Cultural Heritage Restitution: Ethical and Legal Issues Preliminary Report

Introduction

On November 20th, 2020 the Manuscript Migration Lab held its first public event, “Cultural Heritage: Ethical and Legal Issues,” featuring Patty Gerstenblith (DePaul College of Law), András Riedlmayer (Harvard University), and Heghnar Watenpaugh (UC Davis). This online workshop discussed the collection and dispossession of culturally significant objects. Although we did have a large audience, several people were unable to attend. We have created this preliminary report discussing the conversations and conclusions from the event for those who could not make it. 

Patty Gerstenblith

In preparation for Professor Gerstenblith’s conversation discussing the legality and ethics of the 1970 “UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” the Graduate Affiliates and the Undergraduate Coordinator of the Manuscript Migration Lab read two publications,“Provenances: Real, Fake, and Questionable” and “International and National Legal Regimes for the Protection of Archaeological Heritage,” by Professor Gerstenblith. The Graduate Affiliates also developed several questions and comments based on these readings in preparation for Professor Gerstenblith’s presentation. 

Gerstenblith in “Provenances: Real, Fake, and Questionable” describes the implication of UNESCO’s 1970 convention on cultural heritage as “a voluntary guideline or policy, that generally speaking, refers to archaeological artifacts (antiquities) that are not documented as being outside of their country of modern discovery (also referred to as the ‘country of origin’) before 1970 or are not documented as having been legally exported from their country of modern discovery after 1970” (286). According to Gerstenblith, this measure was simply a recommendation that UNESCO wanted states to ratify so that the economic incentive behind looting would be removed. The desired outcome was the creation of a narrower market for culturally displaced objects because states and institutions have agreed to not work with items that have an unverifiable provenance. 

Gerstenblith in “International and National Legal Regimes for the Protection of Archaeological Heritage” discusses the implications of military actions in archaeologically rich states. She writes, “…if attacking a cultural site or monument is necessary in order to achieve an imperative military goal, then the military necessity supersedes and the protections of this article are lost” (252). As a result of this concept, many objects are lost or destroyed that are considered culturally significant. 

After reading these two works and discussing them thoroughly, the Graduate Affiliates drew several conclusions:

• Strategies to destroy and protect cultural heritage are similar.
• The 1970 Standard established after the UNESCO convention was supposed to remove the incentive for looting, but it is only a standard. States must agree to this principle and incorporate it into their own laws. 
• Main intervention for removing the incentive for looting: raise the standard of evidence for those working with or researching culturally significant objects.
• Main Problem: Not all institutions, museums, or individuals have the ability to carry out the work to maintain the condition of the object and determine its provenance.
  • This creates an ethically gray area because these institutions, museums, and individuals must decide if their ability to uphold the condition of an object or determine its provenance is a better outcome than releasing that object to its country of origin. 

The Graduate Affiliates also developed several questions concerning the concept of “Good Faith”:

• What is a usable definition of good faith?
• How do you determine if someone has good faith?
• Under what circumstances would someone who does not know the provenance of an object have to return it?

Professor Gerstenblith’s presentation during the workshop focused not only on the legal, but also the ethical implications of the 1970 standard. In particular, she defined several legal terms which determine the limits and successes of the 1970 standard:

• UNESCO Convention 1970: This standard is only legally binding to the states that ratify it. In addition, this recommendation is only legal at the time of ratification. For example, if a state ratified this standard in 1980, then it is not retroactive for objects entering the antiquities marked from 1970-1979. Gerstenblith also emphasized that this standard sometimes requires domestic legislation in addition to the 1970 convention. Therefore, UNESCO’s recommendations on cultural heritage restitution must be viewed on a state by state basis.
• Theft: Legally, any object that is taken without the knowledge of the owner, this can include countries of origin, is considered stolen. These objects are then separated into two categories.
  • Documented: These are objects that are known and publicly a part of either a private or public collection. 
  • Undocumented: These objects are not known, unrecorded, and/or taken from the ground. 
    • This category presents the most problems legally. 
    • Ownership of these objects belongs to the country where they were discovered.
      • Therefore, you need the country’s permission to remove it. 
    • Good Faith: In common law states such as the United States and the United Kingdom, one cannot have good faith if the object is considered “stolen.” Even if an individual did not know that object was stolen, they cannot have a good title for that item. 

