Tag Archives: Koh Ker

The Battle for Koh Ker: Legal Implications of Cambodia’s Dispute with Sotheby’s

The legal dispute over an ancient Khmer statue at Sotheby’s could have lasting implications for the sale of ancient art in the United States.

For those catching up on the case: Sotheby’s New York was poised to put the 10th century temple warrior up for auction in 2010 with an estimated value of $3 million. But shortly before the bidding started, Cambodia claimed the statue had been looted from the ruins of a Khmer temple at Koh Ker, where the statue’s feet were found in 2007. In April, federal agents sought to seize the statue on behalf of Cambodia. A judge ordered the statue to remain at Sothebys while the two parties argue the case in court. Sotheby’s filed a motion to dismiss in June and now the government has responded, attaching declarations from two legal experts to support its case. (See below for the complete filings.)

At the heart of the case are familiar questions: What level of evidence is needed to establish when and how an object was illicitly removed from its borders? What amount of due diligence must a museum, collector or auction house conduct to defend an acquisition? When can a looted object in the US be seized by the government and returned to its legal owner? And can those who possess and trade looted antiquities be found criminally liable?

The feet of two ancient sandstone statues were left behind by looters at a temple in Koh Ker, Cambodia. One statue is now at Sotheby’s, the other at the Norton Simon Museum in Pasadena.

These questions have only occasionally been brought before federal courts in the United States, so the case law in this area is relatively thin. A handful of key cases have established the current legal regime, which holds that an object looted from a country with an enforced patrimony law can be considered stolen property under US law. Someone who knowingly buys or possesses a looted antiquity can be criminally charged, and the object can be taken by the government and returned to its rightful owner.

This legal regime has not prevented museums from buying suspect objects, but it has been an invaluable deterrent to the open sale of loot and helped raise the bar on acquisition standards in recent years. Given its shaky foundation, however, any new case law on these issues could alter the status quo significantly.  A victory for the government in the Cambodia case might lead to a further tightening of the rules around acquisitions and bring about more cautious collecting practices for collectors and museums. A victory for Sotheby’s, on the other hand, could encourage more brazen acquisitions of looted art.

The point is illustrated in the case filings themselves. Until recently, the leading case on the civil forfeiture of ancient art was Steinhardt, which established among other things that false declarations on import documents could allow the government to seize an object under civil law. But the recent dispute over a mummy mask at the St. Louis Museum of Art appears to have undermined the authority of that ruling, which is cited neither by the government nor Sotheby’s in the Cambodia case. Instead, both sides refer to the St. Louis case, US vs. Mask of Ka Nefer Nefer, in which the judge has found twice that the government presented insufficient evidence that the mask was stolen.

Here’s how Sotheby’s quotes the judge in that case: “[t]he Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally.”

The Cambodia case, however it is decided, will be cited in similar cases going forward. With that much at stake, the court filings are worth reading — even for those of us who are not lawyers. In the past, we’ve posted the government’s original complaint here, and the flurry of filings over the statue’s seizure here.

In June, Sotheby’s filed its first significant response to the case in a motion to dismiss:

Last week the federal attorneys in Manhattan replied with their opposition to Sotheby’s move to dismiss the case:

To support their arguments, the government filed two declarations:

Caveat and Hat-tip: We’re not lawyers and don’t even play one on TV. For insightful observations about these issues from a legal expert in this area, read Rick St. Hilaire’s indispensable blog: http://culturalheritagelawyer.blogspot.com/

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A Blast from the Past: “Norton Simon Bought Smuggled Idol”

 Imagine you’re a thief about to pull a heist at the local temple.

You can’t wait to get your hands on all those statues, altarpieces, gold. In the middle of the night, you sneak up to the entrance and…

(in a different voice, the Temple Guardian speaks.) ‘YE-AHH! BEGONE THIEF! HA HA. THE TEMPLE IS SAFE ONCE MORE.’

