House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Ninth Report

2 The provisions of the draft Bill

10. All those who submitted evidence supported the aims of the Bill.[7] There was also general confidence that, once certain improvements had been made in the drafting, the Bill would do what it was designed to do. We discuss drafting issues in paragraph 19.

11. We welcome the draft Bill, particularly given the weight of support shown in evidence. We believe that the draft Bill would, if it were to be 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. Brigadier Messenger, giving evidence on behalf of the Ministry of Defence, told us that because respect for cultural property during armed conflict was now to be a matter of law rather than policy, training would need to be deepened and reviewed "to ensure that we are being rigorous enough";[8]

— respond to criticisms that Coalition troops in Iraq did not always follow high standards of behaviour in treatment of cultural property. Dr Gaimster, representing the UNESCO UK National Commission, pointed out that the UK Government was frequently involved in international conflict resolution and peacekeeping roles. He argued that the UK therefore needed "to come on board and be leading in the setting of standards and benchmarks for how we should behave and actually protect cultural property";[9] and

— encourage more Commonwealth states to sign up to the Convention and the two Protocols. Ms Cole, representing English Heritage, said that ratification of the Convention and Protocols by the UK could prompt not just existing and former Commonwealth countries to follow suit but also the United States, as the largest state not yet party.[10]

12. However, the draft Bill is not necessarily quite such a huge step forward as might be assumed, and it could be argued that the UK has managed perfectly well for over 50 years despite not having ratified the Convention or its two Protocols. Dr Roger O'Keefe, a specialist in international law and author of a book on the protection of cultural property during armed conflict, told us that the UK's armed forces already acted in accordance with the principles of the Convention and its two Protocols.[11] This statement was confirmed by Brigadier Messenger,[12] who also noted that neither he nor anyone else in the Ministry of Defence had been made aware of any occasion on which UK forces had contravened the terms of the Convention or Protocols.[13]

13. Our principal concern has been that the Bill, by formalising in law requirements upon the armed forces to respect cultural property, could constrain military operations, particularly if opposing forces were to be unscrupulous in observing the terms of the Convention or the two Protocols (assuming that those forces were those of a State Party, or even those of a state at all). The main offences for which a military commander would be liable in future are those which constitute a "serious breach" of the Second Protocol:

i. making cultural property under enhanced protection[14] the object of attack;

ii. using cultural property under enhanced protection or its immediate surroundings in support of military action;

iii. extensive destruction or appropriation of cultural property protected under the Convention and this Protocol;

iv. making cultural property protected under the Convention and this Protocol the object of attack;

v. theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.

For the first three offences in the list, states party to the Second Protocol are required to establish jurisdiction enabling prosecution of offenders for offences committed anywhere by a person of any nationality.[15]

14. We therefore sought reassurance during the inquiry that the obligations placed by the draft Bill upon UK forces while on operations were practical. We had in mind circumstances in which UK troops come under attack from hostile forces using cultural sites for military purposes, or when military hardware is stored in or near sites of cultural significance. Mr Garraway, representing the British Red Cross, cited an example from his own experience, when a MiG fighter had been deliberately parked next to a ziggurat in Iraq during the first Gulf War in 1990-91.[16] The National Council on Archives pointed out that buildings designed to hold archives were typically of a robust construction and built to high standards, making them attractive to local commanders for military use. The Council noted that several record offices had been commandeered by local forces during the conflict in Kosovo, to house gun batteries and other armaments.[17]

15. Brigadier Messenger, who had himself served in Kosovo, Afghanistan and Iraq, where he had commanded a force of Royal Marines leading the assault on the Al-Faw peninsula in 2003, acknowledged that "it can happen and indeed it has happened" that cultural sites were used in such a way, and he gave a similar example from Afghanistan, in which British soldiers had come under fire from forces in a mosque.[18] He acknowledged that "it may be, for the safety of those forces or for the pursuit of the mission, that it would be necessary, if the enemy were using that particular guise, to then go on and do damage to that mosque"; but he observed that "all the safeguards and all the procedures would need to be in place before we did that and a decision would need to be made as to whether it was a military imperative or not".[19] Two important safeguards, in his view, were the need to prove (for an offence to have been committed) that a commander had shown both an intention to attack cultural property and the knowledge (or reason to suspect) that that property was cultural property as defined under Article 1 of the Convention. Brigadier Messenger also observed that the clearer the definition of what constituted cultural property, and the more widely that definition was agreed internationally, the better; and he believed that it was important to set the threshold for what was designated as deserving protection "at a sensible level". In his view, setting the threshold too low, and designating too many sites as being of cultural significance, "could turn out to be a constraint for the military commander".[20]

