Memorandum submitted by the Department
for Culture Media and Sport (DCMS)
At the evidence session before the CMS Committee
on Wednesday 2 July, I undertook to write in response to the Committee's
question about UK military operations with respect to the draft
Cultural Property (Armed Conflicts) Bill ("the Bill").
I have also taken the opportunity to provide
fuller answers on the Committee's other questions on the Bill
which allows for the UK to accede to the Hague Convention for
the Protection of Cultural Property in the Event of Armed Conflict
of 1954 and its two protocols ("The Convention").
MILITARY OPERATIONS
The Committee sought assurance that the Bill
would not restrain the ability of the British Armed Forces to
defend themselves. The Committee suggested an example of British
troops under attack while operating abroad and asked whether they
would be liable to prosecution under the proposed legislation
if they damaged local heritage in the course of defending themselves.
My Department has been working closely with
the Ministry of Defence to ensure that the obligations in the
Bill are compatible with the requirements and realities of military
operations. The MOD has confirmed that UK military doctrine and
procedures already accommodate the provisions of the Convention
and its Protocols.
For an offence under Clause 3(1)of the Bill,
the act must be committed intentionally and the individual must
know or have reason to suspect that the property is cultural
property as defined by the Convention. Furthermore, in circumstances
such as the example suggested by the Committee, the obligation
to respect cultural property may be waived in the case of military
necessity when the property has by its function been made into
a military objective and there is no feasible alternative available
to obtain a similar military advantage. It is thus very unlikely
that all the elements of the offence will be satisfied in such
circumstances.
Furthermore under common law, if a person acts
reasonably and in good faith to defend himself or others, self-defence
is available as a defence to crimes committed by use of force.
Before bringing any prosecution, prosecutors
must first consider all the evidence, including any defences available.
If the case passes the evidential stage, prosecutors must then
decide if a prosecution is needed in the public interest. Finally,
any prosecution under the Act would require the consent of the
Attorney General.
OCCUPIED TERRITORY
The Committee asked whether DCMS, in connection
with the Bill, was seeking a list from the Foreign and Commonwealth
Office of territories that the Government considers to have been
occupied since 1954.
Officials in my Department have been co-operating
with the FCO to determine how best to address the concerns raised
by the British Art Market Federation and others on this issue.
I consider that a situation in which a person is dealing in cultural
property protected by the Convention—and yet cannot resolve
any doubts about the status of that cultural property's country
of origin by reference to publicly available information will
be extremely rare. I am not aware of any of the 118 States Parties
to the Convention that has produced a list of territories that
they consider to have been occupied since 1954.
ENHANCED PROTECTION
The Committee sought clarification about the
Enhanced Protection regime provided for by the Second Protocol
to the Convention and about the British cultural property that
would be nominated for Enhanced Protection. In my answer to the
Committee I referred to "UNESCO rules". I would like
to clarify the conditions for enhanced protection. Cultural property
may be placed under enhanced protection if it meets the three
criteria set out in Article 10 of the Second Protocol to the Convention:
(1) it is cultural heritage of the greatest
importance for humanity;
(2) it is protected by adequate domestic
legal and administrative measures recognising its exceptional
cultural and historic value and ensuring the highest level of
protection;
(3) it is not used for military purposes
or to shield military sites and a declaration has been made by
the Party which has control over the cultural property, confirming
that it will not be so used.
Any State Party that wants to make use of the
Enhanced Protection regime has to nominate to UNESCO the cultural
property in question. If the nomination is accepted, the cultural
property will be added to the Enhanced Protection List, which
will be kept by UNESCO and will be publicly available. No State
Party to the Convention has yet nominated cultural property for
Enhanced Protection and, indeed, the rules for nomination have
yet to be finalised by UNESCO.
The third condition, quoted above, for the nomination
of cultural property for Enhanced Protection requires a declaration
on the part of the State Party that the cultural property will
never be used for military purposes or to shield military sites.
Any nomination by the UK for Enhanced Protection will therefore
require close liaison with the military. The Government response
published in October 2006,[1]
to the earlier public consultation on the Convention set out the
categories of UK cultural property that the Government would seek
to nominate, subject to discussions with the Ministry of Defence.
These categories were:
— those UK World Heritage Sites that
were nominated as cultural sites
— the collections of the museums and
galleries that are Non-Departmental Public Bodies or Assembly
Sponsored Public Bodies
— the National Archive Bodies and
— the five legal deposit libraries.
GENERAL PROTECTION
The Government response to the public consultation
also set out the categories of UK cultural property that the Government
believes should be considered as covered by the general protection
of the Convention. These categories were:
— listed buildings of Grade I status
(Category A in Scotland and Northern Ireland)
— in England, listed historic parks
and gardens of Grade I status
— the collections of those museums
and galleries that are directly sponsored or funded by Government
and
— the museums, galleries and universities
in England with designated collections and, in Scotland, with
important collections
The Committee pointed out that there has been
some discussion as to whether certain historic town centres and
Grade 2* listed buildings should be added as categories to this
list. The Government's view regarding historic town centres has
not changed from that given in the response to the public consultation.
While Article l(c) of the Convention includes "centres containing
monuments" as cultural property qualifying for general protection,
the Government feels it is unnecessary to specify historic city
centres as a category that it considers to be under the general
protection of the Convention. The heritage of such city centres
will already be protected by virtue of falling under the definitions
in Article 1 (a) and (b) of the Convention and blanket protection
to cover wide areas would cause buildings that have the lowest
form of designation—or even no heritage designation at all—to
be included, which would not be consistent with the aims of the
Convention.
The current categories, listed above, that the
Government considers will fall under the general protection of
the Convention amount to approximately 31,000 individual buildings
and monuments. To include Grade 2* listed buildings would increase
that figure by approximately 75%, to around 54,000. We all instinctively
want to protect as much UK heritage as possible, but the Government
feels that adding Grade 2* listed buildings would, in fact, be
counter-productive. A hostile State Party, presented with an excessive
list of cultural property considered by the UK to be generally
protected by the Convention, will be more inclined to invoke the
waiver of "imperative military necessity" provided for
in Article 4.2 of the Convention. The MoD has stated that for
the Convention to be effective, it must strike a balance between
protecting cultural property and the legitimate requirements of
military operations. Unrealistic constraints on military commanders
will undermine the aims of the Convention.
In any event, it is important to appreciate
that adding a category of cultural property to the government
list does not, of itself, afford any protection to that cultural
property. The list has very limited relevance to the application
of the Convention. While States Parties are encouraged under the
terms of the Second Protocol Guidelines to produce such a list,
cultural property is not required to appear on any list in order
to benefit from the general protection of the Convention. It will
be for the courts to decide whether specific cultural property
satisfies the definition given in Article 1 of the Convention
and consequently falls under the general protection of the Convention.
Although the courts may have regard to the types of cultural property
that the UK considers protected, they are not bound by this.
July 2008
1 The response is available at: http://www.culture.gov.uk/reference_library/publications/3485.aspx Back
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