By Matthew Polk, President, The Historic Textile Research Foundation
The Cultural Property Policy Environment
Over the past several years, the debate over how best to protect the World’s cultural heritage has taken a turn. Although no evidence of any significant problem has been found, fear of terrorist funding from trade in cultural objects has replaced genuine concern for cultural heritage preservation as the driving force for new regulations. [1] [2] Unsupported claims that trade in objects of cultural heritage, mainly antiquities, is a major source of terrorist funding have prompted a politically driven rush toward legislative imposition of civil and criminal penalties and have encouraged aggressive enforcement. In spite of numerous studies and policy recommendations to the contrary, dissenting voices are being scolded into silence for being soft on terrorism. All methods of fighting terrorism should be considered, but we must not let fear or political agendas drive us to adopt measures that do more harm than good. If policy making continues in the current direction the impact on museums, their staffs, donors, trustees and, ultimately, their ability to serve the public will be permanent and severely damaging. It is time for Museums and their Boards to take action.
Initial claims of billions of dollars in terrorist funding from sales of artifacts have been discredited, but this has not prevented these claims from being used to justify stricter regulation and enforcement such as the new German law and the European Treaty of Nicosia. However, recent evidence and studies [3] suggest revenue to ISIS may be no more than a few hundred thousand from sale of “excavation permits” within their now rapidly shrinking territory. Nevertheless, these exaggerated claims of terrorist funding[4] have now been repeated so often that they are accepted as fact [5], and are having a profound effect on policy making. The US has passed into law new restrictions on Syrian artifacts and created a new investigatory committee.[6] A new EU treaty [7] (Nicosia, May 2017), justified largely by these discredited claims that antiquities sales are providing funding for terrorists, recognizes the laws of source countries as the exclusive means of determining an object’s legal status. The treaty provides for enforcement and criminal penalties based on these foreign laws regardless of whether they have been shown to be valid or constitutional within the EU or whether they are even enforced in the source country. Once codified into law it will create substantial legal risks for museums, their staffs and the trade.
Germany has enacted a controversial law[8] [9] requiring export licenses and proof of legal source country exportation and declares anything without proper documentation to be presumptively illegal. The Terrorism Art and Antiquity Revenue Prevention Act of 2016 (S.3449, TAAR Act) introduced in the US Senate, but now tabled, would classify as stolen any cultural property removed in violation of the local laws of the source country and would empower the Dept. of Homeland Security to create a database and labeling system for Syrian and Iraqi artifacts. [10] Trump’s Presidential Memos and Executive Orders targeting ISIS and terrorism[11] [12] [13] have encouraged proposals for more regulation, new enforcement initiatives and more criminal prosecutions.
Recent testimony before Congress and Homeland Security[14] [15] also continues to cite sale of artifacts as a major source of terrorist funding claiming that individual objects sell for, “…as much as $1 Million…” and implying that terrorists are directly participating at the highest levels of the antiquities market despite a complete lack of evidence. Since 2015 the US Department of State has offered a $5 million reward for information that disrupts these alleged activities . [16] No one has yet claimed the reward.[17]
Museum’s Ability To Serve The Public: At Risk?
Museums should be an essential part of any international effort to protect the world’s cultural heritage. But, as the focus of regulators has turned almost solely to defeating terrorism, museums have been marginalized and the goal of actually preserving world cultural heritage for future generations seems to be receding into the background.
The risks are real. By imposing retroactive requirements for source country export documentation, the new EU Treaty and German laws instantly create millions of orphaned objects already in the EU which, after implementation, cannot be legally exported, sold, gifted or, in Germany, owned. What will happen to all those objects? How will museums or families feel about suddenly being deemed criminals simply for owning them? Should the US revive the TAAR Act, the same thing could happen here.
Criminal penalties mandated by the EU Treaty probably sound good to voters worried about terrorism or concerned about cultural heritage preservation but does it really make sense to threaten museum staffers with jail time if they made a mistake in their provenance research? The new EU Treaty requires laws that say it’s a crime to make a mistake if you “should have known”. [18] Will museums decide to make no accessions at all rather than that take that kind of risk? And, who will be willing to serve as a Trustee when it exposes them to the possibility of criminal prosecution?