Professor Gerstenblith also discussed the three types of markets that an object may pass through in its journey from its country of origin to a “legal” status:

• Archaeologically Rich Markets:
  • Country of Origin
• Transit Markets: Intermediate Markets
  • Geographically Advantaged States: near to country of origin
  • Art Markets States: places where there are large markets for exchanging ancient objects 
• Destination Markets: 
  • This is the object’s final destination, where the object becomes a “legal” artifact
    • In actuality, these items typically just have a veneer of legality 
      • The United States is a great place for this transition because individuals or corporations can receive tax cuts for donating antiquities or displaying them to the public. 
        • Example: Hobby Lobby and the Museum of the Bible
  • To get from an arts market to a destination market, artifact laundering usually occurs 

According to Gerstenblith, there are three legal principles necessary to understand when analyzing the ethical boundaries of working with objects having an ambiguous or unclear provenance:

• Illegally Exported/Imported:
  • These categories can apply to an item even if the object is not stolen. For example, the United States requires supplemental documents based on the 1970 UNESCO convention when items are imported into the country. Without these, an object can be declared illegally imported and sent back to the country of origin. 
• Improperly Declared Upon Import:
  • If someone does not accurately describe what an object is, its value, and how it was ascertained then it is considered improperly declared and this violation can be used as the legal basis for recovery (e.g. Hobby Lobby’s Cuneiform Tablets of the Gilgamesh Epic)
• Forgeries:
  • These objects are increasing in frequency because ancient materials can be reused that pass scientific muster. Science can tell if something is fake, but not determine if something is real. Science’s inability to determine the authenticity of ancient objects complicates the issue of cultural heritage restitution even further. In addition, provenances are regularly forged. 

After explaining these legal terms, Professor Gerstenblith discussed the responsibility of individuals, institutions, and museums when researching or working with objects that have unknown or unconfirmed provenances. According to Gerstenblith, the law has its limits so ethics should fill the gaps that the law leaves. For example, the 1970 standard has no legal significance, especially for states that have not ratified it, but should be used as an ethical boundary when researching and handling culturally significant objects. The 1970 standard from the UNESCO convention asks institutions to remove the financial incentive for looting objects. Individuals should not work with people/objects that do not have proper documentation or participate, either directly or indirectly (proving authentication, presenting material, adding value, etc.), in the trade of objects that do not abide by UNESCO’s recommendations.

András Riedlmayer

In preparation for András Riedlmayer’s presentation on his work during the Balkan Wars, the Graduate Affiliates read “Crimes of War, Crimes of Peace: Destruction of Libraries during and after the Balkan Wars of the 1990s” as well as “Targeting History and Memory: The ICTY and the Investigation, Reconstruction, and Prosecution of the Crimes Against Cultural and Religious Heritage.” In doing so, the Graduate Affiliates developed several questions and comments regarding Riedlmayer’s work. 

In Riedlmayer’s “Crimes of War, Crimes of Peace: Destruction of Libraries during and after the Balkan Wars of the 1990s,” he discusses the work he completed in tracking and saving culturally significant objects during the Balkwan wars. In doing so, he argues that ethnic cleansing goes beyond the destruction of human life because it also ruins cultural heritage. Riedlmayer defines “ethnic cleansing” in regards to culture as “The systematic and deliberate targeting and destruction of cultural, religious, and historic landmarks, including libraries and manuscript collections, archives, and houses of worship” (108). Riedlmayer exhibits that research in the humanities inherently involves a care for human rights. 

