In late July, 17,000 potentially looted antiquities were returned to Iraq from the United States. Most came from the vast collection of Middle Eastern artifacts that Hobby Lobby President Steve Green had acquired for the Museum of the Bible in Washington. The saga of the mogul’s collection illustrates how dabbling in the gray market for antiquities has become riskier, thanks to fundamental changes in the laws, norms and institutions regulating the trade in stolen and looted art over the past three decades.
It used to be simple to collect gray-market artifacts
Green started his collection in 2009. At first, he was looking only for a few objects related to the Bible, but word quickly got around about a new billionaire collector. Soon dealers offered all manner of irresistible ancient artifacts: rare museum-quality objects, crates containing hundreds of unstudied pieces that held the promise of major scientific discoveries, and apparent fragments of the famous Dead Sea Scrolls. And buying at source and in bulk seemed to offer significant savings compared with bidding at public auctions.
Within five years, Green had amassed a staggering 40,000 artifacts. He employed 100 researchers and prepared to share his collection with the world in a lavish museum in the U.S. capital. But since opening in 2017, the Museum of the Bible has been plagued by one bad news story after another: Its collection turned out to be riddled with fakes, forgeries and loot.
The last may not have been a complete surprise. Patty Gerstenblith, a legal expert specializing in cultural-property law, has said that she told Green that he was taking considerable risk in acquiring artifacts from Iraq, where hundreds of thousands of objects have been looted from archaeological sites.
Yet for a long time, the laws against looting were not well enforced. Most governments have long prohibited the unlicensed excavation and export of items related to their countries’ cultural heritage, even if few have adequate resources to enforce this. In addition, the 1970 UNESCO Convention outlawed the illicit import, export and sale of cultural property; that provides a legal basis for repatriation claims for looted artifacts traded abroad.
However, national laws were largely ignored for decades. As a result, the UNESCO convention is often taken as a cutoff date. In other words, antiquities exported before 1970 are generally deemed legitimate. Even so, very few of those have a complete chain of title, making it possible for fraudsters to concoct information on provenance that can legitimize more recently looted antiques. The result is often described as a “gray” market in which clean and dirty goods circulate together. It is thus is very hard to prove that someone deliberately bought or sold a looted artifact, making successful criminal prosecutions highly unlikely.
Now it’s more complicated
But social norms have changed. Since the 1990s, people have been pushing to restore looted artwork to former owners, thanks to investigative journalists who have exposed networks of shady dealers, corrupt museum staffers and auction houses facilitating a vibrant trade in stolen and looted art. At the same time, Jewish lobbies worked hard to have stolen artworks restored to Holocaust victims and their heirs.
Public opinion slowly shifted toward recognizing the claims of victims of historical injustice — even if the law formally privileged the rights of the good-faith buyer over expropriated former owners. Many in the art and antiquities world now support the idea that historical wrongs ought to be redressed through restitution, repatriation or compensation.
Threatened with scandal, loss of reputation and costly legal action, players in the art market have massively tightened due-diligence procedures. Major auction houses and insurers funded the creation of a private database of stolen art. The Art Loss Register helps market participants identify and resolve competing title claims before proceeding with sales.
However, only objects that were legitimately owned before their theft and can be uniquely identified from photographs can be registered. The Art Loss Register therefore cannot warn buyers against undocumented, illegally excavated antiquities. Lacking a reliable mechanism for sorting objects that can and cannot be sold in good faith, the antiquities market has shrunk massively. Only a few objects whose pre-1970 origins are credibly documented have managed to retain their value for collectors who care both about their own reputations and their ability to resell the goods if needed.
Objects from Iraq are particularly questionable. Since the U.S. invasion, any object from ancient Mesopotamia has been subject to double and triple scrutiny — especially after it became clear that the Islamic State terrorist group encouraged and taxed the systematic looting of antiquities to fund its campaigns.
This helps explain the current controversy
Green’s spending spree took place against this background of transforming market norms. On the one hand, Green had a strong interest in a region associated with the origins of Christianity. On the other, many artifacts from that region had become difficult to sell to conventional collectors, because of their uncertain provenance. The result was that an eager buyer met eager sellers.
This background also explains why the collection has unraveled in such a publicly spectacular fashion. Negative headlines were soon followed by U.S. government lawsuits and seizures. The museum could have fought legal actions one at a time and possibly could have won many of the court cases. But even if it had, the museum would have suffered reputational damage. This may explain why it decided to send back to its country of origin every single object lacking a plausible provenance.
This may have broader political consequences. The Museum of the Bible is now setting an example for responsible ownership of foreign cultural heritage. Perhaps this will change social norms further, spurring other museums to “choose” to send disputed acquisitions back to the countries from which they were taken.
Daniel Klerman is Edward G. Lewis chair in law and history at the University of Southern California Gould School of Law.