ISIL as Salesmen? The Roles of Due Diligence and the Good Faith Purchaser in Illicit Artifact Trafficking from the ISIL Insurgency

• Author: Victoria Maatta
• Position: J.D. candidate, Duquesne University School of Law, 2023. B.A. University of Pittsburgh, summa cum laude, 2017
• Pages: 181-209

ISIL as Salesmen? The Roles of Due Diligence and

the Good Faith Purchaser in Illicit Artifact

Trafficking from the ISIL Insurgency

Victoria Maatta*

INTRODUCTION

The looting and selling of antiquities, and art more broadly, have served as

funding for multiple syndicates around the world for the last century, including

the Nazis, the Khmer Rouge, and al Qaeda.

1

Deborah Lehr, Arts and Antiquities: Conduits for Money Laundering and Terrorist Financing,

ACAMS TODAY (Dec. 20, 2018), https://perma.cc/4T2E-WX5G.

Indeed, looting and pillaging have

been an aspect of warfare “for millennia.”

2

Black market trade of archaeological artifacts is an alarming issue because the

trade involves cultural items that are essentially irreplaceable.

3

Katherine Hodge, Modern Issues in Archaeology: The Illegal Artifact Trade, PROJECT

ARCHAEOLOGY (Mar. 19, 2021) https://perma.cc/2KU8-S9JC.

With artifacts in

particular, looting destroys more than just the interest in maintaining history, but

it strips the artifacts of context.

4

Contextual evidence is the primary key for learn-

ing about ancient history, because without context, archaeologists cannot make

educated hypotheses about significance and usage.

5

Art theft and antiquities looting is one of the most lucrative of the illegal

trades.

6

Antiquities looting is both profitable and easy, especially in countries

where much of the ancient world is not yet excavated.

7

What makes this trade

even more upsetting is when it funds terrorism. Some scholarship estimates that

ISIL may have grossed up to $100 million by looting and selling antiquities.

8

Daniel Kees, ISIS the Art Dealer, THE REGUL. REV. (Apr. 13, 2020), https://perma.cc/F7XQ-

KBS8.

The

theft of cultural heritage around the world is so prevalent that it “thrive[d]”

throughout the COVID-19 pandemic, with studies showing increases in “illicit

* J.D. candidate, Duquesne University School of Law, 2023. B.A. University of Pittsburgh, summa

cum laude, 2017. The author thanks Professor Richard Gaffney for his guidance and encouragement,

throughout the development of this paper and throughout law school in general. She also sincerely

appreciates the JNSLP staff for their recommendations and editing. Finally, she thanks her parents, Tim

and Christin, and her friends for all of their love and support. Any and all errors are Victoria’s alone.

© 2022, Victoria Maatta.

1.

2. Michelle I. Turner, The Innocent Buyer of Art Looted During World War II, 32 VAND. J.

TRANSNAT’L L. 1511, 1512 (1999).

3.

4. Megan B. Doyle, Ownership by Display: Adverse Possession to Determine Ownership of Cultural

Property, 41 GEO. WASH. INT’L L. REV. 269, 276 (2009).

5. Id.

6. Sarah S. Conley, International Art Theft, 13 WIS. INT’L L.J. 493 (1995).

7. John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in

Art, 13 N.Y.L. SCH. J. INT’L & COMP. L. 125, 129 (1992).

8.

181

excavations” in Africa, the Americas, Asia and the South Pacific since 2019.

9

Cultural Property Crime Thrives Throughout Pandemic Says New INTERPOL Survey,

INTERPOL (Oct. 18, 2021), https://perma.cc/3BTH-42NT.

Terrorist organizations that have originated in the Southwest Asian/North

African

10

This paper uses the term SWANA, a delcolonial term, in place of the term Middle East, which

has colonial origins. About, SWANA ALLIANCE, https://perma.cc/8UZH-ZEKC.

(“SWANA”) region have capitalized on the looting and selling of antiq-

uities as well. Al-Nusra Front in Syria and al Qaeda in Pakistan and Afghanistan

have also capitalized on this tactic in the past.

11

Samuel Hardy, Curbing the Spoils of War, UNESCO COURIER (Dec. 2017), https://perma.cc/

WTR8-Y8KA; see also Matthew Sargent, James V. Marrone, Alexandra Evans, Bilyana Lilly, Erik

Nemeth & Stephen Dalzell, Trafficking and Disrupting the Illicit Antiquities Trade with Open-Source

Data, RAND CORP. (2020), https://perma.cc/7QFT-5FE3.

Apart from the cultural heritage management aspect, this issue is essential on

levels of national security and international economics. Disparate legal treat-

ments of stolen art and artifacts thwart efforts to solve these problems where “[t]

he annual national and international trade in stolen and misappropriated goods is

in the billions of dollars.”

12

Indeed at one point in the 1990s, illicit art trade was

the second most profitable illegal trade.

13

Additionally, under Title 18 of the United States Code (“U.S.C.”) § 2339A,

those who purchase antiquities that were looted and sold by the Islamic State of

Iraq and the Levant (hereinafter “ISIL”), which ultimately supports the terrorist

organization, could be criminally prosecuted.

14

Existing scholarship on the crimi-

nal culpability explores and critiques the “restricted” nature of the National

Stolen Property Act when applied to cases of trafficked cultural property and ana-

lyzed with a source-nation’s found-in-the-ground laws as well as alternative

means for prosecution.

15

Other scholarship addresses that antiquities looting is

classified as a war crime.

16

Another related study on the topic also address the use

and effectiveness of global sanctions in addition to the role that both member

states and private sector shareholders play in curbing the illicit trade.

17

For exam-

ple, procedures that are centered on documentation, due diligence, the use of

9.

10.

11.

12. Alan Schwartz & Robert E. Scott, Rethinking the Laws of Good Faith Purchase, 111 COLUM. L.

REV. 1332, 1334 (2011).

13. Conley, supra note 6, at 493.

14. 18 U.S.C. § 2339A(a) provides that those who provide “material support,” which includes

“currency or monetary instruments” shall be fined and imprisoned “not more than 15 years, or both, and,

if the death of any person results, shall be imprisoned for any term of years or for life” and “may be

prosecuted in any Federal judicial district in which the underlying offense was committed [.. .].” 18 U.S.C.

§ 2339A(a) (2010).

15. Lindsey Lazopoulos Friedman, ISIS’s Get Rich Quick Scheme: Sell the World’s Cultural

Heritage on the Black Market–Purchasers of ISIS-Looted Syrian Artifacts Are Not Criminally Liable

under the NSPA and the McClain Doctrine in the Eleventh Circuit, 70 U. MIAMI L. REV. 1068, 1087

(2016).

16. Mark V. Vlasic & Helga Turku, Blood Antiquities: Protecting Cultural Heritage Beyond

Criminalization, 14 J. INT’L CRIM. JUST.1175, 1180 (2016).

17. Hans-Jakob Schindler & Frederique Gautier, Looting and Smuggling of Artifacts as a Strategy to

Finance Terrorism Global Sanctions as a Disruptive and Preventive Tool, 26 INT’L J. CULTURE & PROP.

331, 331 (2019).

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