Riedlmayer’s “Targeting History and Memory: The ICTY and the Investigation, Reconstruction, and Prosecution of the Crimes Against Cultural and Religious Heritage” again demonstrates that human rights and humanities research must intersect. He writes, “The search for justice for victims of the wars in the former Yugoslavia was to become an important testing ground for international humanitarian and human rights law, not only with regard to more commonly recognised violations, but also with respect to the protection and preservation of cultural and religious property” (2). In addition, Riedlmayer declares that “Cultural property has long been given legal protection in times of armed conflict, most notably with The Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (The Hague Convention), on the basis of its universal significance to mankind. However, the development of international human rights law after World War II brought an emphasis on addressing the need for justice for victims of human rights abuses, their right to redress and reparation, and to call to account those who committed, or were responsible for, such abuses” (2). After reading Riedlmayer’s articles, the Graduate affiliates developed several questions regarding culture:

• Is burning libraries about texts or symbolic meaning behind libraries?
  • The Graduate Affiliates hypothesized that the answer is both. Libraries represent the ideological project for what the historical essence of a nation is or should be. In addition, libraries allow individuals to gain knowledge, which is power. 
  • The Graduate Affiliates also discussed a practical example of a library being a space for defining a state’s culture and history.
    • Example: Serbian nationalists destroying works that contradict their own ideas. This inherently erases the culture and history of  “other” groups while preserving and amplifying the ideology of Serbian nationalists. It is especially important to emphasize that destruction of culture is driven by the context of textual items and the histories these items represent. 
• What is culture? Whose culture matters? Who consents to something as culture?
  • Ethnic pride creates the destruction of culture. Individuals viewing their culture as superior pushes those people to suppress “other” groups.
• What is ethical? What is moral?
  • These categories do not always align. What is ethical is not always moral and vice versa. The Graduate Affiliates presented a practical example of this concept by discussing whether researchers, archaeologists, institutions, or museums should accept objects that have been looted if they might be destroyed in their countries of origin. 
• One possible way forward presented in Riedlmayer’s work is the creation of digital surrogates. This solution would make objects publicly available to institutions and people all over the world while culturally significant items remained in their countries of origin. However, who has the ability to restore cultural heritage in communities where the culture has traditionally been while also creating digital copies? 
  • This solution presents accessibility issues because wealthy universities are most likely the ones capable of taking on this project. Does this change the story and how?
  • How do we develop legal and ethical standards for countries doing this?

During Riedlmayer’s presentation, he discussed his work during the Balkan Wars as well as how his testimony convicted several individuals accused of destroying cultural heritage. He claimed that the destruction of libraries is an act of ethnic cleansing because it erases specific people groups’ histories and cultures. Riedlmayer specifically discussed how the Serbian police burning the Historical Archive of the Islamic Community of Kosovo was a clear act of ethnic and cultural cleansing. It erased these individuals’ lives, histories, and cultures. 

Riedlmayer also demonstrated that Serbian forces bombing and burning the Oriental Institute in Sarajevo in May 1992 was the greatest loss of manuscripts during this time period. Most of these manuscripts were unique or the only existing copies. A similar occurrence happened in August 1992 with the burning of the National Library of Bosnia-Herzegovina. In this incident, the card catalogue was destroyed. We are still trying to sift through this material today. Despite these horrific losses, the Gazi Husrev Beg Library, founded in 1537, did survive because librarians were carrying out the collection by hand. They had to continually move their books in order to preserve them. In addition, they gathered photocopies of manuscripts that have been destroyed so they are now available for everyone to see. The techniques utilized in Sarajevo were also used in Timbuktu in 2012. Riedlmayer’s work presents possible solutions, through creating digital surrogates, that might protect the contents of these objects. 

Heghnar Watenpaugh

Prior to Professor Watenpaugh’s presentation on the Zeytun Gospels, the Graduate Affiliates read and discussed her book, The Missing Pages: The Modern Life of a Medieval Manuscript From Genocide to Justice. In doing so, the Graduate Affiliates discovered several similarities between Watenpaugh and Riedlmayer’s findings. 

