Saturday, December 10, 2016

Bipartisan Cultural Property Immunity Bill Passes the House Again

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA) (HR 6477) is moving its way through Capitol Hill with broad bipartisan support. The bill passed the House on Thursday without objection. Now it goes to the Senate for consideration.

The legislation aims to reinforce the shield protecting foreign art on temporary loan to American museums from judicial action. International museum loans are a critical part of any solution that reduces looting and smuggling of archaeological artifacts.

The Senate Judiciary Committee passed its own version of the FCEJICA on September 15 (S. 3155). Its chief sponsor is Senator Orrin Hatch (R-UT), and the bill has nine Democratic and five Republican co-sponsors, including Senators Dick Durbin (D-IL), Dianne Feinstein (D-CA), Lindsey Graham (R-SC), Chuck Grassley (R-IA), and Chuck Schumer (D-NY). 

The chief sponsor of the House bill, Congressman Steve Chabot (R-OH-1), said in a statement this week, “This is simple, straightforward legislation. It clarifies the relationship between two conflicting statutes to encourage the foreign lending of art to the United States." "While this legislation makes a relatively minor change to existing law," Chabot noted that "it will, if enacted, provide enormous cultural benefits to the American people."

Prior versions of the FCEJICA have been proposed since 2012, and all have failed to become law. 

The current proposal amends the Foreign Sovereign Immunities Act (FSIA) so that culturally significant artwork imported by American museums for temporary exhibition would not be characterized as "commercial activity." This change is important because current federal law immunizes foreign nations from lawsuits except when they conduct commercial activity.

The judiciary expanded the meaning of "commercial activity" in the 2005 case of Malewicz v. City of Amsterdam when heirs of the artist Kazimir Malevich sued the City of Amsterdam, Netherlands to recover artwork that Amsterdam's Stedelijk Museum loaned to a pair of American museums. The plaintiffs alternatively requested $150 million in damages. The heirs claimed that the Stedelijk Museum obtained the artist's paintings unlawfully. Once they were on loan to US museums for exhibition, the plaintiffs sued in US federal court.

The City of Amsterdam argued that the Immunity from Seizure Act (IFSA)--not to be confused with the FSIA--protected it from suit because IFSA, officially called the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), shields foreign art from judicial seizure once the State Department grants a US museum's request to immunize the artwork, which happened in this case. But the Malewicz court ruled that the City of Amsterdam engaged in “commercial activity” under the FSIA. So while IFSA may have protected the artwork from being taken by the court to give to the claimants, the FSIA did not immunize the City of Amsterdam from paying money damages to the heirs. The FCEICA seeks to correct this result.

The latest version of the FCEJICA preserves the so-called "Nazi exception," which states in part
Nazi-era claims.--[Jurisdictional immunity] shall not apply in any case ... in which rights in property taken in violation of international law are in issue ... and the action is based upon a claim that such work was taken in connection with the acts of a covered government during the covered period [of January 30, 1933 through May 8, 1945]. 
Both the House and Senate proposals would erase the current conflict between IFSA and the FSIA, encouraging foreign lenders to supply art on temporary loan to US museums without fear of being sued. Foreign lenders need iron-clad notice that their loaned artworks, or that they themselves, will not be subject to expensive court proceedings simply because they agreed to donate objects for temporary display at US museums.

Meanwhile, the State Department should better scrutinize IFSA requests from museums, particularly in cases where looted antiquities or Nazi-era thefts are suspected, because it is not good public policy to mistakenly immunize illegally dug-up archaeology or stolen fine art.

Additional argument in favor of the FCEJICA appear in the April 2012 blog post titled The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S.2212) Should Be Passed.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, December 8, 2016

Feds Publish New US-Egypt Cultural Property Import Rules

Importers have new rules to follow when shipping archaeological material from Egypt, and customs officers have a fresh tool to target contraband antiquities smuggled from Egypt into the United States.

Published by US Customs and Border Protection (CBP) and the Department of Treasury on Tuesday, the newly issued Final Rule details the import restrictions put in place by the terms of an historic US/Egypt cultural heritage agreement signed last week.

The Final Rule designates a list of ancient Egyptian material that is restricted from American import unless there is proper authorization. The list includes artifacts from many periods of Egypt's history (from 5200 BC through 1517 AD), including the Predynastic, Pharaonic, Greco-Roman, Coptic, and Early Islamic through the Mamluk Dynasty. The archaeological artifacts subject to import controls are assembled in roughly fifty categories and encompass objects like
  • limestone columns
  • Old Kingdom diorite statues and Late Dynastic bronze sculptures
  • Early Dynastic greywacke cosmetic palettes
  • Coptic tombstones
  • mummies and mummy coffins, masks, and wrappings
  • canopic jars
  • senet games and game pieces
  • animal amulets
  • stamp and cylinder seals
  • musical sistras
  • Bible caskets
  • silver coins of Alexander the Great struck at Memphis and bronze Roman coins minted in Alexandria
  • Islamic tile wall ornaments
  • lots of Dynastic pottery and pottery shard
  • Coptic Christian wood panels
  • Middle Kingdom funerary boats
  • New Kingdom chariots and arrows
  • enamel mosque lamps
  • leather used in shields and undergarments
  • papyrus manuscripts
  • tomb paintings and rock art
  • icons
  • Greco-Roman floor mosaics
The designated list adds the comment, "Today cartonnage objects are sometimes dismantled in hopes of extracting inscribed papyrus fragments," a reference to the controversial technique of searching mummy masks for classical and religious texts.

