This blog is written by six postgraduate students studying at Queen’s University (Mansoreh Abolhassani, Sanjana Ahmed, Manni Ardzejewska, Meghan Hoyt, Stephanie Johnston and Sinead Marmion). It explores a number of issues in relation to the Cultural Property (Armed Conflicts) Bill (HC Bill 66) – hereinafter referred to as ‘the Bill’ – currently being debated in the House of Commons. The Bill seeks to ratify the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the subsequent Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999 – hereinafter referred to as The Convention and the Protocol respectively. These are:
- The 30 year maximum sentence for ancillary offences;
- The status of ‘embedded’ military personnel;
- The Immunity from seizure provisions;
- Compensation to party bonafide;
- Reparation obligations for states and individuals.
- The role of the Trust Fund
These will each be considered in turn.
1. The 30 Year Maximum Sentence for Ancillary Offences
The Bill contains overly punitive measures in regards to the 30 years maximum sentence for ancillary offences. This submission seeks to outline how a maximum term of 30 years imprisonment for ancillary offences is excessive with regards to international humanitarian law, implementation of the Hague Convention in other countries, and jurisprudence from the International Criminal Court (ICC) and the International Criminal Tribunal for the former Yugoslavia (ICTY).
Article 28 of the Convention states ‘The High Contracting Parties undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention.’ This outlines that it is up to the state to carry out sanctions for offenders in breach of Convention offences without a specific standard.
The Second Protocol states ‘Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law the offences set forth in this Article and to make such offences punishable by appropriate penalties. When doing so, Parties shall comply with general principles of law and international law, including the rules extending individual criminal responsibility to persons other than those who directly commit the act.’ This enables the domestic legislators to decide upon what they believe the penalties should be for not only direct offenders but also for those who commit ancillary offences. It does not, however, proscribe that these penalties should be equal for those directly involved with violations and those non-direct offenders. It also gives provision to the State parties to decide on what penalties are appropriate.
In the Hansard debates in the House of Lords, the issue of the penalties for ancillary offences was considered for its appropriateness. Lord Balfe commented, “As for the content of the Bill, there is a tendency to inflation of imprisonment, and I think that 30 years—going up from two years—is an extraordinarily long prison sentence to provide for. I will not propose any amendments on this, but I note that it is rather disproportionate given the prison sentences we have.” Baroness Neville-Rolfe responded, “My noble friend Lord Balfe said that 30 years in prison seems too long a time for just destroying a building. I touched on the logic for this in my opening speech. The maximum sentence of 30 years is comparable with other similar sentences in UK law. The International Criminal Court Act 2001 covers war crimes, including directing attacks on certain buildings or monuments, which are punishable by up to 30 years’ imprisonment.”
Lord Balfe’s view on the 30 years as disproportionate is entirely justified. Baroness Neville-Rolfe’s logic to which she refers fails to take into account either the jurisprudence of ICC, or the ICTY. She says in her opening remarks, “Ancillary offences such as assisting or conspiring to commit an offence, and the role of commanders and superiors, are also covered. The maximum penalty for these offences is 30 years’ imprisonment. This may seem a severe sentence but it must be seen in the context of the seriousness with which such offences are viewed in international law and is entirely consistent with our approach to the wider body of international humanitarian law.”
The Baroness makes reference to the destruction of cultural property in Mali, presumably the Al-Mahdi case. Al-Mahdi was a direct violator of the Convention and the ICC sentenced him to 9 years’ imprisonment. Al-Mahdi was not an indirect violator and was still sentenced to less than the maximum 30 years to which a potential offender who committed an ancillary offence may be subject to under UK law. In the ICTY, the Jokić case saw the offender convicted and sentenced to 7 years’ imprisonment for murder and destruction of cultural property, classed as grave breaches of the Geneva Conventions and violations of the laws of customs of war. Jokić was a commander in the Yugoslav Army that was responsible to the destruction of the UNESCO classified Old Town of Dubrovnik. He was instrumental in the violations. Despite the UK’s willingness to show how seriously they take Convention law on this matter, the UK must have regard to the appropriateness of punitive measures in reference to how the ICC and ICTY impose sanctions.