In the absence of strong voices from the museum community we are permitting the creation of a world with less transparency, more cultural property abuses, millions of refugee objects and enormous risks for museum staff, trustees and collectors. We are in real danger of permanently damaging the ability of the museum system to serve the public and eliminating the opportunity for our society to view, understand and appreciate the World’s many diverse artistic traditions.
In such an environment, no set of internal policies will completely protect an institution from cultural property disputes or accusations. We can, however, operate transparently with clear ethical guidelines that support both the protection of cultural heritage and our ability to pursue our public mission. We must also fight for a seat at the policy making table and become an integral part of the process rather than being victimized by it.
About the Author
Matthew Polk is a trustee of the Walters Art Museum and a former trustee of the Baltimore Museum of Art. He currently serves on the Collections and Finance Committees of the Walters and on the AAAPI Accessions committee of the BMA. He is also a board member of the Committee for Cultural Policy and a co-founder of the Global Heritage Alliance, organizations dedicated to formulation of cultural property policies which serve both the need for preservation and the public interest. In 2009 he and his wife, Amy Gould FAIA, established the Historic Textile Research Foundation (HTRF), a 501 c(3) dedicated to radiocarbon dating of historically significant textiles for research purposes.
Mr. Polk is a graduate of the Johns Hopkins University, Dept. of Physics and Astronomy (’71) and serves on the department’s advisory board and executive committee. In 1971 he co-founded Polk Audio and served as Chairman and head of product development until 2006. In 2009 he began developing a new method for high intensity acoustic vibration testing of spacecraft and in 2016 co- founded MSI DFAT Services, LLC, the leading provider of direct field acoustic testing services for aerospace.
Note: The Museum Trustee Association views its mission of enhancing the effectiveness of museum trustees as educational and collaborative. As a group of past and current museum board members, we do not see ourselves as a policy-setting organization but rather as a source of information to equip Museum Trustees as they implement field-wide best practices in all of their governance affairs. The article above is intended to provide an opportunity for open dialogue.
Footnotes
[1] “Legislators seem to be very busy with drafting laws to combat cultural property crimes, combat IS and specifically the ways IS earns money. Legislators seem to be more occupied with the topic than law enforcement, but no unequivocal proof of huge revenues of the illegal trade in cultural property is found that could support such an active legislative role – besides political reasons. Large amounts of plundered items have not surfaced on Western (art) markets” Dutch Survey on Cultural Property War Crimes, Sept. 2016, section 14.2.3 page 65, http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf
[2] Excellent discussion in the New Yorker, Dec. 2015 , https://www.newyorker.com/news/news-desk/the-real-value-of-the-isis-antiquities-trade
[3] Dutch study most comprehensive yet. “Based on this study it can be concluded that the topic is ‘hyped’. It is a strategic political topic that is presented bigger than it is in reality.” Pg. 6,http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf See page 63-65 for summary and conclusions.
[4] Inside ISIS’ Looted Antiquities Trade: “…why $7 billion fell to $4 million in public discussions about the ISIS antiquities trade.” https://theconversation.com/inside-isis-looted-antiquities-trade-59287
[5] Q&A on proposed EU regulations, http://europa.eu/rapid/press-release_MEMO-17-1954_en.htm “Another study [reference not provided] suggests that the total financial value of the illegal antiquities and art trade is larger than any other area of international crime except arms trafficking and narcotics and has been estimated at €2.5 - €5 billion yearly.” For comparison, the 2014 TEFAF market report estimated the entire world-wide antiquities market at $150M to $200M.
