‘Cultural Protection and Criminal Law: Overview of the Cultural Property (Armed Conflicts) Bill 2016’ by Kevin Joseph Dent

“Recognizing that cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the technique of warfare, it is in increasing danger of destruction;

Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”

-The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

It has taken the United Kingdom government 62 years to introduce steps to ratify into domestic law the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Undoubtedly spurred on by outrage at the nihilistic and opportunistic cultural barbarism of groups such as ISIL laying waste to sites of outstanding heritage such as Palmyra in Syria, the Government has finally heeded the calls expressed periodically over the years to solidify and bring into domestic law its commitment to the Convention by way of introducing the Cultural Property (Armed Conflicts) Bill 2016.

This article sets out some background to the Bill and looks at the new criminal offences proposed.

The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict was enacted in the wake of the devastation and widespread plunder by the Nazis and others during the Second World War, and in recognition of the high value to mankind in the preservation of cultural artefacts and sites of significance.  Article 1 of the Convention defined cultural property in wide and fairly modernistic terms to include:

“movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above.”

Article 28 of the Convention sets out a framework for sanctions; that contracting nations:

“…undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commits or orders to be committed a breach of the Convention’.

The ambit of such criminal sanctions for ‘serious violations’ was further defined in the Second Protocol to the Convention (1999) but, although an original signatory to the Convention, until now the United Kingdom has not sought to enact the domestic legislation envisaged by Article 28 back in 1954.

The Cultural Property (Armed Conflicts) Bill 2016 therefore proposes a number of new criminal offences to ensure that the UK can fully meet the obligations set out in the Convention and Protocols. The new offences fall broadly into three areas:

  • Offences designed to protect cultural property in the event of armed conflict, including attacking, thieving, pillaging, misappropriating or vandalising protected cultural property, with heavier penalties for extensive destruction and attacking property under enhanced protection.
  • An offence of misuse of the Blue Shield; the emblem that identifies cultural property protected under the Convention and Protocols. The Bill also delineates what amounts to authorised use of the emblem.
  • An offence of dealing in cultural property that has been illegally exported from territory occupied during an armed conflict, and powers for the forfeiture or seizure of such cultural property.

Offences designed to protect cultural property in the event of armed conflict

Section 3(1) of the new Bill sets out that a person commits an offence if-

  1. the person does an intentional act of a kind described in any of subparagraphs (a) to (e) of paragraph 1 of Article 15 of the Second Protocol,
  2. the act is a violation of the Convention or the Second Protocol, and
  3. the person knows that the property to which the act relates is cultural property.

These intentional acts (as defined in Article 15 of the Second Protocol) are:

  1. making cultural property under enhanced protection the object of attack;
  2. using cultural property under enhanced protection or its immediate surroundings in support of military action;
  3. extensive destruction or appropriation of cultural property protected under the Convention and this Protocol;
  4. making cultural property protected under the Convention and this Protocol the object of attack;
  5. theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.

It is clear from Section 3(2) that it does not matter whether the acts are done in the United Kingdom or elsewhere. Therefore, at least in theory, an ISIL or similar fighter involved in destroying an ancient site in Syria or Iraq could be prosecuted for this within our domestic criminal law.

The less serious offences under (d) and (e), however, can only be committed outside of the UK by a UK national or a person within the UK armed forces. Thus a UK soldier could be prosecuted here for cultural vandalism not amounting to ‘extensive destruction’ outside the UK but, for example, a French citizen could not.

Section 4 would extend the ambit of these offences to those who attempt or conspire to commit such offences, or who assist offenders committing such offences.

Responsibility of commanders and other superiors

Section 5 of the new Bill extends criminal responsibility to commanders and other superiors as aiders and abettors of those under their control.

Section 5 sets out:

“(1) A person described in this section as responsible for a section 3 offence is to be treated as—

(a) aiding, abetting, counselling or procuring the commission of the

offence under the laws of England and Wales and Northern Ireland…

(2) A military commander is responsible for a section 3 offence committed by forces under the commander’s effective command and control if—

(a) the offence is committed as a result of the commander’s failure to

exercise control properly over those forces,

(b) the commander either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit the offence, and

(c) the commander failed to take all necessary and reasonable measures within the commander’s power to prevent or repress the commission of the offence or to submit the matter to the competent authorities for

investigation and prosecution.

Although Section 5 is arguably necessary to bring the 1954 Convention fully within domestic law, it would nonetheless extend the ambit of a commander’s criminal liabilities within conflict situations. This could only add to the already heightened anxiety felt by commanders of the armed forces in the modern era that they are now susceptible to ever-expanding fields of potential criminal responsibility.

A person guilty under a Section 3 offence would be liable on indictment to a maximum term of imprisonment of 30 years. Commensurate with the gravamen and speciality of such offences, the consent of the Attorney General would be required to institute prosecutions.

Misuse of the ‘Blue Shield’ Cultural Emblem Offences

Part 3 of the new Bill (Sections 9-11) set out proposed offences for misuse of the unique ‘Blue Shield’ blue and white cultural emblem enshrined in the 1954 Convention as an identifying mark of internationally recognised cultural property. Under the Convention moveable cultural property, for instance, can only be moved in certain prescribed situations and ways, and the Blue Shield is an important identifier that cultural property is being moved for a reason and in a manner compatible with Convention obligations.

Fake or unauthorised Blue Shields, however, are for the same reason capable of providing the cover of legitimacy for cultural property being smuggled, plundered or otherwise misappropriated.

Section 9 therefore creates the offence of unauthorised use of this cultural emblem. The offence can be committed in two ways:

“9 Offence of unauthorised use

  1. It is an offence for a person to use the cultural emblem otherwise than as authorised by section 10, 11 or 12.
  2. In subsection (1) the reference to the cultural emblem includes any other design that so nearly resembles the emblem as to be capable of being mistaken for it.

Thus it would become an offence to either use the cultural emblem without authorised use or to add to an item of cultural property an emblem so closely resembling the emblem as to ‘pass off’ as the real thing. Such offences would be summary only offences but prosecutions would nonetheless require the consent of the Director of Public Prosecutions.

An additional sanction, under Section 14, is that an article wrongly containing the cultural emblem can be forfeited.

Unlawfully Exported Cultural Property offences

Part 4 of the new Bill concerns smuggled and plundered cultural property unlawfully exported from an occupied territory.

It is widely reported that a key driver for even the most apparently ideologically inspired recent looting and desecration of ancient sites in places like Iraq and Syria is the money derived from stealing valuable cultural artefacts. Such items can be smuggled out of the conflict zone to specialist international markets, providing additional income for those desecrating the sites. Indeed, the laying waste of an ancient site may provide good cover for the appropriation of cultural property from within it.

Section 16 defines ‘unlawfully exported cultural property’ in effect as cultural property unlawfully exported from a state which is under occupation by a state which is a signatory to the First and Second Protocols of the Convention, or a state that is a signatory but under occupation by another state.

‘Unlawfully’ is defined as either in contravention of the laws of the territory from which it is exported or under international law.

Clearly there is a requirement to delineate the ambit of the offence, but Section 16 is drafted in terms which may have the effect of transposing contentious concepts of international law to the relatively concrete and perhaps less conceptual problem of smuggling artefacts from areas of conflict.

It also has the effect of lessening the protection for countries that may be most in need of it. Territory within a state which is not a signatory state and under occupation by another non-signatory state would not be within the ambit of the section, no matter how rife the looting of cultural artefacts. Syria for instance is a signatory whereas Iraq is not. So would cultural property smuggled from the territories of Iraq under occupation by a group such ISIL be covered by Section 16? Probably not. At the very least this indicates the potential high-level legal complexity underpinning this part of the Bill.

Section 17 then creates an offence of dealing in such ‘unlawfully exported cultural property’. It would become an offence under this section for a person ‘to deal in unlawfully exported cultural property, knowing or having reason to suspect that it has been unlawfully exported’.

‘Dealing’ is defined quite widely in Section 17(3) as follows:

“(3) A person deals in unlawfully exported cultural property if (and only if) the person—

(a) acquires or disposes of it in the United Kingdom or imports it into, or exports it from, the United Kingdom,

(b) agrees with another to do an act mentioned in paragraph (a), or

(c) makes arrangements under which another does such an act or under

which another agrees with a third person to do such an act.”

This section therefore should encompass all those dealing within a smuggling chain. What is perhaps less clear, however, is the extent to which it would cover those persons involved in smuggling cultural property to the UK, but involved before the property comes into the UK. For instance, would it cover the actions of a dealer of artefacts based in Cairo involved in arranging the transport of an item from Libya to Cairo on route to the UK? The wording of the Bill seems to extend to this but Section does not include the same explicit declaration of extraterritoriality present in Section 3. At the least, if enacted without amendment, this could be an area of contention in the future.

Offences under this section are either-way offences with a maximum sentence of 7 years and not requiring the consent of either the AG or DPP.

Forfeiture and Ancillary Powers

A key part of the Bill is the mechanism to forfeit unlawfully exported cultural property.

Smuggled cultural artefacts are liable under Section 18 to be forfeited following conviction. Section 19 goes further and specifies that all unlawfully imported cultural property is liable to forfeiture, whether following conviction or otherwise. Under Section 21, however, a purchaser in good faith may apply for compensation for the cultural property forfeited.

To give these provisions real teeth, Sections 23 to 28 set out powers of search, seizure, and retention of property. One of the undoubted strengths of the new Bill is that it is well integrated into existing structures of criminal investigation such as the obtaining of warrants, searches and seizure of material. Likewise, the framework set out for determining forfeiture is conceptually similar to that for forfeiture of criminal property under POCA 2002.

In keeping with the Bill’s thoroughly modern outlook, and the trend to expand the ambit of criminal corporate responsibility, Section 29 extends liability for offences under Sections 3, 9 and 17 to company officers where the offences have been committed by corporate entities. Quite how likely these offences are in reality to be committed by companies is open to question, but it is possible to envisage private security companies being held responsible for acts of looting committed by its operatives overseas or companies being involved in systematic smuggling from territories under occupation.

Reaction to the Bill

On the whole, the Bill has been well-received by specialist bodies working to protect cultural property. The overwhelming sense is that such legislation is long overdue and necessary for the UK to play its part in protecting cultural property. Some commentators have voiced concerns that prosecutions may be politically orientated and tilted away from large-scale destruction of heritage sites committed by allies of UK, such as the bombing by Saudi Arabia of UNESCO World Heritage Sites in Yemen. Suggestion has also been made that cultural property should be defined in a more expansive way to include schools, religious buildings or libraries (see Sasan Aghlani’s article ‘Queen’s Speech Provides UK with Path to Leadership on Cultural Property Protection’ Chatham House 2016).

The Bill appears to have cross-party support and so is very likely to be enacted as legislation, and in terms very similar to the current draft.

Across various part of the world, combatant groups now see the destruction of significant cultural sites as a key part of their war aims. Those working locally to protect such sights are targeted by the same groups, indeed Khaled al-Asaad the prominent Syrian archaeologist was recently executed by ISIL for refusing to reveal where Palmyra’s mobile artefacts had been hidden. There has never been a greater need for states like the UK to stand up for the protection of cultural property and to do what they can to ensure those responsible for its grievous destruction face criminal responsibility.

In reality it may be that very few prosecutions would be brought for the offences outlined above but, even though it is 62 years late, the timing of this Bill could not be more apt.  

Kevin Joseph Dent © 2016