2016 Year in Review - Cultural Heritage

By Navy Thompson

In a year marked by major shifts in the international political and legal communities, many may have missed important developments in the growing area of cultural heritage law. These changes have occurred in both national and international arenas, and may have a broad range of potential consequences.

On September 27, 2016 the International Criminal Court’s Trial Chamber VIII found Ahmad Al Faqi Al Mahdi guilty of the war crime of “intentionally directing attacks against religious and historic buildings.” The buildings in question were ten religious shrines in Timbuktu, Mali, which were destroyed between June and July of 2012, in the context of a domestic armed conflict in the country. Al-Mahdi, viewed as “an expert on religious matters,” allegedly worked with groups known as Ansar Dine and AQIM, which took over Timbuktu after the Malian military retreated from the area. During the occupation, Al-Mahdi ordered the destruction of the sacred buildings and mausoleums, none of which held military significance. Nearly all of the sites had also been named UNESCO World Heritage Sites, such that the court found their destruction to cause injury to the international community in addition to those directly affected in Mali. Al-Mahdi personally helped to destroy five of the sites, and the ten attacks constituted war crimes according to the provisions of the Rome Statute. He eventually confessed and apologized for his role in the crimes in order to receive a shorter sentence of nine years.

The decision has been hailed as a great step toward effectively holding destroyers of cultural and religious property accountable in international law. Most significantly, the case marks the first time in history that the ICC has tried a war crimes case based solely on destruction of cultural heritage charges.

                                                                  

Several countries enacted their own diverse cultural heritage protection laws in 2016.

• In July of 2016, Germany revised its national cultural protection laws, which now require state government approval for dealers and collectors to export art out of the European Union that is older than fifty years and that holds a value of over $170,000. For intra-EU exports, approval is required for artwork that is more than 75 years old and that holds a value of over $340,000. The laws have additional provisions regarding the sale of archaeological goods, and have generated significant controversy in Germany’s art community. One significant worry for international art dealers is the substantial risk of taking pieces of art into Germany; the value of such pieces could potentially decrease substantially if the German government decided to restrict the movement of such pieces back out of the country. Others worry that the laws will damage the art market in Germany more generally, and will force art dealers and artists to operate outside of Germany for fear that the value of their pieces may fall within the country, among others concerns.
• In December, former United States President Obama signed into law the Holocaust Expropriated Art Recovery Act (HEAR), a law which facilitates an easier process for heirs to Nazi-confiscated art to make their legal claims for its return. Prior to the Act, claimants often encountered difficulties based on each state’s statute of limitations, which were often set at three years. The HEAR law therefore sets a federal statute of limitations of six years for heirs to make legal claims for recovery, with the six years beginning once the art’s location is discovered and once the claimant can prove its right to ownership.
• Another act passed in the United States was the Protect and Preserve International Cultural Property Act, which closed American markets to any incoming looted antiquities from Syria. The bill was proposed by Representatives Edward Royce and Eliot Engel, and aims to end the practice of violent extremists gaining funds through the trafficking of cultural artifacts.
• Finally, in December of 2016, President Obama signed into law the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, which gives immunity from US jurisdiction to foreign states in cases regarding loaned works and culturally significant objects used for temporary exhibition in the United States. The law came five years after an American judge ordered the return of a set of books to a Jewish community in New York, and has therefore faced criticism for its potential to allow states to keep artworks that have been stolen. However, the law will likely have the effect of stimulating art and cultural exchanges with Russia, a country whose museums have refrained from lending works to American institutions since 2011. 

Also of note, Art Recovery International launched Artive, the world’s first non-profit focused on identifying claims on works of art and on consolidating information regarding stolen, destroyed, or looted cultural property and art pieces. The project will function as a database platform for the preservation of cultural heritage property. Its creation may play a significant role in the future of cultural heritage protection as it creates a network through which information regarding such issues and claims can be shared and circulated worldwide.