In regards to how other countries have implemented the Convention and Protocol, the International Committee for the Red Cross has compiled evidence on state practice relating to Attacks on Cultural Property, which demonstrates that the UK’s approach is relatively exceptional, and that very few states have allowed for sentences over 20 years even for direct attacks on cultural property. New Zealand has set a maximum penalty for a serious offence of 14 years for both direct and indirect offenders. The United States, France and Australia provide for 20 years maximum penalty for attacking protected property, while Bosnia and Herzegovina, Hungary, Japan, Poland, Portugal, Spain, Sudan and Switzerland have all favoured maximum sentences of fewer than 20 years.
The UK, whilst having regard to the seriousness of the Convention, and to the protection of cultural property, must have regard to the proportionality of the sanctions imposed.
2. The Status of Embedded Military Personnel
Article 16(2)(b) of the Second Protocol of the 1954 Hague Convention specifies that ‘members of the armed forces and nationals of a State which is not Party to this Protocol, except for those nationals serving in the armed forces of a State which is a Party to this Protocol, do not incur individual criminal responsibility by virtue of this Protocol, nor does this Protocol impose an obligation to establish jurisdiction over such persons or to extradite them’. As it currently stands, the Bill has not sufficiently addressed the issue of “embedded” military personnel – those who are operating under the command of another country.
During the Parliamentary debate on the Bill, Lord Touhig affirmed the need to recognise the issues of embedded military personnel, and advocated for Amendment 7 (which makes clear “a person subject to UK service jurisdiction serving under the military command of the armed forces of another country”, will be as liable for their actions under this Bill) and Amendment 8 (ensuring that this legislation applies equally to “private military contractors and individuals within private military contractors”, as it does to British service personnel). Baroness Neville-Rolfe disputed the need for this, stating that the intended effect is covered in the Bill and raised concerns of potential unintended consequences and confusion that may arise from the amendments. Lord Howarth proposed two vital questions that went unanswered: what is the position of British service personnel embedded in the armed services of another country that has not signed the convention; if they found that the armed forces of that other country were about to do something in violation of the convention, what would be their position and obligations, and how would they receive advice from the authorities and commanders in this country?
We would suggest that there are three categories of armed forces that require addressing: embedded military personnel, private military contractors and private military individuals. For embedded military personnel, while they may be subject to the Bill according to Art.3(4)(b) (‘a person subject to UK service jurisdiction’), this does not address the issues posed by Lord Howarth if they are embedded in the armed services of a country that has not signed the convention. As Art.5 addresses the responsibility of commanders and other superiors, there needs to be clarification for the individual command responsibility of forces that are not signatory to the convention. Questions arise as to the individual’s responsibility for intervention and action as part of a unit that is involved in destruction of cultural property. In addition, by clarifying the role of embedded personnel further in the Bill, this can provide greater emphasis on the importance of the protection of cultural property to other countries’ armed forces upon engagement.
Private military contractors are not addressed in the Bill, and the need for inclusion is high, considering their increased use in conflict situations. By fully clarifying the legal position of private military contractors in the Bill, this accentuates the vital task of cultural property protection to private contractors, and provides a framework for legal repercussions if required in the future. Finally, private military individuals require acknowledgment in the Bill, particularly as they are not submitted to the same standards and review as UK service personnel, but may be engaged in similar employment. By elucidating their legal responsibilities, this not only informs their individual responsibility, but can also require contracting companies to adhere to these standards for the individual employee.
3. Immunity from Seizure
Clause 27 (part 5) fulfils the UK’s obligation under Article 14 of the Hague Convention 1954 to grant immunity from seizure to any cultural property which enjoys special protections under Article 12 of the Convention. Article 12 applies to the transportation of cultural property which is being removed from its original territory for safe keeping. Clause 27 ensures that protected cultural property cannot be seized while in the UK. Subsection 8 of the Bill makes clear that this includes civil and criminal proceedings and that the protection given is intended to exclude any form of seizure or detention of an object lent to an exhibition in this country whether by a claimant to the object, a creditor or by law enforcement authorities.
The difficulty with Clause 27 is that it restricts the rights of anyone making a proprietary claim on the safe guarded cultural property. This could unduly restrict a claimant’s rights under the ECHR. Namely, Article 1, Protocol 1 – the protection of property, which states that ‘every legal person is entitled to the peaceful enjoyment of his possessions’. Also Article 6, the right to a fair and public hearing within a reasonable time, could be impacted. In order to comply with section 19 of the Human Rights Act, the Cultural Property Bill must show that it is compliant with the ECHR, namely Article 1, Protocol 1 and Article 6. To that end, it argues:
“The proposed immunity will not prevent potential claimants from bringing a claim to protected cultural property before the courts. Other remedies, including the award of damages, will be available, and we consider that this limitation is a proportionate restriction on the right of access to the court under Article 6.
