Keywords

1 Introduction

As the EU’s 2020 Security Union Strategy emphasised, “[t]rafficking in cultural goods has [...] become one of the most lucrative criminal activities, a source of funding for terrorists as well as organised crime” (European Commission, 2020).

Given the fact that the so-called Islamic State of Iraq and Syria (ISIS/Daesh) set up a system of illicit trafficking in art and antiquities as a source of steady income, we are facing today interrelated terrorist crimes – plundering and smuggling on the one hand and destruction on the other. “[V]arious episodes prove that artefacts have been stolen and smuggled abroad and the revenues used to buy weapons, and that cultural heritage has been destroyed or desecrated in order to weaken the resistance of the enemies through the mortification and humiliation of their culture” (Committee on Offences Relating to Cultural Property, 2016, p. 3). This leads to a “vicious circle” with new attacks and new loss of cultural property (Committee on Offences Relating to Cultural Property, 2016, p. 3; Brown, 2017).

Therefore, it will not suffice to protect World Heritage (WH) sites against physical attacks. As the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) does not deal with criminal law sanctions and, generally, prosecutions and convictions for cultural objects-related crimes are weak (Munnelly, 2021, p. 3), it will be asked to what extent stronger criminal law enforcement can be identified as a missing link in the system of legal protection of cultural heritage.

Cultural heritage protection, it will be argued, needs to be approached in a broader legal framework designated to combat serious international crimes – both destruction and trafficking – and to provide appropriate law enforcement for both of them.

2 Intentional Attacks by Terrorist Groups: Avoiding Lawless Areas

Iconic WH is at risk, especially when terrorist groups gain influence on the ground, be it in peacetime or in wartime. Intentional acts of terrorist groups and organised networksFootnote 1 directed against cultural heritage present a challenge for international law, particularly due to the existence of grey zones.

2.1 The Relevance of International Humanitarian Law (IHL)

Generally, armed conflict and terrorist activities threaten the integrity of cultural objects and resources. In times of armed conflict, cultural property and its surroundings have to be respected by non-state armed groups, provided that the State where the WH is located has ratified the IHL treaties. In these cases, non-state actors have to refrain from using cultural property in ways which might destroy or damage the property (Convention for the Protection of Cultural Property in Armed Conflict, 1954, arts. 4 and 19; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977, arts. 1 and 16).

In cases of serious violations of the Second Protocol to the Hague Convention, 1954, as of 26 March 1999 (1999, hereinafter SP; for details; von Schorlemer, 2004), States, in whose territory the alleged offender is present, are obliged to either extradite or submit the person to its competent authorities (SP, arts. 15, 17, 18). Further, mutual legal assistance in connection with investigations or criminal or extradition proceedings is required (SP, art. 19). However, being ratified by only 84 State Parties (as of November 2021), the Second Protocol is not universally accepted.

2.2 The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage

In the case of peacetime destruction, IHL does not apply, and, consequently, alleged offenders may not be prosecuted for war crimes. This may create a legal loophole: For example, when the Taliban destroyed the Buddha statues in Afghanistan in 2001, they were in control of large parts of the state’s territory – no armed conflict was taking place.

Against these terrorist acts, the UNESCO General Conference adopted the Declaration concerning the Intentional Destruction of Cultural Heritage (UNESCO, 2003) at its 32nd session on 17 October 2003. Applying to tangible and intangible, movable and immovable objects, the Declaration emphasises the international community’s commitment to fight against intentional destruction in any form (including terrorist acts).

States are called upon to “take all appropriate measures […] to establish jurisdiction over, and provide effective criminal sanctions against, those persons who commit, or order to be committed, acts of intentional destruction of cultural heritage of great importance for humanity” (UNESCO, 2003, para. VII). In addition, States are encouraged “to take all appropriate measures, in accordance with international law, to cooperate with other States concerned with a view to establishing jurisdiction over, and providing effective criminal sanctions against, those persons who have committed or have ordered to be committed acts […] and who are found present on its territory, regardless of their nationality and the place where such act occurred” (e.g. UNESCO, 2003, para. VIII (2), emphasis added).

Thus, the 2003 Declaration is the first UNESCO standard-setting document that aims to establish universal jurisdiction for cultural heritage crimes and to strengthen cooperation in the field of criminal sanctions. Still, the Declaration is a non-binding document, which has had limited effect (Lenzerini, 2003).

