Cultural Property (Armed Conflict) Bill [Lords]

Written evidence submitted by Mr Michael Meyer OBE, Head of International Law, British Red Cross (CPB 02)

Cultural Property (Armed Conflicts) Bill [Lords]

1. I am pleased to provide this written submission to the House of Commons Public Bill Committee in relation to the Cultural Property (Armed Conflicts) Bill. As Head of International Law at the British Red Cross Society for over thirty years, I have been responsible for all matters pertaining to international humanitarian law (IHL), in accordance with the Society’s formal responsibility in this field. In particular, the British Red Cross, as an officially recognised humanitarian auxiliary to the public authorities, has a duty to support the UK Government in ensuring respect for IHL and facilitating its promotion. This duty is, in part, carried out through the provision of advice and training on IHL for a range of relevant stakeholders in the UK.

2. The British Red Cross very much welcomes the potential passage of the Cultural Property (Armed Conflicts) Bill. In my capacity as Head of International Law, I have for many years been most pleased and privileged to support relevant Government officials in preparing some of the groundwork for this important occasion. The adoption of this legislation will send a clear signal to the world that the UK continues to play a leading role in matters related to international humanitarian law (IHL). It will also act as formal recognition of the importance the UK already places, in policy and in practice, on the appropriate protection of cultural property in times of armed conflict. Once introduced, the legislation may serve as a useful model for other common law countries, including within the Commonwealth, thereby potentially encouraging greater ratification and effective implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols.

3. While noting the minor technical changes that have been made to the Bill following its passage through the House of Lords, I would like to express my appreciation that the vast substance of the Bill has generally found favour across all parties. This fits the nature of IHL as a neutral and genuinely universal body of international law. [1] I also appreciate that some questions have been raised in both Houses relating to various aspects of the Bill; while the British Red Cross is not at liberty to comment upon each of these, a limited number of matters are remarked upon below, in case they are helpful to the Committee.

4. I understand there have been some queries regarding the definition of cultural property as set out under Article 1 of the Hague Convention, and in particular whether modern forms of culture, such as those of a digital nature, will be covered by the present Bill. In defining cultural property as "movable or immovable property of great importance to the cultural heritage of every people", the Hague Convention is able to apply to a very broad range of items, which may well include those of a digital nature, such as rare and/or important film and music. [2] The examples set out under Article 1 are extensive, but not exhaustive. Indeed, it is helpful that the Bill does not establish the particular criteria to be used to identify items of cultural heritage, and that this is more flexibly a matter of policy, to be left to the Government to determine.

5. There has been considerable discussion in both Houses on the impact of the Bill on the art market, should it be introduced. I note in particular the concerns that have been raised in relation to clause 17(1), which makes it an offence for a person to deal in unlawfully exported cultural property, "knowing or having reason to suspect that it has been unlawfully exported". I appreciate that ‘knowing’ and ‘having reason to suspect’ are, as written, two differing threshold requirements, and that the art market will wish to receive reassurance that they will be able to conduct their business without unwittingly committing a potential offence. However, it appears that, in practice, the clause should place no greater burden on dealers than already exists to conduct appropriate due diligence. In other words, the threshold of ‘reason to suspect’ is not so low as to have an adverse impact on the legitimate market, while at the same time acting as a necessary and suitable deterrent for those who may be less scrupulous. The wording is somewhat similar to that used in the existing Iraq and Syria sanctions orders. [3] There is also very similar wording found in section 17 of New Zealand’s Cultural Property (Protection in Armed Conflict) Act 2012. [4]

6. Clause 6 of the Bill establishes a penalty not exceeding 30 years for offences set out under clause 3, as well as offences ancillary to those offences. It is not the role of the British Red Cross to comment on the appropriateness of a specific penalty. However, as a general observation, it seems important that the seriousness of the offences set out under Article 15(1) of the Second Protocol to the Hague Convention is reflected in any penalty to be applied. It is understood that this is a maximum penalty, leaving to the discretion of the courts the most appropriate penalty to be applied in each specific case.

7. Should the Bill be passed, the blue shield emblem (otherwise known as the ‘cultural emblem’) will be recognised under UK law, and protected from misuse by making its unauthorised use an offence. The British Red Cross has a special interest in matters relating to the blue shield, as an important emblem used in times of armed conflict. As is perhaps widely known, the British Red Cross has the privilege of using as part of its logo the red cross emblem, one of the distinctive emblems established under the Geneva Conventions of 1949 and regulated in the UK by the Geneva Conventions Act 1957 (as amended). The primary purpose of the red cross emblem, as a special symbol of neutrality and protection, is to signify the medical service of the armed forces. The British Red Cross has for many years supported the Government (in particular, the Ministry of Defence and the Intellectual Property Office) in administering use of the red cross emblem in the UK, including by dealing in the first instance with reported cases of unauthorised use. The British Red Cross also promotes awareness and understanding of the red cross emblem throughout the UK.

8. In hopeful anticipation of the Bill being passed, the British Red Cross is pleased to offer similar assistance to the Government, as set out above, in relation to the protection of the blue shield emblem in the UK, and with respect to any administrative measures to be applied. In case it is of interest to the Committee, an example of an existing British Red Cross leaflet describing the various distinctive emblems used in armed conflicts (including the blue shield) is annexed to this submission. The British Red Cross has already had very helpful initial engagement with the Department for Culture, Media and Sport on such matters.

9. I thank the members of the Public Bill Committee for their consideration of the above views, and hope that they may be of use in their examination of the Bill. The British Red Cross stands ready to provide any further assistance required.

7 November 2016


[1] The universal nature of IHL is, for example, indicated by the fact that all countries have ratified the four Geneva Conventions of 1949; there is general agreement that the fundamental rules and principles of IHL transcend national, cultural and other divides.

[2] For example, Article 1 of the Hague Convention refers to "important collections of books or archives"; the latter could certainly be in digital format.

[3] For example, Article 8(2)(b) of the Iraq (United Nations Sanctions) Order 2003 states the following:

[3] "Any person who deals in any item of illegally removed Iraqi cultural property shall be guilty of an offence under this Order, unless he proves that he that the item in question was illegally removed Iraqi cultural property." [Emphasis added].

[4] The specific wording used under section 17 of the New Zealand Act is ‘knows or has reason to believe’.

 

Prepared 16th November 2016