressed a desire to lead investigators back to the site
where they found the Bronze. At the time though, the Getty had a policy that it would
return works of art to a nation if they had been taken from its home country illegally. Id.
30 2010 Ordinanza, supra note 2, at 5.
31 Id.
32 Id.
33 Legge 8 agosto 1939, n. 374 (It.)
34 2010 Ordinanza, supra note 2, at 5.
314 Fincham
Supreme Court which overturned the sentences on the grounds that there was
insufficient evidence of the statues find-spot in Italian territorial waters, and
the prosecutors had not met their burden with respect to the artistic, archaeo-
logical and historic value of the object because it was not possible to directly
examine it, and there were no available photographs of the statue.35 During
these proceedings, although the defendants were acquitted due to a lack of
evidence, the Barbettis and Nagni did admit to having bought the Bronze and
selling it to an unnamed individual from Milan.36
Another set of proceedings was initiated in 1973 to secure the return of the
Bronze. Alessandra Lanciotti, an Italian legal scholar who has worked on the
case, notes that the 1973 proceeding was unsuccessful and ended with a deci-
sion in 1976, and was opened again in 1977 in front of the same judge. In the
end, this stage of legal proceedings concluded with a decision not to proceed
because the individuals who may have committed the crime of illicitly export-
ing the Bronze could not be identified.37 On the conclusion of these proceed-
ings, the Bronze surfaced in Germany.
35 Id. at 6.
36 Id. at 6.
37 Alessandra Lanciotti, The Dilemma of the Right to Ownership of Underwater Cultural
Heritage: The Case of the Getty Bronze, in Cultural Heritage, Cultural Rights,
Cultural Diversity: New Developments in International Law 301, 304 n. 13
(Silvia Borelli & Federico Lenzerini eds., 2012).
38 The Amazing Catch, supra note 16.
39 Smyth, supra note 3, at B2.
40 The Amazing Catch, supra note 16.
41 Smyth, supra note 3.
42 Shirey, supra note 9.
Transnational Forfeiture of the Getty Bronze 315
The statue was acquired by the Getty Museum in 1977 in a purchase sur-
rounded by little fanfare, just months after the death of J. Paul Getty.43 Recent
reporting has uncovered concerns at the Getty regarding the acquisition of the
Bronze. J. Paul Getty learned about the Bronze in 1972 from an advisor, Bernard
Ashmole, at the time the statue had appeared suddenly in Europe.44
Bernard Ashmole, an advisor to art collector J. Paul Getty, foresaw no serious
legal challenge to the statue, due in large part to the reversal of the Barbettis
and Fr. Nagnis convictions.45 He began persuading Getty, who was building a
museum in Malibu, to purchase it.46 In 1974, Getty entered into an agreement
with the New York Metropolitan Museum of Art: the Met would loan the Getty
a set of 17 frescoes in exchange for joint ownership of the statue, which would
be funded by Getty.47 The negotiations were stymied by Italian attempts to
recover the statue.48 However, as Herzer refused to identify the statues sellers,
the case fell apart.49
In light of the investigation, Getty put the deal on hold until legal conditions
could be satisfied.50 He wanted written permission from the Italian Minister of
Culture and proof that the statue had received permission to leave the country.51
Before those conditions could be met, however, negotiations stalled.52 Getty
asked his attorney to look at the legal status of the Bronze. The attorney asked
the sellers Italian lawyers, who insisted that Italy had no claim to the statue.53
In a letter from the then-director of the Met, Thomas Hoving, Hoving prom-
ised Getty that the Mets attorneys would talk to Italian officials to clarify the
circumstances under which the Bronze left Italy. Hoving wrote, [a]s I already
explained to you during our conversations, the conclusion of the purchase
[of the Bronze] by Mr. Getty is subject to examination and approval from the
Metropolitan Museum Counsel and from Mr. Gettys General Counsel.54 And
endowment that J. Paul Getty left his Museum, Robert Lindsey noted in the
New York Times that Getty was spending more money on art than anyone
since the Medicis....65 The trustees also declined to fulfill any of the legal con-
ditions demanded by Getty.66 En route to California, the statue spent a few
months in Denver to avoid paying California taxes.67 Upon its arrival, the trust-
ees revealed they had voted to name the statue the Getty Bronze.68
Given the history of the Bronze since its discovery in 1964, we should consider
now what strategies the Italians have used to recover the work. As early as 1974,
Italy asked German authorities to seize the Bronze and extradite the Munich
dealer who had offered it for sale to the Getty; yet German officials offered no
concrete assistance.69 Later on in March of 1989, Italian authorities requested
that the Bronze be returned.70 In response Getty Museum director John Walsh
claimed the statue had little possibility of being related to Italian cultural
heritage, and only a tenuous relation to Italys patrimony.71
The relationship between Italy and the Getty was dramatically altered due
to a successful antiquities investigation. In 1995, authorities raided the Swiss
warehouse of Giacomo Medici, an Italian antiquities dealer.72 There they
found thousands of Polaroid photographs that showed objects that had been
illegally excavated and sold.73 The evidence was used to build a case against
former Getty antiquities curator Marion True.74 Italys demand was renewed
65 Robert Lindsey, Getty Museum Ponders How to Use Its $800 Million, n.y. Times, Jan. 9, 1978,
at A1.
66 Felch & Frammolino, supra note 12, at 25.
67 Statues Tax Dodge Doesnt Quite Work, Balt. Sun, Dec. 11, 1997. To avoid sales tax in
California, which was then 6%, the Bronze was given to the Denver Art Museum for
ninety days. ap reports at the time indicated that the city of Denver has a 3% use tax on
items bought elsewhere and used in Colorado, so the success of the tax-avoidance was
unclear. Id.
68 The Amazing Catch, supra note 16.
69 Felch, supra note 44.
70 The Amazing Catch, supra note 16.
71 Id.
72 Jason Felch & Ralph Frammolino, The Return of Antiquities A Blow to Getty, l.a. Times
(Aug. 2, 2007), http://articles.latimes.com/2007/aug/02/local/me-getty2.
73 Id.
74 Id.
318 Fincham
yet again in 1996.75 True claimed that the statute of limitations for such a claim
had expired, and it was not realistic for Italy to think the Bronze would be
returned.76 In October 2006, the Getty and the Italian Ministry of Culture
renewed talks over title to various antiquities in the Gettys collection; the
result of these talks would later be known as the October Agreement.77 The
negotiations eventually led to a signed agreement stipulating that the Getty
return twenty-six objects, enter into an innovative joint ownership agreement
with Italy of the Cult Statue of a Goddess, and collaborate with the Italian gov-
ernment on future exhibits, to include the loan of objects and joint research.78
Yet the ultimate conclusion of the agreement was stalled by the Italian govern-
ments insistence over the return of the Bronze.79 The Getty claimed that its
ownership of the statue was not subject to reasonable challenge, as it had
purchased the Bronze only after Italian courts had declared that there was
no evidence that the statue belonged to Italy.80 Italy conceded that it had no
ownership claim because the statue was found at sea....81
In its negotiations with Italy, the Getty often claimed that the Bronze should
not be considered alongside the other looted objects, and that it would not
return the object to Italy.82 In response, Italy stressed that the Bronze must
be a part of any agreement. In July of 2007, Francesco Rutelli, then the Italian
Culture Minister, threatened a cultural embargo against the Getty unless a
number of objects, including the Bronze, were returned to Italy.83 In response,
the Getty announced to the press that it was on firmer ground with respect
to the Bronze because it could not be linked to the questionable acquisitions
policies of Marion True, who at the time was defending herself in a criminal
trial in Rome.84 Christopher Knight, an arts critic for the l.a. Times, argued
that Rutellis posturing for the return of forty-seven objects was little more
than old-fashioned political demagoguery that was pitched to voters back in
Italy, and that the ultimatum was merely a symbolic act, demonstrating that
Italy would not be intimidated by the United States.85
Later in July, days before the proposed embargo was set to take effect, the
Getty Museum resumed negotiations with the Italian government over the dis-
puted objects.86 It appears these negotiations resumed because Italy agreed
to set aside the issue of the Bronze. In August 2008, the Getty agreed to send
forty objects back to Italy in exchange for the long-term loan of other objects.
Francesco Rutelli said the accord was an agreement of historic value.87 The
Italian Culture Ministry relented and concluded that negotiations over the
statue should be set-aside until the final disposition of a new criminal investi-
gation into the discovery and export of the Bronze from Italy.88 This investiga-
tion began with a grassroots request by the citizens of Fano.89
The forfeiture proceeding in Pesaro commenced decades after the Bronze
left Italian territory. These efforts demonstrate the deep connection some
Italians feel with the statue, and the deep remorse that the residents of Fano
collectively feel towards the loss of the object. In 2010, the Mayor of Fano,
Stefano Aguzzi, summarized the sentiment of local residents, stating, [t]he
statue and its discovery has become part of our culture and folklore,...[i]ts
clear we have a claim to it.90 However, the first forfeiture proceeding for the
Bronze did not go well for Italian prosecutors.
In November 2007, an Italian judge rejected a prosecutors request to seize
the statue.91 The Italian prosecutor argued that the Bronze was smuggled
out of Italy after it was found in fishing nets, while the Getty countered that
there was no proof that the statue was found in Italian waters.92 The judge
rejected the petition by Italian prosecutors, noting [t]he responsibility of
the Getty Museum, which is not of a criminal nature, will have to be estab-
lished in another forum, possibly via the cross-examination of the interested
85 Christopher Knight, The Grandstand Erected by Italy, l.a. Times (July 25, 2007), http://
articles.latimes.com/2007/jul/25/entertainment/et-getty25.
