by Callie Mobley, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
Since April of 2023, the Sudanese Rapid Support Forces (“SRSF”) and the Sudanese Armed Forces have been engaged in a civil war.[1] Among the many atrocities committed since the war began is the widespread theft of cultural property, including the SRSF’s looting of the National Museum of Sudan.[2] According to the United Nations Educational, Scientific and Cultural Organization (“UNESCO”), cultural property is property that, “on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art, or science.”[3] The National Museum of Sudan houses irreplaceable treasures, including artifacts from the Neolithic civilizations which date from 5000 B.C.E to 3500 B.C.E.[4] The museum also contains many artifacts from the Nubian and Kushite cultures, highlighting the contributions of black African communities to our modern world.[5]
The looting of Sudan’s tangible cultural heritage is of grave international concern for several reasons. First, artifacts from early humans are important for the preservation and study of history and humanity. Second, the destruction, dispersion, and removal from public view of these artifacts is likely connected with the ongoing conflict between ethnically African and ethnically Arab Sudanese populations; which Human Rights Watch has warned could constitute genocide against the Massalit and other groups of African descent.[6] The United Nations has specified that the destruction of cultural or religious symbols or property is an indicator of the intent to destroy a group in whole or in part, which is a risk factor of genocide.[7]
This article explores the patchwork of international and American law that could be used to protect the cultural heritage of Sudan amidst their civil war. Part II provides background on the illicit antiquities trade and the attempts to regulate it. Part III discusses the limitations of current legal frameworks. Part III argues that existing laws must be used to criminally prosecute buyers on the black market and that museums must be held to higher collecting standards. Part IV concludes by summarizing what can be done to limit the demand for illicit antiquities from Sudan and other vulnerable regions.
II. Background
The modern antiquities trade has its roots in the Enlightenment trend of collecting tangible cultural objects to distinguish oneself as a person of culture.[8] Modern attempts to regulate the black market for tangible cultural heritage tend to focus on repatriation and stopping the collection of such objects at the source. However, it is the demand in wealthier countries that drives the market.[9]
Cultural objects are unique among illicitly traded goods in that they can be effectively laundered into legally acquired and socially acceptable goods.[10] Traffickers often move illicit antiquities through several states before they reach their final market, generally flowing from countries with more relaxed import and export laws towards those with stricter regulations.[11] This allows the goods to accumulate paperwork and legitimacy before reaching their final market.[12] These destination markets, whether museums, auction houses, or independent dealers, typically do not require the full provenance of an object, or the identities of buyers and sellers, to be made public.[13] Due to this lack of transparency, it is easy for buyers to ignore the probability that they are participating in illicit trade. The illicit trade process is aided by the belief that these objects are better off in the hands of the wealthy.[14] However, antiquities on the black market do not circulate internationally for public benefit but instead follow a consistent path from poorer countries to wealthier ones, where the items are often only seen by elites.[15]
A. International Regulation of the Illicit Antiquities Market
International efforts to protect cultural property were originally focused on protecting historical structures and objects located on or near the battlegrounds of international wars, such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.[16] The Rome Statute, which founded the International Criminal Court, states it is a war crime to intentionally direct “attacks against buildings dedicated to religion, education, art, science, charitable purposes, or historic monuments.”[17]
More recently, there have been attempts to regulate the market for cultural objects. The primary international document concerning the illicit trade of cultural property is the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (“UNESCO Convention”). The UNESCO Convention requires states to prohibit the importation of “cultural property stolen from a museum or a religious or secular public monument” and to take measures to return cultural property upon request of the state of origin.[18]
The 1995 International Institute for the Unification of Private Law (“UNIDROIT”) Convention on Stolen or Illegally Exported Objects was drafted to complement the UNESCO Convention.[19] The UNIDROIT Convention is not focused on triggering restitutions or returns.[20] Rather, it is focused on reducing illicit trafficking by changing the conduct of art market buyers by forcing them to bear the risk of having to return an object, without compensation, if they do not properly verify that the object was not stolen.[21] However, art dealer lobbies have largely prevented the nations that most commonly serve as markets from signing on, leaving the treaty to be made up mostly of states that serve as the source of the illicit trade.[22]
B. Regulation of the Illicit Antiquities Market in the United States
The United States follows the trend of other market nations and is a party to the 1970 UNESCO Convention, but not the 1995 UNIDROIT Convention. In 1983, the United States codified the 1970 UNESCO Convention through the Cultural Property Implementation Act (“CPIA”).[23] The CPIA requires that a nation requesting the return of ethnological or archaeological material be a party to the UNESCO Convention and follow the treaty’s protocol for requesting the return of the material.[24] However, the CPIA includes an emergency provision allowing the United States to restrict the importation of cultural property that is “in jeopardy from pillaging, dismantling, dispersal or fragmentation which is, or threatens to be of crisis proportions.”[25] There are currently 32 nations with import restrictions under the CPIA, among them are emergency restrictions for Afghanistan, Iraq, and Yemen.[26]