2.3 The Role of Criminal Law Prosecution

In the light of ISIS/Daesh terrorist acts, Security Council (SC) Resolution 2347 from 24 March 2017 reminded UN member states that they are obliged to bring perpetrators to justice whenever the latter direct “unlawful attacks against sites and buildings dedicated to religion, education, art, science or charitable purposes, or historic monuments”, which may constitute a war crime (UN Security Council, 2017, para. 4). Furthermore, Resolution 2347 emphasised that illicit trafficking of cultural property may constitute a serious crime (Resolution 2347, para. 9).

Unequivocally, criminal law prosecutions are powerful legal instruments for fighting terrorist acts against WH, theft, and illegal trafficking.

Still, international criminal jurisdiction is but complementary: As the Rome Statute sets forth, the International Criminal Court in The Hague will consider a case admissible only when a State which has jurisdiction over it “is unwilling or unable genuinely to carry out the investigation or prosecution” (Rome Statute, 1998, art. 17, para. 1(a)). Legal requirements – such as ratification of the Rome Statute, clear evidence, and state cooperation with the Court – are often difficult to achieve.

Hence, national criminal law prosecution of deliberate offences against cultural property and international cooperation for that purpose remain of utmost importance. However, domestic jurisdictions often fail to prosecute and punish individual perpetrators (Wierczyńska & Jakubowski, 2020), not least because of the transnational character of the crimes.

2.4 Grey Zones and Terrorist Acts: The Transnational Character of Crimes

The Council of Europe (CoE) warned: “The black market trade in antiquities, art and artefacts by unscrupulous dealers who do not care about the illicit provenance of such cultural objects can end up funding corruption, terrorism, violence and other crimes.” (Council of Europe, 2017b, para. 3; Mottese, 2018; Campbell, 2013). Furthermore, referring to INTERPOL, the UN Secretary-General explained that “as a result of the transnational nature of crimes related to culture, the involvement of several national jurisdictions leads to gaps and loopholes which are exploited by individuals and organized groups” (Guterres, 2017, p. 12).

Legal differences in national jurisdictions are well known by the art trade and used extensively. As experts outline: “The transnational nature of illicit activities is because experienced thieves and smugglers are well aware of the legal differences between countries and seek to exploit gaps or weaknesses in the national laws to increase profits from their wrongdoing and lower the chances of being caught.” (Oñate, 2018, p. 240; see also Ulph, 2019; Munnelly, 2021, p. 6).

For example, a precious piece illegally excavated in Syria can be bought legally at an auction in Germany, thus acquiring a “spotless provenance” that helps it to be resold: Therefore “awareness that legal loopholes of this kind quickly turn into dangerous security threads [sic] is badly needed” (Groß, 2018, p. 52). Moreover, the amount of information given about when and where art and antiquities are transferred is “shockingly low. Dealers and buyers still prefer confidentiality and concealment” (Fincham, 2019, p. 334; Kulturstiftung der Länder, 2018).

Against this backdrop, already in the 1980s, the CoE had drafted the European Convention on Offences relating to Cultural Property (1985), the so-called Delphi Convention. This treaty was opened for signature on 23 June 1985. Unfortunately, however, it never entered into force. Apparently, the Delphi Convention failed due to objections regarding practical enforcement and because other organisations, “especially UNESCO, UNODC, UNIDROIT, and the EU”, were seen as more efficient in combatting illegal art trade (Bieczyński 2017, p. 262).

But efforts continued.

3 The Nicosia Convention on Offences Relating to Cultural Property (2017): An Integrated Approach

The Nicosia Convention on Offences Relating to Cultural Property (Council of Europe, 2017a, hereinafter NC) was adopted on 3 May 2017 by the CoE Committee of Ministers, with ratification being possible since May 2017.Footnote 2 The elaboration of this new legal instrument was carried out in close cooperation with UNESCO, INTERPOL, UNODC, OSCE, and the EU.

As will be argued, the relevance of the Nicosia Convention for WH is huge.

Germany has been an active member in the drafting process of the Nicosia Convention. The First Meeting of the Committee on Offences Relating to Cultural Property, which was responsible for preparing the draft Convention (PC-IBC), taking place from 31 May to 1 June 2016, unanimously elected Hans-Holger Herrnfeld (Germany) as the Chair of the Committee.

