Seizures of antiquities: a glance at the law behind them

Seizures of antiquities by government agents are a recurring theme in the United States - and sometimes the seizures seem to be carried out on only the flimsiest of evidence that the items may be contravening the law. Outraged dealers and collectors typically cry that the frequently successful outcomes of such actions where evidence is relatively weak are a flagrant breach of a legal principle enshrined in national law: surely, they protest, something must be "innocent until proven guilty".

Well actually, that principle still holds true in such cases - the seized items are indeed "innocent until proven guilty" (much like a person being arrested) - but the clue is in the word "proven". "Proof" is not a universal paradigm in law; what may be demanded as proof in one type of legal action may not necessarily be required as proof in another.

A Canadian coin dealer recently suggested that the prevalence of seizures in the United States as opposed to Canada or Britain was the result of a difference in legal systems: whereas Canada and Britain are governed by "common law", the US has no such protection. In fact, he was quite wrong. The legal systems of Britain, Canada and the United States are all largely based on "common law" (a system originating in England and grounded on judicial precedent as opposed to "civil law" grounded on statutes, etc.). The legal systems vary between those nations in the way in which they are implemented and by other factors but their systems are all founded on common law.

The differences in what counts as proof arise from differences in the type of legal action - between "criminal cases" and "civil cases" - and that distinction exists in both Britain and the United States. Most of the American cases of antiquities confiscation come under the heading of "civil forfeiture" (more commonly known as "civil recovery" in Britain), more specifically "in rem". Whereas in a criminal action, the burden of proof is "beyond a reasonable doubt"; in a civil action in rem, the government sues the property itself (in rem) and all it needs is a "preponderance of the evidence" ("balance of probabilities" in Britain), a far lower burden of proof.

That may explain why American seizures of antiquities are seldom accompanied by a conviction of the people involved. A civil action in rem is far easier than a criminal action (or indeed a civil action in personam) and far more likely to be successful. Even if the artefacts are licit, the cost of legal defence is often not financially viable, especially in the absence of documentation. Cynically, it might be said that the US government gains the political kudos of repatriating antiquities to their countries of origin and the favourable publicity of proactively being seen to do the "right thing" with the minimum of effort. Whether the seizure was truly justified or not seems almost irrelevant from that perspective.

However, political motivations aside, such seizures do serve as a warning that dealers and collectors of antiquities would do well to heed. Insisting on documentation of items considered for acquisition is not only a responsible means of stemming the flow of recently looted artefacts, keeping and preserving records is a vital precaution in increasing the chances of holding on to those licit items they already own.

Cases of civil forfeiture seem to have become almost an epidemic in the United States and far commoner than in Britain. Their prevalence has been deeply controversial and an absolute nightmare for some. "America - Land of the Free"? Perhaps more like "America - Land of Litigation" (and a carnival for lawyers). But also a timely reminder for those buying and owning antiquities to take their responsibility seriously.

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Many thanks to Derek Fincham for glancing through my draft before posting. Any errors are my own.

Artwork is my own - with a little help from James Montgomery Flagg.

A flash of candour or just wishful thinking?

I just glanced at the title of a blog post by trade lobbyist Peter Tompa ("Let’s facilitate Lawful Trade and the Appreciation of Italian Culture it Brings", 8 April 2015) and literally misread it for a second as "Let’s facilitate Awful Trade and the Appropriation of Italian Culture it Brings". Is it just me subconsciously hoping the coin trade has finally brazenly admitted the effects its approach may have on conservation or is his blog sending a subliminal message of contrition?

Nah, back to reality ...

Margaret Rule CBE

Very sad to learn that Margaret Rule CBE passed away on Thursday, 9 April. Her passion for archaeology was highly infectious and I fondly remember her warm and enthusiastic support for my own research. 

She is perhaps best known for her work on the Mary Rose and I offer a link to this BBC video from two years ago as a tribute.

Now that's what I call a mark-up!

Authentic lamp (Christie's)

Ancient lamps made from "bronze" (or to be more technically accurate, copper alloy) can fetch a good price on the antiquities market but real examples that allow the trade a reasonable profit margin can be hard to come by. However, one "leading" antiquities dealer in London - Artemission, owned by Antoine Karawani, a committee member of the Association of International Antiquities Dealers (AIAD) - seems to have chanced on a remarkable supply. It must be a pretty large and pretty old supply because they have been selling a substantial quantity of their distinctive bronze lamps with a curiously uniform 'patina' for some years. Unfortunately for their customers, there is a slight hitch  ...

The Bulgarians have been making fake Roman bronze lamps for years. At first, they tried selling them as the real thing on eBay and other outlets - but most of them are blindingly obvious rubbish, buyers eventually got wise to them, and many are nowadays openly sold as "replicas" (though of course for much lower prices than real ones).

They are very recognisable. Here's one of them, sold for $24.99 in 2011 ...

An amazingly similar lamp turns up in Artemission's magic supply. All they have to do is plunk it on their posh website selling "Antiquities and Ancient Art", describe it as "Roman Bronze Oil Lamp ... c.1st Century A.D." and ask their customers for $1,800 ...

Not bad - but Artemission can do better than that. Here's another Bulgarian bronze lamp on eBay - sold openly as "modern" ...

And here's another one (though this one was mistakenly offered as genuine and crazily priced) ...