The importation of stolen cultural property to the United States is regulated by the National Stolen Property Act (“NSPA”). The NSPA criminalizes the transport and sale of known stolen goods with a value of at least $5,000 in interstate or foreign commerce.[27] The McClain Doctrine is used when applying the NSPA to cultural objects taken in violation of foreign laws.[28] There are four required elements for the McClain Doctrine to allow for criminal liability for the trafficking of cultural property under the NSPA: (1) a trafficker must know that the cultural property is claimed by a foreign state before it can be considered stolen; (2) the source nation must do more than merely restrict exportation, it must establish national ownership over the object; (3) the trafficked cultural property must originate from the source nation’s territory and have been taken after the relevant ownership law’s effective date; and (4) the source nation’s ownership law must be clear enough to provide adequate notice of its ownership over the object.[29]
The McClain requirements are difficult to meet. Even Syrian antiquities looted by ISIS would often be able to escape the McClain doctrine.[30] This is because Syria likely does not have an adequate law establishing national ownership of antiquities found within its soil, and even if a 1963 decree concerning the ownership of antiquities was found adequate, the political regime changes and general upheaval in the country would likely serve to protect a buyer from having adequate notice of the law.[31] It would also be difficult to prove that the antiquity originated within Syria, and even more difficult to prove that a buyer was aware of the illicit nature of the object.[32]
C. Museums’ Roles in Regulating the Illicit Antiquities Market
While museums are often thought of as key actors in protecting cultural heritage, some support the illicit antiquities market by purchasing or accepting artifacts with a dubious history.[33] At the international level, museums are self-regulated. The primary international body is the International Council of Museums (“ICOM”), a non-governmental agency that maintains formal connections with UNESCO. ICOM’s Standards of Accessioning ask museums to “exercise due diligence in verifying the object’s history and provenance.”[34] This includes checking that the object was lawfully obtained and lawfully imported and exported and that it is not listed in a handful of databases, including ICOM’s own “red lists.” These red lists are meant to aid individuals, organizations, and authorities in identifying categories of cultural objects that are vulnerable to trafficking and do not list individual objects.[35]
Museums in the United States are also largely allowed to regulate themselves, with the most prominent oversight organization being the American Alliance of Museums (“AAM”). The AAM adopts the ICOM Accessioning Standards, reinforcing that new acquisitions should comply with United States law. Additionally, AAM recommends that, “museums should not acquire any object that, to the knowledge of the museum, has been illegally exported from its country of modern discovery or the country where it was last legally owned.”[36] Notably, the AAM allows for the acquisition of objects with incomplete provenance for “cases in which it may be in the public’s interest for a museum to acquire an object, thus bringing it into the public domain.”[37] Neither ICOM, nor AAM include sanctions in their code of ethics.
III. Discussion
A. Sudan’s Cultural Property is Unprotected Internationally
In the case of Sudan, smugglers take stolen artifacts out of the country by land and begin laundering them in neighboring countries, specifically, South Sudan. Some of these items will be sold online, often with the first country the items were smuggled into listed as the point of origin.[38] The highest profile and most recognizable pieces may be hidden for years, or even decades before they emerge on the market and find their way to museums or private collectors.[39] While ICOM has expressed solidarity with the cultural heritage community in Sudan, there is currently no red list concerning Sudanese artifacts.[40]
In response to the crisis in Sudan, UNESCO has called upon the public and the art market to refrain from acquiring or taking part in the import, export, or transfer of ownership of cultural property from Sudan. [41] However, this request is unlikely to dissuade prospective buyers who will probably face no legal consequences for their participation in the illicit antiquities trade. UNESCO’s plea likely carries even less weight with those who believe that the items are better off in a private collection or foreign museum as opposed to Sudan. UNESCO is also developing a training for members of law enforcement and the judiciary in countries neighboring Sudan. UNESCO has also helped with the implementation of emergency measures in five Sudanese archeological museums.[42]
B. Sudan’s Cultural Property is Unprotected in the United States
Artifacts taken through the exploitation of unrest in Sudan could easily remain within the bounds of United States law. Sudan does have a “Found in the Ground Law” which declares antiquities to be the property of the state and mandates that they be held in public museums.[43] Because this law came into effect in 1999, it could possibly be invalidated due to changes in governments or because it is not clear enough to provide adequate notice to a potential antiquities collector. If these two elements of the McClain Doctrine can be satisfied, the obstacle would be proving that the buyer knew the cultural property was claimed by a foreign state and could be considered stolen. In the case of objects taken from the National Museum of Sudan, there were likely records of the collection. However, it is unclear if these records survive in their entirety and the existence of records alone will not suffice to put a defendant on notice. The AAM has not made a statement about artifacts from Sudan and typically does not weigh in on categories of foreign artifacts that should not be acquired.