The Final Rule's publication in the Federal Register reveals that Assistant Secretary for Educational and Cultural Affairs Evan Ryan made the four determinations required by the Convention on Cultural Property Implementation Act (CPIA) on November 14, 2014. She concluded that Egypt's cultural patrimony is in jeopardy of pillage of archaeological material, that the Egyptian government has taken preventive measures, that US import controls would be a substantial benefit to deter serious pillage, and that the import restrictions are compatible with the exchange of cultural property for purposes of science, culture, and knowledge.

CBP and Treasury signed the Final Rule on December 1, with an effective date of December 5. Why it took over two years to conclude the underlying bilateral agreement and approve import regulations is unknown. The State Department officially has declined to explain.

What is known is that the Cultural Property Advisory Committee (CPAC) received public comments in May 2014 from heritage preservationists on one side and ancient coin collectors on the other side debating the proposed cultural property Memorandum of Understanding between the US and Egypt. CPAC held a public hearing in June that same year and then met four months later, in October, behind closed doors. Now, in rapid succession, an agreement has been signed and customs regulations put in place.

Photo credit: Sinisa Mijatov,

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Sunday, December 4, 2016

[VIDEO] After Long Delay, US and Egypt Sign Historic MoU Restricting Endangered Heritage from American Import


The United States and Egypt signed a cultural property Memorandum of Understanding (MoU) on Wednesday after lengthy consideration. The agreement, authorized by the Convention on Cultural Property Implementation Act (CPIA), restricts American imports of designated archaeological objects from Egypt in jeopardy of looting. The bilateral agreement covers ancient objects dating between 5200 BC through 1517 AD.

According to a State Department press release, the MoU will "reduce the incentive for pillage and trafficking."

The agreement took two years and seven months to finalize. Asked why the process took so long compared with other agreements, Nathan Arnold, Director for Media Affairs at the State Department's Bureau of Educational and Cultural Affairs, declined to comment. "It is the State Department’s policy to not comment on our private diplomatic negotiations with countries or internally," Arnold explained. "Achieving agreement on specific language for bilateral agreements involves a process."

Since the tumultuous spring of 2011, Egyptian cultural material has been subject to particular danger. Damage to archaeological sites, houses of worship, and museums was extensive, and cultural heritage objects remained under constant threat of plunder. That prompted urgent calls from the United Nations Educational, Scientific and Cultural Organization (UNESCO), Saving Antiquities for Everyone (SAFE), and other heritage preservation groups to take action. The International Council of Museums quickly published an Egyptian Red List to focus attention on illegal trafficking, and CHL in January 2011 and July 2013 urged adoption of emergency legislation.

Egyptian authorities did not officially ask for American assistance quickly under the terms of the CPIA and the treaty it implements, the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property Convention. Officials reportedly spoke with the White House on March 11, 2014, according to Tom Mashberg at The New York Times, discussing "fast action on [US import] restrictions."

At that time, CHL recommended that import controls be implemented "with all deliberate speed" because "the lack of comprehensive action to stem the looting and smuggling of cultural heritage [since 2011] has afforded heritage traffickers the advantage of a three year head start to move their ill-gotten gains to the United States."

Egyptian authorities formally asked the State Department to enact CPIA import controls in April 2014. The move prompted immediate comments from preservationists, ancient coin collectors, the Association of Art Museum Directors, and other stakeholders. The Cultural Property Advisory Committee (CPAC) held a public hearing in June that same year, and then the matter retreated from public view. Meanwhile, news of heritage destruction continued to pour out from Egypt and the Middle East/North Africa region. Then came last week's sudden public announcement that a bilateral deal would be signed, just seven weeks before the end of President Barack Obama's final term in office.

While the US/Egypt cultural property MoU is an important cultural property protection agreement, it does not cover antiquities imported into the American marketplace prior to its adoption, overlooking imports that already took place during recent years of heightened heritage destruction. Customs officials and federal prosecutors conceivably could take action against prior shipments of illicit Egyptian artifacts under other federal laws. Homeland Security Investigations and US Attorneys' offices did just that in Operation Mummy's Curse, which involved the case of United States v. Khouli et al., and resulted in the repatriation of artifacts to Egypt during the MoU signing ceremony this week, including a mummy's hand.

Cultural objects covered by the new MoU's import restrictions may legally pass through America's borders when accompanied by either an export permit or proof showing that the artifacts left Egypt before the adoption of US import regulations. Prohibited cultural material may be detained, seized, and forfeited by customs authorities as contraband, and smugglers could face criminal prosecution, although that rarely occurs.

The US now has bilateral agreements with 16 countries around the world, as well as emergency import restrictions on cultural property originating from Iraq and Syria.