The eBay example failed to attract any bids at $99. But not to worry, Artemission come across a more refined version (the Bulgarian repertoire offers slight variations) in their legendary supply. Okay, it's still got big unarticulated eyes, tiny pointed ears, and that silly meaningless* lug on its forehead - so still pretty obvious it's rubbish - but it's got a nicer base. Add a little elbow grease and the fake patina is much prettier too. Just plunk it on the posh website, describe it as "Roman Oil Lamp ... c.1st Century A.D." and for this one, ask your customers for $2,500 ...

Hey, that's not bad at all. Assuming Artemission bought them at the going rate - or maybe a bit cheaper with trade discount - so far that's a profit margin of about 97% or over $4,100 profit on just two lamps alone.

Sadly, life is not always so good and sometimes the dealer has to be less ambitious. Well, let's be honest, this Bulgarian monstrosity (below) is even less convincing than the first two and even a punter with one glass eye and a patch over the good eye ain't going to be fooled by it. Even the Bulgarian sellers ask only around $25 for this sort of grade. But Artemission innocently grab one from the uglier part of their supply, plunk it on eBay instead of their website, describe it as "Byzantine Bronze Oil Lamp ... c.6th-8th Century A.D." and ask a mere $500 ...

I'm not vindictive but I do get tired of seeing this rubbish from them year after year. We have to be charitable and assume either that, despite his "over 40 years" in the business, Karawani is astonishingly naive or that his eyesight is no longer what it used to be. Of course, there is a possibility that if his customers ever find out he sold them fakes at high prices and suspect he actually knew very well what he was doing, they may take a somewhat dimmer view.

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* The lugs on real lamps are meant for hanging chains from; thus they tend to be flat and of course pierced. (The central protrusion on the hair of the genuine lamp shown at top left is in fact a lidded filling-hole, so not a lug at all in this case.)

Note: Apart from the first lamp shown at top left, ALL the lamps illustrating this post are demonstrably modern. 

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UPDATE: Five years later ...

Constant Vigilance: Lamps found in Syria

The widespread looting and destruction of archaeological sites in Syria, exacerbated by the deep civil unrest in that area since the spring of 2011, are well known. Looting is driven by market demand and it is therefore vital that anyone considering the acquisition of any ancient object that may have originated in Syria should be particularly vigilant.

Archaeological sites are trashed by looters searching for common saleable objects every bit as much as they are by looters searching for rare treasures. Supplementing the somewhat inadequate Emergency Red List of Syrian Cultural Objects at Risk issued by ICOM in September 2013, and in recognition of guidelines outlined by the EU (Council Regulation No 1332/2013 of 13 December 2013), I thought it might be useful to publish a small selection of the types of ancient lamps that are typically found in that region.

Open image in new tab to enlarge

It should be noted that while some of the lamps shown are peculiar to Syria, most of those shown were also produced or distributed in neighbouring countries in ancient times. Many thousands of these lamps were legally exported from the Levant over the years and the huge number of those that are still circulating need cause no concern.

Nevertheless, all the lamps illustrated represent types commonly found in Syria and, since in the absence of records it can be difficult to distinguish between artefacts which were legally exported years ago and those which have been smuggled out during the current upsurge in looting, an extra degree of caution is demanded. Due diligence should of course be practised in the acquisition of any ancient artefact whatever its region of origin at any time but it is good to be aware of those whose acquisition may pose a particular threat to archaeological sites in the present crisis.

While the clandestine nature of the trade in illicit antiquities prevents a realistic estimate of the precise amount being smuggled, it is clear that a vast number of Syrian artefacts are making their way through middlemen in countries such as Turkey, Lebanon, Jordan, Israel and the UAE. Some will be sold on immediately to buyers in the West or elsewhere, while others will be stored until media attention has abated and eventually surface in international markets at a later date.

Note: The composite image of lamps above, formed entirely of my own material, is released into the public domain and free to use.

eBay Antiquities: treasures or trash?

An article about the online auction site eBay in the Daily Mail ("How eBay became an auction house for ancient TREASURES: Dealers turn to auction site to sell rare, authentic artefacts", 5 February 2015) posits "Buyers can purchase authentic coins, clothing and relics at the click of a button ..." and ironically illustrates it with some of the most outlandish fakes imaginable. You gotta love those "Roman" sculptures and the "Greek" pots with strategically-placed blobs of patina.

There is a blessing though. At least the muppets indiscriminately buying this rubbish pose no threat to the archaeological record - as long of course as they don't inadvertently stumble across the real thing.

Hermes revisited

In my previous post about a fake head of Hermes prematurely announced by Turkish authorities, I mentioned that there were many other cases involving obvious fakes which should have been detected before going public. Paul Barford has drawn attention to a similar scenario in Thailand. Among thousands of "looted" artefacts seized from disgraced former Central Investigation Bureau chief Pongpat Chayapan, the Thai Fine Arts Department has identified sixteen that appear to be of Cambodian origin and has announced that five of them will be returned to Cambodia ("Pongpat 'treasures' fake, P'Penh says", Bangkok Post, 23 Jan 2015).

Sadly, Cambodia is unimpressed: "Cambodian experts who reviewed pictures of the artefacts, some of which Thailand dated back to the early 15th-century Kulen era, said the statues are obvious fakes ..." ("Statues are ‘treasures'", Phnom Penh Post, 23 Jan 2015). "'I don’t know why they think the statues might be real,' said Kong Vireak, director of the National Museum."

As with the Turkish case and many others too numerous to list here, a worryingly large number of seizures of "looted antiquities" seem to be more in the nature of posturing and feelgood exercises than genuine victories in the fight against looting. Ultimately, such negative publicity only serves to undermine the credibility of nations seeking to protect the heritage. The protection and conservation of the archaeological record deserves to be a serious undertaking, not merely a political game.