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

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.

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March 30, 2017