Deborah Lehr of the Antiquities Coalition noted her organization's role in the US/Egypt MoU process, tweeting "proud to have been a partner," and observing that "US and Egypt sign first cultural heritage MOU in Arab region."

Video source: US Department of State

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Wednesday, November 30, 2016

Coined Phrase Cited in Prolonged ACCG Court Case

The Bard, William Shakespeare
“That which we call a rose by any other name would smell as sweet.”  - William Shakespeare

The Bard's poetic coined phrase features prominently in the prosecution's latest pleading filed in the case of U.S. v. Three Knife-Shaped Coins et al., the Ancient Coin Collectors' Guild's (ACCG) test case that so far has failed to strike down American customs barriers restricting specific types of ancient Chinese and Cypriot coins determined to be in danger of looting.

“The Guild’s arguments ... are the same as those this Court has rejected time and again,” wrote Assistant United States Attorney. “The Guild’s motion for summary judgment and response in opposition to the government’s motion for summary judgment advance the[] same tired arguments once again.”

The US Attorney’s Office for the District of Maryland wants the federal district court to forfeit ancient Chinese and Cypriot coins that customs officers confiscated from the ACCG when the group purposefully transported them to Baltimore in 2009 without proper import documentation. That act began the ACCG's quixotic effort to challenge the import controls preventing the coins' entry. The Guild continues to litigate the case despite having lost every judicial round to date. (Learn more by clicking here.)

Attorney Molissa Farber declared in the government's most recent pleading, “Incredibly, despite numerous substantive filings and three adverse memorandum opinions on this subject, the Guild continues to argue that the government must show that the Defendant Property was ‘first discovered within’ or is ‘subject to the export control of’ Cyprus or China as part of its prima facie case.” “At each turn, the government has opposed these same arguments. And this Court has issued multiple memorandum opinions holding the same thing: that the government is not ‘required to establish that the coins were ‘first discovered within’ and ‘subject to the export control’ of either Cyprus or China.’”

Put another way, and to cite another coined phrase, a rose is a rose is a rose.

Photo credit: Demian Adrox,

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Monday, November 21, 2016

Forming a Cultural Heritage Crimes Prosecution Team to Hold Antiquities Traffickers Accountable

If you can imagine a world where police recover stolen cash, illegal drugs, and hijacked autos but let the bank robbers, narcotics dealers, and carjackers go free, then you can understand the unrestrained business of transnational antiquities trafficking.

It's time for a team of skilled and motivated prosecutors to build solid criminal cases to convict and imprison smugglers, and to send a strong signal that assailing heritage will be met with tough consequences.

Antiquities traffickers are making illegal profits and getting away with crimes like smuggling, receiving stolen property, money laundering, wire fraud, lying on customs forms, and lying to federal agents. While customs officials sometimes seize illegal antiquities—when officers actually find these hard-to-spot imports—traffickers rarely face prosecution. Among the few defendants who have been prosecuted, many have exited the courthouse with minor convictions or light sentences while retaining their cash and criminal networks.

A specialized group of prosecutors should be assembled to hold traffickers accountable. A modest group of four specialized prosecutors should be assigned to form a new Cultural Heritage Crimes (CHC) Section within the Criminal Division at the U.S. Department of Justice (DOJ) in Washington, DC. The CHC Team would be headed by one prosecutor. Another prosecutor in the Asset Forfeiture and Money Laundering Section would be assigned to work with the CHC Section when heritage trafficking cases arise. A third attorney would be assigned to handle cases in the Criminal Division at the U.S. Attorney's Office in Manhattan, at the heart of America's art and antiquities marketplace, while another would pursue forfeitures and repatriations in that office’s Civil Division. All four would be expected to work with each other and with federal, state, county, and local investigators.

Because transnational antiquities trafficking mimics the methods and scope of wildlife trafficking, the objectives and activities of DOJ’s Environmental Crimes Section (ECS) should be mirrored. DOJ explains“An ECS prosecutor often gets involved early in an investigation, such as when the investigator swears out a search warrant or when a grand jury’s investigative power is needed. Once the necessary evidence is collected, the prosecutor presents the case to the grand jury for indictment. After indictment, the prosecutor guides the case through complex white collar and environmental law issues and prepares it for trial.”

Among the CHC Team's objectives would be to
  • Seek criminal convictions and meaningful sentences.
  • Press for fair but punitive sentences that deter other would-be smugglers and accomplices.
  • Break down criminal infrastructures by dismantling supply, transportation, conservation, distribution, marketing, legal, accounting, and sales networks.
  • Cultivate intelligence on the operation of the black market.
  • Support federal investigators by reviewing search warrants and coordinating overseas law enforcement resources.
  • Partner with state, county, and local authorities.
  • Provide investigative and legal training.
Implementing this recommendation would more effectively hold antiquities traffickers accountable. To learn more about this proposal, read the policy brief titled "How to End Impunity for Antiquities Traffickers: Assemble a Cultural Heritage Crimes Prosecution Team" at the new Antiquities Coalition Think Tank.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Monday, October 31, 2016

Register Now! Moot Court Competition Examines the Intersection of Religious Heritage, Cultural Heritage, and Wildlife Protection

The Eighth Annual Cultural Heritage Law Moot Court Competition pits the Religious Freedom Restoration Act (RFRA) against the Bald and Golden Eagle Protection Act (BGEPA) in a case brought by an American Indian.

