How art and law can work together beyond the marketplace

Art & Artifice is pleased to bring readers a guest post from Sonia K. Katyal and Joan Kee, who recently co-wrote the article "How Art and Law can work together beyond the marketplace" on the role of art law in engaging with the work of minorities. 

Sonia is chancellor's professor of law at Berkeley: her scholarly work focuses on intellectual property, art law, civil rights, property theory and technology. Joan is an associate professor at University of Michigan, whose academic research deals with how modern and contemporary artworks figure as provocations to structures and frames of reference, including the law, underpinning their creation and circulation.

This is what they wrote:

Felix Gonzalez-Torres, "Untitled (billboard of an empty bed)"via Jason Eppink on Flickr

Bertolt Brecht famously wrote that "Art is not a mirror held up to reality but a hammer with which to shape it". The beauty of art is that it can be many things at one time - a way for us to peer into society's faults and fissures; a device for visual revolution; or simply a fungible commodity, ripe for investment and trade on the open market. And then there are the institutional economies that emerge from each of these trajectories - auction houses, galleries, museums and the people they employ, including administrative staff, curators, publicists, and critics.

Less visible, but fundamental to all of those institutional economies are the lawyers. For centuries, law has often been inseparable from art, playing an important role in enabling (and disabling) the existence of the latter. Since the dramatic expansion of the commercial art market in the 1960s, and later in the '80s, the need to understand how law works in the art world has been especially urgent. The buying and selling of new kinds of work as well the age-old anxiety among owners regarding questions of authenticity and originality compelled buyers, sellers, and artists to entrust attorneys with the safeguarding of their property interests. Perhaps as a result, the mid-1970s saw the emergence of a new sub field of legal studies colloquially known as "art law" that sought to address these questions as well as other conundrums specific to visual art, including the appropriation of images in the name of creation. 

In the 1980s and 90s, watershed moments like the removal of Richard Serra's "Tilted Arc" and the censoring of artists like Robert Mapplethorpe brought real pressure to bear on lawyers in their capacity to mediate between the disparate languages used to respectively describe art and law. As a result, more complex picture of the relationship between the two realms of art and law began to emerge.

At times, art and constitutional law have appeared at odds with one another. Remember when Rudolph Giuliani tried to slash public funding for the Brooklyn Museum because of its Sensation exhibition (featuring the works of Chris Ofili?) Or the time that the Supreme Court uphed the "decency clause" restriction for funding by the National Endowment for the Arts, thus enabling it to effectively censor artworks like that of performance artist Karen Finley? In each of those moments, artistic expression becomes pitted against political and cultural considerations.

As a result, the First Amendment is often left to mediate these disputes, at times leaving art deeply misunderstood and the world of law seem particularly hostile to cultural workers that even before. Still, at other times, the reverse has happened, where art tries to make sense of the rule of law. Artworks have played important roles in advancing dialogue on social injustice, from David Hammon's unforgettable "Injustice Case" (1970), a body print recalling how Black Panther leader Bobby Seale was bound and gagged in a Chicago courtroom, to Curtis "Talwst" Santiago's "Por qué" (2015) depicting the brutal murder of Eric Garner in a reclaimed ring box. There was also Felix Gonzales-Torres' unmade bed series, where the artist placed his vacant bed in a museum and photographed the bed for public billboards, as a statement about the effects of AIDS and the Supreme Court's decision to uphold sodomy laws. The work made powerful, highly emotional statements about the limits of law's protective reach.

More recently, lawyers and artists, alike have struggled over competing claims to freedom of artistic expression and those made in the name of defending intellectual property rights. These debates prominently come up in cases of "fair use" like Cariou v. Prince. They were also recently sparked by the work of artist Kelley Walker, who appropriated images of black people and from the Civil Rights-era and covered them with toothpaste - an act that many judged to be unethical and was the the subject of widespread protest at the Contemporary Art Museum St Louis, where the work was shown. The questions raised regarding racial difference, inequality, and appropriation are difficult ones, and, over time, it has become increasingly urgent that we engage with both the languages of art and law to make sense of how to answer them. 

