Introduction
The discussion about claims for the restitution of cultural objects acquired by European countries in times of colonial rule has recently accelerated as a result, first, of the publication of the so-called Savoy-Sarr reportFootnote 1 and, second, of the many ripples generated by the expanding Black Lives Matter movement.Footnote 2 Even Italy, a country that is still struggling to confront its colonial past, is feeling some – admittedly small – repercussions of this ever-growing international debate. A hint of this (slowly) changing attitude can be seen, for instance, in the fact that, after decades in which only claims brought up by Italy for the recovery of objects considered part of its national heritage found their way into national media and attracted supportive attention from Italian public opinion (such as those regarding the Euphronios Krater,Footnote 3 the Victorious Youth,Footnote 4 or Jan van Huysum’s Flower Vase),Footnote 5 recently at least some Italian newspapersFootnote 6 have devoted a little space to the planned opening, in late 2021, of the Italo-African Museum in Rome, which is part of the Museum of Civilizations founded in 2016 as heir to the collections of several prior cultural institutions.Footnote 7 The impending opening has raised a certain amount of attention to some critical issues related to the intended display of items coming from the collection of the previous Colonial Museum, an institution inaugurated in 1923 by Benito Mussolini and conceived as a showcase for Italy’s colonial “empire” achievements.Footnote 8
The level of public interest and debate surrounding the conception, location (in Rome’s EUR, Esposizione Universale Roma, district, whose erection, in turn, was meant to celebrate the imperial successes of the Fascist regime), and – presently not yet very clear – policies of the new museum with respect to provenance research and (foreseeable) restitution claims is by no means comparable to the widespread discussion that has accompanied, for instance, the construction and opening of the new Humboldt Forum in Berlin,Footnote 9 yet it is something in a country where awareness of the colonial past is still extremely rare.Footnote 10 Italy, of course, was never the colonial power that other European countries were, mostly due to its becoming a unified state only in 1861. Nonetheless, the newly founded Kingdom of Italy was keen on acquiring its own colonial possessions,Footnote 11 not only for the usual economic and political reasons but also as a way of creating and cementing a new, and still mostly uncertain, national identity.
Apart from the small territorial possession of Tientsin, China, acquired after the end of the so-called Boxer Rebellion in 1902, and some failed attempts at expansion in the Balkans during World War I and World War II, the targets of Italian imperialism were mostly Northern and Eastern Africa. Starting with the acquisition of Assab Bay in 1869, Italy expanded its domination over Eritrea in 1890, with the creation of a proper colony that would then be expanded through the second Italo-Ethiopian War (1935–37) and subsequent military operations into the colony of Italian East Africa, encompassing vast Somali, Eritrean, and Ethiopian territories. In 1912, following the Italo-Turkish War, the first Italian colonies in Northern Africa – Tripolitania and Cyrenaica – were established, which were then to merge in 1932 into the broader colony of Libya, which was expanded over the years by way of a combination of military campaigns and diplomatic acquisitions. The Italian colonial empire came to a sudden end after World War II, with the 1947 Peace Treaty;Footnote 12 in fact, Italy had to renounce all of its former colonial possessions as well as to commit itself, as we will see, to a set of restitution obligations.
Even today, this part of Italian history is mostly ignored, or is the object of relevant misconceptions, by the majority of the Italian population, not only due to the same colonial amnesia that affects, to different degrees, all former colonial powers,Footnote 13 but also thanks to what we may call specific “victimization biases,” which are explored in the next section. This “ideology of the victim,”Footnote 14 in fact, has even stronger effects on the general shape of Italy’s cultural heritage law as well as on Italian attitudes toward issues of restitution of cultural objects that are (perceived as) part of the national heritage. Indeed, Italy’s legislation and practice on such issues display a marked “double standard” that we are going to analyze in the third section of this article. Finally, we will try and discuss some recent, albeit ambivalent, steps ahead as well as some recent inputs – mostly of an international origin – that may lead to a more balanced and solidary approach in the future.
Colonial amnesia and victimization biases: A brief history of Italian cultural heritage law
The marked absence of colonial and postcolonial issues in Italian public discourse has several causes, which would be impossible, and even inappropriate, to try and discuss here in a comprehensive way. We will therefore focus on two issues that appear to be of direct relevance to understanding how Italy has (mostly not) dealt with questions of appropriation of cultural objects in times of colonial occupation and, more broadly, why the country still lags behind in adopting a more consistent and solidary approach to cultural heritage law – in particular, with respect to the international circulation of cultural property, where, as we will see, a strong commitment to prevent, punish, and remedy any impoverishment of the national heritage is currently not yet matched (at least at regulatory level) by a comparable commitment to support other countries in their efforts to the same effect.