16. The Minister of State at the Department for Culture, Media and Sport, the Rt Hon Margaret Hodge MP, told us that DCMS had been working closely with the Ministry of Defence to ensure that the obligations in the Bill were compatible with the requirements and realities of military operations. She confirmed that the various safeguards described by Brigadier Messenger would indeed offer protection and she pointed out that the obligation to respect cultural property could be waived in the case of military necessity if the property had been used in a way which made it a military objective. She believed that it was "very unlikely that all the elements of the offence will be satisfied in such circumstances". She added that, under common law, if a person acted reasonably and in good faith to defend himself or others, self-defence was available as a defence to crimes committed by the use of force.[21]

17. Conscious of a risk that UK forces could damage cultural property inadvertently, through confusion or uncertainty about its precise location, we asked Brigadier Messenger whether he had confidence that units would be able to identify cultural property or sites accurately when in combat. He replied that, as long as there was prior and accurate knowledge, there was "no difficulty with that at all" and that the geolocation tools used by troops were "pretty advanced". When such knowledge was lacking, however, it would be "largely a case of interpretation on the ground".[22]

18. We were struck by the willingness of the Ministry of Defence to embrace the principles of the Convention and its two Protocols. It may well be that the Ministry of Defence harbours reservations about the practicality of observing those principles in time of war; but we note that UK forces already operate in conformity with the Convention and its Protocols. We admire the decision of the Ministry of Defence to formalise its practice and accept commitments under domestic law in relation to respect for cultural property.

Drafting issues

19. Dr O'Keefe described the draft Bill as "carefully considered" and "by and large, extremely well drafted", and he admired the seriousness and professionalism with which the task had been approached.[23] However, he identified a number of inconsistencies within the text and between the text of the draft Bill and other statutes.

20. Chief among these inconsistencies is the failure in clause 4 (Ancillary offences) to designate aiding, abetting, counselling or procuring the commission of an offence as an ancillary offence. Article 15 of the Second Protocol to the Convention requires parties to comply with general principles of law and international law when establishing as criminal offences within domestic law the offences set out in the Article itself (constituting "serious violations") and when extending individual criminal responsibility to persons other than those who directly commit the act. The general principles of international law in relation to criminal liability were recognised, during the negotiations on the Second Protocol, to have been authoritatively set out in the Statute of the International Criminal Court.[24] Dr O'Keefe argued that it would make sense, therefore, for the terminology used in the Statute, which specifically recognises aiding, abetting and assisting in a crime on the one hand and ordering, soliciting or inducing the commission of a crime on the other, to be reproduced in clause 4 of the draft Bill, which defines ancillary offences.[25] However, it is not. Dr O'Keefe found the reason for the divergence from the terminology used in the International Criminal Court Act 2001 to be "not at all clear", and he concluded that the UK would not, as a result, satisfy its obligations under Article 15 of the Second Protocol to comply with general principles of international law.[26]

21. Dr O'Keefe also observed that the penalties for a serious breach of the Second Protocol, set out in clause 7 of the draft Bill, applied to primary offences and to ancillary offences; but there was no provision in the draft Bill specifying that an action by a military commander or superior (or a failure to act or exercise control) which led to an offence being committed constituted an ancillary offence. He therefore doubted that penalties under the Bill as drafted could be applied to commanders or superiors who had aided, abetted, counselled or procured the commission of an offence of serious breach of the Second Protocol.[27]

22. There may be scope for argument as to whether the definition of an ancillary offence in the Bill as drafted would enable the UK to satisfy its obligation under Article 15 of the Second Protocol to comply with general principles of law and international law when establishing criminal offences within domestic law. The Department should either satisfy itself that the present drafting is tight enough or it should draw up new wording corresponding to that used in the International Criminal Court Act 2001.

23. Dr O'Keefe also pointed out that Scots law does not recognise criminal liability for aiding, abetting, counselling or procuring an offence: rather, it recognised the concept of "being art and part" in the commission of an offence. However, although this distinction is recognised in clause 4 of the draft Bill, which deals with ancillary offences, it is not made in clause 5, which deals with the responsibility of commanders and other superiors. He believed that, as a result, a commander or superior who failed to exercise control over his forces would not be responsible for a criminal offence under Scots law.[28] We believe that clause 5 of the draft Bill should recognise the concept of being "art and part" in the commission of an offence, so as to render it applicable under Scots law.