Today, the need for these conversations - particularly as they address non-white, female, queer, and transgender artists - becomes particularly acute in the wake of Donald Trump's election, who has demonstrate an explicit to perpetuate unequal treatment before, and despite, the law. How does the art world respond and how can art lawyers support the need for a critical response? 

On the one hand, the role of the art lawyers has been to lubricate the wheels of commerce, which can, at times, reinforce a conventional approach to power in the art world, measured almost exclusively by dollar signs. But this approach, which fails to think beyond the marketplace, runs the risk of missing the most illuminating contributions to art law itself. Consider an example. Last year, the online magazine Artnet generated a clickbait-worthy list of what it called "some of the most powerful lawyers in the art world today." While it billed itself as a "non-exclusive but representative roster," gathered after the author consulted a few "high profile" attorneys, who remained anonymous, perhaps its most notable aspect was who it did not include, and why. Consisting of an overwhelmingly male and white roster, the list included the top lawyers for Christie's and Sotheby's, and others representing a glittering array of largely male and white artists such as James Turrell, Richard Serra, David Wojnarowicz, along with the estates of Cy Twombly and Willem de Kooning. Of the 10 attorneys named, only two are women, one of whom is mentioned at the very bottom of the piece as a veritable afterthought. in sum, rather that take into account the complexity of the relationship between art and law, of cast a wider net of names that reflects the diversity of the art law world, the list of names collectively affirms the depressingly common assumptions that the "worth" of art must always be tied to its perceived market value and that power belongs exclusively to the monied. 

To reel out a list of overwhelmingly white, male lawyers and then deem them to be "most powerful," simply replicated the very thing that many artists - and lawyers alike - protest. This article is an attempt to shift the focus from how artworks function as yet another market commodity to how art and law can work as dynamic, reciprocal forces. Central to this thinking have been many attorneys who are female, LGBT, people of color, and other minorities. Just as there are many different kinds of artists, there are also many different kinds of art lawyers, in fact, binders full of them. Both of us, for example, are women of color, former practicing attorneys, and devoted scholars on art law who have spent much of our professional lives in dialogue with other people who deserve mention, not just due to the diversity that they bring to the table, but because each of these people offers us a different take than a simplistic money-is-power paradigm that pervades commentaries on the conventional art economy. 

For instance, art lawyer and curator Pati Hertling works by day on issues of art restitution at a Manhattan law firm, while at night she has also curated exhibitions, salons, and performances focusing on feminism, sexuality, and social conscience, like Evas Arche und der Feminist, a performance series she co-curated with artist Marlous Borm. As Hertling's work demonstrates, it is possible to use the tools of art and law and find ways to offer cultural critiques of both. 

The scholarship of Amy Adler, a professor at NYU Law (mentioned only in passing at the end of Artnet's Article), was one of the first to consider how art ushered us to rethink the law's regulation of all types of expression, including obscenity and postmodern appropriation. Taking the recent legal battles over Richard Prince's use of images produced by others as a case in point, she recently argued that art and the law will perpetually be at loggerheads unless the latter can admit the degree to which appropriation has become widespread in contemporary art.

But there are examples where lawyers and artists must work closely together, like the legal defense team for Steve Kurtz, the Critical Art Ensemble (CAE) member. His antiwar projects exploring the public health impact on germ warfare programs led to his illegal detention in 2004 by the FBI and the confiscation of his work in the name of national security. The legal case, which was settled in 2008, succeeded in pushing back against the excesses of the USA Patriot Act passed by an anxious Congress. 