The first supporting myth we need to take into account is that of the “good Italian soldier”Footnote 15 or, more broadly, of Italians as “decent people”Footnote 16 who were never the authors of war crimes or crimes against humanity comparable to those committed, for instance, by British, German, Belgian or French colonial occupation forces in Africa or by Nazi troops during World War II. Indeed, according to the current discourse, Italians “made the desert bloom” in Libya and brought streets, railways, schools, and hospitals to East Africa. At the same time, episodes such as the executions and mass deportations of civilians in Cyrenaica and Tripolitania (with peaks in 1911 and, even more, in 1929–31),Footnote 17 the 1936 massacre of Amba Aradam by Italian troops employing mustard gas as well as phosgene and arsine ammunition,Footnote 18 or the 1937 lynching of Ethiopian civilians in Addis Ababa and Debrà Libanòs by Italian colonists and troopsFootnote 19 are all conveniently removed from Italian collective memory (suffice it to say that several Italian cities, including Rome, still have street names memorializing the “victory” at Amba Aradam and that the word “ambaradan” is commonly used, without any recollection of the historical facts connected to its origin, as a colloquial expression meaning a “mess of things” or a “confused situation”).Footnote 20
Accordingly, the well-known removal by Italian troops of important cultural items – such as the Venus of Cyrene or the Aksum ObeliskFootnote 21 – has also been traditionally framed in positive terms. The former was presented as a form of rescue and safekeeping of an exemplary part of our classical, Greek-Roman heritage,Footnote 22 which was endangered by the neglect and turmoil to which it was exposed in Libya and more properly contextualized and preserved in the National Roman Museum in Rome. The latter as a beautiful monument that local “uncivilized” populations had allowed to fall into decayFootnote 23 and that the Italian people would instead appreciate in its cultural and aesthetic relevance, so much so that they had recovered its scattered pieces and restored it to its full glory (in Rome, right in front of the Ministry for Colonies).
The persistence of this mythology is made possible due to a plurality of factors. A contributing element was the sudden end of the Italian colonial experience, brought forth by World War II and formally sanctioned by the 1947 Peace Treaty, which spared the country the long transition to decolonization – with its complement of armed rebellions and independence wars – which characterized other colonial powers well into the 1960s and the 1970s,Footnote 24 thus easing a quick oblivion of the Italian colonial “parenthesis.” Furthermore, the fact that, during World War II, Italy changed its alliances, becoming, in turn, a victim of Nazi occupation and participating, through a movement of armed resistance, in the fight against the Nazi-Fascist regime, reinforced a convenient oblivion for previous, less commendable actions.Footnote 25 And, even before that, the whole Italian colonial experience had been grounded – amongst other things – in the idea of Italy being owed some form of “redress” for past wrongs suffered by the Italian people at the hands of other European powers – from the foreign “oppression” over Italian pre-unitarian states to the “mutilated victory” following the end of World War I (a rhetoric that also powerfully contributed to the ascent of the Fascist regime in the 1920s). All of this was considered to have given the country a right to eventually get its own “place in the sun” by participating with a clean conscience in the colonial banquet,Footnote 26 and it effectively fed the second powerful myth – the myth of Italy and Italians as innocent victims of history – which supports Italian colonial (as well as other forms of historical) amnesia.
Indeed, the possibility of considering oneself a victim “activates a powerful generator of identity, of rights, of self-esteem”;Footnote 27 moreover, just like in Fedro’s fable of the wolf and the lamb, it may effectively conceal the reasons of the strong, granting them “a stronghold, a strategic position” on the moral high ground, which “immunizes against any criticism” and allows the perpetration and/or perpetuation of injustices against the actually disadvantaged.Footnote 28 Interestingly, as Giglioli observes, the “ultimate reason” for the strength of any “mythology of the victim” is the “ambiguous intricacy of false and true” that lies at its roots.Footnote 29 Thus, only by shedding light on the partiality of this “truth” – on its ideological distortions as well as on its false assumptions, outright lies, and convenient lapses of memory, which are intertwined in any victimist rhetoric – will a critical appraisal of the status quo become possible and, with it, hopefully, also an input for change.
This is the reason why it is important to start by providing an outline of the historical evolution of Italian cultural heritage law and of the “traumatic” experiences that contributed not only to shape it in the first place but also, later on, to strengthen a form of selective blindness to Italy’s duties to redress its own crimes against the cultural heritage of other peoples; a selective blindness partly extended also to Italy’s possible role as a market state for cultural objects that are illicitly trafficked from other countries even today.