Professor Watenpaugh’s book demonstrates the prevalent correlations, already introduced to the lab by Riedlmayer, between human rights violations and cultural destruction. In fact, Watenpaugh writes, “The struggle for restitution, repatriation, and the reunification of art or sacred objects with their communities, and the fraught questions this raises, is one of the central issues of the twenty-first-century art history. These contests throw into sharp relief the relationships of power that structure the circulation of art objects and underlie every transaction that provenance chronicles” (26). 

She continues her argument that human and cultural rights are inextricably linked by stating “Indeed, genocide does not only consist in active killing but also extends to persecution, oppression, and dispossession, both open and clandestine, to the prevention of a group from the free practice of their language and religion, and to the creation of conditions that make it impossible for a community to continue to exist physically, religiously, and culturally. From this perspective, the Armenian Genocide is not only unacknowledged and denied; it persists into the present…The destruction of architecture, art, and cultural heritage is part of the damage war and atrocity conflict. History is replete with examples of opponents who intentionally destroy each other’s god’s images, temples, monuments, and palaces” (29-32). Here, Watenpaugh makes clear that the Armenian genocide continues today because Armenian culture is still being repressed. The Graduate Affiliates developed several questions based on Watenpaugh’s findings: 

• What is nationhood? Does culture stay with nation or people?
  • Watenpaugh discusses throughout her book how Armenian culture has continually been oppressed because it is considered “other.” This is most aptly represented, according to Watenpaugh, through the J. Paul Getty Museum’s acquisition of the Armenian Apostolic Church’s Zeytun Gospels. Through Watenpaugh’s work, she discusses how material objects such as the Zeytun Gospels serve the communities they inhabit. The Graduate Affiliates went into Professor Watenpaugh’s presentation wondering whether culture stays with a people if their nation or physical location disappears or if it migrates with the individuals that culture represents. 
• How do we, as researchers or institutions, deal with human rights violations and the ruination of cultural objects being intertwined? In addition, how are we culpable in continuing cultural genocide?
  • These cultural objects represent human trauma. These items serve the community in particular ways so when those items are removed or destroyed they exhibit the ways genocide perpetuates even after ethnic cleansing has ceased. 
• How should we ethically engage with how culturally significant objects represent human trauma? How are we as researchers going into this discussion with our own ideas about history-making?
  • The Graduate Affiliates wondered, after reading and discussing Watenpaugh’s piece, how individuals, institutions, and museums should ethically engage in the present day with human rights violations of the past in ways that do not further the trauma experienced by “other” groups. 

During Professor Watenpaugh’s presentation she focused her discussion on the materiality of objects. She specifically argued that culturally significant objects have a material make up which gives them a life. Therefore, objects which are still extant after the Armenian genocide and other human rights atrocities can be dubbed “survivor objects.” Watenpaugh claimed that since manuscripts are composite objects containing paper, text, writings, calligraphy, and illuminations, they can have their own history. In fact, she discussed that viewing manuscripts as fine art which should belong in museums is a recent phenomenon and a product of modernity. 

Keeping this concept in mind, Watenpaugh shifted her discussion instead focusing on how the materiality of these objects affected the communities they serve. Watenpaugh’s book is specifically about a manuscript containing the Gospels. She argued that this manuscript is a living being because it contains the word of God and did things in the world. This piece performed miracles for individuals and was not a stable object. The Zeytun Gospels, instead, exemplified the ways in which religion is an embodied and lived experience. These were well-known and used regularly in liturgy. They responded to the needs of the community until the Gospels were moved. They no longer inhabited an Armenian community so their function shifted to meet the needs of the new community, the J. Paul Getty Museum.

