Author:Miles, Margaret M.
Position::The Art of International Law

The summer of 2016 saw significant new legislation passed or proposed that affects restitution and repatriation, and sets new limits on the antiquities market. On July 8, the Bundesrat in Germany ratified new, wide-ranging legislation on the sale of art that (among various provisions) limits the sale of antiquities by requiring export licenses from the country of origin, and a 20-year history of provenance. (1) In the U.S., on June 7, the Senate Judiciary Committee considered bi-partisan legislation that would set a federal statute of limitation on restitution claims over Nazi-looted works of art. (2) The impact of these new German and American laws, passed and proposed, is under debate, but both are remarkable for extending controls on ownership of art well beyond existing legislation in each country, resulting in a greater ethical awareness.

Here, I would like to recall how and where ideas about repatriation, restitution, and proper ownership of art got started, a subject I have explored in detail elsewhere. (3) The long experience of Classical antiquity in dealing with ownership of art, and ancient reaction and reflection about ownership, remain potent and applicable today, and deserve continuing discussion. What is striking about the history of these issues is how little the questions and arguments have changed: should all spoils of war go to the victor? Does art have a national or religious identity that should keep it in one place? Are there circumstances in which the victors in war would find their own advantage in allowing the defeated to keep their art? In more recent years we must also ask, does art have global (or "cosmopolitan") significance that should transcend local claims? Is there a right to destruction of privately or publicly owned artistic property? (4) How does the sale and purchase of art encourage looting of antiquities? Illicit acquisition of antiquities, by war or commerce, is an urgent, ongoing problem, on every continent, that contributes to forgery, fraud and most importantly, loss of historical context. (5) Archaeological sites are not renewable resources.

Ethical concerns about taking what belongs to someone else begins with what happened to humans in warfare: in the Mediterranean, Egypt, and ancient Near East, human captives were typically either killed, sold into slavery, or ransomed. Ancient accounts single out for special comment instances when a conqueror exhibited magnanimity--noble generosity and loftiness of spirit--when dealing with captive opponents. Cyrus the Great of Persia, active in the mid-sixth century BCE, is remembered in the Hebrew Bible for allowing the return of captive Jews, brought to Babylon by Nebuchadnezzar II, back to Jerusalem, and he even sent along 5,400 gold and silver vessels from the original Temple. (6)

Two centuries later, history remembers Alexander the Great for his humane treatment of the family of the defeated Darius III of Persia, particularly Darius's mother Sisygambis. (7) Darius had fled the battlefield at Issus, abandoning his family there, but Alexander addressed Sisygambis as "mother" and treated her well. (8) The personal magnanimity of a conqueror was best illustrated by his humane treatment of captives, not only because of the implicit renunciation of revenge, but also because the human captives were the most valuable part of the booty, both materially, if they were to be sold or ransomed, and psychologically, if defeated opponents were to be exhibited to the public. (9) Examples in antiquity of magnanimity toward a defeated enemy are rare. Augustus had hoped to show to the people of Rome the defeated Cleopatra in his Triumphal procession after the battle of Actium in 31 BCE, but she forestalled this by committing suicide, and he had to be content with exhibiting her waxen image instead. (10)

Taking defeated peoples' property, as well as the people themselves, was the norm in antiquity, and the norm until quite recently. In an essay on the education of Cyrus the Great, Xenophon has him exhort his men before battle with the following assertion:

[T]he law among all people is eternal, that when a city is captured by enemies, both the bodies of those in the city and their goods belong to those who capture it. Therefore it is not by injustice that you will acquire whatever you may get, but it will be out of humanity [philanthropeia] that you do not take something away, if you allow them to keep anything. (11) Ancient authors discuss the stupendous amount of gold, silver and artistic items Alexander's army eventually captured at Persepolis, stored there since the time of Cyrus, but then released into circulation. (12)

Alexander is said to have repatriated to Athens cherished, iconic statuary that Xerxes's army had plundered during the Persian invasions of Greece in 480/479 BCE.13 * The statues were a pair, probably marble, representing the Tyrannicides Harmodios and Aristogeiton, the men who killed the Peisistratid tyrant Hipparchos, thus making way for the establishment of Athenian democracy. (14) They were so significant to the Athenians that they had a substitute pair made soon after Xerxes plundered the first pair. (15)

From the beginning of ancient discussions about what we call cultural property, or "art" as a sort of shorthand, comes the ancient assumption that much, if not all of what was highly valued in antiquity, and typically looted in wars, was originally created, dedicated or used within a religious context. (16) This is generally true of cultural artistic production until the early modern period, although "art" even in a religious context could also convey political values, including symbolic value as a trophy. (17) The humane idea that something religious should be kept and used by those for whom it is a significantly religious item is ultimately based on ancient Greek understanding of what constitutes "art." (18) What is valued today in museums and on the antiquities market includes the much broader category of "artifacts," such as pottery, coins, weapons, or any relic of everyday ancient life, usually intended to be portable unless offered in a sanctuary or tomb.

After Alexander's death, his competing successors laid claim to what became an array of kingdoms, which were small relative to his enormous empire. Alexander and his Macedonian father before him had already pioneered the use of "art," including religious dedications, to proclaim achievements, and to demonstrate social superiority in palaces. (19) The Classical Greek social norm that surplus income (both personal and communal) should go to the gods in the form of public temples and dedications had shifted to a greater emphasis on private consumption and display. (20) The competing would-be princes and kings, now elevated from generalship into rulers, who saw the potential of art and architecture to communicate their ambitions, modeled this new social pattern. (21)

This is how "collecting" in the modern sense began in the Western world, with Hellenistic royalty competing with each other to buy up antiques and books, and to commission the best artists and architects for ever-more impressive new art. It was an age of tremendous production of art and architecture, fueled by the vast sums of gold and silver released into circulation through war, and new mining operations in Thrace. (22) Besides the shift to private uses of art, the Hellenistic monarchs also encouraged and sponsored scholarship and research, on everything including art, which now became a topic for historical discussion, and inspired literary production and notions of connoisseurship. (23)

Two turning points for the fate of "art" in war took place in 146 BCE: the Romans sacked and thoroughly destroyed Corinth and Carthage, both of them ancient and wealthy cities. (24) Lucius Muimnius, sacker of Corinth, kept nothing for himself, but re-dedicated statuary and other plunder in cities in Greece that had supported Roman policy, and in towns in Italy where he wanted to make a splash with friends and relatives: some 17 inscriptions have been found so far that commemorate his recycled dedications. (25) Even more interesting is how Scipio Aemilianus handled the politically fraught issue of war booty after the destruction of Carthage. He too kept nothing for himself, and forbade his household even to purchase any booty. He gave away Punic libraries to local chieftains, and purportedly released the captured young nephew of an opponent, and sent him home. (26) Among the mass of booty were many works of art that Carthaginians had plundered from cities and sanctuaries in Greek Sicily. (27) Scipio arranged for these to be returned to their original locations, and set up inscriptions commemorating their re-dedication, of which three are preserved. (28) This is the first historical...

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