The temple complex

The striking Duryodhana lies at the heart of an international battle for antiquities

By Mary Kozlovski

Like many an ancient site in Cambodia, Koh Ker is often overshadowed by Siem Reap’s Angkorian temples, whose jewel, Angkor Wat, features on the Cambodian flag. Yet Koh Ker, briefly an Angkorian capital in the 10th century, has drawn notice recently as the focus of a legal dispute in the United States.

Earlier this year, a pedestal with a pair of feet snapped at the ankles was moved from Koh Ker’s Prasat Chen temple northeast of Siem Reap by the Apsara Authority, the Cambodian agency charged with protecting and conserving heritage at the Angkor temples. Some experts have claimed that an imposing sandstone statue called the Duryodhana, once affixed to the pedestal, was torn from the temple in the 1960s or early 1970s.

Through a chain of transactions, the Duryodhana resides in New York. Before the artefact was removed from sale at Sotheby’s auction house in 2011 after Cambodia requested its return, their catalogue estimated its worth at between $2-$3m.

US government lawyers filed a civil complaint this year seeking forfeiture of the statue in order to repatriate it to Cambodia, alleging that Sotheby’s knew the artefact was stolen when they imported it in 2010.

“The Duryodhana statue is imbued with great meaning for the people of Cambodia and, as we allege, it was looted from the country during a period of upheaval and unrest, and found its way to the United States,” Preet Bharara, US Attorney for the Southern District of New York, said in an April 4 statement.

According to legal documents, Sotheby’s sought the complaint’s dismissal, arguing the government had not sufficiently established that the statue was stolen from Cambodia, that it remained so when it was imported or that Sotheby’s or its owner knew it to be stolen.

Last month, federal prosecutors filed a motion to amend their complaint, further alleging that the statue was stolen from Cambodia “in or around 1972” and that Sotheby’s provided “inaccurate information” on its provenance to potential buyers, Cambodia and US authorities.

Peter G. Neiman, a lawyer for Sotheby’s, said in a statement that the proposed amended complaint did not plug “key holes” in the initial complaint and that Sotheby’s conducted “appropriate due diligence” regarding the statue.

“[The proposed amended complaint] attempts to tar Sotheby’s with a hodgepodge of other allegations designed to create the misimpression that Sotheby’s acted deceptively in selling the statue,” he said.

Patty Gerstenblith, a professor and director of the Centre for Art, Museum and Cultural Heritage Law at DePaul College of Law in Chicago, said the US government could only recover the statue if it is considered stolen property, which requires proving that Cambodia declared and enforced national ownership.

“If the government establishes when the statue left Cambodia, then it becomes easier to identify and analyse the applicable law,” she said. “If the government is able to pinpoint this date to during the Cambodian wars, then we can look at a strong policy – although I’m not certain that this rises to the level of law – not to allow cultural objects looted during war time to be sold freely in the US.”

Gerstenblith added that it might be difficult to prove Sotheby’s knew the statue was stolen when it was imported and she believed the auction house had undertaken a “quite exhaustive” search of the piece’s provenance.

The dispute underlines the complexity of dealing with contested cultural heritage through litigation. The complaint claims that colonial decrees from the early 1900s established protections for certain property in French Indochina, which included Cambodia.

Gerstenblith said if the US recognised that the French colonial laws established ownership, internal enforcement might be evaluated differently.

“If the Cambodian government was doing what it could to police internal theft but was unable to do so because of the war… [and] conditions, then this prong of the analysis may be satisfied,” she said.

Rick St. Hilaire, a US attorney and professor specialising in cultural heritage law, said if the court rules that the statue must be removed from Sotheby’s, auction houses and those who acquire and sell archaeological objects “will be much more vigilant when examining the collecting history of a piece”. He added that they would likely feel the opposite if the statue remained in Sotheby’s possession.

The Duryodhana is not the first artefact that Cambodia has endeavoured to retrieve from abroad. “If we know [about] the presence of our antiques and statues, we try our best bring those properties back,” said Chuch Phoeun, secretary of state at Cambodia’s Ministry of Culture and Fine Arts.

According to The New York Times, Cambodia plans to seek the return of a statue at the Norton Simon Museum in California – a companion to the Duryodhana – and twin statues at the Metropolitan Museum of Art in New York, known as ‘Kneeling Attendants’.

Chuch Phoeun said Cambodia was investigating five statues located in US museums. “We have just focused on the Sotheby’s case as the first step, then we will look into [the] other five statues,” he said, adding that the artefacts – which he did not identify – were “priceless cultural properties”. Hab Touch, director general for tangible heritage at the ministry, said only that the government was “studying” five statues.

In April, the Norton Simon Museum said Sotheby’s offer of the statue “spurred interest” in a Khmer statue called ‘Temple Wrestler’, which was purchased by the Norton Simon Foundation in 1976, and had been displayed and shown to Cambodian officials, during which time its ownership was never questioned. Leslie C. Denk, the museum’s director of public affairs, said the museum was “cooperating with US authorities”.

The Metropolitan Museum of Art did not respond to requests for comment.

Anne Lemaistre, head of Unesco in Cambodia, said countries typically sought the return of artefacts with religious or cultural significance, noting that the Duryodhana is a “masterpiece” and few sculptures from Koh Ker exist in Cambodia.

She added that she did not know if Cambodia would seek the statue at the Norton Simon, but it would be logical.

“One piece without the other has no sense in terms of understanding what it means,” Lemaistre said, explaining that the sculptures represented a turning point in the Angkorian Empire when Koh Ker became a new capital. Lemaistre said the statues at the two museums were probably looted from Koh Ker, but this was under investigation.

Though players in the art market have their own imperatives, legal experts emphasise that proper stewardship of cultural heritage is broadly beneficial. Agreements may be – and have been – brokered where ownership of a piece is disputed.

St. Hilaire said that while there should be accountability when archaeological objects have been stolen, certain outcomes could be negotiated for the artefacts.

“For instance, one outcome might be that the people of Country X retain title of a cultural artefact while a museum in Country Y maintains possession of the piece under a stewardship agreement that requires the museum to care for the object,” he said.

A different model could be employed with Sotheby’s, such as a donor purchasing the artefact and giving it to Cambodia, Gerstenblith said.

While the fate of the Duryodhana remains uncertain experts agree that all parties must take great care when

acquiring and selling cultural artefacts, particularly those with obscure origins.

“Rigorous – not ordinary – due diligence must be applied,” St. Hilaire said, “when acquiring an artefact that may have been ripped from its historical context, depriving archaeologists, historians, anthropologists, and others [of] the ability to learn about our shared human history.”