24. One other significant drafting flaw was outlined by the British Red Cross. Part 3 of the Bill provides for a cultural emblem to be attached to cultural property protected under the Convention. Authority for use of the emblem would, in most cases, be granted by the Secretary of State in England or by a Minister from the relevant devolved assembly, depending on where it was proposed that the emblem be used. However, clause 12, which deals specifically with the use of the emblem to identify cultural property undergoing protected transportation, appears to require no authority for such use. The British Red Cross told us that the lack of any need for authority "would seem to open a Pandora's Box, enabling anyone to argue that he or she is entitled to display the emblem".[29] In theory at least, the Bill as drafted would appear to allow any object—even a shipment of arms—to receive the protection accorded by the cultural emblem from any act of hostility.[30] Dr O'Keefe believed that it was "absolutely essential" that there should be a system for authorising the use of the emblem for transport of cultural property, and we agree.[31] We believe that the omission of any requirement for authority to use the cultural emblem to identify cultural property undergoing protected transportation was an oversight of drafting which should be rectified. We recommend that the draft Bill should be duly amended.

25. Both Dr O'Keefe and the British Red Cross listed other, minor ambiguities of drafting, which we have not analysed in this Report. We draw the attention of the Department to ambiguities and minor inconsistencies in drafting identified by Dr O'Keefe and by the British Red Cross, and published in the evidence accompanying this Report.

The implications for the British art market

26. Clause 18 of the draft Bill establishes a new offence of dealing in unlawfully exported cultural property. Export would be unlawful if it were to contravene the laws of the territory from which the object was exported, or if it were to contravene any rule of international law. Under clause 18(3) of the draft Bill, a person "deals" in unlawfully exported cultural property if he or she:

— acquires, disposes of, imports or exports it,

— agrees with another to do such an act , or

— makes arrangements under which another does such an act or under which another agrees with a third person to do such an act.

The reason for designating the offence is to satisfy Article 21 of the Second Protocol, which requires parties to adopt legislative or other measures to suppress illicit export, removal or transfer of ownership of cultural property form occupied territory in violation of the Convention or of the Second Protocol.

27. The British Art Market Federation, while welcoming the aims of the draft Bill, outlined a number of possible consequences for the British art market and two particular areas of difficulty: establishing whether or not a territory had been "occupied" at the time of export, and ascertaining whether export had been legal. We address these two points separately below.

Identification of occupied territories

28. Clause 17(3) of the draft Bill draws the definition of "occupied territory" from Article 42 of the 1907 Hague Regulations respecting the Laws and Customs of War on Land: "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to territory where such authority is established and in a position to assert itself".[32] Under Clause 17(4), the Secretary of State may, in the event of any proceedings, issue a certificate determining whether or not a particular territory is occupied territory.

29. We can envisage various scenarios in which "occupancy" is disputed or where what is perceived by one state as "occupancy" is described by another as merely "peacekeeping". We therefore asked Dr O'Keefe how the provisions in the draft Bill would apply in such circumstances. He accepted that the question of whether the definition of occupancy used in the Bill applied in a particular case was "a difficult question of factual appreciation": in his opinion, in the case of disputed territory, the definition used in the draft Bill would generally apply. Likewise, in cases where there was a debate about whether a force was occupying or whether it was keeping the peace, he believed that it would be "fairly clear" that that force would be a belligerent occupant and said that "it may end up in the United Nations Security Council where a definitive statement to that effect is made".[33]

30. The British Art Market Federation argued that dealers would face uncertainty as to whether a territory is deemed to have been occupied or not, as there is no requirement in the draft Bill for the Government to set out in advance any list of occupied territories; nor has any undertaking to do so been made by the Government. Certificates would be issued by the Secretary of State only if and when proceedings arose. The uncertainty would therefore only be resolved once a prosecution had been brought and a dealer was facing a fine or even imprisonment. The Federation has therefore encouraged the Government to draw up a definitive list of territories deemed to have been occupied at any time since 1954.[34]

31. The Regulatory Impact Assessment prepared by the Government and published with the draft Bill states that the number of occupied territories around the world is currently very small, with only the West Bank, East Jerusalem and the Golan Heights being regarded by the UK as being "unequivocally occupied".[35] However, when we invited the Rt Hon Margaret Hodge MP, as the Minister with responsibility for cultural property, to tell us whether pressure was being applied on the Foreign and Commonwealth Office to draw up a list of occupied territories since 1954, she replied merely that "we are working with the Foreign Office" but that "we have not got that far yet"; and she referred repeatedly to the complexity of the legislation.[36] She subsequently wrote to the Committee to explain that DCMS officials were co-operating with their counterparts in the Foreign and Commonwealth Office "to determine how best to address the concerns raised" by the Federation and others. She suggested that the circumstances envisaged would be "extremely rare" and she was not aware that any of the other States Parties to the Convention had drawn up any such list".[37]

32. We do not see why dealers should be exposed to the risk of prosecution for dealing in property exported unlawfully from an occupied territory when there is no certainty about which territories qualify as "occupied". We recommend that the Bill should include a requirement upon the Secretary of State to draw up a list of territories occupied since 1954, with periods of occupation defined.