86 Jason Felch & Ralph Frammolino, Getty, Italy Reopen Talks on Antiquities, l.a. Times
(July 31, 2007), http://articles.latimes.com/2007/jul/31/local/me-getty31.
87 Felch & Frammolino, supra note 72.
88 Felch & Frammolino, supra note 86.
89 Id.
90 Povoledo, supra note 5.
91 Getty Bronze Seizure Turned Down, Il Denaro (Nov. 21, 2007), http://archivio.denaro
.it/VisArticolo.aspx?IdArt=518560&KeyW=getty%20BRONZE%20SEIZURE%20
TURNED%20DOWN.
92 Getty Cleared in Statue Case, ansa, Nov. 20, 2007.
320 Fincham
figure 16.3 A postcard campaign by the residents of Fano seeking the return of the Bronze.93
93 Postcard published by Pro loco Fanum Fortunae (2007) (on file with author).
94 Id.
Transnational Forfeiture of the Getty Bronze 321
ambiguities surrounding its discovery and sale.95 Yet the grassroots organiza-
tion persisted.96
In a subsequent 2009 decision, the Pre-Trial Judge re-examined the case.
She first found that the Tribunal had jurisdiction over the case and that Italian
Law applied.97 Later in a crucial ruling on February 10, 2010, the same Pre-
Trial Judge found that the Bronze currently held by the J. Paul Getty Museum
should be forfeited wherever it is found.98 The focus of this Article is not to
examine the principles of Italian criminal law and procedure upon which
Italian officials ordered this forfeiture. Rather, this Article is concerned with
how the judgment (and others like it) might be enforced in the United States.99
Therefore, an initial examination of the specific legal violations of Italian law
is helpful.
The first violation is the illegal export of the Bronze. Italy restricts the export
of certain works of art and antiquities. Article 9 of the Italian Constitution
safeguards the natural beauties and the historic and artistic wealth of Italy.100
Italy has declared ownership of certain objects of cultural heritage and has
prohibited the trade and export of certain objects.101 At the time the Bronze
was removed from Italy in the 1960s, Article 66 of Law no. 1089 of 1939 pun-
ished the unlawful export of cultural objects with a fine and confiscation.102
The second violation is a declaration of ownership of cultural objects (beni
culturali) in Italian territory. Professor Lanciotti has argued that under Article 44
of Law no. 1089/39, an archaeological item is presumed to belong to the State
unless its possessor can show private ownership prior to 1902.103 Italy enacted
a law in 1939 that declared the State the owner of any antiquity for which
95 Jason Felch, Italian Groups Bid for Getty Statue Rejected, l.a. Times (Nov. 20, 2007), http://
articles.latimes.com/2007/nov/20/world/fg-getty20.
96 Lanciotti notes that the Prosecutor asked the Pre-Trial Judge (Giudice per le Indagini
Preliminari) of the Tribunal of Pesaro to issue a forfeiture order (ordine di confisca) despite
the fact that the charges against the accused had been dismissed due to the expiry of the
time-limit for prosecution and the death of one of them. Lanciotti, supra note 37, at 304.
97 Id.
98 2010 Ordinanza, supra note 2, at 36.
99 Lanciotti notes that an appeal to the Court of Cassation was brought, and that in January
of 2011 the Corte di Cassazione issued a very short and rather odd judgment, in which it
did not rule on the legitimacy of the confiscation. Lanciotti, supra note 37, at 304, n. 17.
100 Lanciotti, supra note 37, at 305 n. 18.
101 Id. at 30506.
102 Id. at 307.
103 Id. at 306.
322 Fincham
no valid title predating 1902 exists.104 Article 23 of that law states that State-
owned cultural property is inalienable without prior authorization by the
Ministry of Culture,...[and] Article 61 deems to be null and void all unauthor-
ized sales and transactions of cultural property belonging to the State.105 The
current Code of Cultural Property prohibits the export and sale of archaeo-
logical objects.106
The Ordinanza of 2010 found that Italian export restrictions should be
applied to the Bronze. Notably, both those restrictions that were in force when
the Bronze was smuggled out of Italy and restrictions enacted later were held
to apply.107 The judge took up the question of whether the Bronze should be
considered part of the States public domain or as a part of the inalienable
assets of the State.108 If under the public domain (demanio pubblico), the
statue would fall under the provision of article 822(2) of the Civil Code of 1942.
This provision includes State owned real property of historic archaeological
or artistic interest as well as collections of paintings, archives and libraries of
the State museums.109 If considered Italian state property (patrimonio indis-
ponibile dello Stato), it would fall under Article 826(2) of the Civil Code. This
provision regulates things of artistic historical, archaeological, palethnologi-
cal, paleontological and artistic interest by whosoever and by whatever means
found underground as belonging to the State of Italy.110
Lanciotti argues that objects belonging to the demanio pubblico are subject
to a blanket prohibition on sale, but those belonging to the patrimonio indis-
ponibile can be bought and sold with permission of the State.111 Lanciotti notes
that this rule was amended in 2004 to make the illegal export of cultural objects
a crime punishable by one-to-four years imprisonment and fines ranging from
258-to-5,165 euro.112 Notably, Article 174 provides for the confisca (forfeiture or
confiscation) of the item in question if it is proven that it was exported abroad
104 See, e.g., United States v. An Antique Platter of Gold, 991 F. Supp. 222, 227 n. 25 (s.d.n.y.
1997) (The District Court was given a translation of the Italian law by an Italian lawyer,
Giuliano Berruti, and the court agreed with the Italians argument that the provision
declares Italy the owner of any antiquities without documented ownership before 1902
essentially retroactively declaring ownership of them.).
105 Lanciotti, supra note 37, at 306.
106 Id. (citing Codice dei beni culturali e del paesaggio, Articles 65, 54(2)(a), 55, and 10(3)(d)).
107 2010 Ordinanza, supra note 2, at 24.
108 Lanciotti, supra note 37, at 306.
109 Id.
110 Id.
111 Id.
112 Id. at 307.
Transnational Forfeiture of the Getty Bronze 323
from Italian territory in violation of Italian export laws.113 Article 174(3) allows
for the forfeiture of those objects unless, as Lanciotti translates in the arti-
cle, they belong to a person who was not involved in the commission of the
crime.114 Lanciotti notes that in the 2010 decision, the judge did not consider
why Italian law should be applicable to the forfeiture:
The judge simply took for granted that the domestic retentionist law was
applicable to the case as the lex rei sitae. According to her reasoning, as
State-owned cultural property the Bronze could not have been legally
acquired by a third party through a private transaction, regardless of the
passage of time and its transfer abroad.115
The judge also took up the question of whether the Getty had acquired title,
and came to the conclusion that there were serious defects:
The Victorious Youth statue was purchased in the full awareness of its
preceding vicissitudes that denoted its exit from Italian territory under
dark circumstances (out of any kind of euphemism: certainly illegal),
without asking for any particular guarantees (in particular the title deed)
to its vendor, even if it had been claimed, previously and before his death,
by J.P. Getty senior who in the end had given up the idea to purchase the
statue, and without consulting the Italian Government, thus unable to
interject in matter and to furnish the necessary explanations with regard
to the events of the transferring of the good. The acquisition, even if of
an important sum of money (3.9 million dollars), consented the pur-
chase of a work of art of an inestimable historical, artistic and as well as
venal value to the Getty Museum with obvious implications of economic
nature and of an international prestige. The preceding considerations
lead to the conclusion that the Getty Museum cannot be considered a
party not involved in the crime being impossible to affirm the existence
of its not guilty reliance in the purchase of the asset that is the material
subject of the crime, and having it taken advantage of the transaction
concluded in this way.116
113 Id.
114 Id.
115 Id. at 311.
116 2012 Ordinanza, supra note 54, at 3334.
324 Fincham
As we have seen, there are four violations of Italian law which provide a basis
for forfeiture: first, the illegal export of the Bronze; second, the failure to notify
Maritime authorities of the discovery; third, the failure to notify the relevant
authorities of the discovery of the piece of cultural heritage; and fourth, the
violation of importation rules from the importation of the Bronze when it
was brought ashore to Fano in the middle of the night.117 This collection of
legal violations bears a number of similarities to the more recent legal argu-
ment which resulted in repatriation oflooted antiquities from an art dealer in
London to the Jiroft region in Iran.118 Professor Lanciotti notes that the confis-
cation order has been affirmed by the Italian Court of Cassation.119 Because
the case resulted in what Professor Lanciotti has defined as a final forfeiture
order, the question becomes whether Italy can secure the assistance of a court
in the United States to enforce it.
Italy may elect to use its mlat treaty with the United States. Since 1982, the
United States and Italy have had a bilateral mutual assistance treaty. The most
recent update to this agreement, which entered into force in 2010, provides in
Article 18 that both nations will assist each other to the extent permitted by
their respective laws in the seizure, immobilization and forfeiture of the fruits
and instrumentalities of offenses.120
Professor Lanciotti indicates that the forfeiture now only remains to be
enforced in the United States: the Prosecutor of the Tribunal of Pesaro sent
a letter rogatory to the Central Authority in the United States to enforce the
order of confiscation of the Bronze....121 This letter has not been made
public.122 mlats are bilateral agreements which provide for the sharing of
information and evidence related to transnational criminal investigations. The
number of these agreements has increased in recent decades.123 They seek to
124 Id. at 226. The Office of International Affairs in the Criminal Division of the u.s.
Department of Justice serves as the designee of the United States Attorney General for
purposes of making and receiving mlat requests. The Central Authority for the treaty
partner is most often the Minister of Justice, Attorney General, Minister of Interior, or
other person responsible for international criminal assistance matters in that country, or
a person designated by such an official. Id. at 22627.
