Crimes Against Cultural Property

Half-Truths from a Self-Styled "Cultural Heritage Lawyer?"

http://culturalpropertyobserver.blogspot.com/2012/03/half-truths-from-self-styled-cultural.html

by Peter Tompa

Self-styled "Cultural Heritage Lawyer" and past SAFE VP/ New Hampshire State Prosecutor Rick St. Hilaire thinks that more people should go to jail for "crimes against cultural property." As evidence, St. Hilaire notes that while CBP reports some 2,500 artifacts have been seized and returned to their supposed countries of origin, actual criminal prosecutions are few. See http://culturalheritagelawyer.blogspot.com/2012/03/seize-and-send-v-investigate-and-indict.html

Yet, St. Hilaire is wrong to assume that any artifact seized by Customs "must be looted." Instead, as I noted in a comment to his blog that he has so far refused to publish:

"You might also note that much, if not most, of the material seized and returned is abandoned by the importer. You assume it is because it is looted; in actuality it may very well be because the litigation costs of fighting CBP greatly exceed the value of the artifact. As for the lack of prosecutions, that likely has to do with the fact that the Government cannot show criminal intent. Thankfully, that is still required despite efforts of archaeological fanatics to diminish this bedrock protection of American law."

And if anything, three knowledgeable practitioners confirmed at a DC Bar program I just attended, entitled "What Every Lawyer Needs to Know About Customs and Customs Law 2012," that CBP's modus operandi is all too often to seize all sorts of things for the slimmest of reasons (mostly for supposed "trade mark" or drug importation violations), confident in the knowledge that it is often not worth the trouble to fight to get them back.

This is a national disgrace that has much to do with CBP's change in focus from a "revenue collecting agency" under Treasury to a "national security agency" under Homeland Security.

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COMMENTARY

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It seems that Rick St. Hilaire believes that any US citizen importing artifacts which are seized by Customs, who does not decide to contest the seizure, should in addition to the confiscation of the artifacts, also face a criminal investigation.

As Tompa observes, there are many valid reasons for deciding not to contest such a seizure that do not indicate criminal conduct or criminal intent. In my opinion, very few ancient coin collectors or dealers would find it sensible to spend the time and money involved in contesting seizure of a coin shipment, unless it was very valuable.

This is getting perilously close to advocating a regulatory doctrine of "guilty until proven innocent." The actions of the Cultural Heritage Center are not law but regulatory decisions, and their decisions to restrict importation of ancient coins have been challenged in Federal Court. The case is presently sub judice.

It is difficult to understand how any lawyer could rationally contend that the importance of "innocent until proven guilty" does not vastly outweigh "protection of cultural heritage." If the latter effort involves totalitarian methods, it must be reformed so as to protect Constitutional rights.

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How “looters” sell artifacts

I have received a message from a knowledgeable and respectable individual who lives in an antiquities “source country,” and who has personally observed how “looters” actually dispose of artifacts. I will not disclose his identity, which could make life very difficult for him if the authorities became aware that he had written this. The relevant part of his message is quoted verbatim below.

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I am a Greek Cypriot living in Cyprus and I have also lived in Greece for a number of years too. The looting of antiquities in both of these countries has been an ongoing problem for centuries but it in no way can be compared to countries like Syria, Egypt, Israel etc... What I mean by this is that the looted artifacts (coins, pottery etc.) in both Greece and Cyprus are not predominantly destined for the international market for 2 reasons. Firstly the problem of export arises. People may think it is very easy to illegally smuggle large quantities of antiquities out of these countries but they couldn't be further from the truth.

This doesn't really matter as the second of my reasons negates this course having to be taken. Antiquities don't need to be smuggled out because 90% of them are sold internally. There is a MASSIVE market in both of these countries for all types of artifacts but especially for coins. The looters may not be receiving international market prices but the prices they do receive are still attractive enough to make the risk of smuggling unnecessary.

Now this is not to say that smuggling does not occur but it is by far in the minority. So, at least as far as these two countries are concerned, take away the international market today and tomorrow its still business as usual!

And lets not all kid ourselves that the looting is only done by nationals. I have helped out on various excavations conducted in Cyprus by various universities etc. and you would be surprised at the amount of small artifacts that are pocketed by the students.

This is not done for any financial gain but mainly because (especially in the case of coins) they don't consider them to be 'anything important'. For arguments sake you could call them souvenirs. This first came to light for me when, many years ago, I was dating a student who, when the time arrived for her to go home, pulled out a pocketful of coins and gave me 3 classical coins of ancient Kition. Actually, that was what started me collecting.

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