Impossible Standards? UK Bill Makes Trade in Items from Conflict Zones Since 1954 Illegal

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by Kate Fitz Gibbon

This article appeared first on the Committee for Cultural Policy website here.
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April 13, 2017 – A United Kingdom bill, the Cultural Property (Armed Conflicts) Act 2017, has been enacted by Parliament. The Bill relates to the UK’s ratification and implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Since 2004, successive UK governments have proposed Bills ratifying the Convention, but previous attempts failed.
The chief controversy in the current Bill comes from clause 17(1) . This clause makes it a crime to deal in unlawfully exported cultural property that a dealer knows or has reason to suspect has been unlawfully exported from an occupied territory, and it is retroactive to items exported since 1954. No regulations have yet been enacted to administer the new legislation.
The third debate on the Bill in Parliament’s House of Commons reiterated concerns that have been ongoing since the Bill was introduced in 2016.

Parliamentary Under-Secretary of State for Culture, Media and Sport Tracey Crouch defended every aspect of the Bill, from granting protection from cyber-attacks on digital property to protecting monuments from damage. However, her chief aim in passing the Bill was to limit the scope of the market in cultural property.
In regard to clause 17, which makes it a criminal offense to deal in unlawful cultural property, Crouch stated, “If there is any evidence to suggest that an object might have been unlawfully exported from its country of origin – wherever and whenever that export took place – dealers should not deal in that object.”

Crouch continued:
“If new, convincing evidence is presented about an object’s provenance shortly before an auction, we already expect dealers to pause and consider whether they need to undertake further due diligence. If, however, a claim is made with no evidence to back it up, it may be perfectly legitimate for a dealer to disregard that and proceed with the sale. Such claims are unlikely to be considered a reason to suspect that an object has been unlawfully exported. When unlawfully exported cultural property is imported into the United Kingdom, it is important that we are able to protect it by deterring and, if necessary, prosecuting those who would deal in it.”

Victoria Borwick, president of the British Antique Dealers Association, said that while the arts industry fully supports the aims of the Bill, there are concerns that, “honest and well-intentioned dealers and auction houses do not risk criminal prosecution when conducting reasonable due diligence.”

The range of items covered by the Bill is not clear and certainly not limited to important works of art. Borwick stated: “The clause 17 offence of dealing in unlawfully exported property depends directly on the clarity and understanding of what is meant in the Bill by the term “cultural property”. As it stands, the punctuation that is used in article 1(a) of the convention, which is reproduced in schedule 1, means that cultural property is not limited to “property of great importance to the cultural heritage of every people”… Other categories of property are covered by the definition, regardless of their cultural significance…”

Sir Edward Garnier, QC, who opposed certain provisions in 17(1), has earlier noted that the Bill covers works of art, libraries, books and manuscripts, as well as items of archaeological and historical interest, among other items, and that the Bill would make military commanders liable for failing to prevent the destruction of cultural property.

Given the fact that the legislation covers objects more sixty years in circulation, it is also unclear how art dealers could establish when an item left its place of origin, or where it came from.
The Bill covers cultural property from occupied territories and conflict zones dating back to 1954. An object from a country that was in conflict decades ago might be illegal now to trade in, even though it had circulated in the trade for decades, after the conflict was long since over. Borwick also pointed out the lack of a definition of what constitutes an “occupied territory” to which the law applies, and what dates would be covered.

Borwick asked, “cannot the list of occupied territories, together with the relevant dates of occupation, be drawn up for all to see? Alternatively, could the criteria that the Secretary of State would apply when determining whether and when a country is considered to have been occupied be clarified? I could add to the list east Jerusalem, the west bank, northern Iraq, Libya or southern Sudan.”

In the final discussion on the Bill, Borwick said:
“I struggle to understand how a law concerned solely with objects unlawfully exported from occupied territories can be expected to operate effectively when there is no means by which anyone is able to identify those territories. Do the Government expect a dealer or auction house to submit requests for confirmation of a territory’s status to the Secretary of State on a case-by-case basis, prior to handling an antique, as part of their due diligence? I urge the Government to prepare a list of the territories covered and the relevant dates, so that proper guidance can be given. As the application is retrospective to 1954, that information must be available and must be a point of record. I ask the Minister to consider these points and others when preparing the regulations governing the Bill.”

The Bill also applies to current conflicts. Crouch announced the pending creation of a new cultural property protection unit in the British Army. She said the unit would ensure that there was respect for and protection of cultural property throughout the British armed forces. The unit will have between 10-20 specialist reserve officers to provide training and support across the armed forces and report on cultural property wherever British army units are stationed. Since much of the damage to cultural property that takes place during war is perpetrated by soldiers from all sides, issues were raised about subjecting embedded foreign nationals in the UK services to UK jurisdiction. Crouch said that, “a foreign soldier committing a serious violation would be dismissed and returned to their sending state.”
The Bill was read a third time and passed without amendment. It received Royal Assent from the Queen to become law on February 23, 2017.