RFRA statutorily bolsters the First Amendment’s constitutional guarantee of an individual’s free exercise of religion. BGEPA, meanwhile, protects America’s national symbol by prohibiting the taking of bald and golden eagles and eagle parts, including feathers.

Sponsored by the DePaul University College of Law and the Lawyers’ Committee for Cultural Heritage Preservation, the 2017 moot court competition will be held on February 24 and 25, 2017 at the U.S. Court of Appeals in downtown Chicago.

The competition is open to 26 two- and three-member student teams from ABA-accredited or provisionally accredited law schools.

The registration deadline is November 17, 2016, and the problem will be released on November 18, 2016.

Visit the competition website at for additional details or to register a team, or email with any questions.

Attorneys interested in serving as judges or brief graders should contact CLE credit is available for attorneys who participate as judges.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Friday, October 7, 2016

More on the French President's Cultural Preservation Fund

As François Hollande addressed a crowd gathered at New York’s Metropolitan Museum of Art (The Met) two weeks ago, CHL tweeted about the French president's intention to create a fund to protect cultural heritage. What do we know about this proposed fund?

We want to create a fund, a global fund to support the safeguarding of cultural heritage with the ambition to raise $100 million,” explained Hollande. “This fund will finance the rescue of works and monuments to ensure the restoration and reconstruction of places of our collective memory and train specialists, archaeologists, curators, historians, so that we may always keep a trace of heritage.”

Vice President Joe Biden (r) introduces
President Fran
çois Hollande (l) at The Met.
Hollande first announced the creation of a fund in November 2015 when he addressed the general conference of UNESCO. He told the international body, “But we also need to involve private partners to ensure that public resources are not the only ones that can be requested. I propose that there may be a single international structure, clearly identified that can gather donations and funding, and establish an international endowment fund dedicated to endangered cultural property.”

In his recent visit to The Met, President Hollande reflected that the idea for the fund actually originated in Japan this past May when he was with President Barack Obama at the G7 summit. Hollande’s remarks followed an introduction made by Vice President Joe Biden. 

[Sidebar:  When the G7 met, it published an Action Plan on Countering Terrorism and ViolentExtremism, calling on nations “to enhance efforts to hinder looting and trafficking of cultural property originating from regions under the control of terrorist groups.”]

Biden's surprise appearance at The Met generally touted White House efforts to preserve cultural heritage. He described ISIS's sale of artifacts to fund terrorism while simultaneously attacking cultural diversity in the Middle East, which the vice president called an affront to the people of the region. Biden asserted that trafficking laws targeting antiquities are rigorously enforced.

Hollande’s proposed cultural preservation fund is expected to be a joint project between France and the United Arab Emirates, which is why H.H. Sheikh Abdullah bin Zayed Al Nahyan, UAE Minister of Foreign Affairs, was on hand for Hollande’s pronouncement. The pair are expected to lead a conference on cultural heritage protection at the Louvre Abu Dhabi in December.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Tuesday, September 27, 2016

ICC Sentences War Criminal to Prison for Destroying Timbuktu Heritage [VIDEO]

In a landmark decision, today the International Criminal Court (ICC) handed down a nine year prison sentence in the matter of The Prosecutor v. Ahmad Al Faqi Al Mahdi, the first war crimes case specifically focused on the destruction of cultural and religious heritage.

Presiding Judge Raul Pangalangan, a Harvard educated jurist from the Philippines, incarcerated Mahdi for intentionally directing attacks against ten buildings of a historical or religious character in Timbuktu, a designated UNESCO World Heritage Site.

Mahdi is a native of the West African nation of Mali who joined Ansar Dine, an al-Qaeda allied group, in April 2012. On June 30 and July 11, 2012, Mahdi ordered the destruction of nine mausoleums and the Sidi Yahia Mosque. Prosecutors named the defendant as head of the Hisbah, a vice squad established to uphold public morality.

The ICC issued a warrant for Mahdi's arrest in 2015. After prosecutors and the defendant reached a plea deal in February 2016, the ICC received Mahdi's admission of guilt and reviewed the prosecution's evidence at a trial held last month. Mahdi faced a war crimes charge under Article 25 of the Rome Statute.

Video of today's groundbreaking hearing is presented in its entirety, courtesy of the ICC.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Sunday, September 18, 2016

Protecting Cultural Heritage by Revising the Customs Entry Form

Customs Entry Form 6059B
When people become aware of the rampant looting, smuggling, and destruction of cultural property, they show concern about preserving humanity's shared cultural heritage. And when U.S. Customs and Border Protection (CBP) officers are able to identify specific cultural objects imported into America, they are better positioned to interdict at-risk archaeological, ethnological, religious, and other cultural heritage material at the border.

It is for these reasons that the Customs Entry Form should be revised slightly.