After an extensive legal battle, the J. Paul Getty Museum agreed to revise the provenance of the Zeytun Gospels in order to recognize the Armenian Apostolic Church’s previous possession of the manuscripts. The previous provenance stated “Catholicos Constantine I (1221–67); bound into a Gospel book in Kahramanmaras, Turkey; Nazareth Atamian; private collection, U.S” while the new provenance included the Armenian Apostolic Church in the Zeytun Gospels’ life as a survivor object, “1256, Catholicos Konstandin I, died 1267; by 1923–1994, in the possession of the Atamian Family; 1994, acquired by The J. Paul Getty Museum; 2016, gift of the Catholicosate of the Great House of Cilicia, by agreement” (Watenpaugh, Missing Pages, 23). According to Watenpaugh, this change is significant because provenance in its textual form purports facts. Including the Armenian Apostolic Church showed that the J. Paul Getty Museum shifted the object’s history. This example, one of many, exhibits how certain parties are always at a disadvantage in provenance, wealth plays a large role in determining an object’s history, and the author of provenances speaks for objects, their interests, and the interests of where these items once resided. Professor Watenpaugh’s presentation demonstrated the ways in which institutions, individuals, and museums are culpable in cultural genocide even after ethnic cleansing has ceased.

Conclusion

After attending this workshop and engaging with these three wonderful presentations, it became clear that several different and individually unique methodologies are required in order to ethically approach cultural heritage restitution. Patty Gerstenblith demonstrated that the law can protect culturally significant objects by imploring scholars, institutions, and museums to remove the financial incentive from looting by refusing to engage with objects that have ambiguous provenances. However, Gerstenblith also exhibited that the law is applied differently in every situation so it does leave gaps. Ethics, according to Gerstenblith, fills in where the law is lacking. Both Andras Riedlmayer and Heghnar Watenpaugh’s presentations focused on determining whose culture matters first. According to Riedlmayer, the physical destruction of culturally significant objects determines whose culture matters. In addition, the atrocities which occur during ethnic cleansing forces individuals and “other” groups to consent to the idea that some people’s culture matters more. Finally, Heghnar Watenpaugh demonstrated that the destruction, removal, and migration of objects allows cultural genocide to persist after the killing has stopped. Therefore, people researching and working with these items can be as equally culpable in this process as those who initially removed or destroyed these objects.

The Manuscript Migration Lab is so pleased with the outcome of this event. We would like to thank all of our speakers for providing their time and expertise. Discovering ethical approaches to cultural heritage restitution is only made possible because of individuals like Patty Gerstenblith, András Riedlmayer, and Heghnar Watenpaugh. We would also like to thank the Franklin Humanities Institute’s support, particularly our lab coordinator, Jennifer Zhou, in putting on this event. We want to acknowledge Nicholas Wagner, the Graduate Coordinator, and Morgan Hundley, the Undergraduate Coordinator, for their work on this project. Finally, we want to extend a special thank you towards the lab’s co-directors, Andrew Armacost, Jennifer Knust, and William Johnson. Over the next few weeks we should have more information available concerning this event so stay tuned for more!

Bibliography

Foster, Benjamin R., Karen Polinger Foster, Patty Gerstenblith, and Patty Gerstenblith. “International and National Legal Regimes for the Protection of Archaeological Heritage.” Essay. In Iraq beyond the Headlines: History, Archaeology, and War, 245–73. Hackensack, NJ: World Scientific, 2005. 

Gerstenblith, Patty. “Provenances: Real, Fake, and Questionable.” International Journal of Cultural Property 26, no. 3 (2019): 285–304. https://doi.org/10.1017/s0940739119000171. 

Riedlmayer, András. “Crimes of War, Crimes of Peace: Destruction of Libraries during and after the Balkan Wars of the 1990s.” LIBRARY TRENDS, Summer, 56, no. 1 (2007): 107–32. 

“TARGETING HISTORY AND MEMORY – The ICTY and the Investigation, Reconstruction and Prosecution of the Crimes Against Cultural and Religious Heritage.” Accessed November 28, 2020. http://heritage.sensecentar.org/.

Watenpaugh, Heghnar Zeitlian. The Missing Pages: The Modern Life of a Medieval Manuscript, from Genocide to Justice. Stanford, CA: Stanford University Press, 2019.