And then there the artists-turned-lawyers who deserve consideration as well, because of the ways in which they use the law as a conceptual lens to make important artistic contribution. Terri Keyser, renowned in the 1980s as one-half of the duo United Art Contractors, published strategic advertisements in Artforum ("We're Desperate: We Want to Buy Our Way Into a Show"), calling the art world out on its careerism and cynical self-promotion long before it became fashionable to do so. Keyser may have been dreaming of a publication like Artnet when she and her collaborator David Shire offered to pay critics for reviews depending on quality; a bad review by a well-known art critic would earn 50 bucks while a "dynamite" review by an average art critic would gross seventy-five. Eventually, Keyser would attend law school almost as extension of her practice, subsequently becoming a prominent civil rights attorney. Sergio Muñoz Sarmiento, another artist who became a lawyer, eventually founded the Art & Law program in New York, which to our knowledge is the only initiative in the US dedicated to cultivating a sustained community of individuals committed to critically studying the intersection between art and law. 

Largely because women and minorities have been overlooked in both the fields of art and law, they often offer us the most critical insights from an 'outsider' point of view, sometimes within the world of art, and, at other times, within the world of law. Recognizing these names is more than a salvage operation: it is also to underscore the profound importance of women's work and the work of people of color even when not yet legitimized or celebrated according to the assumptions created by a predominantly white male establishment. Such work aspires to many goals, of which the most important of all may be to emphasize how art is more than just a commodity, but the very thing that defines our collective and political identities. 

Palmyra recaptured: restoration begins

Syrian troops recaptured Palmyra from the Islamic State last week, at the close of three weeks of intense fighting. The ancient city had been occupied by the jihadists since May 2015.

A Syrian Army soldier on patrol near the Great Colonnade in Palmyra
(Image: TASS / Barcroft Media)

Palmyra, known as the “pearl of the desert”, is a designated UNESCO World Heritage Site and was one of the most important cultural centres of antiquity. At the crossroads of several civilisations, its art and architecture combines Graeco-Roman techniques with local traditions and Persian influences. The ancient city counts among its losses the 2,000 year-old Temple of Bel, the shrine of Baal Shamin, the Arch of Triumph dating from around 200AD, and its head of antiquities, Khaled al-Assaad, who was killed for refusing to reveal to the jihadists where valuable artefacts had been hidden for safekeeping. Some sites, such as the Roman amphitheatre, were preserved for use in the Islamic State’s public executions.

The Syrian Army also discovered that the IS had planted at least 150 mines scattered around the historic quarter and residential area of Palmyra, where many of the city's most famous ruins are, as they had retreated from the city.

Nonetheless, the mood was jubilant. President Bashar al-Assad hailed the victory as an "important achievement" and declared his intention to rebuild the city: "Palmyra was demolished more than once through the centuries ... and we will restore it anew so it will be a treasure of cultural heritage for the world."

Maamoun Abdulkarim, Syria’s head of antiquities and museums, told AFP: “We were expecting the worst. But the landscape, in general, is in good shape. 'We could have completely lost Palmyra. The joy I feel is indescribable”. Some news sources report that no greater damage was inflicted as the result of a secret talks between Islamic State and the Syrian authorities, who warned of the dangers of sparking a popular uprising with their activities.

Abdulkarim suggested that “if we have UNESCO's approval, we will need five years to restore the structures damaged or destroyed by IS”. Whilst doubt has been cast by one UN expert over how realistic this timeframe is, work has already begun. Russia intends to send explosives experts and robots to help remove the mines, and is working with UNESCO to send a mission of experts to assess the damage and begin the task of restoration. Abdulkarim has promised a blueprint for reconstruction by next month: “We will assess how much damage the stones suffered and we will re-use them in order to scientifically put back the temples…we have the plans and the images and we will rebuild the missing portions until the temples of Bel and Baalshamin are rebuilt.”

Sex Pistols' photographer threatens to sue Elizabeth Peyton for copyright infringement

Dennis Morris, renowned photographer and artist, well-known for his photographs of musicians and cultural icons such as Bob Marley and the Sex Pistols, is considering bringing a lawsuit against New York artist Elisabeth Peyton for her painting "John Lydon, Destroyed" – created in 1994, portraying John Lydon (aka Johnny Rotten).

