In support of the international crackdown on the black market trade of looted cultural artifacts, the FBI recently announced that art dealers may be prosecuted for engaging in the trade of stolen Iraqi and Syrian antiquities. Terrorist organizations such as Islamic State in Iraq and the Levant (“ISIL”) have pillaged these countries of their cultural relics for sale on the black market. Many find their way into the hands of art dealers and collectors in the Europe or even United States. In response, the FBI released an alert titled “ISIL Antiquities Trafficking” on August 25, 2015. Perhaps most strikingly, this alert warns that engaging in the purchase of these looted artifacts may constitute a violation of 18 U.S. Code § 2339A[1] for providing financial support to terrorist organizations.

ISIL has done much to publicize its demolition of artifacts and archaeological sites in Syria and Iraq that it has condemned as un-Islamic.[2] However, behind the cameras, many of these cultural artifacts are being smuggled out of these countries and sold by ISIL on the underground market and finally reach the dealers and collectors in Europe and North America. The profits from the sale of these precious antiquities are then used by the organization to fund its operations. George Papagiannis, spokesman of UN Educational, Scientific and Cultural Organization, described the artifact trafficking as “a threat to the memory of humankind and a threat to the identities of people in these communities who are tied to these sites.”[3] Facilitating this illicit trade are the smugglers and gallery owners who provide forged documentation to allow the artifacts to enter European and American markets.[4]

Before the FBI’s issuance of the alert, United Nations and Europe had already taken steps to prevent and eliminate the trafficking of these Syrian and Iraqi cultural objects. On February 10, 2015, United Nations Security Council passed Resolution 2199 that requires all Member States to take efforts to prevent the trade of artifacts illegally removed from Syria after 2011 and from Iraq after 1990. In December 2013, the European Union Council Regulation (EU) No 1332/2013 prohibited the trade of Syrian cultural property where there are reasonable grounds to suspect that the goods were removed from Syria without the consent of their legitimate owner or in breach of Syrian law or international law.

The FBI alert follows in the footsteps of these efforts to stop the illegal trade of Syrian and Iraqi artifacts. The alert warns art dealers and collectors that they should be careful in purchasing objects from these regions and asks them for help and cooperation to spread this message out and prevent further trade. In addition, the FBI states that purchasing stolen items from these regions may result in prosecution under 18 U.S. Code § 2339A because the proceeds from such sales may provide financial support to terrorist organizations.

18 U.S.C. § 2339A was enacted to charge those who provided material support to terrorists. It provides that “whoever provides material support or resources…knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [various criminal statutes related to terrorist activities]” may be charged with providing material support to terrorists. Penalties for violating 18 U.S. Code § 2339A are significant and range from a fine to life imprisonment. However, in Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), the Supreme Court clarified that a violation of 18 U.S.C. § 2339A requires that the donor must intend to further terrorist activity, rather than simply know that the donee is a terrorist organization. According to this holding, it seems that even if an art dealer or collector was prosecuted under 18 U.S.C. § 2339A, there would need to be a showing that the dealer or collector intended to support terrorist activity by purchasing the stolen artifacts, which in most cases, is highly unlikely.

It is unclear from FBI’s alert whether 18 U.S.C. § 2339B will be used to pursue dealers and collectors found to have bought Syrian and Iraqi stolen artifacts. Section 2339B penalizes anyone who “knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so.” Unlike 18 U.S.C. § 2339A, the required mental state for a violation of § 2339B is only knowledge that the receiving organization is a designated terrorist organization, not specific intent to further the terrorist activities. In Weiss v. National Westminster Bank PLC, 768 F.3d 202, the Second Circuit Court of Appeals held that for the purposes of 18 U.S.C. § 2339B, a defendant has knowledge that an organization engages in terrorist activity if it “knows there is a substantial probability that the organization engages in terrorism but…does not care.” If the FBI elects to prosecute under 18 U.S. Code § 2339B, art market practitioners may have more cause concern. Admittedly several intermediary middle-men often separate the original terrorist looters and the final buyers, but the intermediate art dealer or the buyer might still be charged with violating 18 U.S.C. § 2339B if it should be aware of a substantial probability that the prior seller may have engaged with terrorism but takes no action.

18 U.S.C. § 2339B has been the most frequently cited statute for the government to pursue sponsors of terrorism. If the government is determined to use § 2339B to attack the trafficking of cultural property, the innocent buyer may face real legal risks if the acquired objects are proven to be looted from Iraq or Syria by ISIL. As the FBI warns in its alert, art dealers and collectors alike should do their due diligence and “check and verify provenance, importation and other documents” and report any suspicious items to the FBI.