Ancient Statue Sits in Limbo as Rights Question Looms

By TOM MASHBERG and RALPH BLUMENTHAL

The pedestal and feet belonging to a disputed thousand-year-old statue,
 currently held by Sotheby's, in Cambodia.

The Department of Homeland Security has opened an investigation, but Cambodian officials say they have held off asking for the piece to be seized while they negotiate with Sotheby’s for a private purchase. The auction house says that the seller is a “noble European lady” who acquired it in 1975. Although it was severed from its feet and pedestal, which were left behind at a remote Cambodian archaeological site, Sotheby’s says there is no proof that it was taken illegally.

The quiet tussle over the relic reveals the swampy terrain of auctioning antiquities with incomplete or disputed pedigrees. Sellers with a good-faith belief in their ownership rights enter a landscape in which ethics and regulations are evolving, governments are increasingly assertive, and lawyers versed in arcane statutes are as necessary as jungle guides. 

“We live in a different world, and what was acceptable 50 years ago is no longer so,” said Matthew F. Bogdanos, a Marine Corps Reserves colonel and a lawyer, who was awarded a National Humanities Medal for leading the hunt for treasures ransacked from the Baghdad Museum in 2003. ”Whatever the letter of the law may state, in the end you have to ask yourself, ‘Does the item pass the smell test?’ ”

Jane A. Levine, senior vice president and worldwide compliance director for Sotheby’s, said the auction house was “aware there are widely divergent views on how to resolve conflicts involving cultural heritage objects.”

“Sotheby’s approach to the Khmer sculpture is one of responsible and ethical market behavior and international cooperation between private and public entities,” she said.

Archaeologists and Cambodian officials say the case of the footless statue is all the more poignant because of the country’s recent history of genocide and plunder, and because researchers have found the very pedestal and feet belonging to the artwork. The discovery was made in Koh Ker, 60 miles northeast of the Angkor Wat temple complex; Koh Ker, another city in the Khmer empire, was at one time a rival capital to Angkor, which was once the largest city in the preindustrial world, perhaps more than three times the area of New York City today.

The sculpture, which is five feet tall and weighs 250 pounds, is one of a pair of scowling athlete-combatants in intricate headdresses from the mid 900s who were positioned in battle-ready stances and come from one of Koh Ker’s temples; it is about 200 years older than the famous sculptures at Angkor Wat.

In 2007 archaeologists matched the other statue, on display since 1980 at the Norton Simon Museum in Pasadena, Calif., to its similarly detached pedestal.

Archaeologists say all clues suggest the work at Sotheby’s was plundered in the 1970s amid the chaos of power struggle and genocide, when the Khmer Rouge ravaged Cambodia, and looters hacked their way into long-inaccessible temples, pillaged priceless antiquities and sold them to Thai and Western collectors. The Khmer Rouge ruled Cambodia from 1975 to 1979.

“Every red flag on the planet should have gone off when this was offered for sale,” said Herbert V. Larson Jr., a New Orleans lawyer and antiquities expert who teaches legal issues involving smuggled artifacts. “It screams ‘loot.’ ”

When asked whether the statue could have been stolen, Ms. Levine countered that the statue could have been removed any time in its thousand-year history, and said the word stolen was often “used loosely.”

To write the catalog entry for the statue, Sotheby’s hired the scholar Emma C. Bunker, a co-author of the authoritative book “Adoration and Glory: The Golden Age of Khmer Art.” She called it an unrivaled example of Khmer sculpture, and the lot was promoted on the catalog’s cover and in a Sotheby’s news release. It was withdrawn on the day it was to be sold, March 24, 2011, after a Cambodian official working with the United Nations, Tan Theany, complained in a letter “that this statue was illegally removed from the site” and asked Sotheby’s to “facilitate its return.”

The Cambodian government also contacted the State Department, prompting the investigation by the Department of Homeland Security’s Immigration and Customs Enforcement branch. A spokeswoman for the agency, Danielle Bennett, said it “is working closely with the United States Attorney’s Office for the Southern District of New York and the government of Cambodia to look into the matter and determine the proper course of action.”

Sotheby’s says its research proves that its client has had “clear title” to the work since buying it from Spink in London in December 1975. A spokeswoman for Spink, which was acquired by Christie’s in 1993, said the 1975 records about where the company had obtained the statue were no longer available. Ms. Levine would not discuss the federal government’s investigation.