[6] H.R.1493 - Protect and Preserve International Cultural Property Act https://www.congress.gov/bill/114th-congress/house-bill/1493
[7] 127th Session of the Committee of Ministers
(Nicosia, 19 May 2017) Council of Europe Convention on Offences relating to Cultural Propertyhttps://search.coe.int/cm/Page/result_details.aspx?ObjectId=0900001680704b30
[8]http://www.loc.gov/law/foreign-news/article/germany-act-to-protect-cultural-property-passed/
[9] Note that as of 2008 exports of nearly all cultural property to non-EU countries already require licenses,http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:039:0001:0007:en:PDF
[10] TAAR Act https://www.congress.gov/bill/114th-congress/senate-bill/3449/text
[11] https://www.whitehouse.gov/the-press-office/2017/01/28/plan-defeat-islamic-state-iraq
[12] https://en.wikisource.org/wiki/Executive_Order_13773
[13] Comprehensive Strategy to Destroy ISIS Act of 2017 https://www.congress.gov/bill/115th-congress/house-bill/1785/text
[14] Hearing: “The Exploitation of Cultural Property: Examining Illicit Activity in the Antiquities and Art Trade” http://docs.house.gov/committee/calendar/ByEvent.aspx?EventID=106166
[15]FOLLOWING THE MONEY: EXAMINING CURRENT TERRORIST FINANCING TRENDS AND THE THREAT TO THE HOMELAND https://homeland.house.gov/hearing/following-money-examining-current-terrorist-financing-trends-threat-homeland/
[16] http://thehill.com/policy/defense/255442-us-offers-5-million-reward-to-stop-isis-from-plundering-antiquities
[17] In spite of a lack of credible evidence of any significant terrorist funding from cultural objects reaching the US, organisations like the “Antiquities Coalition” continue to argue for the elimination of all trade in antiquities as an effective means of fighting terrorism. https://theantiquitiescoalition.org/wp-content/uploads/2015/09/rsz_1rsz_1rsz_conflictantiquities_170713-01-1.png , As the Dutch study on Cultural Property War Crimes concluded, “It would contribute to effective investigations if “UNESCO, media agencies and other agencies [would] stop ‘hyping’ cultural property crimes……” section 15.1, page 65, http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf
[18] See Chapter II, Article 7-2 and Article 8-2, http://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680710435
Over the past several years, the debate over how best to protect the World’s cultural heritage has taken a turn. Although no evidence of any significant problem has been found, fear of terrorist funding from trade in cultural objects has replaced genuine concern for cultural heritage preservation as the driving force for new regulations. [1] [2] Unsupported claims that trade in objects of cultural heritage, mainly antiquities, is a major source of terrorist funding have prompted a politically driven rush toward legislative imposition of civil and criminal penalties and have encouraged aggressive enforcement. In spite of numerous studies and policy recommendations to the contrary, dissenting voices are being scolded into silence for being soft on terrorism. All methods of fighting terrorism should be considered, but we must not let fear or political agendas drive us to adopt measures that do more harm than good. If policy making continues in the current direction the impact on museums, their staffs, donors, trustees and, ultimately, their ability to serve the public will be permanent and severely damaging. It is time for Museums and their Boards to take action.
Initial claims of billions of dollars in terrorist funding from sales of artifacts have been discredited, but this has not prevented these claims from being used to justify stricter regulation and enforcement such as the new German law and the European Treaty of Nicosia. However, recent evidence and studies [3] suggest revenue to ISIS may be no more than a few hundred thousand from sale of “excavation permits” within their now rapidly shrinking territory. Nevertheless, these exaggerated claims of terrorist funding[4] have now been repeated so often that they are accepted as fact [5], and are having a profound effect on policy making. The US has passed into law new restrictions on Syrian artifacts and created a new investigatory committee.[6] A new EU treaty [7] (Nicosia, May 2017), justified largely by these discredited claims that antiquities sales are providing funding for terrorists, recognizes the laws of source countries as the exclusive means of determining an object’s legal status. The treaty provides for enforcement and criminal penalties based on these foreign laws regardless of whether they have been shown to be valid or constitutional within the EU or whether they are even enforced in the source country. Once codified into law it will create substantial legal risks for museums, their staffs and the trade.
