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LEGAL DAMAGE CONTROL FOR IRAQ'S LOOTED CULTURAL HERITAGE:
THE NEED FOR U.S. IMPORT RESTRICTIONS

Professor Patty Gerstenblith
DePaul University College of Law
JURIST Guest Columnist

Early in April 2003, as Baghdad fell to the U.S.-led coalition forces, news reports quickly circulated that the Iraq Museum, repository of the largest collection of ancient Mesopotamian artifacts, had been looted. Mesopotamia, the land between the Tigris and Euphrates Rivers, was the home of the first agriculture and settled civilization, the first writing and organized city-states in the late 4th millennium B.C., the ancient Assyrian and Babylonian cultures of the 3rd and 2nd millennia B.C., whose merchants traded over thousands of miles and which produced the first law codes and the basis for modern astronomy, as well as the Neo-Assyrian and Babylonian cultures of the 1st millennium B.C., known from Biblical sources and the palaces at such sites as Nineveh and Nimrud. The looting of the Iraq Museum, as well as most other government buildings, came as no surprise to those who had attempted to warn the United States military of the likelihood, based on the experiences following the 1991 Gulf War, when approximately 4,000 ancient artifacts were looted from Iraq痴 regional museums, with several of these objects appearing on the international market in the following decade.

While the looting of the museum turned out not to be as drastic as first reported, approximately 15,000 objects are now believed to have been stolen, both from the galleries and the storage areas. Of greater concern is the looting of sites, which seems to have begun, particularly in the south, as soon as hostilities commenced and which continues even now, despite fledgling attempts of the Coalition Provisional Authority to train and equip guards in sufficient numbers to provide meaningful protection. The looting of archaeological sites is of such great concern because objects taken directly from the ground are undocumented and it destroys the original contexts of these objects. These contexts are essential to the reconstruction of the past, and their loss causes permanent damage to the historical, scientific and cultural record. Such undocumented objects are more difficult to track down through law enforcement mechanisms, and it is more difficult to prosecute those involved in their trade and to recover the objects for return to Iraq.

Documented objects stolen from a museum may be recovered under several legal doctrines. They are clearly stolen objects; anyone handling such objects with the requisite intent or knowledge is violating the National Stolen Property Act (NSPA) and the objects themselves can be seized under the Customs provisions of Title 19. The United States is a party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property, as is also Iraq. Under the legislation by which the United States implemented the Convention, the Cultural Property Implementation Act (CPIA), 19 U.S.C. ァァ 2601, 2607, the United States may seize and forfeit any stolen objects of cultural property that were documented as part of the inventory of a museum or other public institution in another State Party. Forfeiture under the CPIA does not require that the government establish that any one knew that the object was stolen and is thus an easier mechanism for the restitution of such objects than use of the NSPA or Customs statute.

Objects looted directly from archaeological sites require somewhat different treatment. Under the recent decision of United States v. Schultz, 333 F.3d 393 (2d Cir. 2003), archaeological objects whose ownership is vested in a nation and that are removed from the nation without permission are stolen property. In Schultz, Egypt had enacted a law in 1983 vesting ownership of archaeological objects that had not yet been discovered in the nation of Egypt. When a prominent New York dealer knowingly conspired to import objects removed without permission and therefore stolen from Egypt, the dealer violated the NSPA. Iraq has had a national ownership since 1936 and under the Schultz decision, as well as similar decisions in the 5th and 9th Circuits, objects looted directly from archaeological sites are stolen property and should be recoverable. In addition, anyone who knowingly handles such objects is liable for prosecution.

The CPIA could also provide a mechanism for such recovery, but this mechanism is so cumbersome and time-consuming that it seems ineffective in the current crisis in Iraq. The CPIA permits other nations that are party to the 1970 UNESCO Convention to request that the United States impose import restrictions on cultural objects that have been illegally exported from their country of origin. Such a requesting nation must submit a request for a bilateral agreement to the United States with documentation demonstrating that the CPIA痴 criteria are met. These criteria include: that the nation is suffering from pillage that threatens its cultural patrimony; that the nation has taken steps consistent with the Convention to protect its own sites; that the United States action would be taken in concert with the actions of other nations or that the US痴 action would be of benefit to prevent the looting, even if other nations are not taking similar actions; and that the US痴 action would be in the interest of promoting the international exchange of cultural materials for scientific, research and cultural purposes. Even once a nation submits such a request, the request must be evaluated by the Cultural Property Advisory Committee (CPAC) that makes a recommendation to the President as to whether to negotiate a bilateral agreement. The CPIA also permits the US to impose import restrictions without negotiating a bilateral agreement in case of emergency or crisis situations but only after the foreign nation has made a request for a bilateral agreement. This process generally takes at least 1-2 years and has been known to take many years in some cases.

The United States has not been able to act under the CPIA to impose import restrictions that would prevent the import of archaeological objects looted from sites because of the uncertainty of the situation in Iraq and the length of time required before a request can be prepared and considered. In response to this situation, a bill was introduced in the House in May (H.R. 2009) that would immediately impose import restrictions on illegally removed cultural materials from Iraq and that would amend the CPIA to allow the President in case of future emergency situations to impose import restrictions without need for a formal request from the foreign nation and consultation with CPAC. So far, this bill has been held hostage to a lobbying coalition (led by the organization of which Mr. Schultz was the president until shortly before his indictment) of dealers and some museum organizations.

For the time being, the general sanctions prohibiting import of goods from Iraq have continued for illegally removed cultural objects, but this is an administrative action and may be rescinded at any time. H.R. 2009 provides a long-term mechanism for removing the incentive to loot the archaeological sites of Iraq, which deprives both the Iraqi people and the rest of the world of its cultural heritage. The bill would also permit the United States to respond more effectively to similar crises, such as the extensive looting of sites in Afghanistan which is happening now as well. The bill would also extend the period of time for which import restrictions can be imposed穆omething which is necessary to deter the market in looted objects and therefore the looting itself. HR 2009 should be enacted swiftly; it deserves the active and committed support of the legal community and the preservationist community.


Patty Gerstenblith is a Professor of Law and Director of the Program in Cultural Heritage Law at the DePaul University College of Law.

February 23, 2004

GUEST COLUMNIST

JURIST Guest Columnist Patty Gerstenblith is a Professor of Law and Director of the Program in Cultural Heritage Law at the DePaul University College of Law. She served as Editor-in-Chief of the International Journal of Cultural Property (1995-2002) and is currently a member of the United States Cultural Property Advisory Committee, co-chair of the International Cultural Property Committee of the ABA Section on International Law and practice, and is faculty advisor to the DePaul-LCA Journal of Art and Entertainment Law. She teaches and publishes in the field of cultural heritage and law and the arts and is director of the College of Law痴 Program in Cultural Heritage Law. Her most recent article, 鄭cquisition, Deaquisition and the Fiduciary Obligations of Museums to the Public, will be published in the Cardozo Journal of International & Comparative Law.

Professor Gerstenblith received a B.A. from Bryn Mawr College, Ph.D. in Art History and Anthropology from Harvard University, and J.D. from Northwestern University School of Law. Upon graduation, she clerked for the Honorable Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit.