An interesting, legal appeal involving disputed Greek artefacts has been taking place in the courts of New York state.

8th century BC bronze horse Sculpture owned by the descendants of art collectors Howard and Saretta Barnet

First of all, it is worth looking at the image of the bronze horse sculpture (that is the subject of the case).

It dates from the 8th century BC, but with it’s abstracted elegant form would not look out of place in a contemporary art exhibition.

This is a case where one could easily argue that the art has a value of it’s own purely on an aesthetic basis, separate from what any provenance might prove or dis-prove about it’s origins.

But this gets onto the basis of the story – there is very little provenance.

Our first record of the existence of the sculpture is in the catalogue of the May 6, 1967 Münzen und Medaillen auction in Switzerland.
Before that point we know nothing.

The current owners are the descendants of art collectors Howard and Saretta Barnet. They acquired the piece in 1973 from art dealer Robin Symes who “very probably” acquired it from the 1967 auction.

In the 1970s, Robin Symes was seen as a respected antiquities dealer – however, he has since been unmasked as a key player in an international criminal network that traded in looted archaeological treasures. Now, to the best of my knowledge there is no evidence that he was involved in any wrongdoing in this particular case – however, there is no evidence to the contrary either, other than the 1967 catalogue which gives a start to the item’s provenance.

On May 14th 2018, Sothebys in New York was due to host “The Shape of Beauty: Sculpture from the Collection of Howard and Saretta Barnet” auction, which included this item as one of the lots. Meanwhile, Christos Tsirogiannis, an antiquities expert who scours auction catalogues noted this proposed sale and, sent a letter to a criminal intelligence officer at Interpol’s works of art unit stating that:

“Please find attached the three images of a bronze Greek figure of a horse, of the Corinthian type, from the confiscated Symes-Michaelides archive. The same figure is to be auctioned as lot 4 in New York, by Sotheby’s at their 15/4/2018 auction.” After citing the provenance given in Sotheby’s catalogue, he writes “Please notify the American judicial authorities in New York, as well as the Italian and Greek police authorities as it is of paramount importance to examine ‘Münzen and Medaillen AG’ in Basel in order to be discovered the identity of the consignor of this bronze horse back in 1967, a valuable information which will eventually lead to the country where the object was discovered.”

Subsequently, the day before the auction was due to take place, Greece’s Ministry of Culture sent the auction house a letter saying the the bronze horse sculpture was the property of Greece and therefore should be returned to Greece immediately. Sotheby’s withdrew this lot and proceeded with the rest of the auction.

As you may have guessed though, this is far from the end of the story. On June 5th 2018, A lawsuit was filed jointly by the Barnet heirs and Sotheby’s in the US District Court for the Southern District of New York. The lawsuit asserted that Greece had interfered in the sale “without lawful justification.”

They sought a Declaratory Judgement that the bronze horse sculpture was “acquired lawfully and in good faith by the late Howard Barnet 45 years ago and has been part of their collection ever since.” They also sought a further ruling the Greece has no ownership rights and that they are permitted to continue with the sale of the work.

The basis of the lawsuit is the assertion by Sotheby’s that there is no factual basis to assert that the Bronze horse belongs to Greece. Once could easily counter this though with the fact that there is also no clear evidence that the sculpture was excavated and removed from Greece legally.

There is a good writeup of the case up to this stage here.

Now, as you might imagine, there are many interested parties keen to block cases such as this, which could potentially disrupt sales of any artefacts where the provenance is unclear. A letter to the Antiquities Trade Gazette by Joanna van der Lande, chairman of the Antiquities Dealers Association, stated that: “long-term damage is being inflicted on both the trade and museums” by the growing number of legal cases surrounding antiquities with long North American provenances.

Moving forward to today, last Friday (21st June), U.S. District Judge Katherine Polk Failla rejected Greece’s claim to dismiss the lawsuit. Greece made the claim under the Foreign Sovereign Immunities Act, a 1976 US law that establishes the limitations as to whether a foreign sovereign nation (or its agencies) may be sued in U.S. courts.

The reason for the dismissal is under the section of the act that exempts commercial activity, which provides three bases under which a plaintiff can sue a foreign state.