The immunity is temporary in nature. Where cultural property is in transit though the United Kingdom, the immunity is unlikely to last for more than a few days. Where the United Kingdom has agreed to act as depositary under the Convention for cultural property the immunity will apply while the cultural property is in the UK, which will be limited to the duration of the conflict in question.
We do not consider that the immunity contravenes the provisions of Article 6. For the same reasons, we consider that the immunity is in the public interest in preserving cultural property and that it strikes a fair balance between the interests of potential claimants and the public interest.”
Clause 27 could conflict with other international obligations as the UK has ratified the UNESCO Convention 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property in which Article 7 (b) (ii) of the Convention, States Parties undertake, at the request of the State Party “of origin”, to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention. There is a potential clash with this international obligation.
Though the UK has not ratified the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects Convention 1995, it serves as an international standard for many countries. Article 3, which states ‘the possessor of a cultural object which has been stolen shall return it’ raises potential problems should the UK seek to ratify. This Convention was intended to ‘fill in the gaps’ left by the UNESCO Convention 1970.
Clause 27 could conflict with the UK’s obligations under 1993 EU Directive on the Return of Illegally Removed Cultural Property from the Territory of an EU Country. Article 2 states ‘Cultural objects which have been unlawfully removed from the territory of a Member State shall be returned in accordance with the procedure and in the circumstances provided for in this Directive’. Arrangements should therefore be introduced enabling Member States to secure the return to their territory of cultural objects which are classified as national treasures. Article 4 could also be problematic as it refers to the ways in which the UK must help a Member State recover its cultural property.
While the Cultural Property Bill outlines the acceptable balance it feels it has achieved with the ECHR, it does not address broader International or European obligations. Similar issues are raised by the Tribunals, Courts and Enforcement Act 2007, Part 6 Protection of Cultural Objects on Loan. This Act provides for immunity of seizure for artefacts on loan from abroad. The Cultural Property Bill would have similar issues to the Tribunals, Courts and Enforcement Act of 2007 which are highlighted below:
‘A protected object can be seized under a UK court order which the court is obliged to make pursuant to an EU obligation or any international treaty. Accordingly, a request from another EU member state for the return of an object on loan to the UK under the 1993 EU Directive on the Return of Illegally Removed Cultural Property would be permitted to proceed, as would a claim from a State which is a signatory of the 1970 UNESCO.’
4. Compensation to a Party Bonafide
In order for the proposed Bill to effectively protect cultural property, the courts must be allowed to seize property that has been unlawfully exported. However, there is also a need for a mechanism for those who have a bonafide interest in these unlawful goods. The Bill has reflected this in clause 21 which enables the appropriate courts to make a forfeiture order conditional on compensation where the court is satisfied that the party acted in good faith and without knowing the unlawful nature of the property in their purchase.
The inclusion of clause 21 ensures that the United Kingdom (UK) meets their international obligations as a party to international treaties. As a party to the First Protocol of the Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, clause 21 embodies the obligation established in Article 1 to “pay an indemnity to the holders in good faith” of unlawfully exported cultural property. It also allows the UK to fulfil its requirements as a party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 which establishes the need to compensate the bonafide purchaser of unlawful cultural property in Article 7 section b(ii).
Developments in the domestic legislation of other jurisdictions also confirm the importance of allowing compensation to be paid to a party bonafide. This is evident in a reading of a ratification of the 1954 Convention in New Zealand through their Cultural Property (Protection in Armed Conflict) Act 2012 which in clause 32 provides for compensation if a ‘good faith purchaser’ is required to forfeit their property. The inclusion of clause 21 will thus ensure that the UK remains abreast of international developments.
It is also relevant to keep in mind the obligations of the UK in light of the European Convention on Human Rights. Consideration of the right to ‘peaceful enjoyment’ of one’s possessions provided for by Article 1 in Protocol 1 is particularly important. The restrictive effect upon these rights of those with a bonafide interest in forfeited property is an inherent consequence of the nature of this Bill. The provision of compensation offered by clause 21 would therefore act as an important concession in redressing the harm caused to the rights of a bonafide purchaser in particular. Indeed, it is considered in the Cultural Property (Armed Conflicts) Bill [HL] Explanatory Notes in discussion of the Bill’s ‘Compatibility with the EHRC’ that the inclusion of compensation avoids a contravention of Article 1 in Protocol 1 of the EHRC which may be sparked by the provision of forfeiture.
