Friday 28 November 2014

IADAA Due Diligence Guidelines

The IADAA have revealed what they consider to be good "due diligence" ("Due Diligence Guidelines for IADAA Dealers"). Let us for the moment accept that due diligence in the antiquities trade, rather than being about broader responsibilities and ethics, is concerned just with the defining the legitimate trade through commerce only in items that are 'legal'. It is clear there are only  two types of legality in the trade in portable antiquities.
1) There are artefacts which have arrived on the market by legal means, their removal from the ground and possession was legal according to the antiquities and other laws of the land at the time of discovery, or they were obtained by official excavations and donated by partage, or whatever, and any cross border movement was according to the established procedure appropriate to the time, place and nature of the moved item (export licences). As something which has passed through the proper channels, such items should be verifiable as such through their paper-chain.

2) Some would consider that an additional form of legality is the 'they cannot touch you for it' kind, where there is no documentation of legality, but neither is there any way of anyone producing documentation which calls the legality into question. This is the more prevalent kind in most antiquity collecting circles. This is why there is so much angst about the inaccessibility of the Medici (etc.) archives.

Obviously, any dealer truly dedicated to trading in legal and licit artefacts must concentrate on finding items for his or her stockroom and gallery which fall into the first group only, and rejecting all the rest for the cowboys to deal with. The Guidelines for due diligence of a group of such ethical traders would therefore differ markedly from that which is merely a façade for a cowboys charter.

Just to be clear here, objects which have lost their paperwork cannot be verified as legal, they therefore fall into the second category. In a situation where some estimates put almost 80% of certain artefact types on the market today as fresh dugups (see here), there may well be very good reason why those details have become "lost" by previous owners, in order to delete the evidence so the object in the trade is reduced by anonymity and removal of context to a "they-can't-touch-you-for-it" class of antiquity for ready sale to no-questions-asked buyers.  

Here is the IADAA Guidelines which are intended to "prevent the illicit trade in stolen antiquities".  It says "dealers must endeavour to":

1. Require a vendor to provide their name and address and to sign and date a form identifying the item for sale and confirming that it is the unencumbered property of the vendor which they are authorised to sell.
2. Verify the identity and address of new vendors and record the details
3. Pay particular attention in the case of any item offered for sale where the asking price does not equate to its market value
4. If you are offered an item you know to be stolen (a) Attempt to retain the item while enquiries are made (b) Contact the appropriate authorities (c) Check with the relevant stolen property registers
5. Look critically at any instance when requested to pay in cash and avoid doing so unless there is a strong and reputable reason to the contrary. In the absence of such a reason pay by cheque or other method that provides an audit trail
6. Be aware of money laundering regulations
7. Ensure that staff are aware of their responsibilities in respect of the above code
Please note that members’ national laws must be considered with regard to the above.
An additional criterion is the only one which does not refer only the the direct purchase from the 'last known owner'. This one goes back a little further: 
It is a condition of membership that all members undertake to check items which are to be sold at a price of € 5,000 or over (or local currency equivalent) with the Art Loss Register or with a stolen art register which is recognised by the Board, unless the item has already been checked.
First of all, let us note that to stay within this code of conduct, the dealer buying something only has to "endeavour" (it is not defined what that means), rather than these guidelines saying that if the dealer cannot do these things, he should not touch the artefact at all. So at once there is total elasticity ("I tried, but he would not say") which basically renders this document virtually meaningless. As mentioned, all these things refer only to the last known owner - rather than checking a collection history elucidating the details of the legal passing of the object onto the market. The Art Loss Register may identify an object stolen from another collection, it will not document items stolen by digging into archaeological deposits and sites illegally and clandestinely. In any case, whether its 'worth" (on the market) € 5,000 or not is immaterial to whether it is of legal origins. Coins and brooches looted from archaeological sites are often worth less, but the damage done to the site by digging a hole for them does as much damage to the archaeology as one to remove a gold torc. The Code (point 9) says the "IADAA condemns illegal use of metal detectors" , but the Due Diligence Guidelines do not follow through by consistently covering the main types of artefacts coming from such activity.