With its enormous richness in artworks and antiquities, Italy has always been, and still is, what is nowadays called a “source country” – that is, a (mostly unwilling) net exporter of cultural objects. Quite early, in the seventeenth and eighteenth centuries, Italian cultural and social élites (but, in some instances, also the population at large) started perceiving the loss of Roman antiquities and Renaissance masterpieces to foreign collectors as a wound to Italian culture. Single notorious episodes, such as the sale in 1627 by an impoverished Duke of Mantua and Montferrat of the main bulk of the renown Gonzaga Collections to Charles I of England,Footnote 30 as well as long-lasting and diffusive practices, such as aggressive collecting by many foreign grand tourists, diplomats, and merchants,Footnote 31 contributed to induce the Italian states to introduce some measure of legal protection for their cultural heritage as early as in the seventeenth century. In 1602, the Grand Duke of Tuscany, Ferdinand I, issued a decree placing the Accademia del Disegno in charge over any export of artworks, while, in 1686, Pope Innocent XI forbade any export of artworks or antiquities from the Papal States unless it had governmental permission.Footnote 32
Even more traumatic, however, were the repeated experiences of lootings perpetrated by foreign troops from the end of the fifteenth century onwards. Of particular relevance was the brutal 1527 Sack of Rome and, even more, the systematic depredation perpetrated between the end of the eighteenth century and the beginning of the nineteenth century by French troops during the Napoleonic campaigns and subsequent domination in Italy,Footnote 33 when hundreds of artworks were taken abroad, often under the legalistic coverage of peace treaties such as the Treaty of Tolentino, imposed by the victor to the subjugated Italian states. This latter episode elicited a wide outcry not only by intellectuals – in Italy and abroadFootnote 34 – but also by the Italian population at large, which on occasions publicly demonstrated against the takings. After Napoleon’s fall and the Congress of Vienna in 1815, the (at least partially) successful recovery mission in France conducted by Antonio Canova on behalf of the Papal States contributed to the subsequent development of international law rules barring the looting of artworks as war booty and requesting, in case of violations, their restitution.Footnote 35 A few years later, in 1820, the Papal States adopted what is considered the first systematic cultural heritage legislation prior to the unification of Italy. This edict, known by the name of its proponent, Cardinal Pacca,Footnote 36 included a system for cataloguing and notifying protected artworks, export controls, a regulation for archaeological excavations, and the state’s right of purchase by pre-emption – all elements that, with various adaptations, would then pass into the legislation of the unified Kingdom of Italy (and, later on, of the Italian Republic).Footnote 37
Following a long process of coordination and rationalization of pre-unitarian legislation,Footnote 38 the new kingdom eventually adopted the Law no. 185 (Legge Nasi) on 12 June 1902 and, subsequently, the Law no. 364 (“Legge Rosadi”) on 20 June 1909, the first really comprehensive Italian law on “movable or immovable things” with a “historical, archaeological, paleoanthropological or artistic interest” (Article 1). Law no. 364 introduced basically all the principles that were to remain, with changes and adjustments on (mainly) technical details and procedural aspects, the core of Italian law on cultural heritage as it kept developing in the following decades.Footnote 39 It affirmed a general principle of inalienability for cultural property in the ownership of the state, other public bodies, or juridical persons (Article 2) and a blanket public ownership rule for all archaeological findings (Article 15). Strict limitations to, and controls over, the export of cultural objects were also provided for, including the State’s right of compulsory purchasing items presented for export (Articles 8–10). Finally, together with its implementing regulation (Royal Decree no. 363 of 30 January 1913), it introduced a coordinated system of central and local authorities (respectively, the Ministry for Public Instruction – which later became the current Ministry for Culture [MiC] – and the superintendencies),Footnote 40 charged with tasks of conserving and protecting national heritage and endowed with matching functions and powers. A system that was in turn to remain the backbone of the Italian specialized administrative organization in this field.
This system was soon to be tested and actually was proven important in reducing the damage to Italian cultural heritage during World War I, even if numerous losses were nonetheless suffered, due to military operations, removal by occupying forces, and opportunistic pillage.Footnote 41 In fact, in the aftermath of World War I, Italy managed to obtain the introduction of a set of provisions (Articles 191–96) in the Saint-Germain Peace Treaty of 10 September 1919Footnote 42 binding Austria not only to return all cultural objects taken from the occupied territories during the recent conflict but also, with specific reference to its relationship with the Kingdom of Italy, to hand over cultural objects acquired by Austro-Hungarian public collections since 1861 and having a direct relation to the ceded territories (Article 193.1) as well as all cultural objects not yet returned in compliance with previous peace treaties between Austria-Hungary and Italy signed following the wars of independence (Article 194).Footnote 43
With the ascent of the Fascist regime in the 1920s, it was only natural that Italian cultural heritage legislation (with the Law no. 1089 of 1 June 1939 on the protection of “things of artistic or historical interest” and Law no. 1497 of 29 June 1939 on the protection of “natural beauties”), would become even stricter and more detailed than before,Footnote 44 focusing on cultural heritage as the emblem par excellence of national identityFootnote 45 and increasing the use of criminal law provisions (both within the special legislation and new Penal Code of 1930)Footnote 46 for its protection.Footnote 47
No force of law, however, was able to protect Italian cultural heritage from the massive looting at the hands of Nazi troops that followed the proclamation of the Cassibile Armistice on 8 September 1943 and the ensuing German occupation of Northern and Central Italy. Hundreds of thousands of artworks and cultural objects were taken from Italian museums and deposits, public and private collections, churches, and monuments and transported to Germany and Austria;Footnote 48 many were recovered soon after the war, but the search for the hundreds that are still missing remains in progress to this very day.