125 To give an idea of the justifications for these treaties, consider the remarks of
Representative George W. Gekas in discussing a treaty entered into in 2002 between the
United States and Cyprus, which he praised as [providing] for many provisions that will
fight not just global terrorism, but also organized crime and drug trafficking. 148 Cong.
Rec. E1809-03 (daily ed. Oct. 9, 2002) (statement of Rep. George W. Gekas).
126 Snow, supra note 123, at 20910.
127 See United Nations: Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, U.N. Doc. E/Conf. 82/16, reprinted in 28 I.L.M. 493 (Dec. 20, 1988).
128 In re Commissioners Subpoenas, 325 F.3d 1287, 1290 (11th Cir. 2003).
129 28 u.s.c. 1782 (2012). The statute provides that district courts may order residents in
their district to give testimony, produce evidence, and generally cooperate in foreign
criminal investigations, and even private suits. Id.
130 Mutual assistance requests do not have to comply with any restrictions provided under
1782. In re Commissioners Subpoenas, 325 F.3d at 130506.
326 Fincham
other evidence and other forms of assistance needed in criminal cases while
streamlining and enhancing the effectiveness of the process.131
When the first Mutual Legal Assistance Treaty with Italy was signed in
1982, transnational forfeitures were included. The Senate Foreign Relations
Committee report noted that the Article 18: Immobilization and Forfeiture
of Assets provision was a major innovation, which provides in emergency
situations for the immobilization of assets in a requested country which are
subject to forfeiture to the requesting country.132 The provision was praised
for its importance in depriving international drug traffickers and members of
organized crime of the fruits of their criminal activity.133
There is legislation guiding the operation of these transnational forfeitures,
with 28 u.s.c. 2467 laying out procedures for enforcing foreign forfeiture
orders under limited circumstances. These include banking fraud and drug
trafficking; and circumstances where there is a treaty or other formal interna-
tional agreement in effect providing for mutual forfeiture assistance.134 If the
Italian forfeiture order were to be enforced, there must first be a final order of
a foreign nation, and the so-called dual forfeiture requirement must be met,
meaning that the property must also be subject to forfeiture in the United
States, as well as Italy.135
It is an interesting question how close of a match the dual forfeiture require-
ment imposes. To require that the United States mirror the heritage protec-
tion scheme of Italy in every respect for the forfeiture to proceed would be too
onerous an obligation. Put another way, how close must the law in the United
States regulate the illicit export and smuggling of similar pieces of underwater
cultural heritage like the Bronze? There are broad forfeiture principles embed-
ded in certain federal laws that would certainly match the Italian laws violated
with respect to the Bronze, notably the national Stolen Property Act;136 the
Abandoned Shipwreck Act;137 and perhaps most closely, the Archaeological
Resources Protection Act.138 How closely this dual forfeitability must be
were used in connection with such violation, may be...subject to forfeiture to the United
States....).
139 See in re Restraint of All Assets Contained or Formerly Contained in Certain Inv. Accounts
at ubs Fin. Servs., Inc., 860 F.Supp.2d 32, 4142 (D.D.C. 2012) (holding the dual forfeiture
requirement does not apply to restraining orders, and was met in the case because the
alleged criminal conduct violated federal law).
140 28 u.s.c. 2467(b)(1) (2006).
141 u.s. Dept of Justice, Criminal Resource Manual 276 (1997) http://www.justice
.gov/usao/eousa/foia_reading_room/usam/title9/crm00276.htm.
142 28 u.s.c. 2467(b)(2).
143 See Derek Fincham, Justice and the Cultural Heritage Movement: Using Environmental
Justice to Appraise Art and Antiquities Disputes, 20 Va. J. Soc. Poly & L. 43 (2012).
144 28 u.s.c. 2467(d).
145 United States v. An Antique Platter of Gold, 991 F.Supp. 222, 226 (s.d.n.y. 1997).
146 Id.
328 Fincham
exportation from Italy of the [p]hiale and confiscation of the phiale so that it
could be returned to Italy.147
Italy requested the restitution of a gold bowl dated from the third or fourth
century b.c.e. The object was illegally exported from Italy, and there were
inaccuracies on the customs declaration.148 The country of origin was wrongly
listed as Switzerland when the actual nation of origin was Italy.149 Also, the
value of the object was listed as only $250,000 when the actual value was
$1.2 million. Federal prosecutors initiated a forfeiture proceeding in the
Southern District of New York. The district court held in favor of the prosecu-
tion holding that the gold phiale had been illegally imported due to the false
statements on the customs declaration.150
In February of 1995, Italian officials submitted a Letters Rogatory Request to
the United States.151 The request was for assistance in investigating the export
of the phiale from Italy, and it also asked for the object to be confiscated for an
eventual return to Italy.152 In November of 1995, United States Customs agents
seized the phiale from Steinhardts home, and the United States filed a forfei-
ture action under 18 u.s.c. 545 and 981(a)(1)(C) for importing the goods by
means of false statements.153 The district court held that falsely listing both the
country of origin and the value of the phiale were fatal flaws in a legal importa-
tion of the object.154 The district court also found that the phiale was subject
to forfeiture under 19 u.s.c. 1595a(C) as a stolen good.155 The Second Circuit
affirmed the district court holding on the grounds that stating the wrong
nation of origin was material,156 but it declined to address the second ground
for forfeiture under the National Stolen Property Act, 18 u.s.c. 545.157 The
phiale was ultimately returned to Italy in 2000.158 Subsequent events have con-
firmed the illicit origins of the plate. In December of 1998, Italian police raided
a villa in Sicily connected to one of the looters of the phiale, and found 30,000
archaeological objects that were valued at $35 million.159 Italian officials at the
time praised the arrest as a connection linking the ever-present problems of
archaeological looting in Italy with the mafia and organized crime.160
The phiale forfeiture shares a number of similarities with the Bronze. There
was a prolonged Italian investigation, but a return was only secured with the
help of assistance from federal authorities and the forfeiture action brought by
the u.s. Attorney.161 James Cuno, the current head of the Getty Trust, was very
critical of the result in the forfeiture of the Phiale, arguing that u.s. Customs
agents were taking actions in opposition to Congressional intent.162 However,
Cunos criticism failed to take into account that the United States signed a
treaty with Italy, expressly requiring American officials to cooperate with
these Italian investigations.163 Given his strong criticism of Italian repatriation
efforts in the past, the possibility of a negotiated repatriation of the Bronze
may be unlikely now that Cuno is President of the Getty Trust.
If Italy is successful in using this transnational forfeiture for the return of the
Bronze (and perhaps even if it is not successful), it will likely lead to other
156 United States v. An Antique Platter of Gold, 184 F.3d 131, 132 (2d Cir. 1999).
157 Id. at 134.
158 Ancient Platter Recovered, n.y. Times, Feb. 12, 2000, at A8.
159 Mike Toner, Buying, Selling, Stealing History, Atlanta Journal Constitution, Sept. 19,
1999.
160 John Hooper, Police in Sicily Suspect Mafia Link in Growing Theft of Ancient Treasures,
Cleveland Plain Dealer, Dec. 10, 1998.
161 An Antique Platter of Gold, 991 F.Supp at 22627.
162 James Cuno, u.s. Art Museums and Cultural Property, 16 Conn. J. Intl L. 189, 19495
(2001) (arguing that u.s. Customs conflicted with Congress when Customs issued an
information Notice pointing out Pre-Columbian objects were potentially violating the
National Stolen Property Act in the wake of the McClain cases).
163 See Jason Felch, Antiquities Issue Rears Head With Getty Leaders Potts, Cuno In Place,
l.a. Times (Feb. 17, 2012), http://articles.latimes.com/2012/feb/17/entertainment/la-et-
getty-antiquities-20120217.
330 Fincham
similar efforts from nations which have secured mlats with the United States.
This would provide another valuable tool for nations of origin seeking to repa-
triate looted cultural objects. It would in many ways rewrite the playbook of
international cultural heritage law. Professor John Henry Merryman expressed
the traditional view in the United States that the courts of one nation will not
enforce claims based on the public law (as distinguished from claims based on
private rights, like ownership) of another nation.164 Professor Paul Bator, who
assisted in drafting the 1970 unesco Convention, also pointed out that illegal
export does not itself render the importer (or one who took from him) in any
way actionable in a u.s. court; the possession of an art object cannot be law-
fully disturbed in the United States solely because it was illegally exported from
another country.165 Both the Second166 and Fifth167 Circuits have endorsed
Bators view of the general non-enforceability of export restrictions. Yet Bator
did note that this general principle could be abrogated by a treaty or other act
of Congress.168 These mlats and 2467 have created just such an abrogation.
The policy and legal justification for non-enforcement of public law has
been criticized. Professor James Gordley argues in a recent book chapter that
this general prohibition makes for bad law and policy because it too strictly
construed the notion of territorial sovereignty, and it also too strictly con-
strued the ownership right a foreign nation must have in order to secure a
successful repatriation.169
In the past, cultural heritage law has been hampered by a two-tiered
system of enforcement. Nations have been successful in enlisting foreign
courts to enforce national ownership declarations where nations are seek-
ing the enforcement of an ownership right that resembles individual rights of
ownership.170 Yet export and other restrictions have not been enforced by
164 John Henry Merryman, The Retention of Cultural Property21 U.C. Davis L. Rev. 477, 484
(1988).
165 Paul M. Bator, An Essay on the International Trade in Art, 34 Stan. L. Rev. 275, 287 (1982).
166 Jeanneret v. Vichey, 693 F.2d 259, 267 (2d Cir. 1982).
167 United States v. McClain, 545 F.2d 988, 996 (5th Cir. 1977) (Professor Bator correctly states
the law applicable to violations of export laws....[which] has been qualified by congres-
sional statute and by treaties.).