Elisabeth Peyton's John Lydon, Destroyed, 1994

According to Morris the painting is too similar to a photograph of the singer that he took in 1977, thereby infringing his copyright. Meanwhile, the painting was withdrawn from Sotheby's contemporary art sale on 11 February, at the consignor's request.  

Morris – who owns all copyright in all the photographs he took of Sid Vicious and Johnny Rotton –previously filed a copyright infringement suit against Peyton in 2014 for the unauthorised use of his photographs in creating derivative artworks, which were reproduced on garments sold at Target stores.  In that case, Morris claimed that at least three of Peyton's works depicting the two Sex Pistols' members infringed his copyright in his photographs of Vicious and Lydon, which were published in the 1991 book "Never mind the B*ll*cks: A photographic Record of the Sex Pistols Tour."  

At that time, Peyton denied all allegations and claimed fair use. The case was settled out of court last year. I wonder if fair use could be deemed a valid defence in this new case of appropriation of art, considering the criteria outlined in the leading case Prince v Cariou. What do you think?

Experts call on UK government to sign the 1954 Hague Convention this year

Members of the House of Lords and leading cultural heritage experts are lobbying the UK government to ratify the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (the ‘Hague Convention’) in light of reports of extensive destruction and trafficking in cultural heritage property in Syria and Iraq by the Islamic State. As the only Permanent Member of the United Nations Security Council not to have signed, the government is being urged to deliver on its pledge last year to sign ‘at the first opportunity’ in a renewed campaign led by the UK National Committee of the Blue Shield. 

Hague Convention

The Hague Convention was the first international treaty aimed at protecting cultural heritage in the context of war and which highlighted the concept of common heritage. It was adopted in 1954 in response to the widespread damage and looting of cultural property during World War II. 

The Convention requires states parties to prepare during peacetime for the safeguarding of cultural property against the foreseeable effects of armed conflict, and to respect cultural property situated within their territory as well as in other states. This includes undertaking to prohibit any form of theft, pillage or misappropriation of cultural property, and refraining from reprisals against such property. If occupying another state, states parties should support the competent national authorities in preserving its cultural property. 

The Convention also specifies a protective emblem to facilitate the identification of protected cultural property during armed conflict, known as the Blue Shield. A triple use of that sign designates exceptionally important cultural property under special protection. This led to the creation of the International Committee of the Blue Shield, which works to protect the world's cultural heritage threatened by wars and natural disasters and is described as the cultural equivalent of the Red Cross.

The Blue Shield symbol near a staff entrance at the Kunsthistorisches Museum in Vienna
(Photo: Corine Wegener/Getty Conservation Institute)

Ratification by the UK government 

The UK remains ‘arguably the most significant military power’ and the only one with extensive military involvements abroad not to have ratified the Hague Convention, according to the UK Blue Shield. Its fellow Permanent Members on the Security Council have already done so - Russia in 1957, China in 2000, France in 1957, and the US in 2009.

The UK government has appeared close to ratifying the Convention on many occasions since 1954, announcing its commitment in 2004 after the adoption of the Second Protocol in 1999 (which the UK was involved in negotiating) addressed their concerns over the Convention’s shortcomings. A draft Cultural Property (Armed Conflicts) Bill was even published in January 2008, but it progressed no further despite only minor modifications being required. The UK government again announced plans to ratify ‘at the first opportunity’ in June 2015, and in January 2016 the Minister of State for Culture Ed Vaizey declared the government’s ‘firm commitment’ to introduce new legislation enabling ratification of the Convention and its two Protocols ‘at the earliest opportunity’.

The government has tiptoed around committing to a firm deadline for signing the Convention, choosing instead to focus attention on ad hoc cultural heritage initiatives. At the end of last year it announced £30m of funding for the establishment of the Cultural Protection Fund, which is intended to fund a team of local experts to stabilise afflicted sites in Iraq, and begin the process of reconstructing and preserving cultural artefacts. The Army has declared its intention to recruit a team of ‘Monuments Men’ - specialists who will deploy to warzones alongside commanders to advise on how to locate, protect and save cultural riches in the area they are fighting.