After the end of World War II, the new Constitution, entered into force on 1 January 1948, introduced as a fundamental principle, as well as a specific duty of the Italian Republic, the safeguarding of the “natural landscape and the historical and artistic heritage of the Nation” (Article 9.2), together with “the development of culture and of scientific and technical research” (Article 9.1).Footnote 49 Building on this new explicit constitutional relevance of national cultural heritage, a unified text of cultural property and landscape assets legislation (Legislative Decree no. 490 of 29 October 1999)Footnote 50 was issued to rationalize the many additions made over the years to the 1939 laws. This legislation was also due to the need to implement the many cultural heritage international conventions to which Italy had in the meantime become a partyFootnote 51 as well as to accommodate the transposition of relevant European secondary law.Footnote 52 The process continued with the adoption in 2004 of the Cultural Heritage Code (CHC) (Legislative Decree no. 42 of 22 January 2004), which is currently in force and which further broadened the scope of cultural objects subject to regulation and, in particular, introduced an even more complex regime for their international circulation.Footnote 53
Indeed, even after World War II, Italy remained – and to a lesser, but still quite relevant, extent, remains today – subject to widespread criminal offences against its cultural heritage,Footnote 54 such as clandestine archaeological excavations, art and antiquities thefts (with churches, private locations, and exhibitions as the most vulnerable targets),Footnote 55 and unlawful export of cultural items. This explains why cultural heritage regulations, as well as their enforcement, were progressively strengthened in postwar years, including by an increasing use of penal provisions.Footnote 56 Further specific offences, punishing any actual damage to cultural objects, were added to the Penal Code (PC),Footnote 57 while the special legislation – currently, as stated, the 2004 CHC – also includes a broad range of criminal provisions. The latter mostly punishes possible hindrances to the action of public authorities charged with the conservation and protection of national cultural heritage: thus, penal sanctions – often complemented by administrative ones – are here used mostly to prevent and punish assumed dangers to cultural heritage, usually without any need for an actual danger (and even less an actual harm) to have occurred in order to secure conviction.Footnote 58
In addition, Italy established in 1969 a specialized police force – the Carabinieri Command for the Protection of Cultural Heritage (TPC) – charged with preventing and investigating criminal offences against cultural property.Footnote 59 Placed directly under the authority of the MiC, it is articulated in regional commands covering all national territory. Its activities include, besides criminal investigations and police operations against these specific offences, periodic surveillance over archaeological sites, safety inspections to monuments, museums, places of exhibition, and so on, the monitoring of the physical as well as online market for artworks and antiquities, the keeping of the national database of stolen and missing cultural objects, as well as a set of international cooperation activities that will be discussed later in this article.
Italian cultural heritage law and its “double standard”
The effects of Italian cultural heritage legislation’s having been influenced by the episodes and phenomena of victimization sketched above are quite evident in its current shape as well as in the practices followed by Italian authorities with respect to issues of return and restitution of cultural objects. Here, we will try and outline the main points of what we may call the “double standard” affecting Italian cultural heritage law and practice. First, this double standard is apparent in the unbalanced approach taken by Italian cultural heritage law to issues, respectively, of export and import of cultural objects. Even if Italy remains mostly a source country,Footnote 60 and even if its share of the international art and antiquities market is quite small in comparison not only to well-established hubs such as the United States, the United Kingdom, and China but also to other countries such as France or Switzerland,Footnote 61 Italy is nonetheless also an importer of cultural objects from other European countries, the Americas, and Middle and Far Eastern countries,Footnote 62 as the recurrent forfeiture of illicitly trafficked items is enough to demonstrate.Footnote 63
Nevertheless, Italy’s cultural heritage law does not include specific import controls (or, therefore, related and specific criminal or administrative offences), while providing at the same time a detailed regime of export regulations, controls, and related enforcement.Footnote 64 In fact, with respect to exportation, the Italian system, even after the reform enacted with Law no. 124 of 4 August 2017 (which aimed at broadening export possibilities for contemporary art as well as for cultural objects of comparatively modest economic value),Footnote 65 appears quite strict as well as complex. Presently, for publicly owned (and assimilated)Footnote 66 cultural objects, for which no administrative negative verification of their cultural relevance has ever occurredFootnote 67 and which are neither the work of a living author nor produced less than 70 years prior to the intended exit,Footnote 68 permanent export is always prohibited (no national certificate of free circulation, or European Union [EU] license, can thus be obtained).Footnote 69 Consequently, any intentional permanent removal of the object from the national territory is, by definition, a criminal offence under Article 174 of the CHCFootnote 70 as it is the failure to bring back one such property after the expiry of a temporary permission (which may instead be granted, except if it could endanger the object or the integrity of the national collections).Footnote 71
For privately owned cultural objects that have been subject to an administrative positive declaration of their cultural interest,Footnote 72 any permanent export is also forbidden; infringement of this prohibition (or failure to return the object following a temporary export permit) amounts to the same criminal offence under Article 174 of the CHC. Other not (yet) positively declared cultural property can be instead permanently exported, provided that a certificate of free circulation is asked for and obtained.Footnote 73 All things possessing a cultural interest, to whomever they may belong, which are the work of a no longer living author, were produced more than 70 years ago, and whose financial value is above €13,500.00,Footnote 74 must be presented to the export office of a local superintendency. For the export to be lawful, the applicant needs to get an export permission (certificate of free circulation) granted by this public authority. Export offices may however deny this permission by declaring, on the occasion, the cultural relevance of the object, which can also be subject to compulsory purchase by the state or region.Footnote 75 If an export certificate is granted, but it is not produced at the moment of export, such action will amount to an administrative offence punished with a pecuniary sanction according to Article 165 of the CHC.