Those who have flown back home from a trip overseas undoubtedly have spotted a flight attendant strolling down the aircraft aisle handing out the ubiquitous blue paper known as Form 6059B, the double-sided document used by travelers to declare goods that they are bringing into the United States.

By checking off the simple “Yes” or “No” boxes found at question #11, travelers easily notify CPB upon their arrival whether they have:
  • fruits, vegetables, plants, seeds, food, insects;
  • meats, animals, animal/wildlife products;
  • disease agents, cell cultures, snails;
  • soil or have been on a farm/ranch/pasture.
But, surprisingly, the Entry Form does not include an interrogatory that covers regulated cultural heritage goods. There is no “Yes” or “No” box for travelers to check when carrying an ancient Greek vase, Roman coin, Maya wall art, Byzantine mosaic panel, Tellem textile, Khmer statue, Tyrannosaurus bataar fossil, or the like. That is why a new line under #11 should be added on the Customs Entry Form to say:

I am (We are) bringing...
antiquities/antiques, archaeological material/artifacts, ancient coins, tribal objects, fossils
Yes __  No __

This new Q and A would alert travelers about the existence of regulations that govern imported cultural goods. Such laws include the Convention on Cultural Property Implementation Act; the Pre-Columbian Monumental or Architectural Sculpture or Murals Act; the Protect and Preserve International Cultural Property Act; the National Stolen Property Act; and many more.

A person checking the "Yes" box would prompt CBP officers to inquire further about whether a particular cultural heritage object could be imported legally or whether its entry was subject to restriction. A false "No" response might trigger CBP to contact Homeland Security Investigations to examine if someone was knowingly concealing an illegal import.

In addition to the questions found under #11, the Customs Entry Form currently directs travelers to “[d]eclare all articles on this declaration form and show the value in U.S. dollars.” It cautions them about bringing potentially prohibited objects into America like agricultural and wildlife products, controlled substances, obscene articles, toxic substances, and merchandise that infringes intellectual property rights. "Failure to declare such items ... can result in penalties and the items may be subject to seizure," Form 6059B warns. By adding specific language about legally protected cultural property to this part of the Form, travelers would be alerted further about their duty to declare a variety of protected cultural heritage objects.

Retired customs officer Domenic DiGiovanni, who worked extensively with cultural heritage material when he was with CBP, tweeted that these changes to the Form would be a "great idea" because customs officers would ask follow-up questions in person that "could elicit a behavioral response" from the traveler, which in turn could "lead to more questions."

There is plenty of space remaining on Form 6059B to improve the paperwork, and the small changes would go a long way toward protecting cultural heritage.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Monday, August 22, 2016

One Side of the Coin: ACCG Re-Argues Previously Decided Legal Issues in Baltimore Test Case

Some of the ancient coins in dispute in U.S. v. 3 Knife-Shaped Coins.
Court decisions in 2014 and 2015 rejected the Ancient Coin Collectors Guild’s (ACCG) demand to revisit legal issues already quashed by the courts in the forfeiture case of U.S. v. Three Knife-Shaped Coins Et al. and the related case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs. Nevertheless, the Guild continues to re-argue the same issues.

The litigation stems from the ACCG’s aim to strike down or erode customs regulations that regulate the import of specific types of ancient coins that have been determined to be in jeopardy of looting. The group minted a test case seven years ago when it intentionally imported undocumented and unprovenanced ancient Chinese and Cypriot coins to the United States. The Guild imported the archaeological materials from a London dealer and shipped them to Baltimore on a British Airways flight. The ancient coins had no accompanying documentation and offered no record of chain of custody or provenance.

Repeated losses suffered by the ACCG in the federal district courtthe court of appeals, and the U.S.Supreme Court have not deterred the Guild from continuing its blitz on the import controls, which were erected under authority of the Convention on Cultural Property Implementation Act (CPIA) and are designed to curb transnational trafficking of at-risk archaeological material.

The latest round of ACCG court filings is a motion for summary judgment that repeats many arguments that already have failed to win judicial support. In its July 2016 motion, the Guild insists that it “has either rebutted the government’s prima facie case and/or the government has failed to meet its own burden. Accordingly, the Court should grant the Guild Summary Judgment, order the return of the Guild’s coins, and require the Government to pay the Guild’s attorney’s fees and costs.”

While the ACCG litigates the Three Knife-Shaped Coins case in federal district court in Maryland, it is expected that the Missouri-based group simultaneously will press the matter when the Cultural Property Advisory Committee (CPAC) meets in Washington, DC on October 25. That is when CPAC will hear public testimony about whether the White House should renew import controls to protect pre-classical and classical archaeological objects and Byzantine and post-Byzantine ecclesiastical and ritual ethnological materials from Cyprus, Docket No.DOS-2016-0054.

So far the ACCG’s defeats in the federal courts have produced favorable case law that strengthens law enforcement efforts to disrupt cultural heritage trafficking. The Fourth Circuit Court of Appeals, for example, decided that federal authorities properly listed the kinds of ancient Chinese and Cypriot coin artifacts that may be subject to CPIA import controls.