Germany has enacted a controversial law[8] [9] requiring export licenses and proof of legal source country exportation and declares anything without proper documentation to be presumptively illegal. The Terrorism Art and Antiquity Revenue Prevention Act of 2016 (S.3449, TAAR Act) introduced in the US Senate, but now tabled, would classify as stolen any cultural property removed in violation of the local laws of the source country and would empower the Dept. of Homeland Security to create a database and labeling system for Syrian and Iraqi artifacts. [10] Trump’s Presidential Memos and Executive Orders targeting ISIS and terrorism[11] [12] [13] have encouraged proposals for more regulation, new enforcement initiatives and more criminal prosecutions.
Recent testimony before Congress and Homeland Security[14] [15] also continues to cite sale of artifacts as a major source of terrorist funding claiming that individual objects sell for, “…as much as $1 Million…” and implying that terrorists are directly participating at the highest levels of the antiquities market despite a complete lack of evidence. Since 2015 the US Department of State has offered a $5 million reward for information that disrupts these alleged activities . [16] No one has yet claimed the reward.[17]
Museum’s Ability To Serve The Public: At Risk?
Museums should be an essential part of any international effort to protect the world’s cultural heritage. But, as the focus of regulators has turned almost solely to defeating terrorism, museums have been marginalized and the goal of actually preserving world cultural heritage for future generations seems to be receding into the background.
The risks are real. By imposing retroactive requirements for source country export documentation, the new EU Treaty and German laws instantly create millions of orphaned objects already in the EU which, after implementation, cannot be legally exported, sold, gifted or, in Germany, owned. What will happen to all those objects? How will museums or families feel about suddenly being deemed criminals simply for owning them? Should the US revive the TAAR Act, the same thing could happen here.
Criminal penalties mandated by the EU Treaty probably sound good to voters worried about terrorism or concerned about cultural heritage preservation but does it really make sense to threaten museum staffers with jail time if they made a mistake in their provenance research? The new EU Treaty requires laws that say it’s a crime to make a mistake if you “should have known”. [18] Will museums decide to make no accessions at all rather than that take that kind of risk? And, who will be willing to serve as a Trustee when it exposes them to the possibility of criminal prosecution?
In the absence of strong voices from the museum community we are permitting the creation of a world with less transparency, more cultural property abuses, millions of refugee objects and enormous risks for museum staff, trustees and collectors. We are in real danger of permanently damaging the ability of the museum system to serve the public and eliminating the opportunity for our society to view, understand and appreciate the World’s many diverse artistic traditions.
In such an environment, no set of internal policies will completely protect an institution from cultural property disputes or accusations. We can, however, operate transparently with clear ethical guidelines that support both the protection of cultural heritage and our ability to pursue our public mission. We must also fight for a seat at the policy making table and become an integral part of the process rather than being victimized by it.
About the Author
Matthew Polk is a trustee of the Walters Art Museum and a former trustee of the Baltimore Museum of Art. He currently serves on the Collections and Finance Committees of the Walters and on the AAAPI Accessions committee of the BMA. He is also a board member of the Committee for Cultural Policy and a co-founder of the Global Heritage Alliance, organizations dedicated to formulation of cultural property policies which serve both the need for preservation and the public interest. In 2009 he and his wife, Amy Gould FAIA, established the Historic Textile Research Foundation (HTRF), a 501 c(3) dedicated to radiocarbon dating of historically significant textiles for research purposes.
Mr. Polk is a graduate of the Johns Hopkins University, Dept. of Physics and Astronomy (’71) and serves on the department’s advisory board and executive committee. In 1971 he co-founded Polk Audio and served as Chairman and head of product development until 2006. In 2009 he began developing a new method for high intensity acoustic vibration testing of spacecraft and in 2016 co- founded MSI DFAT Services, LLC, the leading provider of direct field acoustic testing services for aerospace.
Note: The Museum Trustee Association views its mission of enhancing the effectiveness of museum trustees as educational and collaborative. As a group of past and current museum board members, we do not see ourselves as a policy-setting organization but rather as a source of information to equip Museum Trustees as they implement field-wide best practices in all of their governance affairs. The article above is intended to provide an opportunity for open dialogue.
