By Alexandra Moffit

Picture: Globe License: Public Domain

United Nations

Under a new Secretary-General, the United Nations took several new steps based on studies in 2017.

·       Antonio Guterres begins role as Secretary-General of the United Nations in January.

·       The United Nations Security Council unanimously voted to issue new sanctions to North Korea. These sanctions were in response to its burgeoning nuclear program and its ballistic missile program.

·       The United Nations’ agency that deals with aviation proposed a global drone registry that would aid local law enforcement agencies. This registry would be a step towards global regulations dealing with the small crafts.

·       Russia and China vetoed resolutions that would have sanctioned Syria for its use of chemical weapons.

·       United Nations agencies reported during 2017 that 2016 was the first time in the 21^st century that hunger increased. Possible reasons offered by the United Nations for this increase were climate change and conflict. These would cause an increase in food insecurity around the world. There are currently around 815 million chronically malnourished people around the world.

·       The United Nations and other organizations began investing in blockchain technology. Organizations like the World Food Programme launched pilots that use blockchain in delivering food.

The United States and International Organizations

With the United States changing leadership as President Trump began his tenure in office, the United States changed its relationships with various international organizations significantly during 2017.

·       The United States, in one of Donald Trump’s first acts as President, declared its intention to abandon the Trans-Pacific Partnership. The previous administration had negotiated the large free trade deal with various nations but had not come into effect yet.

·       The United States withdrew from the Paris Climate Accords in June, becoming one of the only countries not party to the climate agreement.

·       The United States, Canada, and Mexico began to renegotiate the North American Free Trade Agreement following President Trump’s dissatisfaction with the agreement. A relocation or dissolution of the agreement would cause major changes in the economies of each nation, as well as trade laws.

·       The United States withdrew from UNESCO, the United Nations cultural organization, in October. “At the time when conflicts continue to tear apart societies across the world, it is deeply regrettable for the United States to withdraw from the United Nations agency promoting education for peace and protecting culture under attack,” Director-General of UNESCO Irina Bokova said. The United States indicated its reason for leaving as the organization’s inclusion of Palestine as a member in 2011.

Refugees and International Organizations

As refugee numbers increased in 2017, various international organizations took steps to combat problems.

·       Security in Burma has been conducting ethnic cleansing of Rohingya Muslims. Some have sought asylum in Bangladesh. The crisis has had a global impact and is ongoing. A new UN pilot program could provide refugees in Bangladesh with work permits.

·       International Organizations like the World Bank used their leverage to try to push Burma to stop its persecution of Rohingya Muslims. The World Bank announced it would be withholding a $200 million loan it had promised to the country.

·       The United Nations High Commissioner on Refugees announced that there are over 3 million stateless people around the world. The agency urges countries to grant citizenship to these stateless people, which would provide them with basic health and personal rights.

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April 14, 2018

By Dr. Derek Fincham*

Looters at Iraqi site of Isin, May 2003.
Photo: U.S. Dept. of Defense

On Friday, May 19, the Committee of Ministers of the Council of Europe will meet to open a new treaty for signatures on a new Convention on Offences relating to Cultural Property. Given that the Council of Europe now has 47 member states, including both Russia and Turkey, the impact of this new Convention could be immense. This is particularly true given that the member states of the Council of Europe include art-acquiring states, transit states, and states with ancient monuments.  The Convention may even allow any non-Council state to sign on to the Convention. The work of this draft Convention could catapult the member states of the Council of Europe to the head of the pack in embracing the complementary international conventions aimed at stemming the illicit trade in cultural property.

The final text of the draft Convention has, at the time of writing, not been made public. I was able to have a look at a nearly-finished version of the text at a meeting of international legal experts at a Conference at IMT in Lucca earlier in 2017. One of the most outstanding aspects of the draft Convention is its focus on regulating all levels of the trade in cultural objects, including looters, traffickers, and end-of-the-chain art sellers and buyers. This encompassing approach will lead – I suspect – to better effective policing of the illicit trade in cultural objects and will serve to protect and aid the good actors in the art trade who are abiding by the law but have been suffering due to the unfair competition provided by illicit traffickers.

