The night of counting the years

New York antiquities dealer Frederick Schultz, a former president of the National Association of Dealers in Ancient, Oriental and Primitive Art and consultant in antiques to former President Bill Clinton, goes on trial this week in the United States on a charge of knowingly conspiring to receive articles stolen from the Egyptian authorities. Nevine Al-Aref follows the trail of stolen antiquities and the application of the Egyptian Antiquities Law. Jenny Jobbins reports on the rejection of a pre-trial defence motion that the law is invalid in the US
An attempt by lawyers acting for New York antiques dealer Frederick Schultz to have a smuggling indictment declared invalid was based partly on a claim that the law on which the charge was based was full of contradictions and not correctly applied.
The US federal court had invoked the Egyptian Antiquities Law, No 117 of 1983, under which all antiquities found in Egypt are the property of the state.
At a special hearing held in a New York federal court on 20 November 2001, Schultz's lawyers criticised the Egyptian law, but were unable to produce evidence to suggest it was not being properly implemented.
After listening to the evidence of Gaballa Ali Gaballa, secretary-general of the Supreme Council of Antiquities (SCA), Hisham Saraya, the SCA's legal counsellor, and Major General Ali El- Sobki, head of the forensic investigation department in the Antiquities Police, the judge declared that the Egyptian Antiquities Law was clear and was being followed in Egypt.
The challenge by Schultz that Antiquities Law 117 was not taken seriously came as a surprise to Egypt, which prides itself on its record for retrieving smuggled antiquities. Numerous objects have been recovered in the last two years alone. among them a limestone effigy of Queen Nefertari; a 19th-dynasty relief of an unidentified goddess breast-feeding the Pharaoh Seti I; a collection of papyri; the head of the Greek god Serapis; a well-preserved golden mummy mask; a magnificent bronze statue of Horus and a collection of scarabs and ushwabti figurines.
In defence of its efficient application of the law, the example of the Fifth International Congress of Egyptology in Cairo in April 2000 was presented at the 20 November court hearing. To coincide with the congress, a special exhibition was staged in Cairo's Egyptian Museum to display no fewer than 155 retrieved objects. They ranged from large statues to tiny scarabs; the historical range was from the Old Kingdom to the Graeco-Roman, Coptic and Islamic periods. At the hearing, the SCA revealed that some of these objects were found in the possession of thieves in their homes; others had been recovered at the airport prior to shipment; and some had already been smuggled out of the country and were retrieved from abroad. The jury was shown copies of a number of lawsuits filed against thieves and illegal traders, all of whom were condemned to between five and 15 years imprisonment
Schultz's indictment is the latest chapter in a saga which has dragged on for many years, and which has seen one of the biggest investigations of its kind into antiquities-smuggling by Scotland Yard in collaboration with the Egyptian Tourist and Antiquities Police.
The case dates back to the early 1990s, when antiquities restorer Jonathan Tokeley-Parry began stealing genuine Pharaonic objects and smuggling them out of Egypt with view to selling them.
He managed to steal 35 items from the tomb of Heteb-Ka in Saqqara, 10 kilometres south of Giza. These he smuggled through customs by ingeniously hiding each masterpiece under a layer of plaster, which he subsequently painted in a crude fashion to suggest they were fakes or replicas produced by the Egyptian Documentation Centre. Only in 1994, while he was trying to sell 24 papyrus texts illegally, was he challenged by an antiquities trader who asked him for a provenance to show they were genuine. The scam was revealed when Tokeley-Parry's assistant took the papyri to the British Museum, where the curator immediately recognised them as part of a collection discovered in 1966 by a British mission excavating in the animal necropolis of North Saqqara.
The museum immediately contacted Scotland Yard, the Egyptian Embassy in London, the SCA and the Egyptian tourist and antiquities police. Investigations were carried out and the trail led to Tokeley-Parry, who was arrested in Britain in 1997 and imprisoned for masterminding the operation. In Egypt, he was sentenced in absentia to 15 years of hard labour. All the stolen items have now been retrieved and are on display in the Egyptian Museum in Cairo, apart from a head of Amenhotep III. This was purchased by an American citizen who used it as collateral on a loan from Citibank.
Gaballa expressed satisfaction at the ruling handed down by the United States federal district court that Egyptian Antiquities Law 117 of 1983 would be accepted in a US court. "This is the first time that a foreign law has been recognised in America, and now we can file suits against international thieves and smugglers who have become wealthy at our expense; we can ensure that our treasures are returned to their homeland. The court decision is a vitally important step towards safeguarding and protecting our heritage."
Minister of Culture Farouk Hosni says it will pave the way for the investigation into other cases of smuggling in which Schultz may have been involved, and will enable Egypt to continue its efforts to retrieve works of art. Gaballa alleges that Schultz currently has a consignment of huge crates in the security system at Zurich airport. "Who knows whether they contain objects smuggled out of Egypt?" he says. "If that proves to be the case, we can now retrieve them."