Ms. Levine, a former federal prosecutor named last year to President Obama’s Cultural Property Advisory Committee, said Cambodia’s willingness to negotiate indicates that it is aware that under American and Cambodian law, it has no legal claim. She said Cambodia “did not identify any basis to contest the owner’s title to the property and did not allege that it would be unlawful for Sotheby’s to sell the statue.”

Originally, Ms. Levine said that Cambodia had been informed of the Sotheby’s sale “four to six weeks” before the auction. Late on Tuesday, however, a Sotheby’s spokeswoman said that Ms. Levine’s recollection had been “incorrect,” and that the auction house had notified Cambodia on Nov. 8, 2010, four and a half months before the auction date. The statue’s seller, speaking through Sotheby’s, declined to be identified or to comment.

Laws governing the repatriation of disputed artifacts are complex and differ from nation to nation. In Cambodia’s case, because the statue was exported “long before the passage of a 1993 Cambodian law that nationalized cultural heritage,” Ms. Levine said, there were no restrictions on its sale or auction.

Nonetheless, the global controversy surrounding looted artifacts has led many American museums to adopt ethical guidelines that go beyond the legal requirements. In 2004 the Association of Art Museum Directors declared “member museums should not acquire” any undocumented works “that were removed after November 1970, regardless of any applicable statutes of limitation.”

Ms. Levine said Sotheby’s withdrew the antiquity from the auction block “to forge a solution acceptable both to Cambodia and to the owner of the statue.”

Doing so has laid bare a little-known but increasingly common practice used by poor nations to recover artifacts. Working with the Unesco office in Phnom Penh, Cambodia has asked Sotheby’s to bargain with a wealthy Hungarian antiquities collector who has offered to pay $1 million for the statue and present it to Cambodia as an act of good will.

“There is no question the statue was looted in the final stages of the war,” said the collector, Istvan Zelnik, a former Hungarian diplomat in the region who has visited Koh Ker. His own collection forms the Zelnik Istvan Museum of Southeast Asian Gold in Budapest.

“The best solution is that I purchase it for purposes of donation,” Mr. Zelnik added.

Anne LeMaistre, the Unesco representative in Phnom Penh, who is involved in the Sotheby’s talks, said “buying back such items can seem distasteful, but sadly it is not unusual when the country’s aim is return of the property.”

Yet another wrinkle is expected on Wednesday when lawyers working with Cambodia plan to announce the rediscovery of a 1925 French colonial law declaring all antiquities from Cambodia’s multitude of temples to be “part of the national domain” and “the exclusive property of the state.” The statement goes on to say that this law remained in force after Cambodian independence, which came in 1953.

Tess Davis, executive director of the Lawyers’ Committee for Cultural Heritage Preservation and the Cambodia scholar who dug out the law, said it had been analyzed by three French-speaking lawyers conversant in cultural heritage litigation and by Ms. LeMaistre. All four say it “nationalizes ownership of Cambodian cultural artifacts.”

If international legal authorities and American civil courts agree, the law could establish 1925, rather than 1993, as the dividing point after which Cambodian artifacts taken without government permits can be treated as stolen property. Cambodia would still have to prove that the statue was looted after 1925, “a high burden but not an impossible one,” according to Mr. Bogdanos, who agrees the 1925 law “appears to be valid.”

If it survives legal challenges, the law could affect the Norton Simon piece too, although that case would be more difficult because Cambodia has long known of the statue’s presence there, lawyers say. Mr. Simon, the industrialist and collector , bought his statue, also in 1975, from a leading Madison Avenue antiquities dealer, William H. Wolff.

Eric Bourdonneau, the archaeologist who matched both statues to their bases, says the relics were looted in the early 1970s.

He said French records in Paris indicate the statues were in place in 1939, and that the Koh Ker temple was thickly covered by jungle and inaccessible by road until it became a military staging area for Khmer Rouge and Vietnamese forces.

On one thing all parties agree: The statue is a masterpiece. In the Sotheby’s catalog Ms. Bunker wrote, “If one could choose only one sculpture to represent the glory of Khmer art, this figure could fulfill such a challenge.”