March 12, 2012

Questions raised over the Shellal Mosaic

Posted at 2:02 pm in Similar cases

Australian soldiers removed a mosaic dating from AD 561 from a ruined church near Gaza in 1917. Many questions continue to be raised about whether Australia should return this artefact, that they still have in their possession.

Sydney Morning Herald

Questions raised over ‘looted’ mosaic
Andrew Taylor
August 14, 2011

IN 1917, a Byzantine mosaic created during the reign of Emperor Justinian was removed by Australian troops from the ruins of a church near Gaza. The Australians knew they were plundering the priceless antiquity during World War I, two authors now claim.

In a new book, authors Paul Daley, a Sun-Herald columnist, and Michael Bowers, raise questions about Australia’s continued possession of the mosaic, which has been in the Australian War Memorial collection since 1941.

”But from time to time, Australian authorities have privately expressed their unease at the fact that the mosaic was effectively looted from Palestine and removed to Australia, fearing it could become the focus of the type of debate that surrounds Britain’s acquisition and ‘safe keeping’ of Greece’s Elgin Marbles,” Daley writes in Armageddon, Two Men on an Anzac Trail.

The Shellal Mosaic was uncovered and significantly damaged by Turkish soldiers while digging a machine gun position on a hill where the Shellal Church had once stood, according to the War Memorial. Anzac forces rediscovered the mosaic during the second battle of Gaza in April 1917.

In the book Daley, who disagrees with the government’s view that not enough was known about the removal to determine if it was pillaged, describes how impressed Australian military leaders were with the find. In a letter to his wife, General Harry Chauvel wrote of the discovery of ”a very handsome mosaic floor”. Major-General Granville De Laune Ryrie wrote to his wife: ”It is done in different coloured little square stones set on cement and is awfully well done … the colours are very good, it would be worth a lot if it could be moved.”

A leading legal expert said the removal of an antiquity was a crime under international law.

”In a general sense [the soldiers] could be said to have violated the laws and customs of war,” said Emeritus Professor Ben Boer from the University of Sydney’s Law School. But Australia did not appear to be bound by these laws in April 1917, he added.

Professor Boer also said international law did not require the Australian government to return the Shellal Mosaic to its rightful owner.

The question of whether Australia should return the Shellal Mosaic is an ethical, not legal, one, he said. ”Should Australia return the mosaic in recognition of its importance to the cultural heritage of people of the region? However, it seems unlikely at this point that there would be a demand for its return.”

International law prohibits pillage, and the seizure of the property of institutions dedicated to the arts and sciences ”and breach of these provisions would amount to a war crime”, the Department of Foreign Affairs and Trade said.

However, it says that ”not enough is known about the circumstances of the removal of the mosaic to say whether or not it constituted pillage or seizure of property amounting to a war crime.”

A spokesman for Warren Snowdon, the Minister for Veterans’ Affairs, said the Shellal Mosaic’s remains were removed in the belief that it might be destroyed in future military action.

”The Australians who dug up the Shellal Mosaic knew its precise value. The Palestinian Authority is said to have carefully considered whether or not to seek some sort of formal acknowledgement from Australia that the mosaic rightfully belongs to its people,” he said.

If there was such a request, then there could be a moral case for returning it, Professor Boer said.

But it may be impossible to return the item intact because it now forms part of a supporting wall.

”Because of its extreme fragility, any attempts to interfere with the Mosaic or try to detach it … will likely lead to its permanent damage,” Mr Snowdon’s spokesman said.

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1 Comment »

  1. DR.KWAME OPOKU said,

    03.15.12 at 8:38 am


    We read with great interest „Questions raised over looted mosaic” and would like to make a few comments. It is strange that the Australian government argues that not enough is know about the removal of the mosaic to determine whether it was pillaged. The facts as stated in the article, and I assume the book gives more details, should be sufficient for forming an opinion.

    I agree with the legal expert cited that the removal of an antiquity is a crime under International Law, as the removal here violated the laws of war which requires combatants to safeguard artefacts and not to destroy works of art of the enemy. Why would Australia not be bound by these laws of war? Had it not ratified the law the expert had in mind? Even so, most of these rules had become part of customary law. In any case, since 1815 it was accepted that arts of work were not to be looted even though some nations continued the habit of looting enemy artefacts.

    What I do not understand is the view that International Law did not require the Australian government to return the Shellal Mosaic to its rightful owner. If the removal of the object was wrong, then there is a duty to return the object. The fact that International Law does not have an effective enforcement mechanism, does not free violators from the obligation to respect the law. Should this issue be put before a judge, she or he will surely evoke the principles that nobody should be allowed to profit from his or her wrongdoing and that no rights can be derived from the violations of the law. There is also the principle against unjust enrichment.

    It has also been attributed to the expert the idea that whether Australia should return the object or not is an ethical one and not legal, thereby creating a dichotomy between the law and ethics, almost amounting to antagonism. But this is to ignore the nature and functions of the law that may be said to contain a minimum of ethics that the average person in society is expected to possess. Is the government of Australia satisfied with this minimum, bearing in mind that no legal system could function satisfactorily if the main actors in the system, including law enforcement agencies, adopted minimum standards such as appears in this context?. Legislators, international or national, use ethical standards to establish the rules of law. Thus many legal rules are a reflection of ethic standards prevailing in society. Law and ethics generally work to similar ends for the good of society, national or international.

    That the people of Gaza have not requested the return of the mosaic is no valid ground for refusing to return the object. It could well be that many are not even aware of an object that was removed from Gaza in 1917. The people of Gaza and their Government are occupied with questions of their very survival and may not have time to deal with such matters. But could the Government of Australia not help them at least in such a matter by itself proposing to return the mosaic, without waiting for a demand? International Law does not require such a demand as precondition for returning artefacts.

    The argument that the mosaic now forms part of a supporting wall should be discounted. Such an argument, if given support, could lead to those who steal or loot artefacts inserting them into other structures.

    Similarly, the argument based on the fragility of the object cannot be taken seriously. This argument has been used by the British to support their refusal to return the ivory mask of the Benin Queen-Mother Idia to the Nigerians. The Germans have also argued unconvincingly that the bust of Nefertiti is to fragile to return to Egypt, her home.

    It is time that Western governments stop presenting such weak arguments in explanation of their refusal to return artefacts to their original homes.

    A country such as Australia should not be seen as depriving the people of Gaza, in the grip of daily struggles of war, of an artefact.

    Kwame Opoku.

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