So begins the children’s audio guide for the Norton Simon Museum’s statue of a 10th century sandstone temple warrior from Koh Ker, the one-time capital of the Angkor Kingdom in Cambodia.

Originally, the statue was a temple guardian, “placed outside a house of worship to protect it from evil spirits,” the guide explains. “This is only part of the sculpture…When it was new, it had hands and feet of course.”

The evil spirits apparently won, because the guardian is now in Pasadena, and the Cambodian temple it once guarded has been thoroughly looted. But those missing feet were found in 2007, along with a second pair that experts say belong to a matching statue now at Sotheby’s. Last week, the federal government filed a lawsuit seeking to seize the statue from the auction house on behalf of the Cambodian government.

There is little question that both statues were stolen — their abandoned feet bear witness to the crime. The only question is when: sometime over the past 1,000 years, as Sotheby’s suggests. Or — as Cambodia, the US government and archaeologists suggest — more recently, in the turbulent 1960s or 1970’s when civil unrest in Cambodia fueled unprecedented looting. If the later, both statues could be considered stolen property under U.S. law.

The feet of two ancient sandstone statues were left behind by looters at a temple in Koh Ker, Cambodia. One statue is now at Sotheby's, the other at the Norton Simon Museum in Pasadena.

Norton Simon himself was not coy about the illicit origins of his impressive collection of Asian art, which today is a highlight of his Pasadena museum. In a 1973 article headlined, “Norton Simon Bought Smuggled Idol,” the New York Times asked Simon about a bronze Hindu deity of Siva he had just purchased for $1 million. India claimed it had been ripped from a temple and smuggled out of the country. His answer:

“Hell, yes, it was smuggled,” said Mr. Simon in a telephone interview. “I spent between $15- and $16-million over the last two years on Asian Art and most of it was smuggled. I don’t know whether it was stolen.”

The same would appear to apply to the Khmer temple guardian that he bought three years later from a New York dealer William H. Wolff.

A Norton Simon spokeswoman said in a statement that “since [1976], the museum has proudly displayed this important example of Cambodian art, and has had the privilege of showing it to the Director of the National Museum of Cambodia (who we understand is now the Director General of Heritage, Ministry of Culture and Fine Arts).  In more than three decades of ownership, the Foundation’s ownership of the sculpture has never been questioned.”

Until now, that is. Cambodian officials told Voice of America this week that they will seek the return of the Norton Simon statue and countless other missing pieces if their claim for the statue at Sotheby’s is successful. See:

Much of the evidence cited against the statue at Sotheby’s would seem to apply to its brother in the Norton Simon Museum. Indeed, Sotheby’s apparently linked the two objects to a common site in their own proposal to sell the statue:

An almost identical figure, now resting in the collections of the [deleted] Museum…allows one to conjure up a wonderful vision of the two statues together perhaps lining an entrance way leading to the dark temple interior and the sanctuaries of the gods.

Reunited: The abandoned feet at Koh Ker digitally superimposed on the Temple Warrior at the Norton Simon, from a report to UNESCO by researcher Simon Warrack.

A wonderful vision, indeed — and a surprisingly accurate description of their original context at Koh Ker before they were stolen.

Why hasn’t Cambodia previously claimed the statue? Internal Sotheby’s emails cited in the federal suit suggest an answer. A scholar initially warned Sotheby’s not to offer the statue for sale publicly because it was “definitely stolen” from Koh Ker. But she changed her stance after consulting with Cambodian officials:

…There are no plans at all for Cambodia or the National Museum of Cambodia in Phnom Penh to attempt to ask for anything at the [deleted] Museum or the [deleted] etc. They would also have to ask for Khmer material in the [deleted], and they want to continue to get French support.

It appears that Cambodia was reluctant to risk access to foreign aide over a fight for its stolen cultural heritage. But this calculus may be changing.

This raises an interesting question: Should the Norton Simon and other museums with such objects wait to see if they are sued in federal court? Or should they move to return stolen objects on their own initiative?