Footnotes
[1] “Legislators seem to be very busy with drafting laws to combat cultural property crimes, combat IS and specifically the ways IS earns money. Legislators seem to be more occupied with the topic than law enforcement, but no unequivocal proof of huge revenues of the illegal trade in cultural property is found that could support such an active legislative role – besides political reasons. Large amounts of plundered items have not surfaced on Western (art) markets” Dutch Survey on Cultural Property War Crimes, Sept. 2016, section 14.2.3 page 65, http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf
[2] Excellent discussion in the New Yorker, Dec. 2015 , https://www.newyorker.com/news/news-desk/the-real-value-of-the-isis-antiquities-trade
[3] Dutch study most comprehensive yet. “Based on this study it can be concluded that the topic is ‘hyped’. It is a strategic political topic that is presented bigger than it is in reality.” Pg. 6,http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf See page 63-65 for summary and conclusions.
[4] Inside ISIS’ Looted Antiquities Trade: “…why $7 billion fell to $4 million in public discussions about the ISIS antiquities trade.” https://theconversation.com/inside-isis-looted-antiquities-trade-59287
[5] Q&A on proposed EU regulations, http://europa.eu/rapid/press-release_MEMO-17-1954_en.htm “Another study [reference not provided] suggests that the total financial value of the illegal antiquities and art trade is larger than any other area of international crime except arms trafficking and narcotics and has been estimated at €2.5 - €5 billion yearly.” For comparison, the 2014 TEFAF market report estimated the entire world-wide antiquities market at $150M to $200M.
[6] H.R.1493 - Protect and Preserve International Cultural Property Act https://www.congress.gov/bill/114th-congress/house-bill/1493
[7] 127th Session of the Committee of Ministers
(Nicosia, 19 May 2017) Council of Europe Convention on Offences relating to Cultural Propertyhttps://search.coe.int/cm/Page/result_details.aspx?ObjectId=0900001680704b30
[8]http://www.loc.gov/law/foreign-news/article/germany-act-to-protect-cultural-property-passed/
[9] Note that as of 2008 exports of nearly all cultural property to non-EU countries already require licenses,http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:039:0001:0007:en:PDF
[10] TAAR Act https://www.congress.gov/bill/114th-congress/senate-bill/3449/text
[11] https://www.whitehouse.gov/the-press-office/2017/01/28/plan-defeat-islamic-state-iraq
[12] https://en.wikisource.org/wiki/Executive_Order_13773
[13] Comprehensive Strategy to Destroy ISIS Act of 2017 https://www.congress.gov/bill/115th-congress/house-bill/1785/text
[14] Hearing: “The Exploitation of Cultural Property: Examining Illicit Activity in the Antiquities and Art Trade” http://docs.house.gov/committee/calendar/ByEvent.aspx?EventID=106166
[15]FOLLOWING THE MONEY: EXAMINING CURRENT TERRORIST FINANCING TRENDS AND THE THREAT TO THE HOMELAND https://homeland.house.gov/hearing/following-money-examining-current-terrorist-financing-trends-threat-homeland/
[16] http://thehill.com/policy/defense/255442-us-offers-5-million-reward-to-stop-isis-from-plundering-antiquities
[17] In spite of a lack of credible evidence of any significant terrorist funding from cultural objects reaching the US, organisations like the “Antiquities Coalition” continue to argue for the elimination of all trade in antiquities as an effective means of fighting terrorism. https://theantiquitiescoalition.org/wp-content/uploads/2015/09/rsz_1rsz_1rsz_conflictantiquities_170713-01-1.png , As the Dutch study on Cultural Property War Crimes concluded, “It would contribute to effective investigations if “UNESCO, media agencies and other agencies [would] stop ‘hyping’ cultural property crimes……” section 15.1, page 65, http://iadaa.org/wp-content/uploads/2016/05/Cultural-Property-War-crimes-and-Islamic-State-2016.pdf
[18] See Chapter II, Article 7-2 and Article 8-2, http://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680710435
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