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30 May 2017

Cultural Property (Armed Conflicts) Act 2017: a threat to the London art market?

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In February, a significant piece of legislation for the art world was introduced which will finally implement in the UK the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954, and the First and Second Protocols to that Convention, of 1954 and 1999. In particular, it incorporates into domestic law the offences created by Article 15 of the Second Protocol, by making it a criminal offence to:

  • deal in cultural property that the dealer knows or has reason to suspect has been unlawfully exported from an occupied territory;
  • use the "cultural emblem" (the international symbol for cultural property) without proper authorisation; or
  • intentionally and knowingly attack, destroy or misappropriate cultural property in violation of the Convention or the Second Protocol (or, in the case of military commanders, fail to prevent such offences).

But what is "cultural property"? The act takes the definition used in Article 1 of the Convention – namely, works of art, libraries, books and manuscripts and items of archaeological and historical interest. "Unlawful" refers to either local or international law. "Deal" means acquiring or disposing (or agreeing, or making arrangements for another person, to do so). "Occupied territory" is not defined.

For the law to apply, the territory in question must have been in a Convention state, or been occupied by a Convention state at the time of the export. The dealing must have been done in, or the import or export must have been from or to, the United Kingdom. The criminal offences are not retrospective, but will only apply to deals carried out after the act has commenced. No date has yet been fixed for that.

When introducing the Bill to the Commons, the Secretary of State for Culture, Media and Sport, emphasised that it was urgently needed, due to the "wanton destruction" of cultural heritage in the Middle East and North Africa.

It is not yet clear what impact the act will have on the London art market. Written submissions to the House of Commons Public Bill Committee and an article in the Times (subscription required) by Sir Edward Garnier, QC, MP and former Solicitor General for England and Wales, raised fears that the proposed legislation could "threaten London's art market", due to concerns about the level of criminal intent required in order for art dealers to be guilty of an offence.

The act will catch dealers who do not actually know or suspect unlawful export from a warzone, but instead merely have "reason to suspect" the same. In his article, Sir Edward Garnier points out that English criminal law is normally based on actual, subjective knowledge or belief, rather than an objective test of what a defendant had reason to suspect. The lack of clarity over how "reason to suspect" will be interpreted could mean that a dealer whose suspicions are innocently but incorrectly allayed by insufficient due diligence would be guilty of a criminal offence. Even those dealing in artefacts in good faith with no actual suspicions about a piece may unwittingly be caught, if it is judged that they instead had "reason to suspect". Sir Edward Garnier points out that such people would be "convicted simply for lacking curiosity". He stated that the potential breadth of the offence could mean that a mere unfounded allegation of unlawful export would make a dealer unwilling to become involved with an object, thereby stultifying the London art market and meaning that it will lose out to markets elsewhere.

One proposed solution was to amend the draft legislation to require that a defendant "knows or suspects" unlawful export from a warzone in order for the offence to be made out. However, the draft of the legislation was not so amended. Instead, the Secretary of State attempted to reassure the market by stating that the legislation will not require dealers to undertake any additional due diligence measures and that "scrupulous dealers should have "no reason to fear prosecution or increased business costs under the Bill". She also drew attention to similar provisions under the existing regime for dealing in illegal artefacts, including the Dealing in Cultural Objects (Offences) Act 2003 and sanctions orders in relation to Iraq and Syria. For example, as the Parliamentary Under-Secretary of State for Culture, Media and Sport pointed out, the sanctions order in relation to Iraq provides that anyone dealing in illegally-removed Iraqi cultural property is presumed to be guilty unless they can demonstrate they had "no reason to suppose" that the property had been illegally removed.

Another point of contention with the act is the government's omission to list the territories that it considers to be occupied. Such a list would provide welcome clarity on this issue, which may help to calm fears in the London art market. However, for now, the government has stated that the meaning of "occupied territory" is for the Foreign Secretary to decide on a case-by-case basis.

In addition to the act, the government has also announced other measures to attempt to make the UK "a champion for cultural protection in times of peace and war alike", such as a £30 million fund to protect cultural heritage in global war zones and the establishment of a Ministry of Defence military cultural property protection unit.

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