• When the plaintiff’s claim is based upon a commercial activity carried on in the United States by the foreign state.
• When the plaintiff’s claim is based upon an act by the foreign state which is performed in the United States in connection with commercial activity outside the United States.
• When the plaintiff’s claim is based upon an act by the foreign state which is performed outside the United States in connection with commercial activity outside the United States and which causes a direct effect in the United States

Greece argued that such a broad interpretation of this exclusion “would have a chilling effect on the ability of foreign sovereigns to protect their cultural heritage.”

The US courts argued that the Greek Government engaged in commercial activity by sending the letter to Sotheby’s to halt the sale. They also noted that “some U.S. courts have said acts taken to advance a sovereign country’s cultural mission could be deemed commercial in nature.”

You can read the coverage of this stage of the cases here. Full details of the case are available here.

Whether Greece will appeal against this decision or not is ass yet unclear.

The case highlights some of the issues of handling looted cultural property cases under the current legal frameworks – the onus is generally on the claimant to prove that the items were looted, rather than the current owners to prove that their provenance is sufficient. When many of the illegal excavations took place some years ago and were unrecorded, this is often very tricky to do. From what I have read on the case so far, it is unclear whether any further details of the 1967 sale (particularly the vendor and purchaser) have been revealed in the course of the last year.

While the Foreign Sovereignty Immunity Act has many flaws, we should also not see it as being against restitution cases as such. Only a few days earlier, the court of appeals for the District of Columbia dismissed a petition to re-hear a landmark ruling from that the heirs of the art dealers who sold the Guelph Treasure under duress during the Nazi era may pursue their claims in U.S. federal court. The meaning of this is that German state museum must face claims based on allegations of Nazi-looted art in their collections – the result of five years of denying the Guelph Treasure claimants any meaningful attention. How easy it is for a US court to enforce such a case in Germany is a separate question of course. There is a lot that could be learned from saga of Agudas Chasidei Chabad v. Russian Federation, et al. a few years ago, where state courts participating in international affairs almost led to a major diplomatic incident between the USA and Russia.

In this and the next three posts, I’ll look briefly at the current state of restitution of Nazi looted art in the UK.

The first case in this story is not in the UK, but it makes a good introduction, by setting a clear context of how some people are only now trying to retrieve looted works and why they are doing so.

The quest to retrieve the Degas painting began in 1995 and became the first Nazi loot case to be settled in the USA. This is a reminder of how far we have managed to come in a few years. Museum attitudes are shifting, although not every country moves at the same pace.

Below is a summary of the story. Make sure you click through to it to listen to the entire two minute radio clip though.

Simon Goodman standing next to the portrait of his great-grandfather Eugen Gutmann, painted by the German artist Franz von Lenbach (1836-1904). Credit: Laura Hubber

From:
BBC World Service

My grandfather’s art was looted by the Nazis
08 February 2019

After the death of his father, Simon Goodman embarked on a 20-year mission to reclaim the world class artworks his German-Jewish ancestors had collected before World War Two.

Simon’s landmark discovery of the Degas painting ‘Landscape with Smokestacks’, which had once belonged to his family, became the first Nazi art looting case to be settled in the United States.

The National Gallery is trumpetting this decision, but it seems more down to legal technicalities than any judgement of innocence or otherwise

Legal action in restitution cases take many forms. One case that has interested me in the past is that of Agudas Chasidei Chabad v. Russian Federation, et al. As I mentioned at the time, it had commonalities with a potential case I had heard presented relating to the same US court and the Parthenon Marbles.

When trying a case in a foreign court, there are many pitfalls to be aware of, not least the potential difficulties of enforcing any judgement. Another important aspect however in the US courts is that of the Foreign Sovereign Immunities Act (FSIA). I have heard reasons why both the above cases met (or would meet) the conditions set by the Act – but it is worth bearing in mind that other cases have not been so lucky.

This news story relates to the heirs of a painting by Matisse, which was given by the owners (in Berlin) to someone (in Switzerland) for safekeeping in the chaotic aftermath of World War Two. This presents an interesting case (from a British point of view), in that it neatly avoids the (necessarily specific, but thus rather blunt) definitions of the Nazi Era used the in UK’s Holocaust (Stolen Art) Restitution Bill. Of course, as this case was tried in a foreign jurisdiction, the aforementioned act would not apply in this case anyway.