Clause 21 will also ensure that the proposed Bill is more effective in preventing the unlawful exportation of property. This is indicated by Article 17 of the Directive 2014/60/EU of the European Parliament and of the Council of the European Union of 15 May 2014. The Directive noted that placing the burden on the possessor to prove that their interest is bonafide will assure that the repercussions associated with unlawful acquisition of cultural property will be a more effective deterrence. The Directive correspondingly requires European Union member states to enact law that obliges the possessor to prove that they “exercised due care and attention in acquiring the object” in order to be awarded compensation. Regardless of the uncertainty surrounding the future of the UK in the European Union (EU), this Directive remains influential as it is a reflection of international standards. In this way, not only does the UK meet its obligations as a member of the EU, it is also ensuring it is in line with current legal theory on achieving real change in the area of cultural property protection.
What is of concern is the need to balance the interests of bonafide parties with the need to return the property to the rightful owners. In clause 21 subsection 3, the proposed Bill establishes that (a) the forfeiture order will not be enforced until compensation has been given and (b) that the order will lapse if compensation remains unpaid in the four month period following the order. The ability of the property to automatically revert back to the bonafide, yet unlawful possessor, of the cultural property undermines the purpose of the Bill itself as it will fail to firmly ensure that the property is returned. It also harms the capacity of the UK to meet their international obligations such as those under the 1993 EU Directive on the Return of Illegally Removed Cultural Property from the Territory of an EU Country.
Guidance on how to balance these competing objectives can be taken from New Zealand’s Cultural Property (Protection in Armed Conflict) Act 2012. Clause 33 requires the bonafide party to make another application to court to have the property released from forfeiture and returned if compensation has not been paid in 6 months. To establish an additional burden on the part of the bonafide purchaser acknowledges the rights of the innocent party but importantly recognises the prevailing rights of the genuine property owner. An implementation of a similar modification in the proposed Bill thus offers the potential to strengthen the Bill overall.
5. Reparation Obligations on States and Individuals
In the cases of violation of international law, reparations are to be expected from those responsible, whether state and individual actors, under international law. The subject of reparations is covered under the provisions set by The Hague Convention 1954 and its two Protocols inspiring the UK Cultural Property (Armed Conflicts) Bill. As mentioned in the explanatory notes to the legislation, although the United Kingdom is already partly compliant with the Convention and Protocols, to become fully compliant with the above it requires primary legislation. Areas where there is lack of compliance include an absence of an offence of using cultural property for the purposes of military use, and the limited jurisdiction of the existent UK law on offences pertaining to cultural property.
Schedule 3, First Protocol Section 1(2) part 3 of the UK Cultural Property (Armed Conflicts) Bill follows the same regulations which state:
‘Each High Contracting Party undertakes to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory, if such property has been exported in contravention of the principle laid down in the first paragraph. Such property shall never be retained as war reparations.
The Convention and the two protocols bind each party to return cultural property to a previously occupied entity. Most crucially, neutral states, in this case the United Kingdom, are to enforce this section vis-à-vis cultural property found in their territory. This is an important improvement on existing legislation and will demonstrate the United Kingdom’s determination in safeguarding and protecting cultural property belonging to other states.
Considering the model used in other common-law jurisdictions can often be enlightening. In fact, New Zealand as a common-law state is a good example for following the obligations as described in The Hague Convention 1954. Paragraph 3 of the First Protocol to The Hague Convention 1954, Cultural Property states the following:
At the end of the occupation, each Party is obliged to return any cultural property in its territory that was exported from the occupied State and refrain from retaining it as war reparations.
It is important to consider that state liability for reparations are not affected by the Second Protocol. Article 38 of the 1999 Second Protocol to the 1954 Hague Convention proclaims:
No provision in this Protocol relating to individual criminal responsibility shall affect the responsibility of States under international law, including the duty to provide reparation.’