However, with no real framework or commitment in place for protecting cultural heritage in wartime, the UK’s ‘dithering’ over the Hague Convention has been described as “pathetic – it leaves Britain looking shamefully inept”. In a House of Lords debate on 14 January reported by the Art Newspaper, Baroness Andrews stated that there is a ‘growing sense of urgency’ to sign the Convention following ‘grotesque failures in Iraq’ and ‘increasing barbarity in Syria’. With cross-party support - including from the Department for Culture, Media and Sport; the Foreign and Commonwealth Office; the Department for Overseas Development; and the Ministry of Defence - it is hard to understand the UK government’s reluctance to ratify. If it is part of a blanket policy to avoid ratifying any of the UNESCO cultural heritage protection treaties - including the 1970 Convention on illicit trafficking, whose Secretariat has offered on several occasions to mediate in the UK's ongoing Parthenon marbles dispute with the Greek government - then it is looking like an increasingly difficult position to defend.

The UK Blue Shield urges supporters to write to their MP using the template which can be found here. More information on the UK Blue Shield’s campaign can be found at http://ukblueshield.org.uk/ or by contacting Philip Deans at p.deans@newcastle.ac.uk.

Further information about the Hague Convention, its Protocols and the work of the International Committee of the Blue Shield can be found on the UNESCO website here.

Copyright infringement and public domain artworks: German museum sues Wikimedia

Last week Wikimedia announced that it is being sued by a German museum for copyright infringement after 17 images of public domain works of art were uploaded to Wikimedia Commons.

Reiss Engelhorn Museum © Rudolf Stricker/Wikimedia

The works of art in question are housed in the Reiss Engelhorn Museum in Mannheim, one of the largest publicly-owned museums in southern Germany. Those works are no longer protected by copyright. However, German copyright law may apply to photographs of public domain works, depending on factors such as the amount of skill and effort exercised, the creativity and originality of the photograph, and the actual art itself. The museum asserts that the images taken of those works are new creations protected by copyright as the photographer exercised the requisite time, skill and effort.

The lawsuit sheds light on shifting copyright licensing practices by museums and cultural institutions towards wider public access and use. Although licensing image reproduction rights has traditionally provided a significant stream of revenue for museums and galleries (for example, the National Portrait Gallery reported £334,000 in revenue from reproduction rights in 2011/12), institutions have increasingly provided free online access to their collections under the terms of Creative Commons (CC) licences. These range from the CC0 “no copyright reserved” licence, which effectively means relinquishing all copyright and similar rights held in a work and dedicating those rights to the public domain (as used by Amsterdam’s Rijksmuseum, which has provided free online access to all its paintings and granted the right to download and use reproductions) to the CC BY “attribution” licence, whereby licensees may copy, distribute, display and perform the work and make derivative works if they credit the author or licensor (as used by Denmark’s Statens Museum for Kunst in relation to its digital images and videos).

These policy changes in favour of wider copyright licensing models may have been influenced by case law: the 1999 case of Bridgeman Art Library v Corel resulted in a ruling that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality, a decision that has been strongly debated by experts ever since. Although this decision is not technically binding upon UK courts, the New York court follows UK Privy Council dicta from Interlego v Tyco Industries: "skill, labor or judgment merely in the process of copying cannot confer originality”.

It is perhaps because of these ambiguities in legal application that the 2009 dispute between the National Portrait Gallery and Wikimedia, where over 3000 images of public domain artworks from the NPG’s website were uploaded to Wikimedia, ended before it reached the court. At the time the NPG said it was "concerned that potential loss of licensing income from the high-resolution files threatens its ability to reinvest in digitisation". Nonetheless, in 2012 it began to make changes to its image licensing policy, allowing 53,000 low-resolution images to be downloaded free of charge for non-commercial uses via a Creative Commons licence.