The appeals court also ruled that U.S. Customs and Border Protection (CBP) properly detained the ACCG's undocumented coins. The court explained that the burden therefore shifts to the Guild to prove that its actions were lawful, plainly articulating the clear rule that "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import.” “In short,” the court added, “CBP need not demonstrate that the articles are restricted; rather, the statute ‘expressly places the burden on importers to prove that they are importable.’”

The ACCG rejects this standard. Rather than offering information to show that the ancient archaeological materials qualify as a legal import, the ACCG instead filed motions for discovery and a motion for summary judgment attacking the validity of the import regulations themselves. Meanwhile, the Guild maintains that the government bears the high burden to prove that the restricted ancient coins were first discovered in and subject to the export controls of China and Cyprus.

At a motions hearing held earlier this year, Assistant U.S. Attorney Molissa Farber, representing the government, told the Maryland district court that the Guild's line of argument is “essentially an attack on the government's ability to classify the coins by type and category, which has already been well-settled that we can do.” “And I understand that Claimants [ACCG] disagree with that process,” the prosecutor said, “but that's already been litigated. That’s not at issue here. That part is done.”

AUSA Farber reminded the court that “the Fourth Circuit rejected the notion that the government was going to have to fight a case coin-by-coin. The Fourth Circuit said that the statutory structure allows us to list coins by type and category.”

She emphasized that the evidence that the Guild seeks to introduce is not evidence pertaining to the specific defendant property here. They’re not seeking to introduce any kind of evidence that relates to these 22 defendant coins as far as when these specific 22 coins left China and Cyprus. What they want to introduce is general evidence that coins of this type of category circulated broadly and may have left China and Cyprus outside of the regulated period.”

Peter Tompa, attorney for the ACCG and the organization's current president, countered, “The coins at issue here are typical in the market. So we don't know where they were found or too much about them. And there’s nothing nefarious about that, Your Honor. It’s a situation where there’s just low value items, and it was not important until recently that such things would be -- that such things should have a documentary history. But we do know something about the coins, we know something at least. We know that they were exported from the UK by Spink, a well-regarded firm that's been around since the 1600s, and in compliance with both UK and EU law in April, 19 2009.”

Attorney Tompa continued, “Well, assuming the government has established first discovery just by listening, we’re entitled to rebut that. And how we’re trying to do that here with regard [to] these specific coins is by offering the opinions of two experts, Mr. [Douglas] Mudd, who is the Curator at the American Numismatic Association in Colorado, and Mr. [Michael] McCullough, who’s an expert in the international exchange of cultural artifacts.”

Declaring that “scholarly evidence” can be used by the ACCG to show that the coins left their countries of origin before the enactment of U.S. import restrictions, Attorney Tompa offered that “Mr. Mudd's opinion is that the ancient coins at issue here are of a sort that circulated in significant numbers outside of China or Cyprus for thousands of years[,] first as currency and then as collectibles. So it’s unlikely and cannot be assumed that they left Cyprus or China after the date restrictions were imposed.”

“So because these things circulated for thousands of years first as collectibles -- first as currency, then as collectibles," Attorney Tompa reasoned that "it’s unlikely that they exited Cyprus or China after the date of the restrictions, just given the numbers outside of those two countries.”

“Mr. McCullough's report is that UK and EU law did not require expert [sic] certificates for the coins at issue in this case, or the Cypriot -- well, any of the coins at issue in this case. And such with respect to the Cypriot coins, that would satisfy Cypriot law, because, after all, Cyprus is a member the EU as well. Mr. McCullough also opines that the Chinese coins here could have exited Hong Kong legally without documentation in that export would satisfy Chinese law under both the laws of China and Hong Kong.”

AUSA Farber countered this argument by rejoining, “The most salient point I think to take away from this particular dispute over the scholarly evidence at least is the distinction between specific and general. And I believe what we just heard from Claimant [ACCG] was a lot of purported evidence regarding general coin circulation. The coins are of the sort that circulated broadly. I mean, Your Honor raised the point, what’s the ultimate implication here? And the implication is that if that argument is allowed, it undermines the CPIA, undermines the statutory structure, because it essentially holds the coins shouldn't have been listed in the first place based on their type of category. And that’s not permitted.”

U.S. District Judge Catherine Blake agreed. In a ruling dated February 11, 2016, Judge Blake pronounced “that the Ancient Coin Collector’s Guild (“the Guild”) seeks discovery not relevant to the issues the court will have to decide in this forfeiture action.” In particular, she highlighted that the ACCG “apparently will seek to prove that the export of these coins from Cyprus or China to England was lawful under EU law. It is unlikely that the export control status of the coins under foreign law will be a proper defense in this forfeiture action.” The judge added pointedly, “Further, to the extent the Guild argues that the government must prove ‘first discovery,’ beyond demonstrating that the coins at issue appear on the designated list, that argument is foreclosed by the CPIA and the Fourth Circuit opinion in Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 (4th Cir. 2012). Listing by type and category is proper under the CPIA.”