The person in Switzerland entrusted with looking after the artwork then sold it and kept the proceeds. The painting eventually ended up in the UK’s National Gallery.

In this case, the Federal Appeals court in New York has rejected the claim, due to the fact that it does not meet the conditions of the FSIA, because the painting was taken by an individual rather than a state.

That said, this is a technical argument that means that the case can not proceed. It in no way endorses (or not) the due diligence by the National Gallery in checking the origins of a work by a well known artist (which has echoes of the Feldmann paintings about it). Possibly another case brought under a different jurisdiction might find differently. With the Feldmann Paintings, while the British Museum claimed that they were acquired in good faith, it now argued that it felt there was an overwhelming moral case for their return. Perhaps the National Gallery should follow suit?

Matisse’s Portrait of Greta Moll (1908)

From:
The Art Newspaper

Court rejects claim to Matisse owned by National Gallery
Rebuffing heirs, an appeals panel in New York says the court lacks jurisdiction
Nancy Kenney
11th September 2018 18:26 GMT

A federal appeals court in New York has rejected a claim to a 1908 Matisse painting owned by the National Gallery in London by three grandchildren of the muse portrayed in the work.

In demanding the work’s return, the heirs had argued that the painting, Portrait of Greta Moll, was illegally sold by a former art student to whom the painting had been entrusted for safekeeping in the aftermath of the Second World War. The portrait changed hands several times before it was acquired by the National Gallery in 1979.
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Although many would like them returned, others take a certain pride in the way they have been preserved overseas and feel that they are perhaps better looked after there

This article sums up something that I have noticed hinted at in various previous articles and more specifically in comments on twitter.

Within Britain’s largest museums, there are huge collections of artefacts that were acquired from India in a range of circumstances, some more questionable than others. Many in India justifiably want some of these artefacts returned. Many more however, see the well preserved state of the artefacts in the UK as a contrast to the lacklustre state of many museums in their own country. Still more do not trust the motives of politicians, who they feel want items returned only for nationalist reasons.

I think a lot of the ambivalence to restitution of Indian artefacts perhaps stems from the distrust many have of the government there – endemic corruption potentially puts the items at greater risk if they are returned home. In a perfect world though, when these issues are solved, I would hope that more in India would want to also reclaim their heritage.

Detail from the Amravati Stupa in the British Museum

From:
Indian Express

British museums shine thanks to all the loot from India
Adrija Roychowdhury
Published on:August 15, 2016 12:41 pm

In Britain, a museum visitor from India is suddenly made aware of how his or her past has brutally been ripped away and appended to British history, now on display for tourists from around the world to gloat over.

I first stepped onto the streets of London in the summer of 2015 as part of research work for my Masters thesis. An apt way to describe the city would be to call it a snippet of a dream carefully plucked out from a history book. For someone who was enthralled by the magnificence of British history, London was everything I had read and heard about all my life.
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28 official documents stolen in the 1990s were handed over at a ceremony in Moscow

Twenty eight documents, including Imperial Decrees dating back to the eighteenth century were stolen from three federal Russian archives during the 1990s. Since 2006, they have appeared at auctions in the US and been seized under the instructions of the US department of Homeland Security, although Russia had not at that point realised they were missing.

They have now been handed back to Russia in a ceremony at the house of the US Ambassador in Moscow.

Ceremony at home of US Ambassador to Russia, for handover of recovered looted documents

From:
Russia Today

Historic homecoming: US returns stolen artifacts to Russia
Published time: 3 Mar, 2016 20:10

American authorities returned 28 crucial historical documents dating back to the 18th-20th centuries to the Russian government on Thursday in an official ceremony held at the residence of the US Ambassador in Moscow.

Among them are imperial decrees signed by several Russian emperors, Joseph Stalin’s mandates and several works of art. The documents include 10 authentic imperial decrees concerning the royal household and gratuities, signed by Russian emperors from Peter the Great to Pavel the First, an original decree to the People’s Commissar of Defense of the USSR signed by Joseph Stalin (dating March 14, 1944) and 17 drawings made by architect Yakov Chernikhov, a prominent representative of Soviet constructivism, that date back to the first half of the 20th century.
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Iraq’s oldest Christian Monastery has been destroyed by ISIS, according to analysis of recent satellite photos of the area.

