Stemming the corrupt flows of looted antiquities

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In 2015, the world watched in horror as ISIS militants seized and then proceeded to destroy the ancient Syrian site of Palmyra. These cultural heritage crimes did not stop with the destruction of symbolic and historical structures. ISIS soon engaged in vast looting of antiquities, which helps line the group’s coffers. In response, the UN Security Council adopted Resolution 2199 condemning the destruction of cultural property in Iraq and Syria, specifically noting the role that cultural looting plays in terrorist financing. Recognizing that commercial demand for antiquities is the main driver for cultural looting, the UN called upon all nations to stem the illicit trade of antiquities being removed from these countries.

Unfortunately, here in the United States, as in other countries from which the demand stems for ill-gotten antiquities, there is a lack of legislation effectively curtailing this illicit trade. Not hindered by current international and domestic legal frameworks to protect cultural property, contemporary looting continues to occur on a large scale and is exacerbated by the growing interconnectedness of the global economy. The internet further allows antiquities of minor commercial value that would have gone unnoticed by museums and auction houses to be purchased by more casual consumers.

Responses to looting, which historically place the burden of property protection on “source” countries that are rich in archeological resources, largely prove ineffective. In addition to the lack of manpower needed to police the thousands of known archeological sites and museums – there are an estimated 10,000 sites in Syria alone – looters are often the first to discover archeological sites and source nations cannot monitor sites that they do not know exist. The inability to patrol thousands of national sites is especially exacerbated during times of conflict. Additionally, corruption at every level of enforcement, from underpaid guards and customs officials to high-level officials, facilitates illicit trade in antiques.
This trade fuels corruption not only in the source nations but also in transit countries where antiques are smuggled through to their end destinations. On the supply side, small-scale thieves steal and loot antiquities, with the average looter receiving less than 1% of an antiquity’s final sale price. The items then travel via smugglers. To cover an object’s illegal origins, middlemen may fake or forge provenance documents, often at a point of transit. On the demand side, auction houses, museums, dealers, private collectors, and galleries purchase these items. Though legitimate dealers may not explicitly support the illicit trade of looted artifacts, they are often complicit in such transactions. Since high-end purchasers do not consistently enforce proof of ownership, they often turn a blind eye to transactions they often know to be illegal.

While source nations must continue to do all that they can to halt the export of looted antiques, countries where the demand is concentrated should actively promote transparent transactions on the consumer end. Decreasing the demand for illegally acquired antiquities greatly reduces the incentive for looting. The U.S. and other nations can look for future legislative guidance to the Lacey Act and similar environmental laws, which establish criminal and civil culpability for the trafficking of illegally sourced goods.

The Lacey Act is the strongest set of U.S. laws aimed at conservation. The Act makes it unlawful to trade any wildlife that is imported, exported, purchased, or sold if such action violates state, federal, or foreign law. In 2008, the U.S. expanded the Lacey Act to cover a much harder-to-regulate good – timber. The 2008 amendments require a company to exercise due care in its timber transactions and supply chain. The Act also penalizes falsifying or submitting falsified records of any plant covered by the Act. The legal term “due care” relates to the conduct a reasonable person would exercise in similar circumstances and requires that companies make reasonable efforts to ensure that plant products in their supply chain are legally sourced.

The European Union then adopted timber regulations that obligate parties operating in the industry to exercise due diligence when placing timber or timber products on the market. Due diligence is satisfied by acquiring information on a good, performing a risk assessment of its illegality, and following up with risk mitigation if there is a chance that an object is tainted. Much like companies wishing to protect themselves against the U.S. Foreign Corrupt Practices Act charges, many operating in timber industry have begun implementing compliance programs that include risk assessment, reporting procedures, trainings, and regular audits.

Countries could take a similar approach to cultural property and adopt antiquities anti-trafficking legislation that incorporates a due care or due diligence standard for antiquities transactions. Antiquities are hard to regulate because cultural property crimes operate in a gray market where antiquities may be illegally looted but then can legally enter the market and be sold freely. However, the 2008 Lacey Act amendments demonstrate that it is possible to enforce transparency in the supply chain of goods once considered nearly impossible to regulate.

Prior to the Lacey Act’s expansion, the illegal timber trade was valued at around $30-100 billion annually. Illegal logging not only deprives developing countries of natural resources and revenue, but it also damages the environment. Often illegal logging is controlled by criminal enterprises using corruption tactics, and money earned is laundered through various channels. Like timber, antiquities travel through complex supply chains, often in economically and politically unstable regions. Both goods are difficult to tell from the surface whether they were sourced illegally or even where they originated from. Further, the arts community is similar to the timber industry pre-Lacey Act, in that both sectors were not heavily regulated and lacked established compliance mechanisms. Companies operating within the timber industry have since embraced compliance programs that include due diligence of suppliers and inquiries into a source nation’s foreign law. There is no reason to think that the art industry could not do the same.

Jessica Jones is a second year Master’s candidate at Johns Hopkins School of Advanced International Studies. She recently completed a Practicum with the Antiquities Coalition, a non-profit that works to stem global antiquities racketeering. Prior to SAIS, Jessica worked as an attorney in the public sector.