This Convention, which has been referred to as both the Nicosia agreement, and the Blood Antiquities Convention joins a growing array of international instruments that deal with cultural heritage. Those include the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which directed its provisions at safeguarding art and heritage during armed conflict. The subsequent 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Illicit Cultural Property served to orient public international law to the problem of illicit cultural property and raised the profile of the problem of the illicit trade in works of art and the destruction and looting of cultural heritage. The 1995 UNIDROIT Convention worked to craft a model set of rules for private law amongst buyers and sellers of works of art and antiquities which may be illicit.

The Council of Europe’s new Convention emerges in this context to carry forward the lessons of those Conventions, to offer solutions to the problem of the illicit trade in antiquities—a problem which is diffuse, varied, and requires a cohesive regulatory response.

Controlling the Exportation of Cultural Objects

One particularly useful aspect of the Draft Convention is the prohibition on Export, distinguishing it from a similar, problematic aspect of the European Council Regulation. One of the flaws with the European Council Regulation on the export of cultural goods is its different treatment of regulation of the trade in cultural objects from Member States and other non-member states or third countries. Article 2(2) requires Member States to check whether goods that have come from another Member State were moved from one Member State to another in a way that is “lawful and definitive.” Due to some technical differences in language, the current Council Regulation prevents Member States from having the same checks for objects from Member States as from non-Member States which may be non-EU in origin because Article 2 does not include this “lawful and definitive” language from its scope. Article 5 of the Draft Convention effectively avoids any of this difficulty. I read the draft Convention then to mean that the Convention erects safeguards to protect against theft, illegal excavation, and illegal export of all cultural objects, irrespective of whether the object was illegally exported from a Member State or some other third country.

Measures at the domestic and international levels

Another noteworthy aspect of the draft Convention are Articles which erect concrete measures to establish inventories which are publicly accessible; introduce import and export procedures subject to specific certificates; to establish records of transactions; and to promote consultation and information across State boundaries. These measures – if properly implemented and funded – have an important and critical function which will do a great deal to make the efforts to stem the trade in illicit cultural property more effective. It is my hope that these procedures would allow the investigation into whether a work of art which has travelled through a number of individual States was properly given an export and import certificate in all of these individual states. And if not, a proper investigation and penalty regime could be erected which would serve to effectively disincentivize the illicit transfer of cultural objects across State borders. By erecting a system by which investigators can check the various exports of an object, it would be possible to both trace an object back ideally to its nation of origin, or failing that, to allow an investigator to use the export violations which have potentially occurred in transit states to secure a successful investigation, resulting either in the return of the object or in the prosecution of culpable individuals.

Conclusions

The merits of any multilateral Convention such as this will always be dependent on the political will and the resources devoted to its implementation. Given the challenges facing the world’s cultural heritage, both in terms of intentional destruction, and the looting of sites to finance illegal activity, the moment is now for a strong Criminal Convention. Its renewed emphasis on regulating exports takes account of the multinational character of the international trade in cultural heritage, its emphasis on information sharing and collaboration can effectively combat the opaque nature of certain aspects of the art trade, and will serve to work around any deficiencies present in the domestic law of other third party nations. The draft convention comes at a dangerous moment for so much of the world’s cultural heritage, and I am optimistic about its capacity to meet this challenge head-on.