St Elijah’s monastery in Mosul had been used as a place of worship for 1,400 years.

US Soldiers celebrate Easter Mass at St Elijah’s monastery in 2010

From:
Guardian

Isis has destroyed Iraq’s oldest Christian monastery, satellite images confirm
Associated Press
Wednesday 20 January 2016 12.16 GMT

New satellite photos confirm what church leaders and Middle East preservationists had feared: the oldest Christian monastery in Iraq has been reduced to rubble, yet another victim of Islamic State’s relentless destruction of heritage sites it considers heretical.

St Elijah’s monastery stood as a place of worship for 1,400 years, including most recently for US troops. In earlier millennia, generations of monks tucked candles in the niches, prayed in the chapel and worshipped at the altar. The Greek letters chi and rho, representing the first two letters of Christ’s name, were carved near the entrance.
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In the face of increased ISIS attacks against the ancient heritage of the areas that they occupy, UNESCO Director General Irina Bokova outlines the three ways that she believes the world must fight back against such acts.

1. Fight against the illicit trafficking of cultural objects coming from Iraq and Syria
2. Reinforce preventive actions
3. Strengthen international cooperation

The ruins of Apamea in Syria in 2004, before the current conflict

From:
World Economic Forum

Terrorists are destroying our cultural heritage. It’s time to fight back
Irina Bokova, Director-General, UNESCO
Monday 18 January 2016

At this very moment, the invaluable legacy of humanity’s common heritage is under attack in Syria, Iraq, Yemen and Libya. Heritage sites are destroyed and looted to finance terrorism, individuals are persecuted on religious and cultural grounds, cultural diversity is targeted.

The destruction of culture has become an instrument of terror, in a global strategy to undermine societies, propagate intolerance and erase memories. This cultural cleansing is a war crime that is now used as a tactic of war, to tear humanity from the history it shares.
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Its great to see that Switzerland is finally doing something to clear up the murky world of artefacts smuggled via the Free Port in Geneva.

An Etruscan sarcophagus is among stolen ancient artworks that Switzerland has returned to Italy

From:
The Local (Switzerland)

Switzerland returns looted Etruscan treasures to Italy
Published: 14 Jan 2016 16:18 GMT+01:00

Switzerland has returned to Italy 45 boxes of ancient Etruscan art stolen during illegal excavations and stashed away for more than 15 years, including two rare sarcophaguses, authorities said on Thursday.

“The antiques were given back to Italian authorities today,” a statement from Geneva’s public prosecutor’s office said.
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As I wrote last time the 1954 Hague Convention came up in the news, I’m not holding my breath on this one. Its been talked about so much, but with very littel sign of actual action.

Recent events in Syria & Iraq have helped focus people’s minds on the issue though, although the looting of Iraq over ten years ago ought to have been enough for Parliament to see the benefits of ratifying the convention.

The House of Lords

From:
Art Newspaper

Lords put pressure on UK government to sign Hague Convention this year
by Anny Shaw
21 January 2016

Members of the House of Lords and leading cultural heritage experts are again calling on the government to ratify the Hague Convention seven months after it agreed to sign the international agreement. If parliament swiftly ratifies the treaty’s two protocols before any of the other five permanent members of the UN Security Council, the UK will also be in a position to set up a headquarters in London for the Blue Shield, the cultural equivalent of the Red Cross.

During a debate in the House of Lords on 14 January, Baroness Andrews said there was a “growing sense of urgency” to sign the convention following “grotesque failures in Iraq” and “the increasing barbarity in Syria”. She added: “The events of the past six months have, I believe, changed the game.”
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I’m not holding my breath on this one, as it is not the first time that I have heard this, but the UK Minister of Culture John Whittingdale says that the UK will introduce legislation to ratify the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

For many years now, various excuses have been given for not ratifying the treaty, despite pressure from archaeologists, NGOs and many within Parliament.