This may not be as easy as it sounds. Saraya believes that a major problem still facing the government in regard to the return of smuggled antiquities is the inability to determine exactly when each theft took place. Unfortunately, despite the strict measures taken to enforce the law and keep newly-excavated objects in suitable storerooms, the smuggling of Pharaonic, Coptic and Islamic artefacts continues. "These include statues, wall reliefs, amulets and jewellery, ceramics and metalwork," Saraya says. "But from now on, following the success of Schultz's case, a smuggler will think twice before committing a crime."
Zahi Hawass, director-general of the Giza plateau and Bahariya oasis, is of the opinion that the regulations aimed at stopping the flow of Egyptian treasures abroad should be tightened if they are to have much impact. "The penalty for offenders must be more severe," he says, adding that vulnerable storeroom guards should be replaced by proper security systems.
This opinion is shared by Ahmed Saleh of the Mummification Museum in Luxor: "The negligence of the Egyptian authorities is also partly to blame. Some artefacts now on display in museums in Chicago and Berlin, for example, were sent out of Egypt to be studied but never returned. The collection from the tomb of Smenekh-Ka-Re, discovered in 1912, was sent to Berlin for restoration but was not retrieved. The same thing happened with regard to the plants found in Tutankhamun's tomb. They were lent to Kew Gardens in London in 1939 as material for study, but all efforts to have them returned have been useless."
Egyptologist Ahmed El-Sawi points out that under British domestic law one cannot be convicted of stealing an artefact from a foreign country if the crime was committed outside the United Kingdom. Up to now, the British government has not signed the UNESCO convention of 1970 on smuggled antiquities. A regulation of cooperation does, however, exist among the museums of the world which stipulates that any stolen object that a trader tries to sell to a museum, or who tries to have authenticated in a museum, should be reported and appropriate action taken.
The most recent case of a smuggled antiquity was the return last week of part of the sarcophagus of Akhenaten from Munich. A team of Egyptologists led by Gaballa travelled to Germany to take official possession of the lower, broken part of the sarcophagus, which was on exhibition in a special hall in a Munich museum. This priceless object, the lid of which remained in the Egyptian Museum, was found in 1907 by American archaeologist Theodore Davis inside tomb KV55 in the Valley of The Kings. As was usual at the time, the object was transferred to the Egyptian Museum for restoration and conservation. Along with the fragments of the sarcophagus were pieces of wood and slithers of gold. It was in this condition that the main part of the sarcophagus disappeared between 1915 and 1930. It reappeared, suddenly in 1980, in the possession of a Swiss antiquities collector who sent it to the Munich Museum for restoration. The chief curator of the Egyptian Museum of Art in Munich at the time, D. Wildung, informed the Egyptian authorities, offered the help to safeguard and restore the fragments but suggested as recompensation a loan of objects from the Cairo Museum. More than 10 years passed before the coffin fragments finally were donated by the private owner to the Munich Museum.
The golden fragments of the sarcophagus had been glued to a fiberglass base shaped like an anthropoid coffin while the wooden sheets had been restored and put on display next to it.
Egypt tried on many occasions to take possession of the lower part and match it up with the lid in Cairo, but the effort failed because the museum insisted on returning the piece only on condition that another object, an Old Kingdom offering table, be given in exchange. During the 1998-99 Congress of Egyptology in Cairo, the matter was raised by the SCA and German archaeologists, and an article in Der Spiegel questioned how such a reputable museum could have been involved in a theft. As a result, intensive negotiations took place at government level, and agreement was finally reached in 2001 that the sarcophagus should return to Egypt, but only following a three-month exhibition of the piece in Munich, together with the lid and other items imported from Egypt -- including a canopic jar from the same tomb, a stela from the tomb of Ay, a statue of Akhenaten, and another stela inscribed with a magical text. During the exhibition, 60,000 person visited the Museum in order to have their last glimpse to Akhnaten's sarcophagus.
The Akhenaten sarcophagus and lid are now on display in the Egyptian Museum as February masterpiece.
Law from an antique land
In a case which makes legal history, leading American antiques dealer Frederick Schultz is on trial under an Egyptian law in a United States court for conspiring to receive and handle Egyptian antiquities.
On 27 December, a New York federal district court rejected a pre-trial defence motion by lawyers acting for Schultz that a US indictment for dealing in stolen property could not be based on a foreign law. The US prosecutors had invoked Egyptian Law No. 117 of 1983 -- the Egyptian Antiquities Law -- which decrees that all antiquities found in Egypt belong to the state of Egypt. Schultz was indicted last July.