Finally, there is a set of cultural objects for which no export certificate is required, but a prior self-declaration of free exportability must be submitted.Footnote 76 However, even such objects, if they are not the work of a living author and are older than 50 years,Footnote 77 may be declared protected cultural property and thus forbidden from permanent export, in case the export office has reason to consider the item, according to Article 10.3(d-bis) of the CHC, an object of such exceptional cultural relevance that its loss would substantially harm the integrity and completeness of the national heritage.Footnote 78 If the required self-certification is not submitted, an administrative offence according to Article 165 of the CHC is committed. In addition, if the object is actually of “exceptional cultural relevance” and gets exported, the criminal offence of unlawful export (Article 174 of the CHC) will also apply.Footnote 79 In the case that false statements are made – passing as freely exportable an object that is not – the offender will incur in the general felony of false attestation by a private person in public documents (Article 483.1 of the PC), besides the aforementioned criminal offence of unlawful export (Article 174 of the CHC).
On the other hand, differently from other countries – such as, for example, Canada,Footnote 80 Australia,Footnote 81 or, more recently, Germany,Footnote 82 which, either in preparation for, or as a consequence of, the ratification of the 1970 UNESCO Convention,Footnote 83 have adopted specific import rules as well as offences and related penalties in case of infringements – current Italian law does not include specific provisions on the issue, except for Article 72 of the CHC. The latter establishes a right – not an obligation – to have a cultural object certified as legally imported into Italian territory. This certification will provide proof that the object is not part of the national cultural heritage and, therefore, not subject to possible future export restrictions or other limitations according to Italian cultural heritage law.Footnote 84
Naturally, in case there is evidence that a cultural item was stolen (or was the object of any other criminal offence), even abroad, it may be possible, if all other elements of the offence are also proven, to apply the general felony of receiving the fruits or proceeds of crime (Article 648 of the PC) and seize the item. To this effect, the Carabinieri TPC have developed a practice of international police cooperation, which we will briefly address in the following section. But, in point of law, what is currently missing – differently from the countries mentioned above – is a consistent regulation of the import of cultural property, including specific administrative or criminal offences, which may provide an earlier barrier to the trafficking of such objects into the country and require a lesser amount of evidence in court, as the offence(s) would basically revolve, like current export offences, around the mere intentional infringement of administrative rules.
Of course, any introduction in the future of import controls (which is due, given the gradual application of the new Council Regulation (EU) 2019/880 on the Introduction and the Import of Cultural Goods)Footnote 85 would necessitate careful consideration of the resources to be devoted to this task. In fact, it would be unthinkable to just charge existing export offices (whose personnel is, even after the 2017 reform, already stretched too thin to deal with export requests)Footnote 86 with mandatory import controls as well. A reasonable solution would most likely imply, on the one hand, an investment in reinforcing these administrative units as well as, on the other hand, a more significant lightening of the burden related to export controls than that enacted in 2017.
Finally, it is worth noting that, even if the present structure of the Italian regulation of international circulation of cultural objects is basically inherited from a long national legal tradition, other countries with a story of systematic cultural heritage protection and of an exclusive focus on export regulation and controls, like France,Footnote 87 have recently adopted a more “symmetrical” approach to the two ends of international trade, introducing import controls, backed up by specific sanctions in case of infringements.Footnote 88 This was also a consequence of the perceived need to better tackle international trafficking, including by way of a more solidary approach to the implementation of the 1970 UNESCO Convention, capable of granting better protection to the interests of the other states parties.Footnote 89
With respect to the practice on issues of return and restitution, Italy has been harshly – and rightly – criticized, particularly with respect to its attitude toward claims over Nazi-looted art:
Italy has pursued antiquities, museums, even curatorsFootnote 90 to the ends of the earth (even objects found in international waters),Footnote 91 so one might expect a comparable effort with regard to Nazi-looted art closer to home (Italy’s established Jewish community fared well by comparison until late in the war and Mussolini’s collapse,Footnote 92 after which the Nazis took over the persecutions in earnest). Not so, regrettably.Footnote 93
Indeed, the 2014 report following the St. Petersburg ICOM Museum and Politics Conference highlighted that, even if Italy participated in the 1998 Washington Conference on Holocaust-Era AssetsFootnote 94 and endorsed the 2009 Terezin Declaration,Footnote 95 “it does not appear that provenance research is taking place in Italy, nor is there a legislative background that would allow for the restitution of cultural and religious property.”Footnote 96 Actually, there are some provisions in the 1947 Peace Treaty, as well as in post-Fascist and postwar Italian legislation, that can be, and have been, used in support of restitution claims by private individuals,Footnote 97 but it is also true that the current Italian legislative framework is neither clear nor consistent, so much so that other restitution claims have actually been rejected by the Italian government, to be later decided in favor of the claimant abroad (as happened in the Gentili di Giuseppe case).Footnote 98 Also, Italian scholars have long been advocating the introduction of specific, clearer, and more equitable rules.Footnote 99
But even if a parliamentary commission (the so-called “Commissione Anselmi,” after the name of its chair) was instituted on 1 December 1998 to investigate and report over the spoliationsFootnote 100 suffered by Italian Jews between 1938 and 1945,Footnote 101 no legislation has yet been passed to ease the success of restitution claims in court (such as the 2016 Holocaust Expropriated Art Recovery Act in the United States), nor is there a dedicated advisory committeeFootnote 102 and/or specific guidelines to ease out-of-court settlements, differently from what has happened in Germany, France, Austria, the Netherlands, and the United Kingdom.Footnote 103 Thus, Italy, while very active, and even aggressive, in bringing claims for the restitution of publicly owned cultural objects,Footnote 104 including artworks taken from public collections or other institutions by German occupying forces, has never undertaken any significant initiative to support and ease claims brought forth by private individuals, victims (or heirs of victims) of racial or political persecution under the Nazi-fascist regime and of consequent confiscations or forced sales of artworks.