The current status, although not correctly reported in many news sources, is that the UK signed the convention in 1954, but has yet to ratify it. This groups us with Ireland, Andora and the Phillipines, ass all other countries that signed were also happy to ratify it.

The current impetus to finally ratify this document is no doubt related to the press coverage of the actions of ISIS in Syria and Northen Iraq. One wonders though why the looting following the deposing of Saddam Hussein in the second Gulf War (or many other similar cases prior to that) was not enough to convince the UK of the importance of the document.

It is a step in the right direction, but there are still many more steps that ought to be taken – not least ratifying the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects

Claims are sometimes thrown about, that the reason for not ratifying was that it would help facilitate the return of the Parthenon Marbles to Greece, although I have never been entirely certain that this was the case. I am assuming that the government (which is opposed to the return of the Marbles) will have looked into the legalities of this particular aspect in detail already.

UNESCO logo

From:
Guardian

Britain signs convention on protecting treasures in war zones
Toby Helm
Sunday 21 June 2015 00.05 BST

It’s come years late, but the culture secretary is to pledge the UK to helping save historic and artistic artefacts under threat in conflict-torn countries

Britain is to end years of indecision by ratifying an international agreement aimed at preventing the loss of cultural and historic artefacts in conflict zones, amid growing outrage at the destruction by Isis militants of ancient sites in Iraq and Syria.
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Mark Walker inherited a bronze sculpture from Nigeria that had been taken from the country by his Grandfather during the Benin Punitive Expedition.

After coming into possession of one of the Benin Bronzes, he had to think what to do with it next. He thought ahead to what would happen to them when he died. His children did not want them, and he did not want them to be sold at auction. Instead, he got in touch with the Richard Lander Society, who facilitated the return for the sculptures to the descendants of the rulers of Benin.

It seems that in more and more stories, while individuals feel a need to do the right thing, by righting historic wrongs, museums and other institutions seem far less compelled to do so. This is despite the fact that as places of education, one would expect that they would be the ones to be taking a moral lead in such situations rather than dragging their heels.

Eight hundred items from the Benin Punitive Expedition are still held in the British Museum in London. Other institutions around the world house many more. In all cases, Nigeria also claims rightful ownership.

The “Bird of Prophecy” returned to Benin City by Mark Walker

From:
BBC News

26 February 2015 Last updated at 00:09
The man who returned his grandfather’s looted art
By Ellen Otzen BBC World Service

At the end of the 19th Century British troops looted thousands of works of art from the Benin Empire – in modern-day Nigeria – and brought them home. One soldier’s grandson inherited two bronzes but recently returned them to their original home.

“It’s an image that’s deeply ingrained in my memory. The dead body seemed unreal. It’s not a picture you can easily forget,” says Mark Walker.
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James Cuno has in the past regularly staked his claim as one of the most hardline retentionists in the US museums world.

In his latest missive to the New York Times letters page, he tries to argue that many of the current problems with looting are actually the fault of UNESCO conventions on cultural property. His line of reasoning is that cultural property laws keep the artefacts in their country of origin – thereby making it easier for other factions within the country to seize / destroy them. There are too many flaws to this argument for me to list. Fortunately Kwame Opoku has taken the time to write a far more comprehensive dis-assembly of Cuno’s arguments than I would have managed.

Isis militants attack ancient artifacts with sledgehammers in the Ninevah Museum in Mosul, Iraq.

From:
Kwame Opoku (by email)

Does Dr Cuno really believe what he writes?

After my last article, I swore not to comment anymore on Dr.Cuno’s statements in order to avoid any impression that I was unduly concentrating on the opinions of one scholar. (1) However, it seems the U.S. American scholar is never tired of presenting views that most critics would consider patently wrong. Could we just keep quiet when a most influential scholar expresses an opinion that is obviously wrong? In his latest letter to the editor of the New York Times, 11 March,2015,James Cuno, President and Chief Executive of the J. Paul Getty trust, Los Angeles declares

”The recent attacks on the ancient cities of Nimrud and Hatra in Iraq underscore a tragic reality. The United Nations Educational, Scientific and Cultural Organization encourages — and provides an institutional instrument for — the retention of antiquities within the borders of the modern state that claims them. That state, very sadly, also has the authority to sell them on the illegal market, damage them or destroy them.
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