Earlier this month Judge Jed S Rakoff declared in his written opinion on the case: "Every Pharaoh, it seems, has a price on his head (at least if the head is cast in stone); and if the price is right, a head-hunter will be found to sever the head from its lawful owner. So, at least, is the theory of the instant indictment, which alleges, in effect, that the defendant and one or more co- conspirators arranged to steal highly valuable ancient Egyptian artefacts -- including a million- dollar head of Amenhotep III -- and 'fence' them in New York. This, says the indictment, makes the defendant guilty of conspiracy to violate section 2315 of Title 18, United States Code, which provides, in pertinent part, that 'whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise ... which have crossed a State or United States boundary after being stolen ... knowing the same to have been stolen ... [is guilty of a crime].'"
In the special hearing held on 20 November, Schultz's lawyers argued that "Law 117, despite its assertion of state ownership, is really more in the nature of a licensing and export regulation, the violation of which does not constitute theft of property in the sense covered by section 2315." They also argued that, "assuming Law 117 really does work," a US indictment for dealing in stolen property could not be based on a foreign law vesting ownership in the foreign state. They further argued that "even if such foreign interests might sometimes be entitled to such protection, here Congress, in enacting the Cultural Property Implementation Act of 1983" -- a civil customs law -- "chose to substitute a civil enforcement regime for criminal prosecution."
The judge found Schultz unable to produce evidence to suggest the law was not being correctly implemented in Egypt or that, as the defendant insinuated, the Egyptian authorities sometimes allowed members of the public to keep antiquities which they possessed and had reported. After having listened to evidence from the Egyptian side at the 20 November hearing, Judge Rakoff declared that: "Law 117, far from being a disguised licensing scheme or export regulation, is precisely what it purports to be: a transfer of ownership of Egyptian antiquities to the state, effective 1983."
He went on: "As for defendant's second argument to the effect that American law does not, or should not, recognise the kind of 'special' property interest created by 'patrimony' laws like Law 117 ... It should first be noted that section 2315, which expressly refers to foreign commerce, has consistently 'been applied to thefts in foreign countries and subsequent transportation into the United States,' (citing cases) ... an implicit recognition of the interest of the United States in deterring its residents from dealing in the spoils of foreign thefts. In effectuating this policy, why should it make any difference that a foreign nation, in order to safeguard its precious cultural heritage, has chosen to assume ownership of those objects in its domain that have historical or archaeological importance, rather than leaving them in private hands? If an American conspired to steal the Liberty Bell and sell it to a foreign collector of artefacts, there is no question he could be prosecuted under section 2315. Mutatis mutandis, the same is true when, as here alleged, a United States resident conspires to steal Egypt's antiquities.
"Finally, as for defendant's argument that the Cultural Property Implementation Act of 1983, a civil customs law, somehow supersedes section 2315 when applied to the same subject matter, suffice to say that there is nothing in the language or the history of the Cultural Property Implementation Act to support this unlikely result. On the contrary, the Senate, in reporting out the Cultural Property Implementation Act, expressly stated that the Act 'neither preempts state law in any way, nor modifies any Federal or State remedies....'"
"The Cultural Property Implementation Act, rather than banning the importation of all cultural property exported in violation of foreign law, takes a more nuanced and complicated approach to when and under what circumstances such property can be imported into the United States; but this is because the Act is chiefly concerned with balancing foreign and domestic import and export laws and policies, not with deterring theft. Section 2315, by contrast, only applies in cases of intentional theft and knowing disposal of stolen goods, a situation in which even the primary academic proponent of the Cultural Property Implementation Act has stated that criminal prosecution is appropriate."
The murky trail to Schultz led through the tangled web of conspiracy emanating from antiquities restorer Jonathan Tokeley-Parry, who was recently released from a British prison after serving part of a six-year term for selling stolen antiquities. Early in the 1990s, Tokeley-Parry began stealing objects from archaeological sites, disguising them as replicas, smuggling them through the Swiss duty-free system and selling them on the lucrative antiques market. At least one of the pieces doctored by Tokeley-Parry allegedly found its way to Schultz. This was the sculpture of Amenhotep III (1403-1354 BC), which Tokeley-Parry temporarily disguised by covering it with gold leaf and black paint. He assigned it a false provenance purporting that it had belonged to the Thomas Alcock Collection and had thus left Egypt before 1983. Schultz first tried to sell this piece to the Cleveland Museum of Art, but finally settled for $1.2 million from a private collector
In order to lend support to the struggle against the international illegal trafficking of antiquities, which they believe fosters the looting and destruction of sites and tombs, the Archaeological Institute of America, the Society for American Archaeology, the Society for Historical Archaeology, the American Anthropological Association and the US National Committee of the International Council on Monuments and Sites submitted a joint amicus brief to the federal district court. The brief said they "support [that] the legal principles underlying [the US v. Schultz] case are essential to the preservation of the past and effectuate the best interests of the United States public."
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