C. Strengthening Legal Frameworks to Reduce the Antiquities Trade and Protect Sudan’s Cultural Heritage
International and American legal frameworks already exist to combat the illicit antiquities market. Internationally, the standards of the 1995 UNIDROIT Convention should be adopted by more nations and implemented in their domestic law. This would shift the responsibility of researching the title to buyers, along with the risk of having to forfeit the item without compensation. The range of protection for cultural property should continue to expand beyond war, and the ICC should prosecute all those who steal or damage cultural property, regardless of its connection to war.[44] However, even these improvements would do little to protect Sudan’s cultural property given that Sudan is not a party to the UNIDROIT Convention or subject to the jurisdiction of the ICC. The limit of international jurisdiction makes it vital for market nations to stop the demands for cultural objects without clear provenance.
The United States has laws in place to prosecute those dealing in illicit antiquities, but the focus remains on recovering antiquities rather than prosecuting the buyers and dealers who keep the market going.[45] Prosecuting cultural property theft requires contending with the scienter requirement of the NSPA. To do this, the United States should invoke the emergency contingency of the CPIA to regulate the import of any artifacts likely to be of Sudanese origin and put the antiquities market on notice that such items are to be considered stolen. Furthermore, customs agents and other law enforcement must be trained in identifying vulnerable antiquities.
Like nations, museums must work together to hold each other to a higher standard of ethical collecting. ICOM should publicize any records from the National Museum of Sudan or other looted sites and forbid member institutions from acquiring these items. A red list should also be created describing the types of artifacts vulnerable to looting in Sudan. Compliance should be incentivized through international loan programs contingent upon ethical acquisition standards, which must include thorough research into an antiquity’s provenance to ensure that it is not considered stolen by any state. Such a loan program would allow humanity’s culture to be truly available to the widest possible audience without funneling our tangible history into the hands of a small group.[46]
In the United States, museums and museum employees cannot be allowed to hide behind their status as an educational institution in order to avoid punishment for their complicity in the illicit antiquities trade. Museum self-regulation is not enough, rather, acquisition practices should be controlled by federal laws requiring museums to conduct more thorough provenance research.[47] Given the tax-exempt non-profit status of many museums, the Internal Revenue Service is a potential candidate for this external overview. Offending institutions should lose their non-profit status. Because those dealing in the art world often have access to vast wealth, criminal punishment may be the only effective way to substantially reduce the market for illicit antiquities.[48]
IV. CONCLUSION
The illicit antiquities market is criminal, can be a component of genocide, and moves our cultural heritage away from its social and historical context and into the hands of a small, wealthy minority. To stop the looting of cultural property at places in crisis, such as Sudan, it is necessary to reduce the demand for illicit cultural objects. This demand can be reduced by criminalizing and otherwise penalizing the purchase or receipt of antiquities without ensuring a clear title, both for individuals and institutions.
[1] Beverly Ochieng & Wedaeli Chibelushi, Sudan war: A simple guide to what is happening, BBC (June 13, 2024), https://www.bbc.com/news/world-africa-59035053.
[2] Ayse Sena Aykin, Sudan’s cultural heritage stripped by looters amid ongoing war, Daily Sabah (Sept. 13, 2024, 9:26 AM), https://www.dailysabah.com/arts/sudans-cultural-heritage-stripped-by-looters-amid-ongoing-war/news.
[3] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, art. 1, Nov. 14, 1970, T.I.A.S. 83, 823 U.N.T.S. 231.
[4] Mohamed Albdri Sliman Bashir, Q&A: Looting of the Sudan National Museum – more is at stake than priceless ancient treasures, Phys.org (Sept. 10, 2024), https://phys.org/news/2024-09-qa-looting-sudan-national-museum.html.
[5] Id.
[6] See Reem Abbas, A War for Sudan’s Identity: The Loss and Destruction of Culture and Heritage, Tahrir Institute for Middle East Policy (Apr. 15, 2024), https://timep.org/2024/04/15/a-war-for-sudans-identity-the-loss-and-destruction-of-culture-and-heritage/;“The Massalit Will Not Come Home” Ethnic Cleansing and Crimes Against Humanity in El Geneina, West Darfur, Sudan, Human Rights Watch (May 9, 2024), https://www.hrw.org/report/2024/05/09/massalit-will-not-come-home/ethnic-cleansing-and-crimes-against-humanity-el.
