From Policy to Practice: Analyzing the Impact of Cultural Property Policies in Combating Antiquities Trafficking in the United States

The primary objective of this study is to more clearly identify how effective current United States (“U.S.”) cultural property policies are at countering the trafficking of antiquities from the Middle East and North Africa (“MENA region”) since the Gulf War. Measured primarily based upon the percentage of objects trafficked after the implementation of policies protecting cultural heritage, this research more broadly aims to better quantify the relationship between armed conflict, humanitarian crises, and the art market to uncover more effective means of deterring the illicit trade in cultural heritage. Utilizing a widely adaptable database framework, this research model will specifically examine the benefits and limitations of employing legal policies as a tool to combat the illicit trade. To more broadly address gaps in available research, such as a limited understanding of the precise role legal policies play in combatting the illicit trade, (Brodie et al. 2021; Mackenzie et al. 2019), this chapter additionally serves to disseminate an accessible investigative and reflective tool for constructing better preservation and prevention methods.

There are an increasing number of analyses exploring the tight-knit relationship between armed conflict, economics, terrorism, and the illicit antiquities trade, especially in the Middle East (Bogdanos and Patrick 2006; van Lit 2016; Greenland et al. 2019). The evolution and adaptation of technology in archaeology over recent decades has allowed new remote techniques of monitoring these conflict zones and humanitarian crises, providing additional insight into the physical damage that results from looting, climate disasters, and armed conflict (Brodie and Contreras 2012; Parcak et al. 2016; Casana and Laugier 2017; Al-Azm and Paul 2019). Delicately interwoven, monitoring these complex issues reveals ongoing connections to a thriving illicit trade, particularly in market countries like the U.S. (Brodie et al. 2021).

One of the significant ways in which individual jurisdictions have reacted to the illicit trade is by implementing policies against illegal excavation, smuggling, and ownership of cultural property in hopes of reducing the trade’s size and the demand for antiquities. However, there is currently no measure of how effective today’s cultural property policies are, nor a central center of academic research on the trade, which limits the ability of policymakers to draft effective legal measures (Brodie et al. 2021). As this study will show, examining the intricacies of legal frameworks alongside statistical analysis of illicit antiquities trade prosecutions provides an accessible means for identifying gaps in policy supported by quantitative assessment, of which is adaptable in further research.

Gauging the effectiveness of legal policy, especially concerning those related to cultural heritage, is crucial to ensure said policies are achieving the goals and intentions outlined within them. Moreover, the continuous evaluation and re-consideration of policies aids in establishing accountability on behalf of implementors and creates a foundation for informed decision making. When bearing in mind the continued evolution of threats towards cultural heritage, particularly due to armed conflict and climate change, a reflective analysis of policies seeking to protect said heritage is an essential step towards improving preestablished preventative measures and future means of enforcement (U.N. Environment 2019).

Writing from the perspective of an American-born, European-educated art historian and cultural anthropologist, this research would be remiss without acknowledging the inherent white, cisgender privileges I hold as a woman in academia. I seek to utilize these privileges to advocate for and raise awareness of the irreversible cultural destruction resulting from the illicit antiquities trade and related heritage crimes—which have occurred/occur most often to the eventual benefit of American and European collectors, museums, and institutions. In this same vein, the armed conflicts and humanitarian crises occurring in the many source countries within and beyond this data set cannot go without mention. While a thorough discussion of the relationship between the illicit antiquities trade and conflict would require a more exhaustive word count, this research would be remiss without recognizing the multifaceted connections and parallels armed conflict and other crises have with the continuation of the illicit market. It is from these perspectives and considerations that this research aims to catalyze change and broaden understanding by encouraging critical self-reflection and accountability from the impacts of the market’s ongoing demand.

The primary objective of the methodology outlined below is to more clearly identify the role cultural property policies play in the cessation of cultural property trafficking. While this chapter takes antiquities trafficked from the MENA region into the U.S. since the Gulf War as example, the framework proposed supports comparison of multiple policies, source countries, and destination countries over any range of time. It is important to note the use of official legal texts within this study, as investigations and cases do not reflect an all-encompassing view of collections and trade operations, there is the possibility of unseized objects and unidentified data going unstudied and unaccounted for. Section 2 below outlines relevant literature and prior research. Section 3 subsequently details the proposed methodology and exemplifies its application through case study review. Section 3.2 discusses the difficulties and limitations of conducting this research, after which Sect. 4 presents final conclusions alongside potential avenues for further study and application.

The market for art and antiquities exists in legal and illegal forms, often with blurry boundaries between the two, making it notoriously challenging to quantify and effectively prevent or intercept (Kersel 2007; Mackenzie and Yates 2016; Adams 2019). This section provides an introductory discussion of relevant literature surrounding the illicit antiquities market, its existence in the U.S., and the policies under review with the intent of outlining pertinent gaps and points for consideration while conducting this research.