168 Bator, supra note_165, at 28788 (citing Importation of Pre-Columbian Monumental or
Architectural Sculpture or Murals, Pub. L. No. 92-587, 201205 (1972)).
169 James Gordley, The Enforcement of Foreign Law: Reclaiming One Nations Cultural Heritage
in Another Nations Courts, in Enforcing International Cultural Heritage Law
110, 124 (Francesco Francioni & James Gordley eds., 2013).
170 See, e.g., United States v. Schultz, 333 F.3d 393 (2d Cir. 2003).
Transnational Forfeiture of the Getty Bronze 331
171 See King of Italy v. De Medici Tornaquinci, (1918) Ch. 34 t.l.r. 623 (holding that the
Medici papers were to be returned to Italy on the grounds that they were owned by Italy,
and refusing to return privately owned papers that had been illegally exported). See
also Attorney-General of New Zealand v. Ortiz, (1983) H.L. 2 W.L.R. 809 (denying New
Zealands action to recover illegally-exported Maori carvings).
172 Merryman, supra note 164, at 12930. **
173 19 u.s.c. 260113 (2012).
174 Id. at 2605.
175 See, e.g., Immigration and Customs Enforcement, ice Returns Stolen and Looted Art and
Antiquities to Italy, u.s. Department of Homeland Security (Apr. 26, 2012), http://
www.ice.gov/news/releases/1204/120426washingtondc.htm.
332 Fincham
any new acquisitions (if they were not already) as the level of cooperation
between market nations and nations of origins is increasing.176
In the United States, forfeitures are legal actions filed directly against an
object. Forfeitures are derived from English common law, and are absolute
restraints on the use of property irrespective of whether the current owner or
possessor had any knowledge of the illicit acts that initiated the forfeiture.177 At
one time, forfeiture would not normally be proper until an offender had been
convicted,178 but the Supreme Court did away with this requirement, holding
that it never was applied to seizures and forfeitures, created by statute, in rem,
cognizable on the revenue side of the [e]xchequer. The thing is here primarily
considered as the offender, or rather the offence is primarily attached to the
thing....179 Congress reformed forfeitures with the Civil Asset Forfeiture
Recovery Act of 2000 (cafra).180 The burden of proof was raised to a pre-
ponderance standard and an innocent owner defense was introduced.181 In
the 1990s, the federal government began to make extensive use of forfeiture
as a tool to seize money and objects as part of the War on Drugs.182 Once the
object has been connected to a criminal offense, the behavior of the current
possessor has no impact on the objects disposition.183 The rationale is based
on the now-curious ancient belief that it is the object itself, not its current pos-
sessor, which has offended the law.184
176 See Ralph Blumenthal & Tom Mashberg, Ancient Cambodian Statue Is Seized From
Sothebys, n.y. Times, Apr. 4, 2012, http://www.nytimes.com/2012/04/05/arts/design/
ancient-cambodian-statue-is-seized-from-sothebys.html.
177 See Waterloo Distilling Corp. v. u.s., 282 u.s. 577, 58081 (1931).
178 See The Palmyra, 25 u.s. 1, 9 (1827).
179 Id. at 14.
180 18 u.s.c. 983 (2012).
181 Id. at 983(d). For a discussion of the reforms introduced under cafra written by the
then-Assistant Chief of the Asset Forfeiture and Money Laundering Section of the u.s.
Department of Justice, see Stefan D. Cassella, The Uniform Innocent Owner Defense to Civil
Asset Forfeiture: The Civil Asset Forfeiture Reform Act of 2000 Creates A Uniform Innocent
Owner Defense to Most Civil Forfeiture Cases Filed by the Federal Government, 89 Ky. l.j. 653
(2001).
182 See, e.g., Matthew P. Harrington, Rethinking In Rem: The Supreme Courts New (and
Misguided) Approach to Civil Forfeiture, 12 Yale L. & Poly Rev. 281, 346 (1994).
183 J.W. Goldsmith, Jr., Grant Co. v. u.s., 254 u.s. 505, 513 (1921) (It is the illegal use that is the
material consideration, it is that which works the forfeiture, the guilt or innocence of its
owner being accidental.).
184 The Second Circuit noted the idea could be traced to the origins of Western legal tradi-
tions according to Oliver Holmes, examining the Old Testament, Greek and Roman writ-
Transnational Forfeiture of the Getty Bronze 333
Forfeiture actions have been used extensively in the United States in actions
brought by u.s. prosecutors. They have involved many objects from source
nations all over the world. An in rem civil forfeiture claim was brought under
the Archaeological Resources Protection Act (arpa)185 by the United States
in 1996. The objects were alleged to have been looted from an archaeological
zone in Rome and purchased by a company called Antiquarium in 1987 for
$24,500.186 A default judgment was entered after no responsive pleading or
motion was filed on behalf of the possessor of the objects.187 And there are a
staggering variety of other forfeited objects of cultural heritage:
A manuscript which had been stolen from the Mexican National Archives;188
Doble Trinidad, an 18th Century work of Colonial art from Peru;189
an illicit Egyptian mask known as the Ka-nefer-nefer;190
another Egyptian Sarcophagus;191
a work of art stolen from a Museum in France in 1981 by Camille Pissarro
titled Le March;192
ings, and even Blackstone. United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d
Cir. 1982) (citing Oliver W. Holmes, Jr., The Common Law 79 (1881)).
185 See 16 u.s.c. 470gg(b) (2012).
186 Verified Complaint 1, 3, 6, United States v. An Archaic Etruscan Pottery Ceremonial Vase
C. Late 7th Century, B.C. and a Set of Rare Villanovan and Archaic Etruscan Blackware
with Bucchero and Impasto Ware, c. 8th7th Century, B.C., Located at Antiquarium, Ltd.,
948 Madison Avenue, New York, n.y., 10021, No. 96 civ. 9437 (s.d.n.y. Dec. 12, 1996) (on
file with author).
187 Default Judgment, United States v. An Archaic Etruscan Pottery Ceremonial Vase C. Late
7th Century, B.C. and a Set of Rare Villanovan and Archaic Etruscan Blackware with
Bucchero and Impasto Ware, c. 8th7th Century, B.C., Located at Antiquarium, Ltd., 948
Madison Avenue, New York, n.y., 10021, No. 96 civ. 9437 (s.d.n.y. Dec. 12, 1996) (on file
with author).
188 United States v. An Original Manuscript Dated November 19, 1778, No. 96 Civ. 6221, 1999
wl 97894 (s.d.n.y. Feb. 19, 1999) (granting summary judgment).
189 United States v. Eighteenth Century Peruvian Oil on Canvas, 597 F. Supp. 2d 618 (e.d. Va.
2009).
190 United States v. Mask of Ka-Nefer-Nefer, No. 4:11CV504 hea, 2012 wl 1094658 (e.d. Mo.
Mar. 31, 2012).
191 United States v. One Ancient Egyptian, No. 1:09-cv-23030 (s.d. Fla. Oct. 8, 2009) (on file
with author).
192 United States v. Davis, 648 F.3d 84 (2d Cir. 2011).
334 Fincham
193 United States v. Painting Known as Hannibal, No. 08 Civ. 1511(rjs), 2010 wl 2102484
(s.d.n.y. May 18, 2010).
194 United States v. Pre-Columbian Artifacts, 845 F.Supp. 544 (N.D. Ill. 1993) (u.s. Customs
agents seized objects when they were imported into the United States in violation of the
National Stolen Property Act, 18 u.s.c. 23145).
195 United States v. Portrait of Wally, A Painting by Egon Schiele, No. 99 Civ. 9940, 2002 wl
553532 (s.d.n.y. 2002). See Carol Vogel, A Schiele Going, a Schiele Staying, n.y. Times
(May 5, 2011), http://www.nytimes.com/2011/05/06/arts/design/schiele-work-being-sold-
by-leopold-museum.html.
196 United States v. One Oil Painting Entitled Femme en Blanc by Pablo Picasso, 362 F.Supp.
2d 1175 (C.D. Cal. 2005).
197 Verified Complaint, United States v. One Julian Falat Painting Entitled Off to the Hunt,
No. 1:10-cv-09291 (s.d.n.y. Dec. 13, 2010) (on file with author); Press Release, u.s. Attorney,
S. Dist. of n.y., United States Seizes Two Julian Falat Paintings Stolen by the Nazis
During World War ii from the National Museum in Warsaw, Poland (Dec. 16, 2010), avail-
able at http://www.justice.gov/usao/nys/pressreleases/December10/falatcivilforfeiture
complaintpr.pdf.
198 United States v. One Tyrannosaurus Bataar Skeleton, No. 12 Civ. 4760 (pkc), 2012 wl
5834899 (s.d.n.y. 2012); United States v. One Tyrannosaurus Bataar Skeleton, No. 12 Civ.
4760 (pkc), default judgment, 2013 wl 628549 (s.d.n.y. Feb. 13, 2013); Ralph Blumenthal,
Dinosaur Skeleton to Be Returned to Mongolians, n.y. Times (May 5, 2013), http://www
.nytimes.com/2013/05/06/arts/design/dinosaur-skeleton-to-be-returned-to-mongolians
.html (The defendant has been convicted of smuggling the statue into the United States
and reassembling it. The Tyrannosaurus has been slated for return to Mongolia.).
199 United States v. One Lucite Ball Containing Lunar Material, 252 F.Supp. 2d 1367, 1379 (s.d.
Fl. 2003) (noting customs seizures are exempted from the innocent owner defense under
cafra).
