In the UK, the Cultural Property (Armed Conflict) Bill, which aims to ratify and implement the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols, is working its way through Parliament. Already, one shortcoming of the Convention reproduced in the new Bill has become apparent. The preventive measures regarding illegal trade of cultural objects from occupied territories do not apply to territories occupied by non-state actors. So although recent government support for the Bill was prompted by the illegal trade funding Daesh and other insurgency groups, the Bill offers nothing in response. That is surprising and disappointing, particularly when it is remembered that the 1999 Second Protocol was drafted with the post-WWII experience of civil wars very much in mind. Looking back to a much earlier time, the new Bill derives its meaning of the term ‘occupation’ from the 1907 Hague Convention Respecting the Laws and Customs of War on Land.
Another problem with the Bill, again reflecting a shortcoming of the Convention, is that it takes no account of the increasing prevalence of aerial bombardment as an instrument of war, particularly by the US and its various allies, including the UK. Since the 1990 Iraqi occupation of Kuwait, there have been several bombing campaigns, aimed ostensibly at degrading economic infrastructure, eliminating weapons manufacturing capabilities and destroying defence installations, but perhaps too with the covert intention of fomenting civil unrest and anger against incumbent enemy regimes. Iraq, Serbia and most recently Syria have all been targeted. There has been widespread civilian suffering and deprivation, and it is not surprising in such circumstances when impoverished people turn to looting cultural sites as part of a coping response. And yet the Hague Convention does nothing to discourage it. Thus the economic sanctions and episodic bombing inflicted upon Iraq through the 1990s and early 2000s must take some responsibility for the widespread looting of cultural sites and museums around the country, which looks to have already peaked before the March 2003 Coalition ground invasion. The subsequent occupation lasted until the dissolution of the Coalition Provisional Authority in June 2004. Iraq had been party to the Hague Convention and its First Protocol since 1967, but the preventive measures available in the new Bill would apply only to material illegally traded out of Iraq during the relatively limited occupation window of March 2003 to June 2004. They would not apply to material exported illegally before (or after) that time. In practical terms, it would be extremely difficult if not impossible to discriminate on the market between objects exported illegally during the bombing and those exported illegally during occupation.
In view of these two identified deficiencies of the Hague Convention and its two Protocols, both caused by the changing character of modern warfare, perhaps it is time for the international community to consider a Third Protocol, with more explicit attention paid to the twenty-first century realities of looting and illegal trade in times of civil and proxy conflict and aerial bombardment.
The Cultural Property (Armed Conflict) Bill might not be the only piece of new legislation needed in UK. On 23 June, in a referendum held to decide future membership of the European Union (EU), the UK electorate voted narrowly in favour of leaving. The campaign leading up to the vote was characterized by dishonesty, denial and deception on both sides, and it left the government in disarray, riven through with recrimination and dissension and engaged in brutal combat over leadership. The constitutional implications of the referendum decision have still to be decided, but if the UK does leave the EU, there are two important pieces of EU legislation concerning the illegal trade in cultural objects that will need to be replaced by UK equivalents.
Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods provides licensing control at all EU borders for the export of cultural objects. This control needs to be maintained in some form, or else the UK will become a marketplace for objects illegally exported out of the EU. It might be a good opportunity to review export control more generally in the context of global trade, particularly given the shortcomings noted above of the Cultural Property (Armed Conflict) Bill.
Council Directive 2014/60/EU of 15 May 2014 on the return of cultural goods makes provision between EU member states for the recovery and return of illegally traded cultural objects. It was enacted in UK law as SI 1926/2015 the Return of Cultural Objects (Amendment) Regulations 2015. If the Directive is about to disappear from the UK statute book, perhaps the time is ripe for another look at the 1995 Unidroit Convention on Stolen or Illegally Exported Cultural Objects. The Unidroit Convention complements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (accepted by the UK in 2002) by introducing rules and procedures for the return of stolen and illegally traded cultural objects.