3.1 Scope and Objectives

The Nicosia Convention focuses on transnational crimes, expressing concern that terrorist groups are deliberately destroying cultural heritage and using the illicit trade of cultural property as a source of financing their activities (NC, preamble, para. 7). In doing so, the treaty takes up a two-pronged approach (Bieczyński, 2017), addressing the increasing number of illegal acts connected to cultural property and “the concomitant destruction of the world’s cultural heritage” (Blake, 2020, p. 176).

The Convention’s primary purposes are to “prevent and combat the destruction of, damage to, and trafficking of cultural property by providing for the criminalisation of certain acts.” Furthermore, it aims to strengthen “crime prevention” and the criminal justice response to all criminal offences relating to cultural property (NC, art. 1).

The Convention applies to tangible movable or immovable heritage, designated or listed in accordance with the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage (NC, art. 2, para. 2 (a) and (b)). The adoption of definitions from UNESCO treaty law was criticised by some, as it may bring disadvantages for yet undiscovered objects (Gottlieb, 2020). However, when archaeological objects are unearthed, they may fall well within the scope of application of the Nicosia Convention, provided they are located in designated areas.

3.2 Value-Added: Criminalising Offences

Each Party of the Nicosia Convention shall ensure that not only “unlawful destruction” but also “damaging of movable or immovable cultural property” constitute a criminal offence (NC, art. 10, para. 1 (a)). As the Explanatory Report sets forth, this article has been drafted “mindful of the egregious demolitions at major cultural sites by terrorist groups such as those in Mali, Syria and Iraq” (Council of Europe, 2017b, para. 65).

Another obligation to criminalise under domestic law concerns intentional, “unlawful removal, in whole or in part, of any elements from movable or immovable cultural property” when designed for trafficking (NC, art. 10, para. 1 (b)). This may also include parts of WH, for example, “statues, frescoes and mosaics” (Council of Europe, 2017b, para. 68), when being cut up, dismembered, and seriously damaged by removing objects, e.g. from archaeological sites or cultural landscapes (Palmyra, Ancient Villages of Northern Syria, Samarra Archaeological City, Erbil Citadel, Babylon, etc.).

Other state obligations concern, inter alia, theft, unlawful excavation, and removal of movable cultural property; illegal exportation and illegal importation of cultural property (NC, arts. 3–6), but also the acquisition of stolen, illegally excavated, or illegally exported cultural property; the placing on the market of such property and the falsification of documents (NC, arts. 7–9).

The centrepiece of the treaty requires State Parties to establish jurisdiction over all of the offences mentioned above (NC, art. 12) which includes providing the judiciary in their countries with the necessary competencies to try cases of referred criminal offences and pronounce judgment on infringements, irrespective of whether these are committed on their territory, ships, aircraft, or by one of their nationals.

3.3 Criminal Sanctions and the Art Trade

Consensus is growing that it is necessary to strengthen criminal sanctions for possession and sale of illegally trafficked cultural objects. In the understanding of the CoE, the use of criminal sanctions is to be seen as “a means of last resort”, in line with the principle of ultima ratio (Council of Europe, 2017b, para. 111). More specifically, sanctions have to be “effective, proportionate and dissuasive” and shall “take into account the seriousness of the offence” (NC, art. 14, para. 1 and 2).

In determining the sanction, the fact that the offences were committed either by persons “abusing the trust placed in them in their capacity as professionals” (e.g. “restorers, conservators, curators, auctioneers and dealers” (Council of Europe, 2017b, para. 95)) or by “a public official tasked with the conservation or the protection of movable or immovable cultural property” may be taken into consideration as aggravating circumstances (NC, art. 15 (a) and (b)). The same applies when the offence was committed within the framework of a criminal organisation or when the perpetrator is recidivistic (NC, art. 15 (c) and (d)).

Importantly, each Party shall ensure that legal entities, e.g. companies and associations or auction houses, are liable for criminal actions performed for their benefit by someone holding a “leading position” within the legal person (NC, art. 13, para. 1). For example, when a person, having the power to represent the legal person or to make decisions on behalf of it (NC, art. 13, para. 1 (a) and (b)), commits a criminal offence, then the liability of the legal person may be – dependent on the Party’s decision – criminal, civil, or administrative (NC, art. 13, para. 3).