Norton Simon himself had an interesting take on that issue in that same New York Times article:

If it did some good, I would return it. If there were reason and probability that smuggling could be stopped, I would do it. It would do a lot to establish a constructive relationship between nations….Looting is a terribly destructive process. In cutting works out of temples, thieves mutilate them. Also, US Customs should not allow works into this country unless they have a total clearance from the countries of origin. If we could get such a clear cut certification to stop smuggling, I would send it back. If not, I’ll probably keep the piece.

Feds Sue for Return of “Looted” Khmer Statue; Insider Emails Reveal Sotheby’s Was Warned Statue Was “Definitely Stolen”

On Wednesday, the U.S. government filed suit seeking to return a 10th Century stone warrior to Cambodia, where it was allegedly looted.

The statue is currently at Sotheby’s in New York, which was set to auction the piece on behalf of a private collector in March 2011. On the day of the sale, Sotheby’s was notified by Cambodian officials that the object had been looted from Koh Ker, an archaeological site 80 miles east of Angkor Watt.

The parties have been negotiating a settlement to the dispute for the past year, as the New York Times reported in February. But those negotiations ended abruptly Wednesday when the US Attorney for the Southern District of New York filed suit. Authorities will seize the statue on Thursday, the Times reported Wednesday.

In making their case for the statue’s return, the US Attorney cites revealing emails from a scholar warning the auction house that the statue should not be sold at public auction:

“The Cambodians in Pnom Penh now have clear evidence that it was definitely stolen from Prasat Chen at Koh Ker, as the feet are still in situ…Please do not give this report to anyone outside of Sotheby, as I often have access to such material, and don’t want to anger my sources. The two Dvarapalas must have stood close together and their feet remain, so it’s pretty clear where they came from.

I think it would be hugely unwise to offer the Dvarapala publicly, and I would not really feel comfortable writing it up under the circumstances. It is also possible that the Cambodians might block the sale and ask for the piece back….I’m sorry as I had some exciting things to say about it, but I don’t think Sotheby wants this kind of potential problem.”

The scholar later consulted with “culture spies and museum director” in Cambodia and told Sotheby’s it was not likely that government would pursue a claim. Sotheby’s proceeded with the sale, with officials saying in internal emails that while it might receive bad press from “academics and ‘temple huggers,'” the potential profits from the sale made it “worth the risk.”

The New York  Times identified the scholar as Emma C. Bunker, an authority on Khmer art. She has written defending the right of collectors to buy ancient art, describing them as “not despoilers of the past but people of great intellectual curiosity who cherished the past long before the world was populated by scientifically trained archaeologists.”

There are frequent references in the federal complaint to another statue looted from the same site at “the museum,” an apparent reference to the Norton Simon Museum in Pasadena, which has a very similar statue that once served as a wrestling figure in Koh Ker. We’ve asked the museum for comment.

The back-story here is interesting: The head of Global Compliance for Sotheby’s is Jane Levine, a former member of the US Attorney’s office now suing for the statue’s return. Levine specialized in making the type of art crime cases her employer is now facing, and has written several articles on international trafficking in stolen art and artifacts. We’ve reached out to her for a comment.

In a statement, Sotheby’s said: “Sotheby’s strongly disputes the allegations made in this complaint. This sculpture was legally imported into the United States and   all relevant facts were openly declared.   We have researched this sculpture extensively and have never seen nor been presented with any evidence that specifies when the sculpture left  Cambodia over the last one thousand years nor is there any such evidence  in this complaint. We have been in active discussions for a year with  both the US and Cambodian governments and  we had assured them that we would voluntarily maintain possession of this statue pending further discussion. Given that Cambodia has always  expressed its desire to resolve this situation amicably, and that  we had an understanding  with the US  Attorney’s  Office that no action would be filed pending  further discussion towards a resolution of this matter,  we are disappointed that this action has been filed and we intend to defend it vigorously.”

HOT DOC: Here is the government’s complaint, which begins citing the internal emails on page 11: