Examination of Witnesses (Questions 1-19)
PROFESSOR PETER
STONE AND
DR ROGER
O'KEEFE
10 JUNE 2008
Chairman: Good morning, everybody. This
is a special session of the CMS Select Committee to carry out
pre-legislative scrutiny of the Government's draft Cultural Property
(Armed Conflicts) Bill, and we have a number of witnesses this
morning, so we are going to try and move fairly rapidly through
each part of the session. Can I start off by welcoming Professor
Peter Stone, Professor of Heritage Studies at Newcastle University,
and Dr Roger O'Keefe, Lecturer in International Law at Cambridge
University.
Q1 Philip Davies: Could you tell
us what difference in practice this Bill would actually make if
it were enacted?
Dr O'Keefe: Well, I think you
have got to distinguish between two things. One thing is the difference
that signing up to the Convention will make and the difference
that the actual Bill will make. The Bill is actually targeted
at quite a specific area and that is criminal offences in relation
to dealing in stuff that has been taken in armed conflict and,
to that extent, it will add to the 2003 Act which is the Dealing
in Cultural Objects (Offences) Act, covering a whole range of
more areas, and, simply, it will just enable the United Kingdom
to fulfil its obligations under the 1999 Protocol. Signing up
to the Convention and the Protocol, on the other hand, will not
make too much of a difference to the extent that the military
in this country already acts in accordance with the Convention
and the Protocol since it has come in; it has just been part of
its practice and all these instruments are now mentioned in the
current UK manual on the laws of war. What it will do, which is
only a good thing, is, I think, focus these efforts specifically
through the setting up within the military reserve, I understand,
of a special unit pursuant to Article 7 of the Convention, which
is in charge of preparing the troops and educating them and so
on and so forth, so I think it will bring all those efforts to
bear and make it much easier to inculcate these rules in respect
of cultural property in the Armed Forces.
Q2 Philip Davies: But is it realistic
though? Is it not sort of like a Sergeant Wilson approach, you
know, "Would you mind awfully not bombing this"? Is
it realistic to expect people to take any notice of these sorts
of things when you are actually in that kind of situation?
Professor Stone: Yes, I think,
is the answer. Firstly, the only thing I would add to Roger's
point before is that in 2003, whilst the UK adhered to the content
of the Convention, actually in practice we did not have enough
boots on the ground and we did not have enough training in place
to actually fully embed that process, and I think that will be
the change through the Bill to the Convention. Yes, we should
be making a difference. By not having a Sergeant Wilson approach,
you just say, "Okay, that's fine. Bomb everything you want
to". There is an issue that says that cultural heritage is
important, not only from a cultural heritage point of view and
for the political uses that that cultural heritage is put to,
but also from an overtly military point of view. Talking to colleagues
in the American military, if they allow a mosque to be damaged
on day one, attacks on their troops can go up exponentially on
day two. There is also now good anecdotal evidence from both Interpol,
Scotland Yard and actually in evidence now put in print by the
American military that the trade in antiquities, which comes from
this whole issue, is actually helping to fund the so-called insurgency
in Iraq at the moment.
Q3 Philip Davies: It is all very
well, but it is the practicalities. I am all for the principle.
I have a World Heritage Site in my constituency and we are all
going to be safe in Saltaire, but it is the practicalities that
worry me and I just wonder what the sanctions are if anybody does
not actually apply it. We are already at war with them, so I am
not entirely sure what else you are going to do if somebody does
not actually abide by these Conventions.
Dr O'Keefe: If I could mention
the practicalities, I have studied this thing and actually we
think of the Second World War as the archetype, but the Second
World War was the exception because, first of all, the law was
crucially different then: it did not have a rule which said, "If
you can't bomb this without accidentally bombing that, then you
mustn't bomb this", but in the Second World War, it said,
"Go ahead and bomb this". It does not say that anymore.
Secondly, we now have better technology, so in fact in the first
Iraq war and in 2003 as well, the targeting was done extraordinarily
well. I would also remind you that in the Second World War the
United Kingdom had its own corps of Monuments, Fine Arts and Archives
officers under a man called Sir Leonard Woolley who actually went
with the troops all round the fronts and said, "Insofar as
it's possible, we don't target this. When we are in occupation,
we seal off this", and, interestingly enough, the first troops
into Rome in the Second World War, in contrast to Baghdad in 2003,
were American troops dedicated to sealing off the museums. In
terms of sanctions, after the Second World War at least one of
the Nazi High Command was convicted of war crimes and crimes against
humanity and actually executed for his role in the massive plunder
and destruction of cultural property in Europe. Currently, two
men are behind bars in The Hague for their role in the shelling
of Dubrovnik and another is on trial, so there is a range of sanctions,
and in fact the Bill itself provides those sanctions. It provides
for jurisdiction in the courts of this country over people, wherever
they may be, who destroy certain types of cultural property. I
think I would be a fool to let you think that there is no problem
with enforcement, that there is no problem with sanctions. There
is, but that is international law generally. Insofar as international
law is capable of stopping behaviour, it can stop this, but, when
you have someone dedicated to destroying something, they will
and nothing will stop them.
Q4 Philip Davies: Professor Stone,
you talked about Iraq and what has happened in Iraq and you were
quite critical in your evidence about what may well have happened
with the UK Forces. What have been the consequences of the Armed
Forces failing to provide adequate protection?
Professor Stone: Well, I was critical
of the fact that there was no formal process in place to embed
the identification and protection of those sites into the UK military
planning. It was purely because I happen to live in the same small
village in Northumberland as somebody who was a serving officer
in the Royal Navy at the time who was in the MoD who was talking
about, within the MoD, part of his role as targeting. From a conversation
in late January of 2003 around the table in the MoD, the conversation
went something along the lines of, "Iraq, we are just about
to invade. Isn't there a lot of archaeology there?" "Yes,
I'll ask somebody at the weekend who will know about it".
That is a totally unacceptable way of going about the identification
and protection of cultural heritage. It needs to be formalised
in a process that will take account of that whole package of issues
related to cultural heritage, as I say, at both the political,
military and social levels, so I was critical of the process in
2003 and, whilst I know the MoD are working towards creating a
better process spurred on by the creation of this Bill and the
probability, I hope, of accession to the Convention, that formal
process is still not in place, so, if the UK were to, God forbid,
invade somewhere else tomorrow, there is still no formal process
in place to identify, and protect, cultural heritage.
Q5 Chairman: But how does that square
with Dr O'Keefe's comment that actually we have essentially been
abiding by the provisions of the Hague Convention since it was
signed, even if we have not ratified it, and yet we go to war
in probably one of the most archaeologically rich areas across
the globe, and the only reason that they take account of this
is because you happened to bump into somebody in the pub in your
village who was in the middle of planning the invasion? The two
things do not seem to square exactly.
Professor Stone: I think rhetoric
and practice sometimes do not square, and I cannot really comment
further.
Q6 Chairman: But, if you had not
had that conversation, you do not think anybody in the MoD would
have stopped and thought, "Well, we had better take account
of the archaeology before we start dropping bombs on it"?
Professor Stone: As far as I am
aware, that is exactly the situation that was there in 2003.
Dr O'Keefe: In the United States,
they do have a body of people who advised the military and the
President on this and they drew up no-target lists and all that
sort of thing, but, when it actually came to sealing off the museums
on the ground, that was a different thing and that was simply
the decision taken not to put enough people in there and not really
to take control of the area when they occupied it.
Q7 Chairman: But you feel that the
actual passage of this Act will change that position?
Professor Stone: It certainly
should do because, as Roger says, there is a legal requirement,
there is a criminal element that will go with the responsibility.
Q8 Mr Sanders: How does the draft
Bill interrelate with the Dealing in Cultural Objects (Offences)
Act 2003 and has the 2003 Act been effective in preventing illegal
dealing in cultural property?
Dr O'Keefe: The 2003 Act deals
with a wider range of things. It deals with the illicit taking
of cultural property in peacetime as much as in wartime, so to
a certain extent there is overlap between the two, but there is
not interference between the two. Now, that is always very common,
so, for example, some of the offences in this Act will already,
if committed today, be an offence under the ICC Act 2001 and under
the 1995 amendments to the Geneva Convention Act of 1957, so it
is often the case that you have overlapping provisions in the
criminal law. This is just more specifically geared towards the
Convention, but it seems to me and, through reading the explanatory
memorandum, it is fairly clear that the Department took great
care to ensure that the two Acts mesh together. Now, whether the
other Act has been effective, I think it is far too early to tell.
I do not think it can have been ineffective, but I do not think
I am really in a position at this stage to say whether it has
been effective. You would have to speak to people who really analyse
the art market and so on.
Q9 Mr Sanders: So, if there is still
illegal dealing taking place, it may be nothing to do with the
Act or, if dealing is not taking place, it is not to do with the
Act, or you are aware that dealing is taking place, but the Act
has not actually had any impact?
Dr O'Keefe: Well, I am sure the
Act has had an impact. Anecdotal evidence suggests that some people
have taken their dealings underground or are doing them through
private sale or something like that, but I think it has certainly
had some effect, although how specific I can be about it, I cannot
at the moment; it is too early to tell.
Q10 Mr Sanders: Does the definition
of "occupied territory" used in the Bill exclude territory
where occupancy is disputed or where a power maintains that it
is not a hostile army, but is merely maintaining the peace?
Dr O'Keefe: This is a question
really to do with the laws of war. The definition we have here
in the Convention is the accepted international definition. The
International Court of Justice recently said this. It is what
we call the customary definition of "occupation". Now,
whether it applies in any instance is a difficult question of
factual appreciation which always happens with law, so, for example,
it took countless cases until the House of Lords recently said
that the Human Rights Act applies in some circumstances, but not
in other circumstances, in Iraq. That is something to be expected
in the application of any law. In answer to your question about
disputed territory, the answer would be yes. By comparison with
the Geneva Convention, the fourth Geneva Convention, Israel has
always disputed its de jure applicability to the occupied
territories, but recently the International Court of Justice affirmed
what the rest of the world has always said, that it does apply
to these territories, and I think it would clarify that. It does
not mean that there is an answer to every situation, so, for example,
in peacekeeping situations, there are always going to be questions,
but it is as good a definition as we can have and no national
law is going to get a better one.
Q11 Mr Sanders: Where you have peacekeeping
operations that have been sanctioned by the United Nations, there
is little room for disagreement, but, when you have an army that
is claiming to be peacekeeping, who adjudicates in that circumstance?
Dr O'Keefe: I think it is fairly
clear in that circumstance that that army would be a belligerent
occupant and I think it would be rare actually in law for a state
to deny that, but, even if they did, as with international law,
it is a decentralised system, but the states of the world generally
would say that that person is an occupant and it may end up in
the Security Council where a definitive statement to that effect
is made.
Q12 Chairman: But there is some concern
about lack of certainty, particularly amongst dealers, as to which
parts of the world come under the definition of "occupied
territories". Is there any objection or anything to stop
the Government actually just publishing a list, saying, "These
are territories which we consider to be occupied in terms of the
meaning of the Act"?
Dr O'Keefe: To my knowledge, in
the Act the Secretary of State can make a statement to that effect.
In section 17(4), if any proceedings arise, a certificate by the
Secretary of State is conclusive evidence. Now, whether that can
be done in advance, I am not sure actually that the Secretary
of State would want to legally prejudice questions on that, but
that is something to ask, I think; I could not give you the answer.
Q13 Chairman: But you will understand
that, if you are the dealer, it is rather important to you that
you know in advance—
Dr O'Keefe: Sure.
Q14 Chairman:—rather than after
a prosecution starts?
Dr O'Keefe: Just off the top of
my head, it would make sense for someone to consult the Foreign
Office lawyers and for some sort of list to be published. Now,
whether in fact they do do that would be up to them, but I do
not see any problem with that.
Q15 Helen Southworth: You have described
the draft Bill as, by and large, extremely well drafted, but you
have explained some reservations about clause 4, sorry clause
5.
Dr O'Keefe: Both, yes.
Q16 Helen Southworth: Could you describe
to us what your reservations are and why you think they are important?
Dr O'Keefe: It is quite simple.
Clause 4 omits reference to aiding, abetting and otherwise assisting
in the commission of an act. It also omits inciting an act, but
I will come back to that in a minute. In terms of aiding and assisting,
Article 15(2) of the Second Protocol obliges the United Kingdom
to give domestic effect to the various forms of international
criminal responsibility that there are out there. The United Kingdom
has accepted that Article 28 of the Statute of the International
Criminal Court states these definitively and that Article talks
about aiding, abetting and otherwise assisting, so, in other words,
Article 4 does not give effect, as currently drafted, to one of
the forms of criminal responsibility which the United Kingdom
is obliged to give effect to. Now, I say that it does not give
effect: it does not give effect in terms of England and Wales,
but it does give effect in terms of Scotland, which goes to show
that there has been some kind of drafting cock-up, I think, there.
In terms of Article 5, it is the other way round. It says, "This
is to be treated as X, Y, Z", but the term "X, Y, Z"
is the English and Welsh term, not the Scottish term, so Article
5 does not work for Scotland, so I have set that out clearly there,
but the bottom line is that, as currently drafted, those provisions,
through what is probably just a technical oversight, do not give
effect to the United Kingdom's obligations under Article 15(2)
of the Second Protocol. It is a complicated, very technical drafting
point.
Q17 Chairman: Regarding other drafting
points, you will have seen the British Red Cross made a submission
on a whole series of mostly small suggested amendments and I wonder
if you have any particular observations on those and, in particular,
their interesting concern around clause 12, the moving of cultural
property and the ability of people moving it to put a blue shield
at the top and claim that they have self-authorised to be covered
by the provisions of the Act.
Dr O'Keefe: Sure, absolutely.
I think most of what the British Red Cross says makes eminent
sense. One or two of the points I had not considered problematic
myself, but there is no harm in clarifying the issue. As for clause
12, I agree with them. I understand, just through recent discussion,
that the Department itself thinks that this is an oversight as
well. I think it is absolutely essential that there be authorisation
less so of movable cultural property itself than the transport
of cultural property for two simple reasons. The first is that
the United Kingdom has specific obligations in that regard to
make sure that the transport is done in a particular manner and,
unless the Government can control the manner in which that transport
is authorised, there is no way of knowing if the United Kingdom
is in satisfaction or breach of its obligations. Far more simply,
let us just say that someone puts a blue shield on a shipment
of arms: the first time that is discovered is the last time the
cultural property is ever transported anywhere and next time it
just gets blown away, so I think it is essential to have control.
Q18 Chairman: So clause 12 potentially
creates that loophole?
Dr O'Keefe: At the moment, as
drafted, clause 12, which lacks the Secretary of State's authorisation,
plays up to that, yes.
Q19 Chairman: I, as an arms dealer,
can go and put a blue shield on my next shipment of Kalashnikovs
and be confident that it will be waved through?
Dr O'Keefe: Yes, although it is
a very, very narrow area in which this takes place. This takes
place during armed conflict in this territory, so it is a bit
of a fantasy at the moment to expect that this is going to happen,
but it could, God forbid.
Professor Stone: It does raise
a slightly wider issue about the whole ability of the blue shield
mechanism to actually deliver. The International Committee of
the Blue Shield is very, very badly funded and very badly resourced
and there is an issue in my mind certainly as to whether or not
there should not be closer collaboration between the whole concept
of the blue shield and the Red Cross who have an international
profile in this whole area and could deliver in many more ways
probably much more effectively than trying to effectively create
a new international organisation which is the process at the moment.
Now, that is embedded in the 1954 Convention, but I think there
is certainly some area of discussion there to have.
Chairman: I think we need to move on
to our next session, so can I thank you both very much.
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