Judge Blake also granted a protective order shielding two State Department employees from ACCG depositions, explaining that they “do not appear to have relevant personal knowledge.” Over the objections of Attorney Tompa, AUSA Farber attributed “ulterior motives” to the Guild's attempt to depose the purported witnesses, presenting the court with, what the federal lawyer called, an “Internet post written by a former director of the Coin Collectors Guild" criticizing one of the witnesses. Judge Blake remarked, “I'm more interested in probably the relevance than in motive.”

In June, Judge Blake issued a further order rebuking the ACCG's discovery requests, stating, “I will not at this time direct the government to provide any additional 30(b)(6) deposition testimony.”

Soon afterward, the ACCG filed its motion for summary judgment and, on July 29, the court adopted a schedule that allows the parties to fully brief their positions. Once completed in mid-October, CHL expects to review the parties’arguments.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL works in cooperation with Red Arch Cultural Heritage Law & Policy Research, Inc.

Tuesday, August 9, 2016

Shouldn't Art and Antiquities Sellers Be Subject to Anti-Money Laundering/Counter-Terrorist Financing Laws?

Banks, casinos, and high value asset sellers are subject to federal laws that flush out terrorist financiers and money launderers. So why aren't art and antiquities sellers subject to the same statutes?

Terrorists and criminals launder money by hiding dirty cash under the covers of seemingly legitimate business transactions. Money raised from illegal drug or weapons sales, for example, can be washed by purchasing luxury cars, yachts, mansions, or jewels. These newly bought assets either can be sold for cash or used as collateral to secure bank loans, thereby cleaning the cash of its sinful stains.

Dealers and auction houses sell art and antiquities that include high value works worth thousands or millions of dollars. At least one auction house issues loans, according to a report by Bloomberg titled An Auction House Learns the Art of Shadow Banking.

But while art and antiquities sellers are required to file Form 8300 like any other business that accepts a $10,000+ payment from a client or customer, they are not subject to the same rigid requirements of anti-money laundering/counter-terrorist financing laws like the Bank Secrecy Act, the Foreign Assets Control Regulations, the Financial Record Keeping and Reporting of Currency and Foreign Transactions law, and the USA PATRIOT Act.

Yet dealers in precious metals, stones, or jewels; sellers of automobile, planes, and boats; real estate professionals; pawnbrokers; travel agencies; and casinos are all regulated the same way that banks, credit unions, securities and commodities brokers, and credit card systems are. Federal law classifies these industries as “financial institutions” under 31 U.S.C. § 5312 and 31 CFR 1010.100(t). Noticeably absent from this list, however, are businesses operating in the cultural property marketplace.

Dealers and auction houses in this marketplace clearly have what the Bank Secrecy Act is looking for, namely “certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism.” 31 U.S. Code § 5311. That is why federal law should require art and antiquities sellers to file Suspicious Activity Reports with the Financial Crimes Enforcement Network (FinCEN).

It's time for the Secretary of the Treasury, under authority of 31 U.S.C. § 5312(a)(2)(Z), to designate art and antiquities dealers and auction houses as businesses “whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters,” and therefore subject to the anti-money laundering/ counter-terrorist financing requirements of federal law. This is one of six law enforcement recommendations CHL has prposed to combat transnational cultural heritage trafficking.

Photo credit: Manuel De La Pena /

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, May 5, 2016

Disturbing Evidence of Genocide and Heritage Destruction by ISIS Revealed at UN Congress

The annihilation of cultural and religious heritage is genocide's autograph. Landscapes fashioned by monuments, buildings, and houses of worship are obliterated into rubble when blood-thirsty men wish to exterminate the souls--not just the bodies--of an entire people whom they hate.

Panelists share evidence of ISIS atrocities with
the international community from the chamber of
the UN Economic and Social Council.
A United Nations report published in 2014 expressly recognized the link between heritage destruction and atrocity crimes, and last week a UN congress meeting in New York brought this distressing feature into focus.

Titled Defending Religious Freedom and Other Human Rights: Stopping Mass Atrocities Against Christian and Other Believers, the UN congress revealed shocking first-hand evidence of genocide, crimes against humanity, and war crimes committed by ISIS against Christians and other religious minorities in Iraq and Syria.

The Permanent Observer Mission of the Holy See to the UN assembled the international event in the wake of U.S. Secretary of State John Kerry's unexpected declaration last month that accused ISIS of committing genocide against Christians, Yazidis, and Shiite Muslims as that term is defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and its enabling statute in the U.S., the Genocide Convention Implementation Act.

Carl Anderson, CEO of the 1.9 million member Knights of Columbus (K of C), the largest lay Catholic charitable organization in the world, testified that Christians, Yazidis, and other religious minorities have been repeatedly subjected to rape, murder, property confiscation, slavery, and forced expulsion by ISIS.

It is estimated the number of Christians has dropped from 1.5 million to 200,000 in Iraq, and from 1.5 million to 500,000 in Syria, Anderson declared to the international congress with a notable sense of urgency. He warned the community of nations that indigenous Christians with ancient ties to the region "are at risk of disappearing entirely," declaring that "[r]eligious minorities have an indisputable right to live in their homeland."