[7] Framework of Analysis for Atrocity Crimes, United Nations Office on Genocide Prevention and Responsibility to Protect (2014), https://www.un.org/en/genocideprevention/documents/about-us/Doc.3_Framework%20of%20Analysis%20for%20Atrocity%20Crimes_EN.pdf.
[8] Simon Mackenzie et al., Trafficking Culture: New Directions in Researching the Global Market in Illicit Antiquities 2-3 (2019).
[9] Id. at 1.
[10] Id.
[11] Id. at 9.
[12] Id.
[13] Id. at 12- 13.
[14] Id. at 59.
[15] Id. at 60-1.
[16] See Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, T.I.A.S. 09-313.1, 249 U.N.T.S. 215 (entered into force Aug. 7, 1956).
[17] Rome Statute of the International Criminal Court art. 8(b)(IX), July 7, 1998, 2187 U.N.T.S. 3.
[18] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, art. 7, Nov. 14, 1970, T.I.A.S. 83, 823 U.N.T.S. 231.
[19] UNIDROIT Convention on Stolen or Illegally Exported Objects, June 24, 1995, 2421 U.N.T.S. 457.
[20] Overview – UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Int’l Ins. for the Unification of Priv. Law, https://www.unidroit.org/instruments/cultural-property/1995-convention/overview/ (last visited Sept. 22, 2024).
[21] Id.
[22] Mackenzie, supra note 8; Status Map – Cultural Property, Int’l Ins. for the Unification of Priv. Law, https://www.unidroit.org/instruments/cultural-property/1995-convention/status-map-cultural-property/ (last visited Sept. 22, 2024).
[23] The Convention on Cultural Property Implementation Act, 19 U.S.C. §§ 2601-2613.
[24] Id.
[25] Id. at § 2603(a)
[26] Current Agreements and Import Restrictions, U.S. Dep’t of State, https://eca.state.gov/cultural-heritage-center/cultural-property/current-agreements-and-import-restrictions (last visited Sept. 22, 2024).
[27] National Stolen Property Act, 18 U.S.C. § 2314.
[28] Lindsey Lazopoulos Friedman, ISIS’s Get Rich Quick Scheme: Sell the World’s Cultural Heritage on the Black Market—Purchasers of ISIS-Looted Syrian Artifacts Are Not Criminally Liable Under the NSPA and the McClain Doctrine in the Eleventh Circuit, 70 U. Miami L. Rev. 1068, 1084-88 (2016).
[29] Id.
[30] Id. at 1088-94.
[31] Id.
[32] Id.
[33] See Graham Bowley, For U.S. Museums with Looted Art, The Indiana Jones Era is Over, N.Y. Times (Dec. 13, 2022), https://www.nytimes.com/2022/12/13/arts/museums-looted-art-repatriation.html#:~:text=Today%20many%20U.S.%20museums%20are%20facing%20a%20reckoning,be%20careless%20and%20trophies%20at%20times%20trumped%20scruples.
[34] Standards on Accessioning of the International Council of Museum, Int’l Council of Museums (2020), https://icom.museum/wp-content/uploads/2022/03/Accessioning-Standards_EN.pdf.
[35] Red Lists, Int’l Council of Museums, https://icom.museum/en/red-lists/ (last visited Sept. 22, 2024).
[36] Ethics, Standards, and Professional Practices, Am. All. Of Museums, https://www.aam-us.org/programs/ethics-standards-and-professional-practices/archaeological-material-and-ancient-art/ (last visited Sept. 22, 2024).
[37] Id.
[38] Aykin, supra note 2.
[39] Robert Bociaga, How Conflict is Jeopardizing Sudan’s Museums and Cultural Heritage, Arab News (June 5, 2023) https://www.arabnews.com/node/2316531/middle-east.
[40] Red Lists, supra note 35.
[41] Press Release, UNESCO, Sudan: UNESCO Raises the Alarm on Reports of Illicit Trafficking of Cultural Heritage (Sept.12, 2024).
[42] Id.
[43] Sudan, Saving Antiquities, https://en.saving-antiquities.org/country-information/sudan/ (last visited Sept. 22, 2024).
[44] See Mischa Gureghian-Hall, The Rome Statute’s Cultural Value Lacuna: The Urgent Need to Reassess Cultural Property Offenses under International Criminal Law, Univ. of Oxford – Univ. Coll. (Jan 31,2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4696383.
[45] Leila A. Amineddoleh, Protecting Cultural Heritage by Strictly Scrutinizing Museum Acquisitions, 24 Fordham Intell. Prop. Media & Ent. L.J., 732, 748 (2014).
[46] Id. at 756.
[47] Id. at 762.
[48] Id. at 755.
Cover Photo by Alicia Steels on Unsplash.