Much has been written about the legal framework of antiquities trafficking and associated crimes, including examiniations of different national and international policies and laws in place (e.g. Gerstenblith 2013; Vlasic and DeSousa 2018; Burroughs 2019). Many sources evaluate current cultural property laws and international agreements through the analysis of specific cases of illicit antiquities trafficking to describe policy failures (Pearlstein 2014; Kuzma 2019; Brodie et al. 2021; de Jesus Hoiça et al. 2021). Other scholarship focuses on academic analyses of illegal international trade and its material demographics: “what is traded, what it is worth, and what physical damage is caused by its movement” (Brodie et al. 2021, p. 122). Furthermore, some scholars have highlighted remaining gaps in existing scholarship, criticizing the lack of funding for and enforcement by both domestic and international legal agencies (Bogdanos 2016; Brodie 2017; Brodie et al. 2021). Sources widely agree, however, that current policies are not enough to single-handedly combat the illicit trade (Burroughs 2019; Mackenzie et al. 2019; Brodie et al. 2021).

This lack of effectiveness is in part due to the multifaceted connections between the illicit trade and armed conflict, especially in the MENA region. There have been significant disagreements between scholars, law enforcement, and international professionals regarding the financial values and profits from the illicit antiquities trade, especially concerning the earnings of extremist groups. These instances have become known primarily through the market’s pre-existing ties to the drug trade and extremist groups like ISIS and their regional affiliate, Daesh (Vlasic and DeSousa 2018; Muñoz 2018; Holmes 2022). Daesh is more commonly lumped together with ISIS by foreign governments, which in recent decades has tapped into the looting, smuggling, and sale of black-market antiquities to fund its violent operations throughout the Middle East (Vlasic and DeSousa 2018; Lehr 2019). In 2018, Vlasic and DeSousa more closely examined the connections between the illicit antiquities market and terrorism financing, emphasizing that this relationship indicates that the illicit trade is not purely a low-level criminal business anymore. This relationship shows that the international community must take more significant, more immediate action to combat the trade (Vlasic and DeSousa 2018, p. 1182).

Countermeasures against the illicit trade often rely on international and national policies rooted in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (“the 1970 UNESCO Convention”), which currently has 147 States party to it (UNESCO 2022a, b). As the 1970 UNESCO Convention carries no legal weight unless countries sign its protocols and legally implement its prescribed measures, variations in interpretation have arisen, of which have led to international discrepancies in application and a wide array of enforcement methods across State Parties (Brodie et al. 2021; Gerstenblith 2013). For example, multiple institutions and professional associations in the U.S. have implemented ethical standards and acquisition policies rooted in the 1970 UNESCO Convention, all with varying success. As a result, the 1970 UNESCO Convention, therefore, “does not pose a realistic deterrent because of the jurisdictional gaps and fractures that impede international action” and the lack of imposing consequences (Brodie et al. 2021, p. 122; Snyder 2019). Mackenzie et al. (2019) highlight further challenges, such as long-term sustainability, armed conflict, the failure to effectively deter looting, and increasing pressures on local resources. In response to these limitations and difficulties, Mackenzie et al. (2019, pp. 129–130) argue that “we should look to [implement] controls that regulate the destination market for antiquities” and focus less on implementing source country policies. By implementing more policies limiting the illicit trade in market countries such as the U.S. and therefore decreasing demand, Mackenzie et al. (2019) reason that there will be a more significant reduction in the trafficking of antiquities. Similarly, Felch and Frammolino (2011, p. 227) assert that “like the drug trade, the illicit antiquities trade [has] to be attacked from both the supply and demand sides. [For,] prosecuting a few dealers or middlemen [will] not stop the trade for long”. However, without an accurate estimate of the size of the trade, its illicit components, and the physical damage caused by ongoing market demand, it is difficult to assess the effectiveness of existing regulatory responses and the potential for future interventions (Brodie et al. 2021). The scarcity of such assessments allows for a wide range of incorrect valuations and hypotheses regarding the actual size of the market, which subsequently skews public understanding and opinion regarding illicit trade and allows it to continue unabated (Brodie et al. 2021). This research therefore seeks to contribute to an enhanced understanding of the effectiveness of current legal initiatives in the U.S. as market country, in order to develop more effective, targeted countermeasures.