In this case, it is interesting to note the 1997 Russian Federation’s Constitutional Court’s decision to uphold the Russian Federation’s Law on Removed Cultural Property in exempting items acquired from previously hostile states as ‘compensatory restitution’. This becomes important, should any of these ‘compensatory restitution’ properties find their way to the United Kingdom for any reason. This would place the United Kingdom in an unenviable position should the item be sent here for exhibition in a museum or gallery.
The Hague Protocol of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict, in part 2 with the title of: After hostilities, Article 1, paras. 3 and 4 states:
‘’At the end of the occupation, that State must:
- return any cultural property illegally exported from the occupied State and refrain from retaining it as war reparations;
- pay an indemnity to the holders in good faith of any such property that must be returned.
- A third State which has agreed to receive cultural property during an armed conflict must return that property to the competent authorities of the territory from which it came (Art. II)’’.
In this light, clarification on the role of the United Kingdom as a neutral third state in receiving property of cultural significance from warring states, whether they are parties to the convention or not, can be another issue that merits a discussion.
Article 2(2) of the 1970 Convention on the Illicit Trade in Cultural Property provides:
The States Parties undertake to oppose [the illicit import, export and transfer of ownership of cultural property] with the means at their disposal, and particularly by removing their causes, putting a stop to current practices, and by helping to make the necessary reparations. 
Even though this is not part of the Convention or the two Protocols, it is nevertheless an important source to draw from in order to commit the United Kingdom to the eradication of this form of international crime. Of course, the sophistication and potential complications of legally binding the government of the United Kingdom to the above have to be considered.
6. Role of The Fund for the Protection of Cultural Property in the Event of Armed Conflict and using seized/forfeited assets for the fund
We agree with the overall approach of the draft bill. In the current bill inclusion of seized and forfeited asset of the Fund would be an effective one for the maintenance of overall financial stability to provide support during the emergency and preparatory measures during the peace time. It is needless to say, all the contributions to the Fund are mostly voluntary contributions so along with the inclusion of seized and forfeited property for the fund there should be a provision in the bill to include compulsory contributions by the state every year so that the fund can gain a momentum in the long run.
Several peace time measures should specifically and concretely be mentioned in the bill, that may include -
- The planning of emergency measures for protection against fire or structural collapse during the armed conflict’
- The preparation for the removal of movable cultural property or the provision of adequate in site protection of such property;
- Preparation of inventories;
- Designation of competent authorities responsible for the safeguarding of cultural property during the armed conflict so that the quick measures can be taken.
Article 29 of the Second Protocol of Hague Convention establishes the Fund for the Protection of Cultural Property in the Event of Armed Conflict. Its purpose is to provide financial or other assistance for preparatory or other measures to be taken in peacetime. It also provides financial or other assistance in relation to emergency, provisional or other measures to protect cultural property during periods of armed conflict, or for recovery after the end of hostilities. The draft Bill complies with the Protocol 2 of the Hague Convention and fulfils its international standard.
 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, Article 28.
 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999, Article 15 (2).
 House of Lords Debate, 06 June 2016, vol 773, col 607.
 Ibid, col 616.
 Ibid, col 585.
 The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15.
 The Prosecutor v Miodrag Jokić IT-01-42/1.
 ‘Practice Relating to Rule 38. Attacks against Cultural Property’ International Committee for the Red Cross, ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule38.
 Cultural Property (Protection in Armed Conflict) Act 2012, s. 12.
 Ibid. n. 10.
 House of Lords, 28 June 2016.
 Council Directive 93/7/EEC of 15 March 1993, Official Journal L 074, 27/03/1993 P. 74 – 79.
 Anna O’Connell, ‘The United Kingdom’s Immunity from Seizure Legislation’, LSE Working Paper, 20/2008.
 Cultural Property (Armed Conflicts) Bill [HL] Explanatory Notes.
 Ibid, at 9.
 Ibid, at 12.
 Ibid, at 14.
 1954 Hague Convention, Section I (3).
 1999 Second Protocol, Article 38.
 Russian Federation, Law on Removed Cultural Property (1997) as cited by Customary IHL, ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter12_rule41.
 Russian Federation, Constitutional Court, Law on Removed Cultural Property case, 20 July 1999 as cited by Customary IHL, ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter12_rule41.
Export and Return of Cultural Property in Occupied Territory, Rule 41, Customary IHL, ICRC website, ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule41.
 Jean-Marie Henckaerts, ‘New rules for the protection of cultural property in armed conflict’ 835 International Review of the Red Cross (1999).