Along with attacks on religious minorities, jihadists have destroyed churches, monasteries, mosques, and shrines, including St. Elijah'sIraq' oldest Christian monastery; the al-Kabir Mosque in Aleppo, Syria; a Yazidi shrine in Sinjar, Iraq; and numerous Chaldean, Armenian, and Greek Catholic churches in Syria. The American Schools of Oriental Research's Cultural Heritage Initiatives regularly tracks these and other episodes of vandalism.

report titled Genocide Against Christians in the Middle East, which the K of C presented to the State Department in March and submitted to the UN congress last week, lists the names of 1,131 Christian victims murdered in Iraq. The nearly 300 page document specifically identifies 125 attacks directed against churches. An envoy sent by the charitable organization to Iraq in February spoke with 44 refugees, who supplied direct eyewitness testimony of atrocities that had been committed.

Attorneys L. Martin Nussbaum and Ian Spear, together with Catholic University law professor Robert Destro, authored a legal brief buttressing the Genocide report. They concluded that the evidence formed "probable cause to believe that ISIS has committed genocide, and that the Department of State should make a referral to the Criminal Division of the Department of Justice and the Security Council of the United Nations."

One congress panelist reminded the global participants that the preservation of cultural and religious heritage is important, but safeguarding human lives is even more urgent. Fr. Douglas Al-Bazi, a Chaldean Catholic priest, who held up a blood-stained shirt as evidence of his kidnapping and beating at the hands of jihadi extremists, asserted that the forced immigration of Iraqi Christians is causing Christianity to disappear in the region. While he said that outside observers might argue that Christianity should survive in Iraq "for a culture and historical reason," the cleric pleaded that the Christians of Iraq "are living and breathing human beings, not museum pieces."  "My people are losing hope," he worried aloud. "Soon we will be small enough for the world to forget about us completely."

Participants attending the UN Congress in NY.
A missionary in Aleppo, Sr. Maria de Guadalupe, told about the persecution of Syrian Christians, but she added, in the face of danger, they have courageously exclaimed, "The experience of death has made us understand the sense of life."

The brave and tearful voice of a young 15 year old Yazidi girl, meanwhile, described the repeated rapes she suffered, committed by the violent hands of ISIS militants after kidnapping the girl and her family two years earlier.

Panelist presentations concluded with Egyptian-American attorney and human rights advocate Jacqueline Isaac, Vice President of Roads of Success, describing horrific details of the enslavement, rape, and torture of women and girls, which can only be characterized as gruesome and inhuman. Isaac called for the perpetrators to be held accountable by the International Criminal Court.

The Vatican repeatedly has expressed grave concerns over genocide as well as its coupling to the destruction of heritage. It is therefore no surprise that the Holy See sponsored the UN congress. Referring specifically to the conflicts raging in Syria, Iraq, and other parts of the Middle East and North Africa, Pope Francis in his most recent Christmas message called attention to the "atrocities" and the "immense suffering" that "do not even spare the historical and cultural patrimony of entire peoples." In July, the pontiff decried that "a form of genocide is taking place [in the Middle East], and it must end." In a speech delivered to the UN General Assembly in September, moreover, the pontiff emphatically professed:
I must renew my repeated appeals regarding to the painful situation of the entire Middle East, North Africa and other African countries, where Christians, together with other cultural or ethnic groups, and even members of the majority religion who have no desire to be caught up in hatred and folly, have been forced to witness the destruction of their places of worship, their cultural and religious heritage, their houses and property, and have faced the alternative either of fleeing or of paying for their adhesion to good and to peace by their own lives, or by enslavement.
Among the many participants in last Thursday's congress were Ambassador Ufuk Gokcen of the Organization of Islamic Cooperation; Lars Adaktusson, the European Parliament member responsible for the EP resolution condemning the mass murder of religious minorities by ISIS; and the parents of Kayla Mueller, an aid worker kidnapped and killed by ISIS in Syria.

The congress took place at a time when parallel legal efforts to curb terrorist activities in Iraq and Syria are in motion. They include the unanimously adopted UN Security Council Resolution 2199, which aims to restrict ISIS and Al Nusra Front from raising money by means of cultural heritage trafficking, oil smuggling, and kidnapping. The recently passed Protect and Preserve International Cultural Property Act, likewise, is federal legislation that House and Senate leaders hope will curb smuggling of illegal Syrian artifacts into the U.S. That legislation awaits the signature of President Barack Obama before becoming law.

To help preserve lives and heritage in Iraq and Syria before they are wiped out, readers may contact In Defense of Christians, Roads of Success, the Knights of Columbus, or similar organizations that seek to help persecuted religious minorities in the region, which include Yazidis, Shia and Sunni Muslims, Turkmen, Shabaks, Sabean-Mandeans, Kaka’e, Kurds, and Jews, as well as Assyrian, Chaldean, Syriac, Armenian, Catholic, Coptic, Evangelical, Melkite, and Orthodox Christians.

Video of the UN Congress on Defending Religious Freedom and Other Human Rights appears below, courtesy of United Nations Webcast.

Text copyrighted 2016 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.