When it comes to colonial cultural objects, though, Italy’s backwardness appears even deeper. In fact, no parliamentary commission has ever been appointed to investigate the issue and possibly produce reform proposals, nor, therefore, is there any dedicated advisory body or set of specific guidelines for museums or any ongoing process to establish either or both of these (differently from Germany,Footnote 105 the Netherlands,Footnote 106 or the United Kingdom).Footnote 107 And even the few claims that eventually have resulted in a success have actually faced not only legal difficulties but also a long and strong opposition by both Italian institutions and public opinion.
Some (ambivalent) steps ahead
Perhaps the strongest feature of the Italian “model”Footnote 108 is presently a well-established and effective practice of international police and investigative cooperation, mostly carried out by the specialized Carabinieri TPC.Footnote 109 Acting both upon requests from INTERPOL and through their systematic and widespread monitoring of the Italian art and antiquities market, the Carabinieri TPC intercept a good number of cultural items of suspicious criminal origin each year, many of which are of foreign provenance (the lack of valid and authentic export documentation is in such cases considered as a hint of possible unlawful dealings). In this latter instance, according to a standard practice developed through the years,Footnote 110 they ask the competent Italian tribunal for precautionary seizure of the objects, have them examined by experts to determine their most likely origin, and warn the competent authorities of the presumed source country, in order for them to check, and possibly confirm, the unlawful origin and, in that case, issue a formal request for their return. On the basis of such a request, the competent judicial authority usually authorizes the release of the objects to the requesting state, through delivery to the ambassador of the country concerned. In the year 2019, Italy returned, for instance:Footnote 111 to Belgium, one sixteenth-century volume stolen in 2005 from Mons University Library; to Croatia, one seventeenth-century volume stolen from Zagreb University Library;Footnote 112 to Mexico, 594 ex voto paintings unlawfully exported from the country; to China, 796 archaeological items dating from the Neolithic to the Ming Dynasty. In addition, the Carabinieri TPC have participated in a set of other international cooperation projects,Footnote 113 ranging from peacekeeping operations including protection of culturally relevant sites, to specialized training programs for police forces of other countries, to updating the INTERPOL Stolen Works of Art database (Project PSYCHE)Footnote 114 in order to assist with the investigation and prosecution of transnational crimes against cultural heritage.
All these activities have proven useful and effective in tackling the ongoing international trafficking of cultural objects, making Italy a very cooperative partner in the prevention and prosecution of present-day offences against the cultural heritage of other countries. Of course, the problem, with respect to the specific issue of colonial artifacts, is related to the inapplicability of such practices to cases of “historical” depredations, which fall well outside the scope of applicable criminal law and criminal procedure measures. Nonetheless, Italy has, in recent years, positively addressed some requests for the restitution of cultural objects acquired in times of colonial occupation – namely, those referring to the already recalled Aksum obelisk and Venus of Cyrene. These episodes certainly suggest a shift toward a more consistent approach to cultural heritage policy,Footnote 115 correctly paying attention to the legitimate interests and claims of other countries that have seen their heritage diminished as a consequence of Italian historical interference and domination. Nonetheless, there are ambivalences in these positive episodes as well, which signal how the road toward the full redress of colonial wrongs still remains long and winding.
The Aksum obelisk was re-erected on its original site in 2008, following a bilateral memorandum signed by the Italian and Ethiopian governments on 18 November 2004.Footnote 116 The most appreciable feature of this episode – besides the restitution itself – is the commitment, undertaken and complied with by Italy, to also take care of the complex and costly dismantling and transportation of the obelisk as well as to finance the United Nations Educational, Scientific and Cultural Organization’s project for the restoration and re-erection of the monument in Ethiopia.Footnote 117
On the other hand, though, the restitution process lasted over 60 years. Italy had committed itself in the 1947 Peace Treaty (Article 37) to giving back this object, and all other items, of Ethiopian cultural property removed since 3 October 1935 within 18 months of its coming into force (on 10 September 1947). This obligation, however, was only partially complied with in respect to “minor” items (many of which were however declared lost and never returned) but not to the obelisk,Footnote 118 so that, almost 10 years later, its restitution was specifically addressed in an agreement between Italy and Ethiopia (signed in Addis Ababa on 5 March 1956 and entered into force on 4 July 1956)Footnote 119 on the settlement of economic and financial matters issuing from the 1947 Peace Treaty.Footnote 120 Besides acknowledging the duty to return the obelisk under the Peace Treaty, Italy bound itself (according to Annex C) to the dismantling, removal, and transportation to Ethiopia of the monument within the six months following the entry into force of the agreement. Following the precise obligations assumed under the 1947 Peace Treaty and, even more, the 1956 Agreement, there was, therefore, no valid legal argument to prevent the actual restitution of the obelisk.