Sanctions against legal persons include, among others, temporarily or permanently disqualifying them from commercial activities or placing them under judicial supervision. In addition, the possibility of seizure and confiscation of the proceeds of the offences, or property whose value corresponds to such proceeds, are relevant measures as well (NC, art. 14, para. 3; Council of Europe, 2017b, para. 91). In this respect, the Convention vastly improves the implementation of existing cultural heritage law, making legal protection of cultural property more efficient at the same time.

3.4 International Cooperation and Law Enforcement

The Nicosia Convention fosters international cooperation to fight crimes that are destroying the World’s Cultural Heritage and will be able to strengthen inter-organisational cooperation between the CoE and UNESCO. Effective cross-border cooperation is foreseen in investigating, prosecuting, and sentencing persons suspected of committing offences listed in the Convention.

As regards terrorist attacks against WH, the relevance of Art. 21 should be highlighted: Each Party shall cooperate “to the widest extent possible” to prevent and fight the “intentional destruction of, damage to, and trafficking of cultural property” (NC, art. 21). In particular, parties should “facilitate co-operation” to protect and preserve cultural property “in times of instability or conflict” (NC, art. 21 (c)).

Action may include the establishment of safe havens as well, where “foreign movable cultural property endangered by such situations of instability or conflict can be safely stored, conserved and protected” (Council of Europe, 2017b, para. 126).

Additionally, the exchange of information regarding identification, seizure, and confiscation of cultural property, and contributions to international data collections (such as the Interpol Database on Stolen Works of Art) by “interconnecting national inventories or databases” are valuable instruments (NC, art. 21 (b)) for the work of police and law enforcement authorities.

3.5 Awareness-Raising

In general, deterrence to commit cultural heritage crimes can be enhanced by a better understanding of the profound direct and indirect damage certain acts cause to cultural property. We may safely assume that the more people consider cultural property as an integral part of national, European, and universal heritage, “the more difficult it will be for someone to commit an offence against them and the easier it will be to provide an effective means of protection” (Mottese, 2018, p. 133).

Awareness is essential: As Lazare Eloundou Assomo (Director of Culture and Emergencies, UNESCO) stressed at the Berlin Conference on Cultural Heritage and Multilateralism in November 2020, awareness-raising among the public as well as educational measures regarding younger people are crucial, for the “absence of ethics” is a fundamental cause of cultural heritage crimes (Eloundou Assomo, 2020). Along these lines, it is to be welcomed that the NC promotes awareness-raising campaigns by States addressed to the general public about protecting cultural property and the dangers posed by the crimes against it (NC, art. 20 (g)).

3.6 Relevance of Monitoring

Generally, monitoring is a significant element of international legal cooperation.

The Committee of the Parties foreseen by the NC is a body of State representatives with a mandate to monitor the implementation of the Convention, assisted by the Secretariat of the CoE. The Committee may “express an opinion on any question concerning the application” and make “specific recommendations to Parties concerning the implementation” (NC, art. 24, para. 3 (b) and (c)). Regrettably, a periodical state reporting mechanism – in order to provide required, sufficient, and conducive information to the Committee – is missing. As a result, the only way to gather information is left to voluntary cooperation and exchange of information (NC, art. 24, para. 3 (b); art. 24, para. 2).

Moreover, the Committee is not a standing body, either, but a body that will meet (only) at the request of at least a third of parties or of the Secretary General of the CoE. As a result, robust monitoring of the implementation of the Nicosia Convention has to be assured.

4 Critical Appraisal

The Nicosia Convention is a multifaceted instrument, helping States – as former Secretary General Thorbjørn Jagland emphasised – to combat criminal acts “effectively” (Council of Europe, 2016). Regarding its future acceptance, two important legal aspects are highlighted briefly:

4.1 Harmony of the NC with Existing Cultural Heritage Law

First of all, the Nicosia Convention fully respects not only binding SC resolutions (e.g. Res. 2199 (2015a); Res. 2253 (2015b); Res. 2322 (2016)) but also universally applicable UNESCO Culture Conventions already ratified by UNESCO Member States, e.g. the 1970 Convention or the UNIDROIT Convention (1995).

In addition, the Convention respects existing EU law, such as, for example, the EU Regulation 2019/880, adopted in early 2019. The Regulation is binding to all EU Member States and applies to cultural property originating from States outside the EU (European Union, 2019, art. 1, para. 2). Similar to the Nicosia Convention, the Regulation addresses organised crime, in particular “where such illicit trade could contribute to terrorist financing” (European Union, 2019, art. 1, para. 1).