William Wilberforce by Sir Thomas Lawrence, oil on canvas, 1828
© National Portrait Gallery, London

The European Commission has expressed its support of such initiatives: “it is important to stress the importance of keeping public domain works accessible after a format shift. In other words, works in the public domain should stay there once digitised and be made accessible through the internet.” This was reinforced by the Europeana Charta of 2010 that reads: “No other intellectual property right must be used to reconstitute exclusivity over Public Domain material. The Public Domain is an integral element of the internal balance of the copyright system. This internal balance must not be manipulated by attempts to reconstitute or obtain exclusive control via regulations that are external to copyright”.

Meanwhile, Wikimedia’s lawyers have appealed to directly to public sentiment, declaring that restricting the dissemination of images of public domain works “impoverishes the cultural heritage of people worldwide” and “prevents people from exploring our shared global cultural heritage”, whilst undermining the role of copyright laws as a means of rewarding creativity and originality. It will be interesting to see whether the German court's approach in the Reiss Engelhorn Museum lawsuit upholds this view or leads to a reversal of the wider sharing of public domain works.

Wikimedia’s statement can be found here.

A full list of the affected images can be found here.

The GLAM-Wiki initiative ("galleries, libraries, archives, and museums" with Wikipedia) helps cultural institutions share their resources with the world through collaborative projects. Learn more here.

La Bella Principessa: a Da Vinci or a copy?

The famous British art forger, Shaun Greenhalgh, who was imprisoned between 2007-2012, recently claimed to be the author of La Bella Principessa, a painting attributed to Leonardo Da Vinci, with an estimated value of $150 million.

La Bella Principessa (image: Wikipedia)

The attribution to the Italian painter has always been strongly challenged.

The artwork was documented for the first time in 1998, when it was sold at a Christie’s auction as an early 19th century painting created in the style of the Italian Renaissance. The work was auctioned and sold for $21,800.

In 2008, however, some experts concluded that, in fact, the painting was a Da Vinci, and from that time the work was exhibited in Italy as an authentic Da Vinci painting. The portrait, still in private hands, is now widely thought to depict the 13-year-old Bianca Sforza, the daughter of Ludovico Sforza, the Da Vinci patron. The work would have been commissioned on the eve of her marriage in 1496.

This was confirmed in 2010, when Martin Kemp – one of the world's most famous Da Vinci experts, and emeritus professor of the History of Art at Oxford University – published a book entitled "La Bella Principessa: The story of the New Masterpiece by Leonardo Da Vinci," which stated that the painting was done by the famous Italian artist. It therefore followed that museums and other experts believed Kemp’s assessment.

Unfortunately, it may be that the Principessa is not be so Bella after all. Most recently, Greenhalgh published a book of his memoirs, entitled "A Forger’s Tale," where he claims to have painted the painting in 1978, when he was working in a Co-op supermarket – with a girl called Sally, a cashier who Greenhalgh claims to have known in Bolton in 1975, being the alleged inspiration behind the girl portrayed in the painting.



This story shows how Leonardo Da Vinci has moved to the centre of an inflated industry of fakes. It is also a cautionary tale that art evaluation cannot be based exclusively on scientific analysis, but should also include human eye and expertise. Indeed, Kemp's authenticity claim of La Bella Principessa rests on testing its papers and materials, which date back at least 250 years ago: post-Da Vinci, but quite before Greenhalgh.

Bye!

This is just a quick post to say “goodbye”, now that I’m retiring from active involvement in intellectual property.  I have enjoyed my job of providing “back page” support for Art & Artifice and wish the blog team the very best for a productive and successful future.  Thank you, readers, too for the chance to share some fascinating insights with you and to learn more about the legal side of the art trade than I imaged to exist when I first became involved.