Transnational Forfeiture of the Getty Bronze 335
The law of forfeiture in the United States is well developed and stands as a
powerful tool available for nations of origin (and original owners of stolen
art).200 This practice has been used with increased regularity, and if federal
prosecutors take this step, these government attorneys have a number of
advantagesmost notably a favorable burden of proof.201 The use of these
forfeitures reflects an increased emphasis on returning objects to original own-
ers and nations of origin, sometimes at the expense of criminal charges against
individuals. But with the Italian forfeiture of the Bronze, this trend may move
in a new direction. Nations of origin might decide to bring forfeiture actions at
home, and take a final judgment to the United States where it may be enforced.
The Getty has maintained a consistent position with respect to Italian
repatriation efforts. Even the Gettys publications of the Bronze reveal a deep
refusal to ask about or even seriously consider the history of the Bronze. Jiri
Frel, curator at the time the Bronze was acquired, wrote a publication on the
work and begins with the puzzling question and answer: The first question
everyone asks is where does the statue come from? The statue speaks for
itself.202 Very little has changed with respect to the Gettys position since.In
an email exchange with Julie Jaskol, the Assistant Director for Media Relations
at the Getty, the Getty responded when asked about the Bronze with the
following:
After dismissing the case in 2007, a court in Pesaro, Italy, has found that
the Getty Museums Victorious Youth is subject to forfeiture under Italian
law. The court declined to hear any relevant witnesses offered by the
Getty, and did not consider many of the documents that were offered to
rebut the findings of the Italian prosecutor. The Getty believes that there
is no authority for this decision on the facts or under applicable Italian
law and has appealed the matter to the Court of Cassation in Rome. The
appeal is still pending.
200 See Derek Fincham, Why u.s. Federal Criminal Penalties for Dealing in Illicit Cultural
Property Are Ineffective, and a Pragmatic Alternative, 25 Cardozo Arts & Ent. l.j. 597,
62129 (2007).
201 See Jennifer Anglim Kreder, Executive Weapons to Combat Infection of the Art Market, 88
Wash. U.L. Rev. 1353, 1361 (2011) (Most people would agree that we generally should
allow possessors of property facing forfeiture to the government to demonstrate that they
were bona fide purchasers.... But when it comes to stolen art in the civil context under
our law, bona fide purchaser status does not matter much.).
202 Frel, supra note 58, at 4.
336 Fincham
203 E-mail from Julie Jaskol, Assistant Director, Media Relations, Getty Trust, to Author
(Jun. 10, 2013) (on file with author).
204 See Neil Brodie & Blythe Bowman Proulx, Museum Malpractice As Corporate Crime?
The Case of the J. Paul Getty Museum, J. Crime & Just. 1, 11 (2013) (arguing [t]hat the
Getty...routinely purchased trafficked antiquities for its collection suggests an organiza-
tional culture of tolerance if not approval of malpractice.).
Transnational Forfeiture of the Getty Bronze 337
Similar treaties have been concluded with every other European nation, so any
American museum with a potentially illicit object of cultural heritage should
be watching the development of this dispute closely. Yet there is a risk here for
nations of origin as well: if they are undisciplined about the use of the mlat
process, they may stir up controversy and create a backlash against the use of
this international cooperation.
If these actions are used more extensively, there are a number of potential
questions that need to be considered by policy makers. What kinds of decisions
will be enforced under mlats? Will they include administrative tribunals?
What about officials acting in a judicial or quasi-judicial capacity? When does
a foreign judgment end for the purposes of assistance? Will the assistance
include arbitration? And, perhaps most importantly, how much assistance
from Executive branch agencies does the assistance compel?
There may also be problems with disparate treatment if an object originat-
ing in the United States is smuggled abroad. There may be a situation where
a court in the United States assists in a foreign forfeiture and yet if the cor-
responding case occurred, where a foreign court was asked to enforce an
American forfeiture, the peculiar nature of federal forfeiture practice, which
is in rem, may lead to difficulties and could produce unfair and unequal treat-
ment. If the use of these forfeitures continues, international conventions may
be needed to harmonize practice.205 In the past, international forfeitures were
governed on an ad hoc basis.206
Italy must also be mindful of substantive criticism that it will likely face with
respect to other cultural objects on display. Many critics point out that when
a push is made for repatriation, a nation with such rich heritage like Italy will
always struggle with the cost and difficulty of managing the objects that it does
have in its museums and storehouses. One example is the Riace Bronzes. These
sculptures date from the fifth century b.c.e. They were found off the Calabrian
coast in the 1970s, and were one of the most important archaeological discov-
eries of the last century, much like the Getty Bronze.207 The Bronzes were
displayed all over Italy in 1980 when they went on a national tour, and were
later sent to Calabria where they were on display until 2008. They underwent
extensive conservation involving chemical, laser, and electromagnetic tests to
205 See Bruce Zagaris & Elizabeth Kingma, Asset Forfeiture International and Foreign Law: An
Emerging Regime, 5 Emory Intl L. Rev. 445, 448.
206 See, e.g., Consult. Ass., Convention on Laundering, Search, Seizure and Confiscation of the
Proceeds From Crime, (Nov. 8, 1990), reprinted in 30 i.l.m. 148 (1991).
207 Riace Bronzes to Return Home Later This Year, ansa English (Aug. 14, 2012), http://www
.ansa.it/web/notizie/rubriche/english/2012/08/14/Riace-Bronzes-return-home-later-
year_7342168.html.
338 Fincham
help understand the origin of the statue. During this study and conservation,
visitors were able to view the ancient masterpieces behind a custom-designed
glass enclosure to watch the work being conducted. But in 2009, the ultimate
home for the Bronzes, the Calabrian museum, was closed for renovation and
the Bronzes were transferred to the local council offices. There have been per-
sistent delays in the completion of the museum renovations,208 due partly to
funding, but also due to disagreement between the Ministry of Culture and the
local Soprintendenza that runs the museum over its final layout.209 Giovanni
Puglisi, president of the Italian National Commission for unesco, has criti-
cized the failure to display these ancient masterpieces, calling it an absolute
disgrace. The Bronzes had effectively been abandoned for over 1,290 days in
the headquarters of the Calabrian regional council because of the ongoing res-
toration work at the museum.210
Conclusion
It remains to be seen what the final result in the repatriation effort for the
Bronze will be. But even if Italian officials and concerned residents of Fano are
unsuccessful, a new potential legal tool has emerged. At the very least, nations
of origin may consider initiating forfeiture actions domestically to secure the
return of looted or stolen objects. The relationships between prosecutors and
law enforcement officials are becoming deeper and better developed in pur-
suit of other organized criminal networks such as drug trafficking, financial
crimes, and terrorism. These tools that nations have created for their collective
policing will of course be used for other crimes. As a consequence, cultural
heritage lawyers may need to shift their focus away from trying to develop laws
designed specially for art and antiquities; they may discover that the tools they
are looking for have already been created. And the means to repatriate and
target the financial incentives for dealing in illicit cultural heritage are already
here, waiting to be used.
208 Silvia Mazza & Ermanno Rivetti, Riace Bronzes Languish in Limbo, The Art Newspaper
(Oct.7,2012),http://www.theartnewspaper.com/articles/Riace-Bronzes-languish-in-
limbo/27347.
209 Id.
210 Italy Has Abandoned Riace Bronzes, Says unesco Official, ansa English (Jul. 8, 2013),
http://www.ansa.it/web/notizie/rubriche/english/2013/07/08/Italy-has-abandoned-
Riace-bronzes-says-unesco-official_8994442.html.
Part 7
Art Vandalism
CHAPTER 17
Frans Koenraadt
This chapter1 covers the area of art, crime and insanity in the course of time,
mainly focusing on the multiple touches between these elements. After an
overview where we will explore the different types of these connections three
particular cases will be presented. In 2 an English artist who became a patient
and an offender will be discussed; 3 will illustrate a Dutch case of crime in
art on forgering and in 4 a case of art damaging by a German perpetrator as a
result of mental disorder is explored. The chapter is concluded in 5 with some
final remarks.
1 Parts of this chapter are derived from Koenraadt, 1996; 2008; 2012.
2 See case description in 4.
3 See case description in 3.
4 Conklin (1994).
5 Breeuwsma (1997).
6 Kelk (2005).
7 Kelk (2011).
8 Steiner (2000).
9 Moser (2010), 134135.
On Art, Crime, and Insanity 343
have a long tradition in prison culture. Many tattoos are inked by fellow prison-
ers in prison with all attending health risks.10
In 1926 the German psychiatrist and art historian Hans Prinzhorn, pub-
lished a book Bildnerei der Gefangenen (Artistry of Prisoners) in which he col-
lected the images made by detainees on paper, cell walls, and on their own or
each others bodies. The book not only gives personal insights into prison life
and the prison culture but also in the stages of committing crimes, of court ses-
sions, and of the execution of sanctions. This collection is a worthwhile source
of outsider art.
Another connection between art and crime are those crimes that take their
inspiration from art.13 Art by surrealists like Salvador Dali, Ren Magritte, Hans
Bellmer, Alberto Giacometti, Andr Masson, Marcel Duchamps, and Man Ray
are not only thought-provoking and inspiring, but sometimes evoke criminal
imitation, even resulting from as well as in a copycat murder like in the Black
Dahlia murder case in the usa. In this thus far unsolved case Elizabeth Short
was found dead in 1947. Verrips points to similarities between facts and art,
where the facts were model for the representation in art and vice versa, but
also to the catharsis in art after personal war experiences.14
1.4 Court and Prison as Key Places of Criminal Law Reflected in Art
The eighteenth-century artist Piranesi was impressed by fantastic buildings.