Ascertaining whether export was legal

33. The British Art Market Federation pointed out that dealers in the UK who are offered cultural objects exported from another country will not immediately know whether export control regulations were followed and whether export was lawful or not. To perform due diligence inquiries, a dealer may need to take custody of an object; but, by doing so, he or she could be deemed to have "acquired" it and thereby to have committed an offence if the object turns out to have been unlawfully exported.[38]

34. The due diligence exercise may itself be problematic. The British Art Market Federation set out the hurdles which would need to be cleared if a person fleeing conflict in his or her home country were to arrive in the UK, as a refugee, and were to present to a dealer an item of cultural property which rightly belonged to him or her, with an intention to sell. In order to provide the necessary reassurance to a dealer performing due diligence inquiries, a potential vendor would need to know, at the time of leaving their home country:

— Whether the object he had taken with him fell within the definition of cultural property set out in the Convention;

— What the export regulations were at the time of departure;

— Whether the export might be in contravention of "any rule of international law" according to clause 17(2) of the draft Bill; and

— What proof was needed to establish legitimate export.[39]

35. In written and oral evidence to us, the Federation proposed that dealers might be offered protection through the introduction of a requirement for an element of dishonesty in the dealing to have been demonstrated in order for an offence to have been committed, in the same way that section 1 of the Dealing in Cultural Objects (Offences) Act 2003 treats a person as guilty of an offence if he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted.[40] No such requirement is set out in the draft Bill, and a dealer who innocently handled illegally exported cultural property while undertaking due diligence inquiries would presumably need to rely upon the public interest test in the Code for Crown Prosecutors to avoid trial.

36. The Federation subsequently wrote to the Committee Chairman to explain that the Department saw difficulties in introducing a requirement for "dishonesty" in order for an offence to have been committed, as there was no such requirement in the Convention itself and because the domestic legislation needed to mirror the terms of the Convention and its Protocols. The Federation suggested that the difficulty arose partly because of the way that the remedy prescribed under the Convention and reflected in the draft Bill—forfeiture of the item, allowing eventual restitution—was linked to the offence of dealing in unlawfully exported cultural property rather than to the initial illegal export. The Federation argued that the provision for an offence of dealing in unlawfully exported cultural property "appears to go beyond the requirements of the Convention and the Protocols", and it proposed that the liability to forfeiture, which was necessary in order to comply with the Convention and its Protocols, should be triggered by unlawful export, thereby removing the need for the dealing offence in the draft Bill to shadow the terminology used in the Convention and its Protocols.[41]

37. We believe that it would be wrong for dealers to run the risk of prosecution every time that they accepted an item of cultural property exported from an occupied territory, merely because it was unclear at the time of acceptance whether or not export had been legal. Our preferred solution would be for the draft Bill to be amended so as to adopt the wording used in the Dealing in Cultural Objects (Offences) Act 2003, which requires an element of dishonesty in the dealing if an offence is to have been committed. This would have the merit of consistency with domestic law. However, we acknowledge that the Department doubts whether this could be achieved by a simple amendment to the draft Bill as it stands. We recommend that the Department should make a definitive statement on whether there is any way that a requirement for a dealer to have shown dishonesty could be introduced into the offence of dealing in unlawfully exported cultural property set out in clause 18 of the draft Bill, whether through a simple amendment to the draft Bill as it stands or through the revision suggested by the British Art Market Federation.

38. Under clause 18(4) of the draft Bill, "acquires" means "buys, hires, borrows or accepts". If it proves impossible to introduce a requirement for dishonesty in dealing, for an offence to have been committed under clause 18 of the draft Bill, we recommend that the Department should examine whether the definition of "acquires" in the draft Bill could be tightened, to exclude acceptance of a cultural object for the purpose of performing due diligence.

7 Professor Peter Stone Ev 2, Dr Roger O'Keefe Q 1, British Art Market Federation Ev 13, English Heritage Ev 18, UNESCO (UK National Commission) Ev 20, British Red Cross Ev 21, National Council on Archives Ev 31, Museums Association Ev 32 Back

8 Q 22 and 34 Back

9 Q 63 Back

10 Q 63 Back

11 Q 1 Back

13 Q 25 Back

14 Defined as cultural property "of the greatest importance for humanity" which is not used for military purposes. A full definition is given in Article 10 of the Second Protocol (see Schedule 4 to the draft Bill). Back

15 See Mr Garraway Q 82 Back

16 Q 59 Back

17 Ev 31 Back

18 Q 23 and 24 Back

19 Q 23 Back