Illicit Antiquities and the Developing International Law

By Nicholas Nalbantian

Photo: Wikimedia Commons/Julian Nitzsche, Creative Commons License

On September 27, 2016, at the National Press Club in Washington, D.C., Gary Vikan presented his memoir: Sacred and Stolen. After twenty-seven years at the Walters Art Museum in Baltimore, including eighteen years as its director, we were given an inside view of the art world and the development of the international law of art theft.

Dr. Vikan began by recounting an earlier time, in the 1970s and 1980s, when the comfort level for purchasing stolen art was still high. Collectors were more concerned with whether any particular piece had been called “stolen” publicly rather than concerned for the reality surrounding the item. Such little care made the West a ready market for plundered works of artistic and historical significance. From 1975 to 1984, Dr. Vikan worked at the Dumbarton Oaks Research Library and Collection, an American center for Byzantine art. During that time, Dr. Vikan witnessed the flood of plundered artifacts following the Turkish invasion of Cyprus, a part of the more general effort to “de-Hellenize” Northern Cyprus.

Dr. Vikan’s talk focused on two particular episodes: In the first, he recounted the entertaining tale of how Vikan helped Dominique De Menile, the oil heiress, obtain thirteenth century frescos in 1983. Through her generosity, these plundered mosaics were housed in Houston, with permission from Cyprus, until 2012 when they were returned. However, the second episode more significantly highlights the contribution Dr. Vikan made to the jurisprudence of international art theft. This is the saga of the sixth century Kanakaria Mosaics.

The Kanakaria Mosaics were likely stolen from the Cypriot Church of the Panagia Kanakaria in 1979. In 1988, the mosaics were sold for $1.2 million in cash from a dubious German art dealer in Geneva to Peg Goldberg, an Indianapolis dealer in nineteenth and twentieth century paintings. Upon returning to the United States, Goldberg tried to sell the mosaics to the J. Paul Getty Museum in California for $20 million; such a high profile item sale alerted Cypriot authorities to the mosaic’s location.

Once located, the Autocephalous Greek Orthodox Church brought suit in federal district court in Indianapolis in 1989 for the return of the mosaics. In an illustration of how the law treats the issue of plundered art like any other stolen item, the action of replevin had to begin with the court considering whether Indiana applied the O’Keeffe v. Snyder rule on the statute of limitations. The court determined that the O’Keeffe v. Snyder rule did apply, which meant that the statute of limitations began upon discovery of the mosaics by the Orthodox Church, rather than running from their date of theft. Dr. Vikan was called as an expert witness to explain whether these mosaics were sufficiently suspicious to defeat Goldberg’s defense that she was a good faith purchaser. Judge Nolan was unconvinced by Goldberg and ruled in favor of the Orthodox Church. Goldberg appealed, but the Seventh Circuit affirmed:

“Lest this result seem too harsh, we should note that those who wish to purchase art work on the international market...are not without means by which to protect themselves. Especially when circumstances are as suspicious as those that faced Peg Goldberg, prospective purchasers would do best to do more than make a few last-minute phone calls. As testified to at trial, in a transaction like this, ‘All the red flags are up, all the red lights are on, all the sirens are blaring.’”

With the Seventh Circuit quoting the testimony of Dr. Vikan – "All the red flags are up, all the red lights are on, all the sirens are blaring." –  he has made a noted contribution to the growing customary international law on art theft as the choices made by the United States may influence other states’ courts in the future. The international law of art theft has seen improvement since the 1970s, but is still lacking in many regards.

Dr. Vikan’s experiences with the occupation of northern Cyprus can inform how to deal with the current trade of plundered artifacts from Syria and Iraq.  Art theft is the third highest-netting criminal enterprise after drugs and guns, and a number of valuable pieces remain on the market as a result. The governmental instinct is that of restriction, such as Cyprus’ foreign minister  Ioannis Kasoulides’ request that the UN Security Council “apply universal limitations on the trade and transfer of artefacts originating from all conflict zone, with the obligation of proof of legitimate trade resting on the traders, auction houses and buyers and not on the originating state.” The hope is that cutting off market access will remove a stream of income available to ISIS. Combating terrorism is important, but we should perhaps take a more nuanced approach than the one espoused by Kasoulides.

ISIS has been destroying antiquities like the Temple of Baalshamin or the contents of the Mosul Museum. Their movement is iconoclastic and they wish to remove evidence of pre-Islamic civilization. Yet, should we follow Kasoulides’ lead, we risk the further destruction of Syrian and Iraqi history. Dr. Vikan shared his belief that there is value in providing safe harbor to these items of national and cultural significance, a notion that it is better that the sixth century mosaics eventually return to Nicosia than risk their permanent destruction at the hands of nationalists or iconoclasts. So too recovered relics should be protected by states without conflict zones rather than rejecting them out of hand. The U.S. government passed the Protect and Preserve International Cultural Property Act in September 2016, which, in part, adopted this tendency. The Act includes provisions that allow for the waiver of import restrictions if “the President determines that, for purposes of protecting and preserving such material, the material should be temporarily located in the United States.” This is the goal epitomized by Dominique De Menile. The law should allow for these cultural relics to be protected in the stable states, without taking title to the item, in the hope that these antiquities will someday be returned to their home region.

As for items that are already in the United States illegitimately, there needs to be a process of recovery superior to the one the Cypriote government went through with the Goldbergs. There are laws in place aimed at preventing the theft of the historical objects, including the 1970 UNESCO Convention requiring the repatriation of objects illegally removed from many countries. However, the process is still cumbersome and can take four to five years for an identified piece to be returned to Egypt. The Protect and Preserve International Cultural Property Act was a step in the right direction, but more needs to be done to aid the recovered pieces to be returned to their rightful homes.

The book “Sacred and Stolen: Confessions of a Museum Director” by Dr. Gary Vikan was published September 20, 2016.