He applied this to the Caprici di Carceri and made fantasy dungeons. These
huge prisons with several floors connected by stairs and bridges have a halluci-
natory effect on the observer.15
Honor Daumier is a well-known satirical artist who used his scathing
caricature to portray judges, defendants, and attorneys in the court. In 1832
16 Kelk (1990).
17 Graham-Dixon (2010); Shoham (2003), 94102.
18 Gamboni (1997), chapter 10.
On Art, Crime, and Insanity 345
19 Appel (1999).
20 The title of their book Art as Therapy is misleading. Art may be a tool in therapy, it may
fulfill a role in therapy, it may even fulfill a role as therapy, but it may not be identical with
therapy.
21 This criticism is also applicable for the alternative exhibition they created in the
Amsterdam Rijksmuseum in 2014.
346 Koenraadt
In former centuries, when photography did not yet exist, the role of drawings
and paintings was essential for visualizing and to remembering. Gilmans book
Seeing the Insane is a visual and cultural history of the images of mentally ill
over the course of time.22
Art
Art as object of crime Art as object of insanity
Art as personal expression of crime Art as personal expression of insanity
Art as a criminal instrument Art as a therapeutic instrument
Court and detention as themes in art Insanity and asylum as themes in art
Offender as artist/artist as offender Patient as artist/artist as patient
Richard Dadd was born in Chatham, Kent on the first of August, 1817, as the
fourth child of Robert Dadd, an intelligent, energetic, and successful chemist.
His mother died when he was nearly seven years old. She left behind seven
children.29 Less than two years later, his father married again and with his sec-
ond wife he had two children. Roberts second wife also died at a young age. In
1836, the family moved to London where Richard became proficient in drawing
in the British Museum. Richard got his artistic education at the Royal Academy
of Schools in London, where in 1839 and 1840 he received awards for his work.
He turned out to be a skillful and active student, and he received orders.
Between 1838 and 1841 he exhibited on a regular basis and enjoyed increas-
ing recognition. In July 1842, at the age of twenty-five, he left England for ten
months together with a friend, Thomas Phillips, in order to make sketches and
paint in the Middle East.30 Towards the end of the trip, delusional experiences
increasingly occupied him, and he left behind his traveling companion. On
returning home in May 1843, it soon became clear to everyone that Richard
was insane; most blamed it on sunstroke. The bright, kind young man they
knew became increasingly suspicious, hostile, and even bizarre in his behav-
ior. Richards father could not acknowledge that his favorite son had become
insane. He still believed that the heat and strain had become too much for him
and that peace and tranquility would help him recover. Although a doctor who
was consulted assured him that Richard no longer had control over his own
actions and needed permanent supervision, his father did not want to commit
him to a mental asylum.31
Due to the intervention of doctors and the close monitoring by his father,
Richards persecution paranoia increased even more. On the twenty-eighth of
August 1843, the twenty-six-year-old Richard Dadd stabbed his father to death
because he thought that his father was possessed by the devil.32 After the mur-
der, his room was searched, and in it a portfolio was found with drawings of
all his friends with their throats cut. It was generally believed that Richard
himself eventually would be found dead by his own hand. Instead he fled to
France. Later he said that he planned to assassinate the Emperor of Austria,
figure 17.2 Sketch of the Passions, Hatred, 1853, Richard Dadd, Watercolour on paper, 31,1
25,7, The Bethlem Art and History Collection Trust, England.
death. This work from 1853, inspired by Shakespeare,39 could easily have illus-
trated the theme of murder. It is more than a mere coincidence that Richard is
also the name of the artist: in this painting, his own biography is unmistakably
playing a large role.40
In 1864 he was transferred to the new Broadmoor hospital in Berkshire,
where he was given more freedom and occupations. He died in 1886 and was
buried in the cemetery of the asylum. For over forty years, from 1844 to 1886, he
lived behind the walls of the asylum, separated and isolated from the world.41
He must have had a huge visual memory. In both asylums he was able to con-
tinue his artistic work, which allowed his rich oeuvre to arise. He had decided
figure 17.3 Crazy Jane, 1855, Richard Dadd, 35,5 25,4, Watercolour on paper, The Bethlem
Art and History Collection Trust, England.
to devote himself to works of imagination, but his life can only be described
as a tragedy.42
In the nineteenth century, the number of asylums grew and they became
increasingly closed to the outside world. In Richard Dadds time in the asylums,
the walls of the asylum even increased in terms of height; they were found to
be porous, as it were, in that the inside and outside were not completely iso-
lated from each other. Physically he was cut off from the outside world, but his
perfect (visual) memory enabled him to bring the outside in and move the
world, including his memories of his trips to Europe and the Middle East, to
the restricted territory of the asylum.
The offences he had committed made him the object of initially urban and
eventually national publicity. The fame he enjoyed in those days was the fame
of an insane murderer and not yet the fame of an artist. Moreover, he had
acquired goodwill from the staff and management of the asylum and he was
encouraged by them to express his talents, which at the time had to be seen
as a favor. He made a deep impression on visitors to the asylum, as the many
reports which mention Dadds talent bear witness. His family impeded the
flow of visitors by so that that no attention might be paid to his odious offence.
Some family members even destroyed some of his works. In 1974, an exhibition
of more than 200 of his works was held at the Tate Gallery in London, which led
to a renewed interest in the work of this nineteenth-century English painter.
When shortly after World War ii, in May 1945, Christ with the Adulteress,
seemingly a work of Vermeer, was found in the art collection belonging to
Reichsmarshall Herman Gring, it was traced via middlemen to Han van
Meegeren, a painter and dealer in paintings. When asked by Dutch officials
where he acquired his paintings, he equivocated. A few weeks after the lib-
eration from the Germans, on 29 May 1945, Van Meegeren was arrested in
the Netherlands and accused of collaboration with the Nazis, an act of trea-
son punishable by death. Finally he admitted that the work of art was not by
Vermeer, but that he himself was in fact the artist. Further research revealed
that he painted Christ with the Adulteress in 1941 and sold it in 1943 to Gring
for 1,650,000 Dutch guilders But that was not all. After two weeks of incar-
ceration, Van Meegeren also confessed having forged Supper at Emmaus. He
painted Supper at Emmaus in 19361937, and this painting was identified by
famous art expert Bredius as a work of Vermeer; in fact, Bredius praised it for
being the climax of Vermeers oeuvre. With significant financial help this piece
was acquired, and on June 18 1938 Supper at Emmaus was officially handed over
to Museum Boymans van Beuningen in Rotterdam. When between 25 June and
16 October 1938 this museum displayed the exhibition Masterpieces from Four
Centuries, 14001800, Supper at Emmaus was its main attraction.
figure 17.4 Supper at Emmaus, 1937, Han van Meegeren, 118 130,5 cm, oil on canvas,
Museum Boijmans Van Beuningen, Rotterdam. The Netherlands.
accusation.43 It needs to be stressed that Van Meegeren did not in fact copy
existing paintings, but that he created paintings that were in line with what
experts viewed as typically Vermeers work in the 1930s.44 This allowed new
work by Vermeer to be added to his oeuvre.
Even though an accused has a right against self-incrimination, Van
Meegeren was almost too eager to deliver evidence against himself. During the
preliminary judicial investigation he was moved to the top floor of the Bureau
Vermogensvlucht in Amsterdam, an institute charged with finding goods stolen
from the Netherlands during 19431948. He promised not to escape and stayed
on the top floor, which also functioned as an atelier. Paintings from his home
atelier were even brought over to get him in the right mood. There, in 1945, he
created a painting in the style of Vermeers Young Christ in the Temple under
43 Krueger (2006).
44 Van den Brandhof (1979), 17.
354 Koenraadt
In the many publications on the Van Meegeren case, art experts and foren-
sic experts play an important role.47 With the Van Meegeren case, art forging
earned a prominent place in Dutch forensics. This is mainly because of the
efforts made by the professor of criminology W. Froentjes.48 A mostly unno-
ticed part was played by a March 1947 psychiatric assessment of Han van
Meegeren by psychiatrists L. van der Horst and S.P. Tammenoms Bakker as
ordered by the investigative judge for the purpose of the criminal trial. The
report confirms officially several psychological characteristics that laymen had
already described before and after the conviction.
Phenomena of a psychotic nature were not found during the assessment.
The reporting psychiatrists note that he did encounter exceptional situations
in his personal history. Visionary experiences, in which his strong visual imagi-
nation had a great influence on his consciousness, also occurred.
About his mood the reporters note that this was moderate and always about
the same, leaning towards the humorous, but in a cynical and sarcastic sense.
His mental faculties are estimated as having developed exceptionally well,
while he had a high level of ready knowledge, a very good memory, and per-
fecting imprinting. They call him erudite in literature.
On the basis of his personal history and results of the inquiry, the experts
decide that the subject has psychopathological characteristics pointing
towards psychopathy. He is a narcissist. They conclude that they are dealing
with a very sensible personality, whose affections are swayed easily and who
lived in an environment, in which rivalry played a big role. They state that
for these personalities, opportunities easily lead to rancor. The overrated ideas
that then come to life lead to a state without self-awareness, causing the sub-
ject not to recognize his unsocial behavior.
He does not suffer a mental disorder or a defective development of his
mental abilities, that is, he is not rendered insane, according to the psychiatric
experts. They do regard him as a person who on the basis of his predisposi-
tion, his distorted attitude to life, his unharmonious and socially unadapted
expressions like an unbalanced, neurotic, insufficiently integrated personality
with a strong tendency toward vegetative and vasomotoric disorders, therefore
easily comes to unsocial actions and situations of conflict. Finally they add to
their report that due to this constitution it is expected that he will react badly
to incarceration, as proved in the past.