The Regulation establishes a system of import licences required for certain categories of cultural objects (Annex, Part B, e.g. archaeological finds or items removed from monuments and sites when more than 250 years old), supported by documents and information providing evidence that the cultural objects have been exported in accordance with the laws and regulations of that country (European Union, 2019, art. 4, para. 4; Peters 2020). Coming close to NC regulations, the “new EU Import Regulation similarly relies on the importers’ documentation that should support the lawful ownership history (provenance) before an object can be imported” (Campfens, 2020, p. 272).

Thus, it is essential to note that the Nicosia Convention “harmoniously coexists” with existing treaty law and instruments dealing with matters that the Convention also covers (Bieczyński, 2017, p. 270). The Convention complements international heritage law in a valuable way.

4.2 Reflections on State Sovereignty and Ratification

Second, the Nicosia Convention is a pragmatic and workable instrument to deal with the challenges of protecting our common heritage from plunderers, thieves, traffickers, dealers, and terrorists.

Therefore, ratification is a logical next step, according to German officials (Bundesregierung, 2019), not least because parts of the 2016 “Kulturgutschutzgesetz” coincide with obligations of the Nicosia Convention (Haas, 2021).

Once the treaty enters into force (provided that five ratifications, acceptances, or approvals exist) – other non-member states may be invited to accede to the Convention (NC, art. 28, para. 1). In that respect the Convention’s rigorous openness for non-Member States is to be welcomed, for only by achieving wide acceptance and ratification of treaty law is it possible to create a close-knit international legal network to eradicate legal loopholes, which are readily exploited.

The Conference “Act for Heritage” that took place from 24 to 26 October 2019 in Nicosia promoted acceptance and ratification, additionally aiming to enhance stakeholder cooperation in the field. However, as it stands, the NC has been signed by just nine and ratified by four States. As the Head of Culture and Cultural Heritage Division of the Council of Europe emphasised, there is a “need to act […] [and] many more countries [need] to ratify this convention quickly” (Council of Europe, n.d.).

Experts are afraid that – similarly to the Delphi Convention – the new Convention might fail due to objections and concerns related to loss of state sovereignty, for “when criminal law is involved there is usually a reaction against the ‘creeping assault’ on domestic sovereignty” (Mottese, 2018, p. 140; Bieczyński, 2017).

It should be stressed, therefore, that the Nicosia Convention does not call into question the principle of state sovereignty. State Parties have the option to make far-reaching reservations at the time of signature or when depositing the instrument of ratification, acceptance, approval, or accession (NC, art. 30). The possible reservations may concern not only unlawful excavation and removal, but also illegal importation, destruction and damage, aiding or abetting and attempt, and jurisdiction (NC, art. 4, para. 2, art. 5, para. 2, art. 10, para. 2, art. 11, para. 3, art. 12, para. 3). In doing so, the Nicosia Convention gives treaty parties the liberty to pursue their own legal ways and solutions compatible with the framework provided by the Nicosia Convention.

Moreover, incursions on state sovereignty are unlikely to occur because most of the obligations in the Nicosia Convention have already been included in binding SC resolutions, paving the way for anti-terrorist state action. Accordingly, the SC (indirectly) encourages the ratification of the NC, as did the UN General Assembly, when it invited “Member States to consider becoming parties to the Convention” (UN General Assembly, 2018, para. 18).

5 Concluding Remarks

The Nicosia Convention may give new impetus to criminal law as a tool in the fight against offences against cultural property, helping also to reduce lawless areas regarding WH.

Cultural heritage protection requires a robust, legally integrated approach, including criminal prosecution. In that respect, the Nicosia Convention fulfils the promise given in the Bonn Declaration on World Heritage of the World Heritage Committee at its 39th session (Bonn, Germany) in June 2015, when State Parties committed themselves “to strengthen their national legislation and practice for the protection of cultural and natural heritage, also by introducing more effective measures to combat illicit trafficking and illegal trade of cultural properties” (World Heritage Committee, 2015, para. 27).

There is hope therefore that the 50th anniversary of the world-renowned World Heritage Convention will bring progress to the acceptance of the Nicosia Convention as a “missing link”, contributing to the overall implementation of international cultural heritage law.