The insinuations of wrongdoing are evident in the very first line of the Los Angeles Times’ article as reporter Jason Felch (presumably intentionally) refers to Cornell University “preparing to forfeit” to Iraq thousands of ancient cuneiform tablets. The clay blocks depicting scenes of daily life and the previously unknown high status of women in society date back to 4th millennium BC Mesopotamia, one of the earliest “cradles” of Western civilisation. Publicly available information on the planned “forfeiture” is limited as the parties involved have declined to comment. However, seemingly undisputed is the fact that the US Attorney’s Office is brokering the transfer following the Iraqi government’s request for the return of the tablets which were “donated and lent” to Cornell in 2000 by Miriam Rosen and her son Jonathan Rosen, attorney and then co-owner of the Manhattan gallery Atlantis Antiquities. His business partner was none other than the late Robert Hecht, the prominent dealer who from the 1960s onwards was repeatedly suspected and accused of trafficking in illicit antiquities but never convicted due to insurmountable procedural and/or evidentiary hurdles. Before now, the last time Hecht’s name had been splashed in the press in the context of allegations of criminal behavior was in 2006 when he stood trial in Italy alongside his former client and J. Paul Getty Museum curator Marion True for allegedly dealing in antiquities stolen from the Italian nation. On that occasion, the prosecution collapsed because the statute of limitations had expired before a verdict could be reached though the overwhelmingly incriminating evidence of looting resulted in several major US museums returning to Italy hundreds of antiquities, including the infamous “Euphronios krater” Hecht originally sold the Metropolitan Museum of Art in 1972. While there is of course no evidence that the Rosen-Hecht connection in any way taints or calls into question Rosen’s dealings with Cornell, Hecht’s own brushes with the law are worth mentioning here for they poignantly epitomise the serious shortcomings of the law in this area and the challenges prosecutors face worldwide to secure convictions against suspected perpetrators of illegal antiquities trade.

According to Rosen’s attorney, the cuneiform tablets were “legally acquired” and failure to date to disclose details of their provenance is sadly at most circumstantial evidence from which one could infer unsatisfactory but not necessarily illegal conduct on the part of the Rosens and Cornell. This is due to the prevalence of undocumented antiquities in the barely discernible licit market, albeit statistics like those cited by S.M.R. MacKenzie (“80 to 90 percent of the antiquities in the market [in 2005] lacked sufficient provenance…”) or Patty Gerstenblith are inherently flawed as they are based on published catalogues which until recently did not include the provenance of antiquities even if available. Certainly many scholars and, at least with respect to the “Garsana tablets”, the Department of Homeland Security, believed the tablets were looted from Iraq. Some scholars went even further by recognising their own role in incentivising demand-driven looting by indirectly stimulating market prices through the publication of studies such as those published by Cornell in relation to the tablets. (It’s worth noting that in 2004, scholars adopted a policy “that required the permission of Iraqi authorities before publishing studies of objects that may have been looted, a step that Cornell has not taken”.)

The spiralling value of Mesopotamian antiquities in the international art market (in part courtesy of the monumental auctions of the Erlenmeyer Collection) was surely one key driver fuelling the dramatic surge in illegal excavations in Iraq during the 90s (perhaps astonishingly, there had been very little prior to 1991) but so too were the rise in hunger and unemployment resulting from UN-mandated economic sanctions, the “no-fly-zone” imposed by the US preventing aerial surveillance of archaeological sites and antiquities-rich regional museums and the general breakdown of law (including national patrimony laws vesting ownership of unexcavated artifacts in the Iraqi nation) and order from the First Gulf War onwards. Add to this the fact that the Cornell tablets were reportedly not listed (I have not yet been able to confirm this) in the British Library’s archive of cuneiform tablets in circulation and the mounting circumstantial evidence suggesting that the tablets were looted cannot be ignored. What’s more, because patrimony laws have been in force in Iraq since 1936, assuming the tablets were unlawfully excavated between 1990/91 and 1999, the true legal owner of the tablets was and is the sovereign nation of Iraq, regardless of one’s own views on the politicisation of ancient cultural property (as James Cuno might argue, the tablets are the “cultural property of all mankind”), the ability of Iraq to preserve and care for the tablets and, in the case of Cornell, the value of the tablets to its faculty and their academic studies.

The Department of Homeland Security is said to have opened an investigation into the Garsana tablets’ provenance; the difficulty is that to secure a conviction under the National Stolen Property Act (the “NSPA”) (presumably the statute investigators had in mind as it’s the principal federal criminal statute applied to thefts of cultural property though export restrictions and other public laws would also be pertinent), the prosecution would have to prove beyond a reasonable doubt that the tablets were “stolen”. This requires proof of where and when they were excavated contrary to Iraqi patrimony laws then in force or otherwise unlawfully taken from an Iraqi museum, monument etc. Circumstantial evidence alone, no matter how abundant, is not sufficient to meet the evidentiary standard required and the federal investigation was allegedly dropped precisely because “investigators could not determine when or where the objects were found”. This result is somewhat unavoidable for it would be contrary to fundamental principles of criminal law to convict a defendant for theft without establishing, inter alia, where and when the object was taken – it is part of the actus reus.