*Dr. Fincham writes about the illicit trade in cultural property, he teaches writing, art law, and admiralty law at South Texas College of Law Houston. He regularly blogs at www.illicitculturalproperty.com

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May 19, 2017

By Jack Mitchell*

The Temple of Bel, Palmyra, was destroyed in 2015 by the Islamic State.Photo: Wikimedia Commons/Bernard Gagnon

I

In 2012, at the UNESCO World Heritage site in Timbuktu, Mali, Ahmad Al Faqi Al Mahdi destroyed historic mausoleums, manuscripts, and even a mosque. Al Mahdi belonged to the Al-Qaeda-linked group, Ansar Dine. His subsequent conviction by the International Criminal Court (ICC) last year was covered in the mainstream press and art world publications as a “landmark” case, the first time the destruction of “cultural heritage” was prosecuted as a war crime in the ICC. In prosecuting and convicting Al Mahdi, however, the ICC did not create a new war crime for destroying “cultural heritage.” Rather, it invoked part of Article 8 of the Rome Statute that it had never used before. Under Article 8(2)(e)(iv) of the Rome Statute, intentionally “directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick are wounded and collected, provided they are not military objectives” is a war crime.

The Al Mahdi case was so lurid because it fit a grisly pattern of World Heritage and other significant cultural sites targeted by Islamist extremists, including the Islamic State of Iraq and the Levant (ISIL). ISIL has destroyed numerous historic sites in Syria and Iraq, including ancient Assyrian sites. When it obliterated the Temple of Bel and other ancient features in Palmyra in 2015, for example, the loss was as devastating as the 2001 Taliban bombing in Afghanistan of the Buddhas of Bamiyan.  So far, though, Al Mahdi’s conviction remains a significant but isolated precedent.  The destruction of the Bamiyan Buddhas was never subject to prosecution in the ICC because the Rome Statute had not yet entered into force.  The perpetrators of cultural heritage destruction in Syria also might elude prosecution in the ICC because Syria, like the United States, is not a party to the ICC, meaning that an ICC investigation and prosecution would require an unlikely referral from the UN Security Council.

But it’s not just terrorist groups. States and non-state actors have participated in recent cultural heritage destruction. According to Matthew Barber, former director of Yazda, ISIL’s campaign to exterminate the Yazidis went forward because KDP forces decided not to defend them. Similarly, the US has been mute as its ally Saudi Arabia bombs the UNESCO-listed Old City of Sana’a in Yemen.

II

First, principles about the law of cultural heritage are surprisingly unsettled. What is the difference between “cultural heritage” and the older term, “cultural property?” If cultural heritage is the more encompassing concept, what should its boundaries be? Second, how do we assess the gravity of cultural heritage destruction?

International criminal law would do well to focus on cultural property destruction as a war crime—as opposed to language and oral history, for example—because deeper efforts at “cultural cleansing” would possibly fit better under the umbrella of crimes against humanity.

Two key factors concerning when cultural property destruction should be prosecuted are military necessity and gravity of the crime. Military necessity, although the doctrine is controversial, is a kind of “affirmative defense” to cultural property destruction because an opponent’s use of cultural property or its status as a military objective can be used as justification for its destruction. This doctrine has sparked promising efforts to improve militaries’ awareness about where cultural property is located such as ICOM’s Red List and archeological inventories used to create “no-strike lists.”

The gravity of the crime question depends upon our purpose. Should cultural heritage law protect people or things? A “people” approach emphasizes what cultural property means to distinct groups of people. A “things” approach emphasizes its supposed intrinsic worth. Both approaches are flawed. The first might have to credit nationalistic myths. The second might entail using market value or the fallible judgment of UNESCO as a proxy for actual value. My trite but sincere belief is that international criminal law can adopt a flexible standard that recognizes that gravity is established for targeted, damaged, or destroyed cultural property both when it is especially meaningful to specific cultures and when it has internationally recognized importance.

*Jack Mitchell is a student at Georgetown University Law Center in the class of 2019. This blog post is the winner of the International Cultural Heritage Law Blog Post Competition that was co-sponsored by the American Society of International Law, the Georgetown Journal of International Law, the Lawyers’ Committee for Cultural Heritage Preservation, and the Georgetown Art Law Association.

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May 05, 2017