It looks very much as if the prime purpose of these guidelines is to ensure that the dealer is 'covered' if (despite "endeavouring") a dodgy artefact passes through their hands (principles 1-3, 5-7) rather than filtering artefacts in their storeroom to those of truly licit origins. Principle 4 is nuts. First of all if the dealer "knows" an object is stolen, the last thing he or she wants to do is retain it. If they "know" something is stolen and it does not appear on the "relevant stolen property registers", then what? This is nothing to do with due diligence of antiquities, but good business practice, applying to cell phones, electronic equipment and anything else that can be stolen and flogged.

But the best is right at the end: "members’ national laws must be considered with regard to the above".  Well, again that applies to all businesses. But (as dealers repeatedly stress) an item looted in Africa can often be openly and legally sold in New York, because "no US law was broken" by the US dealer, even though a number of laws were repeatedly broken when the object was illegally dug up, illegally sold on, among the cache of stolen objects which were the subject of a gang fight in which machetes and petrol canisters were in full play, illegally smuggled out of the source country to another and thence to Dubai, from where it was exported to the US (with a customs declaration and everything). After such laundering, this may well be a 'they can't-touch-you-for-it-legal' object for an American dealer and collector. But it is not an object of legal origins and does not have a clean collecting history. Objects whose clean collecting history cannot be established cannot automatically be assumed to be kosher, and nobody has any business to insist that we accept that this should be the case. To be of any use in defining the legitimate trade from that in illicit and otherwise dodgy artefacts, the Due Diligence Guidelines for IADAA Dealers obviously should read "Please note that all appropriate laws must be respected at all times by all involved in the chain of ownership of an artefact".Otherwise it is just another cowboy's charter.

But above all, note the one major omission here. the total lack of any mention of any documentation, no mention of copies of protocols of transfer of ownership (for example in partage) number in any dealer's register (for example in the case of items from Israel) or archaeological database (metal detected finds from the UK responsibly recorded in the PAS database). Several US museum cases we have discussed here are accompanied by [slim, it is true] files of documents, statements by former owners, letters from their heirs, etc. No mention is made either in these guidelines of copies or originals of export licences - obviously a crucial omission. If that is missing, it is therefore no surprise that there is no mention of the all too crucial phase of verifying these documents and analysing critically the suggested collecting history and identifying and discrepancies or suspicious gaps.

If the clay figurine above was looted from a site in northestern Syria six months ago by a particularly nasty gentleman in good relations with the local ISIL commander and after the latter had been paid off, was then sent along the usual smuggling routes, paying the required 'contributions to the fighting fund on the way) and then through several foreign  intermediaries and is taken to Grebkesh and Runn's Munich office by a smooth-talking gentleman vendor who gave a good sales spiel, would the IADAA Due Diligence process identitify it as dodgy? Let's look:
1-2.  Vendor gave his name and address it was verified.
3. The bloke wanted a lot more for it than the sale price eventually agreed, so no suspicions there.
4. Grebesh had no reason to think it was stolen, Vendor had a good story about "an old collection", hard times, and the need for "discretion".
5. Grebkesh paid by bank transfer as he usually does.
6. No laundering regulations apply,
7. Grebkesh dealt with the Vendor personally.
No Bavarian or German Federal law was broken.
The value is less that 5000 euros, so no need to consult the ALR (where as freshly looted find it would not figure anyway). Mr Grebkesh is not obliged to "endeavour to" check any documents or verify the reported old collection - so he does not.

So, obviously such a process is not at all able to identify that this is a Syrian Conflict Antiquity, freshly dug up on an archaeological site and smuggled out. And indeed, it probably can be claimed that as things stand now, no (German) law  was broken.

Does that however mean the IADAA are right in suggesting that there is "no problem" with stolen (and/or ISIL blood antiquities) in Germany if their own Due Diligence process would fail to identify such a piece even if it is right under the dealer's nose?

Vignette: [the figure shown is a pastiche, not an object from any dealer's stock in reality].

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