Nonetheless, Italy dragged its feet for another 50 years, and over a further joint statement signed in Rome on 4 March 1997 (detailing the stages through which the operations for the return of the obelisk to Ethiopia were to be effected within the same year), which was once again not complied with.Footnote 121 The arguments brought forth in Parliament and in the media against the restitutionFootnote 122 ranged from allegations that the huge amount of money necessary for the transportation would have been better employed in providing Ethiopia, at the time (2002) ravaged by famine, with a quantity of food of equal monetary value, to the risks for the integrity of the monument related to its dismantling and transportation (mindless of the inconsistency of the argument, as the process had already been successfully enacted once, in 1937, with far inferior knowledge and technology), and even to the danger of setting a precedent for the reclamation by foreign countries of all other obelisks in RomeFootnote 123 (mindless, amongst other, that many of them are Roman or Renaissance replicas and that the few that actually came from Egypt as ancient Roman war booty have never been the object of any restitution request, for obvious reasons).
The restitution of the Venus of Cyrene in the same year (2008) was in some ways even more complicated. Libya had lodged the first formal request for its restitution in 1989, and it took about 10 years for Italy and Libya to reach an agreement on the issue: on 4 July 1998, the two states signed a joint declaration according to which Italy undertook to return all cultural objects taken during and after the Italian colonizationFootnote 124 (it is worth mentioning that a like provision, part of a broader commitment to compensate Libya for the former colonial occupation, was later included in Article 16.2 of the Treaty of Friendship, Partnership and Cooperation signed in Benghazi on 30 August 2008).Footnote 125 In the subsequent first meeting of the Committee for Italo-Libyan Partnership, on 11–13 December 2000, the Venus of Cyrene was identified as one of the items to be returned and, building on that promise, on 1 August 2002, the Italian MiC issued a decree removing the statue from the state’s property in view of its transfer to a museum in Libya. The statue was actually returned, but only on 30 August 2008, after a long legal battle in front of the Italian administrative courts.Footnote 126
In fact, one of the oldest citizens’ associations founded with the purpose of safeguarding the national cultural heritage, Italia Nostra, filed a lawsuit before the Regional Administrative Tribunal (TAR) of Lazio seeking the annulment of the decree. The main argument brought in support of the claim was that the statue was part of the inalienable cultural heritage of the state, and, as such, it could not be deaccessioned with a mere ministerial decree since a specific law, approved by the Italian Parliament, would have been required to allow the removal and subsequent transfer to a foreign state. The statue’s belonging to the Italian cultural heritage was not only argued based on the fact that it had been found in what was considered to have been, at the time, Italian territory but also – from a “cultural” perspective – because of its strict connection to Italy’s classical Greek-Roman roots, a connection deemed far stronger and more significant than any possible link with the culture of an Islamic country such as Libya. Finally, the plaintiff also voiced concerns that the restitution could create a precedent likely to cause further requests and, in the long run, a significant impoverishment of Italian cultural heritage.Footnote 127
In the end, the decree was upheld both in first instance (TAR)Footnote 128 and in second instance (Council of State).Footnote 129 The latter argument was dismissed by observing how Italian heritage also had suffered grievous losses during World War II and how therefore reaffirming a general duty to return cultural objects unlawfully confiscated in wartime would go to the advantage of Italy as wellFootnote 130 (thus also upholding a principle of international solidarity in the protection of cultural heritage). In addition, the reductive idea of what constitutes a “cultural link” was dismissed by observing that Libya possesses even today a rich Roman heritage and that the Hellenistic culture, of which the Venus was an expression, had also profoundly influenced Islamic art and culture of the following centuries.Footnote 131
Both the TAR and the Council of State (albeit with slightly different arguments and not without some inconsistency in their reasoning)Footnote 132 considered it to be unnecessary for an act of Parliament to authorize the restitution of the statue to Libya. On the one hand, both did not consider Italian sovereignty legally constituted over Cyrenaica at the time the statue was taken, so that the object never legally entered the Italian state’s ownership; thus, the statue was not subject to inalienability rules according to Articles 822.2 and 823 of the Civil Code and Article 54 of the CHC.Footnote 133 On the other hand, Italy was recognized as being under an international law obligation to return the statue to Libya: an obligation arising from the 1998 and 2000 agreementsFootnote 134 or, anyway, from customary international law,Footnote 135 to which Italy is bound to conform by Article 10 of the Constitution (which, according to a well-established interpretation by the Italian Constitutional Court, implies, in turn, the prevalence of international customary rules over conflicting internal laws).Footnote 136
The Council of State, in particular, focused on the latter source,Footnote 137 referring not only to the customary rule that requires the reintegration of the cultural heritage of states victims of military occupation but also, more radically, to the two general principles of international law, respectively, on the prohibition of use of force and on self-determination of peoples. The latter, in particular, was considered to include peoples’ right to the protection of both their cultural identity and their material cultural heritage.Footnote 138
As observed by some commentators, the arguments used by the Council of State to uphold the restitution of the Venus can be considered to some extent stretched, but the decision was certainly in line with the new political approach adopted by the Italian government,Footnote 139 aiming, amongst other things, at ensuring an overall consistency between Italian claims over cultural objects unlawfully removed from Italy’s territory and Italian attitudes toward claims by other countries for the restitution of cultural items of questionable origin in Italian possession. On the other hand, however, it must be observed that the 1998 joint declaration, just like the following 2008 Treaty, concerned a far broader range of (much more strategic) issues, such as cooperation on trade, industry, energy, defense, the fight against terrorism, and control over illegal immigration. Therefore, it is doubtful whether an agreement over the restitution of the Venus would have been reached (or reached so quickly, when compared to the “geological” pace of the actual restitution of the Aksum obelisk), had far more compelling reasons of political expediency not entered into play.
