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The draft Cultural Property (Armed Conflicts) Bill is designed to enable the United Kingdom to ratify the 1954 Hague Convention for the protection of cultural property in the event of armed conflict and to accede to the Convention's two Protocols, drawn up in 1954 and 1999. The Bill has been published in draft, to allow pre-legislative scrutiny by Parliament and by others.
We welcome the draft Bill, which was strongly supported in evidence. We believe that it would, if enacted, strengthen the procedures used by the Ministry of Defence when training personnel in respect for cultural property and taking cultural sites into account when planning operations. It would also enable the UK to respond to criticisms that Coalition troops in Iraq did not always follow high standards of behaviour in treatment of cultural property; and it may encourage more Commonwealth states to sign up to the Convention and the two Protocols.
The fundamental issue in this inquiry was to establish whether or not the Bill would constrain military operations unduly, for instance by limiting troops' freedom to protect themselves when coming under fire from opposing forces based in a museum or in a mosque, or by enabling opposing forces to surround military objectives with protected cultural sites. The Ministry of Defence appears confident that passage of the Bill into law would not impose such a constraint; and the Minister provided similar assurances in writing. In fact the UK's armed forces already act in accordance with the principles of the Convention and its two Protocols. While we continue to harbour doubts about the practicality of the draft Bill, we admire the decision of the Ministry of Defence to formalise existing practice and accept commitments under domestic law in relation to respect for cultural property.
By and large, we believe that the draft Bill is drafted and structured in a way which will enable it to meet its aims. We draw the attention of the Department for Culture, Media and Sport to potential weaknesses in the drafting of clauses on ancillary offences and on the responsibility of commanders for actions by their forces. There also appears to be a loophole which could allow any object undergoing transportation—even a shipment of arms—to be designated as protected cultural property, without any need for that designation to be confirmed by a higher authority. This would clearly invite abuse, and the draft Bill should be duly amended.
The draft Bill would make it an offence to deal in cultural property unlawfully exported from an occupied territory. However, there is to be no authoritative list of territories deemed to have been occupied at any stage since 1954, when the Convention was adopted. Nor will it always be easy for a potential vendor to prove that export had been legal. This would not necessarily matter, except that by "acquiring" an item, a dealer would be deemed to be "dealing"; so a dealer who accepts an item in order to carry out due diligence inquiries into its provenance risks committing an offence. We believe that dealers would, in both cases, be unfairly exposed to prosecution. A definitive list of occupied territories should be drawn up by the Government, with periods of occupation defined; and either the offence of dealing in unlawfully exported cultural property should require an element of dishonesty to have been displayed by the dealer, or the definition of "acquire" should clearly exclude acceptance for the purposes of carrying out due diligence inquiries.
No decision has yet been taken on which forms of cultural property would be subject to protection under the Convention in the UK. Even though the provisions in the draft Bill are expected to be brought before Parliament early in the 2008-09 Session, it appears that no decision on protection is imminent, as the Government is awaiting the publication of guidelines by UNESCO, which are not due to be issued until "2009-10". Considerable effort has already been expended on trying to establish where the line should be drawn and which buildings and sites should be included on any list of protected cultural property. Even though there is no requirement under the Convention to hold such a list, we believe that to do so would clearly signal the UK's commitment to the Convention. It may, in any case, be difficult for military forces to observe the Convention unless lists of protected cultural property have been prepared. Lists should be tightly drawn, and we believe that to include all Grade 2* listed buildings and historic city centres on the list, as some have suggested, would risk significantly diluting its credibility.
Until the Government decides whether there should be a list of cultural property and sites deemed to be protected under the Convention and, if so, what should be on that list, it is difficult to know what the implications will be for staff in the Department for Culture, Media and Sport and at English Heritage. The Government should make up its mind. Parliament should not be asked to agree to legislation to give effect to the 1954 Hague Convention and its Protocols without it being informed of the implications for publicly funded bodies.
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