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Stopping the Illicit Trade of Cultural Artifacts: Looking to the Diamond Trade for Guidance

The stolen antiquities trade is worth seven billion dollars. ((Bill Briggs, How Terrorists Tap a Black Market Fueled by Stolen Antiquities, NBC News (June 23, 2014, 4:58 AM), http://www.nbcnews.com/storyline/iraq-turmoil/how-terrorists-tap-black-market-fueled-stolen-antiquities-n137016.)) There is real concern in the antiquities industry that the Islamic State (“IS”), although publically destroying cultural artifacts in their possession, are also selling these goods to fund their initiatives. ((Id.)) In February 2015, videos of IS militants surfaced on the Internet showing IS supporters destroying cultural artifacts in the Mosul Museum, the second largest museum in Iraq. ((Suadad al-Salhy, The Full Story Behind ISIL’s Takeover of Mosul Museum, Aljazeera (Mar. 9, 2015, 11:54 AM), http://www.aljazeera.com/news/2015/03/full-story-isil-takeover-mosul-museum-150309053022129.html.)) The IS has also engaged in similar acts of destruction at other cultural sites under its control, such as the World Heritage site of Nineveh. ((Id.)) However, experts have analyzed the footage noting that key pieces were missing. ((See Lori Grisham, Closer Look at Artifacts ISIL is Destroying, USA Today (Mar. 6, 2015, 2:29 PM), http://www.usatoday.com/story/news/nation-now/2015/03/06/artifacts-islamic-state-destroy-mosul/24491971/.)) Thus, many in the antiquities field have indicated that IS is selling cultural artifacts on the black market. ((Id.))

Today, there is little concerted effort in the antiquities industry, between private auction houses, private and public museums, and collectors, to hold them accountable for purchasing illicit cultural artifacts. There are disparate measures throughout the industry, primarily composed of voluntary measures that lack a real enforcement mechanism. ((See Deploring ISIS, Destroyer of a Civilization’s Art, N.Y. Times: The Opinion Pages (Mar. 11, 2015), http://www.nytimes.com/2015/03/11/opinion/deploring-isis-destroyer-of-a-civilizations-art.html.)) Although auction houses such as Christie’s have made statements about their corporate social responsibility (CSR) guidelines against purchasing looted goods from Syria and Iraq, there is no binding force to these statements. ((Christie’s Corporate Social Responsibility, http://www.christies.com/about-us/corporate-social-responsibility/ (last visited Oct. 12, 2015).)) Thus, with the greater likelihood of funding terrorist organizations like IS, there needs to be greater regulation of this market.

The antiquities field should look to the diamond industry as an example to begin regulating the market for cultural artifacts, as there are many parallels between the two. The blood diamond trade funded serious armed conflicts in Africa, specifically the Republic of Angola, Sierra Leone, the Democratic Republic of the Congo, and the Republic of Ivory Coast. ((Shannon K. Murphy, Clouded Diamonds: Without Binding Arbitration and More Sophisticated Dispute Resolution Mechanisms, the Kimberley Process Will Ultimately Fail in Ending Conflicts Fueled by Blood Diamonds, 11 Pepp. Disp. Resol. L.J. 207, 207-08 (2011).)) Like the current cultural artifacts market, the diamond industry had no real enforcement mechanism to determine where and how the diamonds were mined. ((Julie L. Fishman, Is Diamond Smuggling Forever? The Kimberley Process Certification Scheme: The First Step Down the Long Road to Solving the Blood Diamond Trade Problem, 13 U. Miami Bus. L. Rev. 217, 219 (2005).)) But after increasing public outcry, the industry and effected countries voluntarily came together to enforce greater CSR through the Kimberley Process Certification Scheme (KPCS). ((Id.)) The KPCS alerts purchasers at all levels that the diamonds were harvested from legal, government-run mines. ((Id.)) In 2003, the United States passed the Clean Diamond Trade Act (“CDTA”) to institute KPCS. ((19 U.S.C § 3901-13 (2003).)) Although the United States has had difficulty enforcing the KPCS, (due to the voluntary nature of the world-wide system ((see United Nations under G.A. Res. 55/56 pmbl. (2000), available at http://www.state.gov/e/eeb/diamonds/c19974.htm))), it still has more bite than an individual company’s CSR by establishing an industry wide norm.

Moreover, in 2010, the SEC included disclosure requirements on conflict minerals from the Democratic Republic of the Congo. ((Disclosing the Use of Conflict Minerals, SEC (July 29, 2014), http://www.sec.gov/News/Article/Detail/Article/1365171562058.)) §1502 of the Dodd-Frank Act requires companies to make a Conflict Minerals Report publically available on their website and include it in their Form SD if the “company knows or has reason to believe that the minerals may have originated in the covered countries” ((Id. (emphasis added).)) This requires companies to conduct due diligence on the diamonds they receive. This disclosure step adds a layer of accountability, because purchasers in the United States must report this information to the SEC and public.

The combination of the KPCS and the SEC disclosure rule has helped keep diamond companies more accountable, beyond statements of CSR on company websites. The system in place for the diamond industry in the United States, although not perfect, provides a starting point for regulating and holding purchasers like Christie’s to their CSR guidelines. Although it may be difficult to rally the antiquities industry to adhere to such norms, it is necessary to prevent further funding of IS. In fact, implementing the system should provide less hurdles than the diamond industry, because identifying the source of cultural artifacts are much more apparent than determining the origin country of a diamond. For now, “[p]eople who buy antiquities –- whether they be museums or individuals –- should know that they run the risk of funding an illicit market that may also support terrorism.” ((Grisham, supra note 5.)) And rather than leaving this field largely unregulated, the industry and effected countries should come together to recreate a similar oversight mechanism like the diamond industry.