Because strictly taken there was nothing new in the psychiatric sense and
forensic expertise was vital in this case, the part criminal psychiatry played
47 Tromp (2006).
48 Froentjes and Groeneveld (1985), Froentjes and de Wild (1949).
356 Koenraadt
3.4 Comment
In his psychopathological analysis of The Swindler, the Dutch forensic psy-
chiatrist Zeegers (1959) describes the perpetrator from an anthropological
perspective. He states that committing offenses of deception requires a cer-
tain achievement, different from that in other crimes. In cases of theft and
embezzlement, the offender appropriates a good but as a general rule he does
not meet his victim. In contrast, the swindler has primarily to do with a per-
son: he tries to move that person to an action that is against his own interest.
The victim in this crime plays an active role in it, and the offender can never
go unnoticed. The methods therefore are of a more subtle nature. Violence,
threat, and coercion are not the weapons of the swindler. He should be able to
acquire unearned trust.50 For the swindler the contact with the victim is neces-
sary, a contact where he tries to convince the victim, a playful and manipula-
tive contact that fools the victim. Thus the contact between swindler and his
victim remains inauthentic. Although the swindler is socially very competent,
there remains a lack of empathy.
Lenain (2012) states that van Meegeren condemned himself to an inescap-
able frustration. It was impossible for him to enjoy his triumph over those art
experts whose next of kin, the art critics, had openly despised him at the begin-
ning of his career. The author considers Van Meegerens case as the typical
story of the loner defying the establishment, and winning. Last but not least,
Van Meegeren declared that his initial intention was to reveal the secret side of
Where youths commit vandalism in groups, art vandals and iconoclasts are
mostly older and usually work alone.54 Empirical research in England reveals
that these perpetrators often suffer from psychological problems.55
On 25 June 2006 the Netherlands was struck by surprise when an elderly
man damaged the Banquet at the Crossbowmens Guild in Celebration of the
Treaty of Mnster, 18th June 1648, a 1648 painting by Bartholomeus van der Helst
(16131670) housed in the Philips Wing of the Rijksmuseum in Amsterdam. He
sprayed lighter fluid on the painting and lit it on fire. The museums surveil-
lance personnel caught Hans-Joachim Bohlmann and handed him over to the
police. A surface area of half a meter by a meter and a half was severely dam-
aged: the coat of paint was damaged and the varnish was charred. Due to the
51 Lenain (2011).
52 Boutens (1942); Bernlef (1972).
53 Spier (1976).
54 Gamboni (1997), 1720.
55 Cordess and Turcan (1993).
358 Koenraadt
use of water to extinguish the fire other parts of the painting were also dam-
aged. Finally, the frame also suffered damage.
56 Pickshaus (1988).
On Art, Crime, and Insanity 359
she forgot to enlist him in elementary school, which resulted in Hans Joachims
starting school several years late. At the age of two, he barely made it out of a
well alive; after falling in, he was rescued just in time. As a result of the war, his
father had a prolonged absence. Starting in his puberty, he has had an inde-
scribable and incomprehensible anxiety, a stress anxiety, surrounded by doubt,
which he felt he had to gain control of regardless of the consequences. From
the age of seventeen onwards, he was admitted to psychiatric hospitals several
times for depression, severe anxieties, suicidal tendencies, incontrollable com-
pulsions, and compulsive thoughts. As early as 1960, a neurotic development
with compulsive rituals was diagnosed.
Following his first admission in a psychiatric unit, he was banned from
returning home, resulting in a homeless existence leading to more contact
with psychiatrists. During this time he had a few jobs for a short duration. At
the age of thirty-two he married and for several years worked in a company
dealing in coffee. His severe anxieties were exemplified by his grave fear of
exploding coffee bags and of water escaping the womens toilets. His compul-
sive behavior also increased until he started psychiatric treatment.
figure 17.5 Banquet at the Crossbowmens Guild in Celebration of the Treaty of Mnster,
18th June 1648, 1648, Bartholomeus van der Helst, Oil on canvas, h 232 cm w 547
cm, Rijksmuseum, Amsterdam, The Netherlands.
5 Conclusion
The connection between art and crime is complemented with issues from
insanity delving in the historical sources. These perspectives give a rich and
special understanding of the link between art and crime. The Richard Dadd
case illustrates how the role of insanity connected with the crime of murder
might influence art. The destructive process of crime found a creative outlet
in art made by the patient-perpetrator during his long stay in two hospitals for
the criminally insane.
In the cases of Van Meegeren and Bohlmann crimes against art work out dif-
ferently. Therefore, some comparative remarks are in order. Even though prima
facie one sees a contrast between the Van Meegeren case and Bohlmanns case,
a few similarities also stand out. Both perpetrators ached for a stage to express
their discontent. Both were able to acquire national and international atten-
tion with the difference that Van Meegeren gathered astonished reactions
bordering on admiration and Bohlmanns behavior evoked indignation and
disapproval. In Van Meegerens case, the reactions reversed shortly after his
arrest; initial indignation about his alleged collaboration changed to profound
astonishment because he had been able to fool so many, even experts.
Both Van Meegeren and Bohlmann lived relatively isolated and felt unap-
preciated. Van Meegeren lived in the south of France for some time, from the
fall of 1932 after his controversy with the Haagsche Kunstkring, an organiza-
tion for art admirers and artists, until the threat of war arose in the fall of 1939.
During his stay in psychiatric and penitentiary institutions Hans-Joachim
Bohlmann did have contact with professionals, but he had little contact with
close relations.
Whereas Van Meegeren resided in France during the time leading up to the
Second World War and lived through the occupation by the Germans in the
Netherlands, Bohlmann was born in Germany just prior to the Second World
War, making Van Meegeren more than fifty years his senior. Their socio-political
mindset is unmistakably influenced by national-socialistic developments
albeit in different ways.
The crucial role played by the experts in both cases differs greatly. Public
opinion played a greater part in the Van Meegeren case during his trial because
his criminal acts occurred during the occupation of the Netherlands and dur-
ing investigations the question arose whether he had been collaborating with
the Germans. Only when Van Meegeren confessed to being a forger and there-
fore not a collaborator did the experts enter into the picture to investigate
whether Van Meegeren was being truthful. Due to this criminal interest, the
psychiatric interest vanished into the background. The part that psychiatry
played in this case could be called modest, which contrasts with its role in the
Bohlmann case, where it was intrusive, lengthy, and increasingly controversial.60
The damaging of artwork may reflect the damage done to Bohlmann by the
stereotactic surgery performed on his brain by psychiatric/neurological
professionals.
Both perpetrators acted out in violence against the art world in their own
mannerone directly, the other indirectlycosting millions in damages of
60 For a relatively recent case in which a manic depression contributed to art forgery, the
subsequent admission of the forger into psychiatric institutions, and electroshock treat-
ment there, see the autobiography by Behrman (2003).
On Art, Crime, and Insanity 363
different types. Criminal law can only play a minor role here due to its nature.61
Even though now within western societies voices call for a strong interference
by means of criminal law, Kelks argument in favor of the use of criminal law in
moderation remains most valid. If one thing emerges from both cases, it is that
criminal law is always one step behind. The essence of criminal law is after all
primarily repressive. Even if prevention in full is possible, then this cannot be
expected from criminal law, its scope is too narrow to serve that purpose. The
alleged necessity that both perpetrators felt to commit their crimes, required
from criminal law something it could not sufficiently deliver. Both cases do
show to what extent experts play their own prominent, but sometimes doubt-
ful, role. On the shoulders of the criminal judge rests the responsibility to
ensure that the experts remain within the margins of criminal law procedure.
References
stereotype they might have in mind). Predatory street crime has always been
the cornerstone preoccupation of criminology; otherwise, how can communi-
ties take shape and thrive in a healthy, peaceful, harmonious way? However,
one should not forget the harm caused by less extensively explored forms of
crime, like white-collar crime, state crime, or cultural property crime. As such,
as long as people do not relate attacks to cultural property to a form of crime,
most of these activities will be kept in the dark.
However, a growing body of literature coming from different multi-
disciplinary sources and institutions, both public and private, has slowly over-
turned this paucity of relevant data within criminology. Criminologists have
not completely ignored the problem: we have cited Conklin, and a small rep-
ertoire of other books and articles have been published. There was a general
neglect of this topic, but the tide turned and started to gain momentum at the
beginning of the twenty-first century.
In sum, the aim of this publication is to provide an update on the status and
character of cultural property crime. Apart from providing case studies, the
book presents various new perspectives like the widening of the concept of art
crime to cultural property crime and henceforth the implications this has on
interconnected subjects such as penal sanctions and developments in interna-
tional criminal law concerning criminal responsibility for groups and individu-
als. The shifting status of cultural matters including material and immaterial
heritage at stake in the entire complex of risk-preparedness, armed conflicts,
and reconstruction, along with societies not engaged in conflict, necessitated
a broad approach that will hopefully contribute to further conceptualization
of the subject on the theoretical level. From the practical angle, current devel-
opments trigger new processes regarding the criminalization of acts against
cultural property in times of conflict and more refined insights about cpc in
peacetime. An example of the latter is the chapter by Koenraadt that deals
with the state of mind of art crime offenders.
We, as editors, hope that all contributions in this study will stimulate and
help further research from multidisciplinary angles and that this publication
can, for some, function as a handbook. Having said this, it should be taken
into account that the subject of cpc is quite dynamic and adapts, changes,
and evolves due to influence by all kinds of external factors such as economic,
political, geographical, and social conditions. Some of the arguments and the-
ories presented in this book therefore should be considered as snapshots. In
addition we have to be aware that legal instruments and treaties can change in
the course of time as well.
Roughly, the book is divided in sections dealing with the more classical
types of cultural property crime such as art theft (Chappell and Polk), the link
with organized crime (Yates), forgeries (Lenain, Gruber and Bull), white-collar
368 Kila and Balcells
crime (Balcells, Lervik and Balcells, Hufnagel, Schutten and van Duyne et al.),
and the use and misuse of cultural property in the context of armed conflicts
including upheavals and social unrests (Kila, Fossey); an example of a phe-
nomenon that often plays a role in such situations is iconoclasm. Then there
are chapters dealing with subjects that show overlap between realms of classi-
cal art crimes and the field of crimes against cultural heritage in the context of
archaeological looting (Brodie, Davis and Mackenzie, Fincham, and Chappell
and Huffer).
