LEGISLATION that risks blighting the trade in a large number of cultural objects could soon be amended thanks to common ground between the art market and the Ministry of Defence.
The Draft Cultural Property (Armed Conflicts) Bill, currently before the Culture Select Committee, aims to protect the cultural heritage of conflict zones and meet the UK’s obligations under the Hague Convention of 1954.
But the British Art Market Federation argue that a lack of clarity over certain elements of the Bill could make it impossible for art market professionals to handle a vast range of objects without risking prosecution. And at least one of those same elements could seriously impede the military in executing their duty in conflict zones.
The draft legislation makes it an offence to deal in unlawfully exported cultural property, knowing or having reason to suspect that it has been unlawfully exported from occupied territory.
For the MoD, who largely support the Bill, the lack of clarity over what defines cultural property could become a serious operational hazard. The armed forces have to observe a ‘No Strike’ policy when it comes to significant cultural monuments, treasures and archives – which is exactly why the enemy often position themselves there. At some point, however, military commanders have to decide whether the need to strike outweighs the need to preserve the cultural property.
The MoD’s Brigadier Gordon Messenger told the Culture Select Committee last week that without a “clear and commonly agreed” definition of cultural property, and a sensible threshold for what should be protected, the military could be hampered by an unacceptable level of ‘No Strike’ areas.
The British Art Market Federation, who also broadly support the Bill, want a clear definition of cultural property because it would be impossible to judge if an exported artefact is governed by the legislation without one.
Another part of the problem is that there is no definitive international list of territories considered to be or have been occupied. So it would be impossible to judge whether an object had been illegally exported on that basis. Would Cyprus or Northern Ireland be included, for instance? Or how about the various Balkan enclaves? Vast tracts of sub-Saharan Africa could also be affected, let alone parts of Asia and the Middle East.
Under the proposals, the Secretary of State would only intervene to decide whether a territory should be on the occupied list once a challenge had been issued over an object on which a trade professional was carrying out due diligence.
BAMF’s Tom Christopherson argued that because the definition of dealing was so broad under the draft legislation, an innocent trade professional risked prosecution in these circumstances, simply by handling an object they were considering acquiring, and the first they would know about it was once they had already unwittingly committed an offence.
It is an area BAMF chairman Anthony Browne has had to fight over before with the Dealing in Cultural (Offences) Act. He is determined to ensure that the draft legislation is amended to avoid exposing honest trading to the risk of prosecution.
He also wants other points clarified. He told the committee that there was no clear distinction between a territory that was still in conflict – when different rules would apply – and one that had been occupied. Who would decide when it moved from one to the other? Such lack of clarity, along with the other potential problems, increased the risk of the market “going underground”, he added.
Meanwhile Culture Select Committee chairman John Whittingdale highlighted the difficulties for fleeing refugees. He observed that to expect a country undergoing occupation – when most refugees would be leaving – to have a workable system of export licensing “seems a little unrealistic”.
But without the correct paperwork, refugees would find their valuables tainted and impossible to sell when they most needed the money.
Mr Browne pointed out that this might put the Bill in direct conflict with the Human Rights Act, which legislates for the free enjoyment of property.
By Ivan Macquisten