Cultural Heritage Trafficking Requires Deterrence

Police officers are good at tracking down and arresting criminals. Prosecutors are good at securing convictions, even in some of the most complex cases. So why aren't police and prosecutors routinely investigating and prosecuting cultural heritage traffickers?

HSI officials returned smuggled cultural artifacts to the Turkish government
during a ceremony held last week in New York City. Source: ICE

Last week Homeland Security Investigations (HSI) repatriated ancient arrowheads, coins, and jewelry to Turkey, which were smuggled into Newark International Airport in February 2013. The objects represented some of the "more than 7,150 artifacts [that] have been returned to 27 countries" since 2007, which HSI touted in a press release.

No arrests were announced. In fact, the number of criminals taken into custody over the years for heritage trafficking has been infinitesimally small. That may be why HSI does not regularly report the number of arrests or convictions resulting from its cultural property, art, and antiquities investigations.

The impact of HSI's "seize and send" policy is that criminal infrastructures are left intact--i.e. bank accounts, smuggling routes, transshipment points, warehouses, and the like--while looters, smugglers, fences, couriers, and other offenders are returned to their criminal enterprises without consequence.

Cultural heritage trafficking needs to be deterred. It is the job of police and prosecutors to apply the law to combat this criminal activity, holding accountable those who illegally import contraband heritage and methodically dismantling the frameworks that facilitate trafficking operations.

Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Korean Artifacts Seizure Prompts Question of Legal Authority

Last week in San Diego, California, Homeland Security Investigations (HSI) of Immigration and Customs Enforcement (ICE) seized nine national and royal seals originating from the Korean Empire and the Joseon Dynasty. They are described in an ICE press statement as "invaluable to South Korea." But the legal authority justifying the seals' seizure remains unclear, requiring further explanation by ICE.

ICE reports, "The cultural artifacts were turned over to HSI special agents by the family of a deceased Marine lieutenant, who had served in the Korean War. The lieutenant had found the seals in 1950 in a ditch near the Deoksugung Palace, which had just been ransacked by Chinese and North Korean soldiers."

ICE says that the seals were exported illegally to the United States. But an illegal export, by itself, would not be grounds to seize the seals. ICE mildly hints that this export may have triggered a violation of American law, but it is conceded that the agency does not explicitly cite the illegal export as a basis to seize the seals.

Korean seals seized by ICE in San Diego.

ICE states more directly that the "seals were seized pursuant to [an] abandonment of property form ...." 

Abandonment, which is the relinquishing of legal rights to property, is justification for a seizure because it is a renunciation of property interests. Abandonment permits another party like the federal government to assume those property interests (i.e. possession or title) provided there is lawful authority.

Abandonment is a persuasive legal justification for seizing the seals. So what remains unclear is ICE's additional explanation justifying the seizure, what the agency claims is a "violation of the Cultural Property Implementation Act." That is because the CPIA would not seem to have any legal authority in this case.

ICE states, "On Feb. 14, 1983, South Korea became a signature country to the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property."

South Korea may be a signatory to the 1970 UNESCO Convention, but that nation has no memorandum of understanding (also known as a bilateral agreement) with the U.S. The CPIA is the law that implements the 1970 UNESCO Convention in the U.S., and an MoU authorized by the CPIA is necessary before America can institute import restrictions to seize jeopardized cultural artifacts crossing into the U.S. There are no import restrictions to date. As a result, there appears to be no authority for ICE to seize the Korean seals under the 1970 UNESCO Convention or the CPIA.

Unless the seals were inventoried in and stolen from a museum during or after 1983 (and they were not according to the information supplied), South Korea's adoption of the 1970 UNESCO Convention would bear no relevance on whether federal agents could seize the seals under authority of the CPIA.

In its press statement, ICE goes on to recite that "South Korea’s applicable cultural patrimony laws are the Korean National Property Act, enacted April 8, 1950 and the Korean National Property Act-Enforcement Decree, enacted June 10, 1950. According to the Korean National Property Act, the aforementioned seals fall under the category of Korean national property, which is illegal to transfer or export."