The overlap between such different classifications is a trend that is becom-
ing more obvious and is ever-increasing. It can concern both material and
intangible cultural property; examples are theft combined with military strat-
egy or global safety issues; for instance, when objects are stolen and the rev-
enues are used to buy weapons or when destruction of cultural property is
connected with damaging an opponents identity.
Another relevant categorization that was needed to create a comprehensive
overview is the distinction made between legal experts and cultural property
experts to clearly present their viewpoints. Nevertheless, we are of the opinion
that the added value of this book lies in the fact that these two disciplines
should meet more and engage in a sort of dialogue, thus generating new per-
spectives and synergies leading to further cutting-edge research.
As indicated a relatively new angle addressed in this book is cultural prop-
erty crime in the context of armed conflicts. The respective chapters by Kila
and Fossey treat this subject with different approaches. This subject has been
proven rather complicated since it is somewhat unclear how to prosecute and
punish cultural crimes committed before, during, or in the direct aftermath of
conflicts. Apart from that the nature and legal implications of conflict changed
from official, symmetric warfare to asymmetric conflicts, which are sometimes
referred to as non-international conflicts. To make matters even more difficult
to control it has been established that many illegal acts take place at the begin-
ning of conflicts.
As illustrated in this publication, conflicts often have cultural dimensions
that aim at destroying the opponents cultural heritage. Cultural property can
be a driving force behind human identity, history, progress, and, in some cases,
economy (tourism). These are all good reasons for cultural property protection
(cpp) to be of strategic importance for belligerents. Nevertheless, side effects
including looting, stealing, and traffic of cultural objects during or in the after-
math of conflicts (re)emerged in countries like (former) Yugoslavia, Iraq, and
Afghanistan. More recently, the same acts against cultural property took place
or are taking place in nations like Tunisia, Egypt, Libya, Mali, Syria, and, again,
Iraq. In addition there are (global) security connotations since, apart from
conclusion: Cultural Property Crime 369
1 See <http://www.reuters.com/article/2014/04/02/us-ukraine-crisis-crimea-culture-idUSBRE
A311EN20140402. (accessed 9 April 2014).
2 See <http://online.wsj.com/news/articles/SB10001424052702304157204579471111226424466>
(accessed 4 May 2014).
3 See <http://en.itar-tass.com/non-political/725537> (accessed 4 May 2014).
4 See<http://www.nbcnews.com/storyline/ukraine-crisis/dutch-museum-faces-tough-dec
ision-crimean-artifacts-n63311> (accessed 4 May 2014]); http://www.mining.com/crimean-
artifacts-caught-up-in-ukraine-russia-dispute-93644/ (accessed 4 May 2014).
370 Kila and Balcells
The very latest news (22 August 2014) is that: The Allard Pierson Museum
has decided (for the time being) to not make a decision as to which of the par-
ties the disputed objects should be handed over to, source: a museum press
release issued 20 August 2014, see: <http://www.allardpiersonmuseum.nl/en/
press> (accessed 23 August 2014).
Another case that is getting a lot of international attention from the media
is the so-called Cornelius Gurlitt case. This concerns a disputed collection of
famous paintings thought to be a trove of stolen Nazi art. The collection was
originally from Gurlitts father, a Nazi-era art dealer, who is accused of illegally
appropriating at least part of this collection. We are very fortunate that just
before the deadline, we can include a chapter on this case by Chappell and
Hufnagel. Last but not least, we want to mention the ongoing conflict in Syria.
Various reported cultural property crimes in this war-stricken country deserve
a chapter in this book. Unfortunately, we encountered problems and dilem-
mas that made us decide that at this stage such a chapter was not feasible. The
conflict is still raging and it is nearly impossible to gather objective data about
the nature and extent of damaged cultural heritage. Consequently, no useful
conclusions can be drawn regarding legal measures and/or penal sanctions
connected with acts of devastation that took place or are taking place in the
country. Apart from this, at the moment there are two authorities, the Assad
regime and the Syrian Opposition Coalition (soc), claiming to be the rightful
government of Syria, and it is not clear if the Assad regimes body of criminal
and heritage law should be followed or if international law would be prefer-
able. Moreover, damage and crimes can extend through the duration of the
conflict. Quite relevant, but not feasible in the current circumstances, would
be an independent inquiry, including in situ assessments concerning the situ-
ation of cultural property and possible cultural property crimes. An example
could be the use or abuse of military necessity by official Syrian armed forces
as an excuse for cultural property damage control; at the same time it could be
assessed whether opposing forces such as the soc could be prosecuted under
ihl because of individual criminal responsibility, for instance. We hope that
this book will elicit further research and publications on the abuse of cultural
property in the context of the current Syrian conflict.
Index
Money laundering23, 30, 57, 8085, 8891, Noortman Master Paintings153, 157,
93, 160, 332 n. 181 160162
Montreal 206211, 213 Noortman, Robert146147, 149, 152155,
Montreal Museum of Fine Arts 210 157158, 162
Monuments Men222 Noortman, William157, 162
Monuments, Fine Arts and Archives (MFAA) Nora, Pierre179
222 North Morocco93
Morgan, David171 Northern Vietnamese Army (NVA)297
Morsi189
Mosaic(s) 4, 189, 206, 208213, 216 OKeefe, Patrick200
Movable Cultural Property Program 208 OReilly, Dougald264265, 293
Mrugalla, Edgar111, 118119, 121122, 127 Obliteration173, 181
MSA190 Occupational crime98, 102, 105106
Munitz, Barry138140, 142143 OECD93
Murphy, Jill139 Office Central de lutte contre le traffic des biens
Museology190 culturels105
Mutual Legal Assistance Treaties (MLATs) Office of International Affairs325 n. 124, 327
308 opponent44, 5153, 80, 167 n. 1, 171, 176, 184,
Myatt, John46 n. 10, 54, 119 200, 368
mystification5253, 59 Optical due diligence138, 143
Ordinance on the Protection of Historical
Napoleonic Wars221 Cultural Relics and Scenic Sites
narcotics2324, 2734, 82, 88 (1984)267
narcotics trafficking2324, 28, 3031, Organized crime28, 7173, 8082, 8889, 91,
33 nn. 23 96 n. 1, 9798, 108, 134135, 146, 148, 266,
Narthex 210 294295, 304, 325326, 329, 367
National Association of Dealers in Ancient, Ottoman Empire 197, 214
Oriental and Primitive Art104
National Gallery, London14, 152 Palaeochristian206, 208, 211
National Identity80 Palaeolithic264, 271
National Stolen Property Act104, 326, 329, Paolo Ferri107, 307 n. 1
334 n. 194 Peppas, Dimitrios141
natural heritage168, 178 Perec, Georges42 n. 3
Nave 210 Phnom Banan293, 295, 297
Nazi art seizures370 Phnom Chisor293
Nazis48 n. 11, 222224, 226, 334, 352 Picasso7, 15, 24, 106, 115, 119, 122, 180, 222,
Nelson24, 48 n. 11, 8081 334, 345
Nemeth, Eric203 Picasso, Pablo334, 345
nemo dat principle1011, 1314 Pictura159
Neolithic Period264 Piedras Negras3132
nepotism 131 Pinkerton, Robert A.4041
Netherlands9, 81, 8485, 8890, 105, Piranesi343
147149, 153154, 157, 160, 173, 352353, 357, Pisarro, Camille149, 333
360, 362, 369 Poipet294
Neue Galerie222223 Pol Pot 292, 299300
Neutralization techniques100 pornography343
Newman, Barnett101, 172, 346 Port of Montreal 208209
Ninh Binh Province271 Positivist criminology99
378 index
Vandalism169, 171, 173, 341342, 357, 360 Washington Conference on Holocaust Era
Vasters, Reinhold120122, 127 Assets 224
Vayson de Pradenne, Andr46 n. 9 Washington Principles 199816
VCoins238, 243, 253 Wat Jas293
Velde, Willem van de149 Welles, Orson42 n. 4
Vermazen, Wim149, 151 n. 10, 152 n. 14, Wenders, Wim42 n. 4
158161 Wesley, Benoit159
Vermeer, Johannes50, 352354, 357 White-collar crime9697, 99102, 104105,
Victorious Youth307, 323, 335336 107109, 146147, 367
Vietnam263273, 275281, 283286, 299 Williams, Harold M.137140
Vincent van Gogh345 Wood, Timothy Dylan301302
Vincenzo Peruggia366 World Heritage Committee176, 178, 263, 285
Von Bothmer, Dietrich132, 316 World Heritage List178, 182, 195 n. 85, 263
Vn Chui archaeological site273, 281 World War II8, 111, 117, 122, 124125, 172, 190,
196, 221223, 229232, 334 n. 197, 352, 366,
Walda, Hafed198 369
Waldstein, Count of112, 118, 121 Wyler, William42 n. 4
Walsh, John 137139, 317
War 4, 8, 2829, 111, 117, 122, 124125, 171172, Yates, Donna24, 27, 197, 249, 367
176, 179180, 183, 190, 194198, 202, 213, Yevgen Nishchuk369
221223, 226, 229232, 267, 292293, Yugoslavia180, 195 n. 85, 311, 368
297300, 303304, 332, 334 n. 197, 343344,
352, 259, 362, 366, 369370 Zadelhoff, Cor van157
War crimes127, 179, 195 n. 85 Zuidema, Ben149151, 154156, 160161