Another major obstacle is the proof of the claimant’s ownership (in the UK, the right to possession would suffice) of the object and for a long time, federal courts were divided as to whether patrimony laws (like those in force in Iraq, as distinct from export controls under public law) vested ownership in a foreign nation such that antiquities looted in violation of such laws then in effect would constitute “stolen” goods for purposes of the Act. However, in accordance with the statute’s plain language and facilitated by the absence of a common law definition of “stolen”, the most influential Circuits (including the Second Circuit which has jurisdiction over New York) eventually accepted this principle, known as the “McCain/Schultz doctrine”. The ownership question itself does not entirely go away though because in many civil law jurisdictions, a bona fide purchaser acting in good faith is able to acquire full legal title to stolen goods meaning that if Rosen had acquired the tablets in for example Italy and it could be proven that he had acted in good faith (the transfer and the question of good faith being determined under Italian not US law), the tablets would essentially be “cleansed” as it were of any dubious provenance. Furthermore, from Schultz onwards, the focus in NSPA proceedings gradually shifted to the critical and highly contested evidential issue of the relevance, meaning and scope of the relevant foreign patrimony law and the difficulty of assessing expert witness evidence (made all the more complex by the fact that the US is a common law jurisdiction and antiquities-rich nations are invariably civil law jurisdictions). As far as I’m aware, Iraqi patrimony laws have not yet been tested in US federal courts so depending in part on the actual wording of the legislation, expert witnesses may or may not succeed in proving to the court’s satisfaction that title is conferred on the sovereign nation of Iraq under these laws. The other equally critical focus of prosecutions is on the mens rea: the defendant must have known at the time when the actus reus was committed that the antiquities in question were stolen, an incredible evidential challenge for prosecutors confronted with an antiquities market flooded with undocumented ancient artifacts whose origins can rarely be established with any certainty (this too being inherent in the fact that the objects are themselves thousands of years old). Almost mercifully, a court can however give an instruction to the jury (as it did in the Schultz proceedings) allowing it to infer knowledge from adequate proof of the defendant’s “conscious disregard” in order to ease the evidentiary burden borne by the prosecution.

Were it not for the evidential impediments, the NSPA could represent a powerful tool to deter illicit trade in antiquities: (i) it is of general application and does not distinguish between kinds of cultural property as other laws do (e.g. the Convention on Cultural Property Implementation Act 1983 (the “CPIA”) expressly defines “cultural property” and requires it to have been taken from a museum or religious or secular public monument, among other things), (ii) it is as much a crime under the statute to receive and/or possess stolen goods as it is to transport or sell them meaning that Cornell, as donee and bailee of the tablets, could be criminally liable alongside Rosen, (iii) the potential criminal penalties are severe (up to ten years imprisonment or possibly longer following the enactment of the 2002 Sentencing Guidelines) and (iv) the jurisdictional element is easily satisfied by virtue of the US being an importing nation with almost all antiquities originating from Europe or the Middle East. Regrettably, only the threat of civil sanctions has any deterrent effect on illegal antiquities trade: the improbability of securing a criminal conviction means that in practice, the US government is more likely to seek a court order for seizure or civil forfeiture under the CPIA (which if successful, invariably results in the expatriation of the antiquity) and individuals a private action for replevin.

Cornell Assyriologist David Owen is quoted as saying that it doesn’t matter how these tablets were excavated: to refuse to study them on grounds of their unknown/tainted provenance would be to “forsake invaluable information”. But there are several problems with this view. Firstly, controlled, lawful excavations would mean that contextualised information would not be lost and this in turn would unlock the maximum informational value inherent in objects – the Garsana tablets for example may never tell us as much as they could about the role of women because it’s likely that no one will ever know where they were excavated. Secondly, one cannot isolate the conduct of one institution from the international problem of looting: there is a direct causal link between art market prices and looting and it is a well known fact among art professionals that the market interprets authoritative academic studies as legitimising objects, molding tastes and stimulating prices. This is true of art generally, not just antiquities, and it’s often the primary motivation for collectors lending works to major art museums and institutions. Thirdly, there is still a risk of stolen antiquities going underground to the loss of everyone even if this risk seems small compared with the contemporary art market in which it would be virtually impossible to sell a major work that had been stolen. Finally, it matters where they came from because it may mean that they belong to someone else. Regardless of one’s views on nationalistic patrimony laws (admittedly, disingenuous motivations can and do at times underlie these laws), courts around the world have recognised that they validly vest ownership and it is incumbent on market participants including recipients of donations or loans of antiquities, to adhere to the highest ethical as well as legal standards by conducting due diligence through the relevant channels at home and abroad in an attempt to confirm an object’s provenance.

A press conference announcing the return is expected once a formal agreement has been signed. The deal will likely include a collaboration agreement between Iraq and Cornell University.

Cristina del Rivero is an attorney in the State of NY and a solicitor in England and Wales. She is currently based in London where she practises corporate finance law and is due to complete the IAL Diploma in Art Law in 2014. Previously, she graduated from Columbia Law School’s LLM programme electing to focus on art law and created the blog “Art Meets Law”.