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General Order 1A
Iraq Cultural Property Law, 2002
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The supreme law of Iraq is the Constitution, which was approved by popular referendum and enacted in October 2005.

Article 109, paragraph three of the Iraq Constitution declares:

   "Antiquities and antiquity sites, traditional constructions, manuscripts and coins
    are considered part of the national wealth which are the responsibility of the
    federal authorities.They will be administered in cooperation with the regions
    and governorates, and this will be regulated by law."

The law referenced in Article 109 is known as Iraq Law Number 55 for the Antiquities and Heritage of Iraq. This law, as well as preceding legislation [Antiquities Law No. 59, enacted in 1936, as amended by amendments 120 (1974) and Amendment 164 (1975)] vests all cultural property found within the sovereign territory of Iraq with the state with the exception of property held by religious bodies under Waqf.*

Article 18 of the Iraq Law Number 55 declares that:

    all Antiquities...
(defined under Article 4, section 7 as "movable and
        immovable property which has been built, made, carved, produced,
        written or painted by man, those age of which is not less than 200 years,
        as well as human and animal skeletons and plant remains")

    ...and all Heritage Material...  
(defined under Article 4, section 8 as
        "movable and immovable property, less than 200 years of age, possessing
         a historical, national, religious and artistic value")

and all Antiquity and Historical Sites at which such material is located in the territory of Iraq must be registered with the Iraq State Board of Antiquity and Heritage (SBAH).

Without registration, " It is prohibited to possess any movable antiquity by any person, whether de facto or de jure" [Article 17, section 1].

"Any movable antiquity found in the possession of a person, shall be delivered to the Antiquity Authority within 30 days after this LAW come[s] into force" [Article 17, section 2] with two exceptions:

(a) property subject to Article 10 [property found in "Mosques, Masjids, Holy
      Shrines, Monasteries, Convents, Tombs, Takaya, Churches, Inns and other
      ancient buildings, owned or constituted in Waqf, in the occupation of persons
      de facto or de jure... "]; and

(b) manuscripts and ancient coins that have been registered with the SBAH
     [Article 17, section 3(B)]

No one is allowed to excavate, dig for, discover or take any antiquity or heritage material without a written permit from the SBAH [Article 3, section 1].

Excavation requires permission and oversight of the SBAH; discovering or taking any Antiquity or Heritage Material without promptly notifying and registering the object with SBAH, is prohibited [Articles 30 to 35].

Registered antiquities and heritage material may only be sold within Iraq [Article 17, section 4]. The SBAH has broad authority to confiscate privately-held artifacts, hereitage material, antiquities or privately-held land containing archaeological sites [Article 6, sections 1 and 2];

Likewise, no one is allowed to import or export any antiquity or heritage material from the territory of Iraq without a license or permit from the SBAH. [Articles 20 and 22]

The penalties for violating Law Number 55 may include incarceration of up to 10 years in prison and a fine of 100,000 Iraqi Dinars. Illegal excavation (looting) may result in imprisonment for a period of up to 15 years and a fine of two times the value of the damages sustained. And trafficking in antiquities is punishable with a term of imprisonment for a period not to exceed 10 years and a fine of up to 1,000,000 Iraqi Dinars.

U.S. service personnel or contactors are subject to Law Number 55 while on Iraqi soil. This law may also be invoked by a federal prosecutor in the United States in support of a charge under the National Stolen Property Act** in the event that antiquities or heritage material of Iraqi origin are transported to the U.S.*** Conviction under the National Stolen Property Act may subject those who possess or transport or transfer ownership or interest in the artifact in the United States to various penalties including fine and imprisonment, and may subject the artifact in question to criminal or civil forfeiture.

————————

* A waqf (plural awaqaf) refers to a religious endowment in Islam that typically involves a building or plot of land used for Muslim religious or charitable purposes. It is conceptually similar to the common law trust.


** The National Stolen Property Act Title 18 U.S.C. §2315, makes it a crime to "receive [], possess [], . . . sell [], or dispose [] of any goods, wares, or merchandise . . . of the value of $ 5,000 or more, . . . which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken . . ."

*** Under two federal court precedents — United States of America versus McClain 545 F.2d 988 (5 th Cir. 1977); 593 F.2d (5th Cir. 1979) and United State of America versus Frederick Schultz 333 F.2d 393 (2nd Circuit 2003), affirmed by the Second Circuit Court of Appeals — a federal prosecutor in the United States may invoke, and a federal court judge in the United States may apply a foreign government's antiquities law, such as Iraq's Law Number 55 for the purposes of establishing the rightful ownership of a smuggled artifact and seize the artifact under an order of forfeiture for eventual return to the source country.



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