Museum directors agree protocols to provide safe havens for endangered antiquities

Amidst armed conflicts in Syria and Iraq, the Association of Art Museum Directors (AAMD) has announced the release of protocols to help safeguard irreplaceable works of art and archeological materials that are currently in danger of destruction or trafficking.

The Protocols for Safe Havens for Works of Cultural Significance from Countries in Crisis provide a framework for museums to provide safe havens for works at risk from violent conflict, terrorism, or natural disasters.

In a press statement made earlier this month, the AAMD states that the Protocols allow owners/depositors whose works are at risk of damage or destruction to request safe haven at an AAMD member museum, where the works will be held until they can be safely returned. All deposited works will be treated as loans, preventing any issues of title ownership arising at a later date. Details of those works will also be made publicly available on a new section of the AAMD’s online Object Registry, ensuring transparency.

The Protocols consider the preservation of a work’s physical integrity as well as its safety, its provisions covering transport and storage, scholarly access, legal protections, exhibition, conservation issues, and the safe return of endangered works to the appropriate individuals or entities as soon as is feasible.

The AAMD has strongly encouraged its 240 members in the US, Canada, and Mexico to adopt these Protocols, and has invited museums around the world to use the Protocols in their efforts to protect endangered works.

Whilst not legally binding, these Protocols are indicative of the shifting attitudes towards the importance of international cooperation and intervention in protecting cultural heritage, and their release coincides with the first prosecution of cultural heritage destruction as a war crime.

“The scale of human suffering and loss of life that is taking place in Syria and other afflicted areas is devastating, and is compounded by the loss of unique works that are the record of different cultures and our shared humanity,” said Johnnetta Cole, President of the AAMD, and Director of the National Museum of African Art, Smithsonian Institution.

“The level of destruction and the intentional damage is deplorable and an attempt to eradicate cultural identity in tandem with the murder and repression of individuals. We stand with the international community in condemning these reprehensible acts of violence and brutal vandalism, and believe it is vital that we do everything in our power to help save endangered works for all people and for future generations.”

The AAMD’s press statement can be read in full here.

The full Protocols can be downloaded here.

Cultural heritage destruction prosecuted as a war crime for the first time: Islamist militant appears before ICC

In the first case of its kind, an alleged Islamist militant accused of destroying ancient monuments in Mali appeared last week at the International Criminal Court (ICC) charged with damaging humanity’s cultural heritage. It is the first time cultural heritage destruction has been prosecuted as a war crime; the ICC has traditionally focused on atrocities committed against individuals.

Ahmad Al Faqi Al Mahdi appears at the ICC in the Hague, Netherlands (Image: Robin van Lonkhuijsen/AFP/Getty Images)

Charges

Ahmad Al Faqi Al Mahdi is charged with war crimes of directing attacks against historic religious monuments and buildings, including nine mausoleums and one mosque in Timbuktu, Mali.

Al Mahdi, from the Ansar Tuareg tribe, was allegedly an active personality in the context of the occupation of Timbuktu, a ‘zealous member’ of Ansar Dine, a Tuareg extremist militia with links to al-Qaeda, and the head of the Hesbah (known as the ‘Manners' Brigade’), which enforced strict Islamist law in Timbuktu during civil unrest in Mali in 2012 and 2013. He is also charged with implementing the hardline Sharia law rulings of the so-called Islamic Court of Timbuktu, in particular the destruction of the nine mausoleums and the Sidi Yahia mosque.

The situation in Mali was referred to the ICC by Mali’s government in 2012, and following an investigation a warrant for Al Mahdi’s arrest was issued in September 2015. Al Mahdi was arrested by the authorities of Niger and handed over to the ICC shortly afterwards.


Timbuktu’s cultural heritage

Timbuktu, a UNESCO World Heritage site known as the ‘city of 333 saints’, was an intellectual and spiritual capital and a centre for the propagation of Islam throughout Africa in the 15th and 16th centuries. The mausoleums of Timbuktu have long been pilgrimage destinations for the people of Mali and neighbouring countries. As shrines to Timbuktu's founding fathers, who were venerated as saints by most of the city's inhabitants, they were widely believed to protect the city from danger. But fundamentalists considered this practice blasphemous. Of the city’s 16 mausoleums, some dating as far back as the 13th century, 14 were destroyed during Ansar Dine’s occupation of the city in 2012, along with mosques and approximately 4,000 ancient manuscripts.