While an assessment of these statutes would be relevant to whether U.S. law recognizes South Korea's rightful ownership of the objects, the foreign statutes' export regulations would be of no interest to American law since U.S. law only enforces American import restrictions, not foreign export controls.

In fact, ICE does not appear to base its seizure on the rationale that the seals were owned by South Korea and stolen from that country in violation of its patrimony laws. If the seals were characterized as stolen, they would likely have been taken by ICE under 19 USC § 1595a's "contrary to law" provision that allows federal authorities to seize stolen property brought into the U.S. and to return the property to the legal owner. 

Perhaps ICE is using Korea's patrimony law to support a claim that the now "abandoned" seals belong to South Korea. We do not know for sure.

There have been legal questions surrounding seizures by ICE before, such as last year when customs agents seized Egyptian coffins in Texas or in 2011 when agents seized a Mexican figurine in Chicago.

A clearer legal explanation of what happened in the current South Korean case would help attorneys, collectors, auction houses, museums, preservationists, and other stakeholders better understand the federal government's cultural property enforcement actions.

Photo credit: ICE

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited.  CONTACT INFORMATION: www.culturalheritagelawyer.com

Seize and Send: No Arrests Announced as ICE Sends Evidence Back to Afghanistan

Roman oinochoe. Courtesy of ICE.

U.S. Immigration and Customs Enforcement (ICE) this week sent back evidence of cultural heritage trafficking to Afghanistan without making any arrests. The items returned include an ancient Roman oinochoe (right), 5th century B.C. gold foil appliques, and 17th century gold ornaments.

U.S. Customs and Border Protection (CBP) and the Homeland Security Investigations (HSI) New York El Dorado Task Force seized the objects at Newark Liberty International Airport's cargo facility on March 21, 2011, says ICE. An ICE news release reports that "HSI New York special agents discovered they were destined for a New York City man and later to a New York business suspected of dealing in looted cultural property. Through the investigative process, the antiquities were found to have originated in Afghanistan."

Customs administratively forfeited the items on Jan. 25, 2012. It may be reasonable to infer that those responsible for the illegal trafficking operate in the U.S., Great Britain, and the Middle East judging from ICE's announcement that "HSI New York, London and Dubai are conducting this ongoing investigation."

HSI Assistant Director John Connolly is quoted as saying, "Today marks HSI’s fourth cultural repatriation to Afghanistan since 2005. We are committed to the continued cooperation between our countries and beating back this illicit trade through dedicated law enforcement efforts, partnerships and training thus preserving and protecting the world’s ancient and valued treasures." Connolly's prepared remarks make no mention of either arrests or indictments.

The pattern of ICE returning evidence of cultural heritage trafficking without prosecution is common. There is an apparent policy of "seize and send" promoted by ICE leadership whereby the agency seizes illegally stolen or smuggled cultural objects and sends them back to their country of origin. This policy has been criticized before because it overemphasizes the recovery and repatriation of cultural heritage objects at the expense of investigating and indicting smugglers, fences, and receivers of stolen property who knowingly contribute to the destruction of cultural heritage. It is expected that fraud, money laundering, and other felony crimes too escape criminal prosecution as traffickers convert illegally obtained antiquities into cash.

While ICE's financial crimes investigations yield numerous arrests and prosecutions, ICE's cultural property, art, and antiquities investigations do not regularly result in criminal prosecutions.

HSI claims that its investigation surrounding the Afghani objects returned this week is "ongoing." But what direction the investigation is going in remains unclear. Will criminal indictments be pursued? Or will ICE's latest repatriation of cultural artifacts serve as a further reminder that the agency's leadership will seize cultural contraband but not arrest the criminals who unlawfully steal, smuggle, transport, sell, or buy them?

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com