Conclusion: New inputs and possible developments
The debate over Italy’s colonial past, and, even more, over the restitution and repatriation of colonial artifacts in Italian collections, remains even today basically the province of a few experts (law and humanities scholars and professionals working in cultural institutions, cultural activities, or the antiquities market). Nonetheless, issues of racial discrimination and former colonial oppression have been recently gathering some more attention in public discourse, thanks also to the echo, even in Italy, of the international Black Lives Matter movement; at the same time, some ripples of international media attention on questions of repatriation of colonial objects, powerfully kick-started by the political stance taken by French President Emmanuel MacronFootnote 140 and the ensuing release of the Savoy-Sarr report,Footnote 141 seem to have reached the Italian press, which, as observed in the introduction, has started to display at least the occasional bout of interest. Even if a real change in the attitude of Italian public opinion, and, therefore, a shift from victimism to a more solidary approach, presently appears very slow-paced in coming at best, it is doubtlessly a start, whose momentum could be increased thanks to further input.
First, Italy actively participated in the negotiations of the new Council of Europe’s Convention on Offences Relating to Cultural Property,Footnote 142 which the country also signed on 24 October 2017. Also in preparation to its ratification (which is currently ongoing),Footnote 143 a draft law has been submitted in 2017 to the Italian Parliament,Footnote 144 proposing a comprehensive review and update of crimes against cultural heritage, which are to be almost totally transferred into the PC, with a general increase in penalties and the addition of some further, specific offences.Footnote 145 Amongst these, there is a new felony of unlawful import of cultural property,Footnote 146 which is to be punished with imprisonment of between two and six years and a fine of between €258.00 and €5,165.00 – that is, a sanction that would actually be more severe than the one provided for unlawful export.Footnote 147 This new offence would cover the intentional import of any cultural object that is the fruit of a prior felony, or that was retrieved by way of unauthorized excavations whenever an authorization is required under the domestic legislation of the country of origin, or that was exported contrary to the laws of the country of origin. Actually, this reform proposal has been stranded in Parliament for more than two years, but this is likely due more to the combined effect of internal political instability and of the pandemic emergency than of any active obstructionism; in fact, discussion over the draft law has recently resumed, and legislative work in the Senate currently appears to proceed expeditiously.
The second, and even stronger, international obligation that Italy will have to comply with is related to the gradual application of the abovementioned 2019 Regulation on the import of cultural objects into the EU, which entered into force on 27 June 2019. Article 3.1, prohibiting the introduction of “cultural goods”Footnote 148 removed from the territory of the country where they were created or discovered in breach of the laws and regulations of that country started to apply on 28 December 2020 (Article 16.2.a), for all member states, even if Italy has not yet introducedFootnote 149 the “effective, proportionate and dissuasive” penalties required (Article 11) for its enforcement.Footnote 150 Besides, by 28 June 2025, the provisions on import licenses (Articles 3.2 and 4 and Annex Part B)Footnote 151 and importer statements (Articles 3.2 and 5 and Annex Part C) will also start to apply, and Italian authorities will therefore have to implement a measure of import controls, at least for cultural objects entering Italian borders from non-EU countries. The Italian lawmaker is also bound to introduce specific (albeit not necessarily criminal) offences, and related sanctions, for infringements of these EU rules (Article 11).
All in all, it is possible that the gradual application of Regulation 2019/880 will induce a comprehensive review of Italian rules on international circulation of cultural objects, complementing current export controls with new import controls and related enforcement – especially if Italy were also to actually ratify the 2017 Convention on Offences Relating to Cultural Property, and the latter were to enter into force.Footnote 152 Of course, as observed above, in order for such a new system to work, some further adjustments to domestic law would be required, as any reform should go beyond the mere addition of new duties to the competences of (already overloaded) existing administrative authorities. Finally, even if it was mostly externally induced, such a change of approach to present-day issues of illegal trafficking could in turn propel a further change in attitudes on issues of historical depredations and related duties of restitution and repatriation of colonial artifacts. Not a one-day-process, admittedly, nor one that will necessarily unfold; yet enough has been done to date to reasonably hope for progress in the future.
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