Destruction of mausoleums and mosques during Timbuktu’s occupation (Image: AFP)

What next?

Following the defendant’s appearance before the Pre-Trial Chamber last week, a hearing is scheduled for 18 January 2016, where the Court will determine whether there is sufficient evidence to proceed to a full trial.

This case is a watershed moment in the field of cultural heritage protection, and it has been suggested that the Court consider investigating the Islamic State's destruction of ancient archaeological sites in Palmyra. However, as neither Iraq nor Syria is a member of the ICC, the Court is unable to intervene without a mandate from the UN Security Council.

Meanwhile an initiative to reconstruct Timbuktu’s mausoleums led by the Malian government, UNESCO and international partners is nearing completion. “Here we have our response to extremism,” said UNESCO’s Director-General, “an example of the successful integration of culture in peace building and we must continue along this road.”

Reconstruction of Timbuktu’s mausoleums nears completion (Image: CRAterre/Thierry Joffroy)

The ICC’s case information sheet for The Prosecutor v. Ahmad Al Faqi Al Mahdi can be found here.

More information on Timbuktu’s cultural heritage can be found on the UNESCO World Heritage Site page here.

"God Hates Renoir": A grass roots art critic speaks out

A strange tale of grass roots art criticism has unfolded in Boston this week. 

An Instagram account started by one Max Gellar, entitled Renoir Sucks at Painting, was taken onto the streets of Boston. Protestors (reportedly, about six of them) stood outside Boston's Museum of Fine Arts (MFA) carrying placards proclaiming that 'God Hates Renoir', 'Renoir Sucks', and the snappy 'ReNOir'. Their demand: MFA should take down its Renoirs, replacing them with other works kept in its storage vaults.

Photo: Lane Turmer /AP

'Why do so many people think he’s good?' the Guardian reports Gellar as asking. 'Have you looked at his paintings?' They are, according to him, 'empty calorie-laden steaming piles', the decision to hang which in public galleries 'represents an act of aesthetic terrorism'.

It is not clear how serious the protest is. The Huffington Post reports Gellar as saying it is 'meant to be taken more ironically than literally', but Gellar's more genuine point appears to be the question of who is entitled to decide what deserves space in national galleries. 'Curators,' he is reported to have said, 'lack the courage to say, ‘Hey, wait, everybody’s been wrong this whole time.’ They’re not looking at the paintings.' 

Either way the story is reminiscent of another, more famous instance of an art critic attacking a painter's work: Whistler v Ruskin, the 1878 libel case in which J M Whistler sued the famous critic John Ruskin over his published letter commenting on some of Whistler's paintings, in particular the impressionistic Nocturne in Black and Gold: the Falling Rocket. Ruskin, in a pithy comment worthy of Gellar, wrote that Whistler's work was like 'flinging a pot of paint in the public's face', enraging Whistler until he finally took the matter to the courts - rather to the amusement of the public, which was impressed neither by Ruskin's over-personal critique nor Whistler's arguably over-sensitive reaction.

J M Whistler
Nocturne in Black and Gold: The Falling Rocket,
The Detroit Institute of Arts 

Luckily for Gellar, Renoir, who died in 1919, is not around to follow Whistler's lead and sue - it is a general principle that the dead cannot be defamed. But even if he were alive he might be put off by the outcome of that historic trial. The painter won, but instead of the £1000 he had claimed, poor Whistler was given just one farthing in nominal damages, leaving him in heavy debt due to paying his own costs.

Meanwhile, the MFA shows no signs of bowing to public demand, and Renoir's works remain on view to offend or delight, as the case may be.