Based on a quantitative data collection model, this chapter evaluates the effectiveness of current policies related to the import and trade of cultural objects from the MENA region into the U.S. The following section outlines how the database statistics were compared against the physical/tangible objectives and overall intentions outlined in relevant international and domestic cultural property policies. Within this study, the effectiveness of a legal policy refers to the extent to which a policy meets its proposed regulations and intentions in combatting antiquities trafficking. Introducing a policy framework detailing what is legally permitted and what is not permitted, in any area of study, indicates that there is an issue at hand that seeks legal aid in resolving. Routinely exploring how said policy meets the goals described within it and the motivation(s) behind its creation is an essential step in wholly and ethically addressing the issue at hand (such as the trafficking of cultural heritage).

This research builds on data accessed from international databases and the Manhattan District Attorney’s Office, of which provide tangible insight into how cultural property trafficking is most effectively prosecuted in the U.S. The primary source material includes prosecution documents and related case materials obtained through the International Foundation for Art Research (“IFAR”) and the Manhattan District Attorney’s Office. Subsequent open-access sources were selected based upon their ability to provide information relevant to the artifacts and cases concerned within the database, such as news media and academic journals. The generation of statistics on the basis of these data allows users to more tangibly identify the interplay between antiquities trafficking and cultural property policy in the U.S. and beyond.

Even with the drafting of multiple international conventions against the antiquities trade in the last 100 years, this study illustrates the illicit market for antiquities is still a socially acceptable and financially lucrative business in the U.S. In this research, key themes repeatedly appeared, including multifaceted limitations; the increased vulnerability of artifacts in conflict zones; gaps in international and domestic policies; linguistic challenges; inconsistent enforcement of legal consequences; and a severe lack of provenance. Foremost, these data revealed that broader application is needed to investigate alternative case study parameters outside of the U.S. and the MENA region.

An initial policy suggestion derived from the findings outlined above is greater attention to and application of the 1954 Hague Convention, which would require legal amendments sanctioning the damage and looting by civilians brought on by armed conflict (UNESCO, 1954; S. Rep. No 110-26 (2008)). This would look similar to the 1970 UNESCO Convention, which requires similar alterations. However, as previously discussed, in the U.S. the 1970 UNESCO Convention has manifested into bilateral restrictions, which outline no legal consequences to violators, are cherry-picked by the government, and are a patch on the issue at best. Resolving these problems would entail drafting new legislation to not only include legal repercussions but also expand the import restrictions to not solely sanction the import of specific antiquities from individual countries that have demonstrated their continued loss of cultural heritage.

Similar to the 1970 UNESCO Convention, the 1954 Hague Convention and its Protocols fail to recognize and legally sanction “the harm that comes [to cultural heritage] from the breakdown in law and order and the concomitant surge in market-driven looting” that accompany armed conflict, civil unrest, and political and economic instability (Rothfield 2008; Mercadier et al. 2020). If the 1954 Hague Convention issued protections on targeted, looted, or damaged cultural heritage in conflict areas by non-military personnel during the civil unrest that is a direct result of armed conflict, numerous cases researched here would likely qualify as violations of the 1954 Hague Convention. There is one case that, had the U.S. ratified the 1954 Convention sooner, the offender would have potentially been able to be prosecuted as a violator of the Hague Convention. Based on the research conducted, the enforcement of the 1954 Hague Convention in the U.S. has been limited since its recent ratification in 2009. More legal research is needed to identify the sanctions and consequences associated with violating the 1954 Hague Convention as a member of the U.S. military, as well as its application in other countries.

There are other areas for improvement, such as legally mandating accessible inventories and databases, as well as frequent, routine synchronization by governments, museums, academics, and collectors. This step would enhance provenance research transparency and help to avoid future cases like that of United States v. Mask of Ka-Nefer-Nefer, 2012, where authorities were unable to detect the Mask’s loss or subsequent movements for several years. Similarly, implementing a type of ‘Blacklist’ that outlines dealers and collectors who have irrefutably worked with known or convicted smugglers would change the social acceptance of the trade’s actors and their future participation in infiltrating the legal market. Moreover, it would aid in the due diligence of museums, auction houses, and other institutions pursuing legal antiquities. Both suggestions would fall under the stipulations in Article 5 (a)–(g) and Article 10 of the 1970 Convention for States Parties about the functions and measures States Parties should implement to safeguard cultural heritage.

Moving forward, this database methodology presents and accessible framework for more closely investigating the multifaceted impacts cultural policies have on the continuation of the illicit antiquities market. The statistics gathered here tangibly reinforce many pre-existing and presumed notions expressed amongst academics, such as Brodie et al. (2021) and Mackenzie et al. (2019), highlighting that the trade is not adequately deterred by current cultural property policies. As current policies are ineffective and given that conflict is on the rise in the Middle East and North Africa, it is clear that more significant resources and education need to be dedicated to publicly and legally condoning illicit antiquities collection to help stop the trade from the demand side.