The 2017 Blood Antiquities Convention - Protecting Cultural Property through Criminal Law
By Jamie Brown, Council of Europe | jamie.brown@coe.int | @jamiebealebrown
Of all the tragedies that occur worldwide, the loss of ancient monuments, art and archaeological artefacts might seem pretty insignificant to the needless suffering of innocents. In Syria, Iraq and Mali, the world has been exposed to some appalling images of ancient ruins being intentionally destroyed in front of their eyes. But not only were unique places of heritage being reduced to dust, hugely profitable, industrial-scale excavations were taking place behind the scenes in order to sell artefacts abroad and help fuel further attacks and violence.
It was in this context that the Council of Europe negotiated and opened for signature the new Nicosia Convention on Offences relating to Cultural Property, also known, more dramatically, as the “Blood Antiquities Convention”. As part of the Secretariat to both the drafting committee that negotiated the Convention and its Explanatory Report as well as the oversight committee (European Committee on Crime Problems (CPDC)), this post shares some of my personal insights into how this Convention came into being.
Issues of destruction and trafficking of cultural property are not solely about combating terrorism and war crimes: they also go hand-in-glove with corruption and organised crime. Even in Europe, some estimates are that a majority of archaeological sites in places such as Bulgaria and Turkey have been looted to supply unique items to the rather massive market for art and artefacts. Interpol’s database lists around 50,000 works of art stolen or missing – and that is probably an underestimate. The black market in art and antiquities operates through a complex series of fences, smugglers, handlers, restorers, and sellers on their way to foreign markets where they are sold with relative ease in flea markets and through the internet.
The Nicosia Convention seeks to close any and all of these exploitable gaps in the system, broaden and improve current European Union regulations, and thereby establish a comprehensive, coherent and clear set of rules and regulations at all levels. Once implemented, this will hopefully facilitate greater prevention, investigation and prosecution of cultural property crimes.
Major international operations to suppress the trade have been, by some measures, only moderately successful. Unlike the trade in drugs and counterfeits, the illicit trade in art and antiquities is more in the domain of the powerful and wealthy elite - a demographic which is often less than enthusiastic about the prospect of increased criminal law enforcement. As a consequence, the trade in cultural property is very poorly regulated, and where regulations exist they are often poorly enforced.
The Council of Europe previously tried to adopt a treaty on cultural property offences, the 1985 Delphi Convention, which was far from successful and never entered into force. The gaps in the system became even more visible when several UN Security Council Resolutions called on States to introduce effective national measures to prevent and combat all aspects of trafficking in cultural property and related offences (see Resolution 2199 (12 February 2015), Resolution 2253 (17 December 2015) and Resolution 2322 (12 December 2016), and, most recently, Resolution 2347 (24 March 2017). It was clear that the international legal regime was in need of reform and thus in early 2016 the Council of Europe decided to begin the process for what would later be known as the Nicosia Convention.
Prior to the plenary negotiations, a small working group is established to provide a draft, usually with advice and input from experienced professionals. In this case, senior officials from several ministries of justice alongside art law professionals from the University of Geneva were tasked with preparing the draft. Then, there are several rounds of negotiations where state representatives come together in plenary in order to discuss and debate the draft text prior to transmission to the Committee of Ministers (the Council of Europe’s Executive body) for approval and adoption. Almost all member States sent representatives to the negotiations, plus Observer States such as Mexico and Japan, and representatives from UNESCO, UNIDROIT, INTERPOL, UNODC and the OSCE.
Naturally, one of the main issues was exactly what – or whose – cultural property is covered by the Convention. To be clear, we’re not talking about low-grade antiquities or the old junk of minimal value, but rather precious items that have been designated, listed, classified or otherwise granted a certain status. The objective of the Convention is thus to ensure and extend protections to high-value art and antiquities in private collections, undiscovered archaeological goods in designated sites, as well as public owned items that belong in a museum.
UNESCO’s 1970 and 1972 Conventions are the key instruments in the international legal framework for governing movable and immovable cultural property (as well as the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects). Thus, the Nicosia Convention fully respects the UNESCO Conventions by following the definition of movable and immovable cultural property contained therein. However, in a rather bold innovation, the Convention’s scope of application does not cover a State’s own property, but is extended to all property designated or listed under those Conventions. This was negotiated in order to make the Convention not just compatible and complementary with UNESCO Conventions, but to enhance the protections contained within to ensure that states do not simply protect their own cultural property, but that of fellow States Parties, too. Furthermore, accession to the Nicosia Convention is not limited to the 47 Council of Europe member States – for instance, Mexico, which has struggled with looting and trafficking of antiquities, was one of the first to sign the Convention.
However, when it came to the substantive provisions, there were several differences of opinion between drafters prior to agreement on the final text. For instance, while importing States wanted a more lightweight instrument setting minimum criminal law standards, the exporting States wanted a very strong instrument supported by a specialised oversight body for cultural property crimes. When it came to the scope of the Convention, some wanted forgeries and fakes to be covered, while others insisted that false goods were a consumer protection issue rather than a criminal law one.
A contentious topic that emerged time and time again was how to deal with notions of terrorism in the Convention itself. Certain States wanted very stringent anti-terrorism provisions, or, at the very least, for any connection with terrorism to be considered an aggravating circumstance if not a separate offence. However, a plurality of States preferred a much narrower criminal law instrument to complement the pre-existing anti-terrorism regime. In the end, it was agreed that references to terrorism should be kept in the Preamble rather than in any of the substantive provisions. Considering the background to the Convention, this may seem odd, but, at the same time, it is hard to foresee a person prosecuted for a cultural property crime where terrorism offences are mere aggravating circumstances - if a prosecutor thinks they can prove terrorist intent or a nexus with a terrorist group, then charges are far more likely to be brought under pre-existing anti-terrorism laws rather than under laws protecting cultural property.
Additionally, there were challenging discussions regarding the mechanism to be put in place to oversee implementation of the Convention. While certain States pushed for a permanent “Observatory for Cultural Property Crimes”, others wanted a more straightforward body of State representatives (known as a Committee of the Parties). The final text of the Convention went with the simpler latter option for the time being, but leaves the former option open for the future.
Ultimately, what is important is that the Convention provides a workable set of standards for international cooperation, a solid template for domestic legislative developments, and acts as a spur for law enforcement agencies to work with their partners abroad. Workable is the operative element in these negotiations – one can strive for the best, most elaborate clauses, but ultimately States will decide whether or not to join based on whether they continue to perceive the Convention as a pragmatic and efficient instrument to deal with the challenges it seeks to address.
As it stands, the Convention has been open for a very short period of time, though the outlook is rather optimistic. Six countries signed on the first day - which already matches the 1985 Delphi Convention after more than 30 years. Hopefully, more States will sign and ratify the Nicosia Convention soon and do their part to ensure that our shared cultural heritage is protected and safe from thieves, traffickers and terrorists.
Jamie Brown works in the Action Against Crime Department, DG Human Rights and the Rule of Law, Council of Europe. He holds an LLB in International and European Law from the University of Groningen (2014) and an LLM in International Criminal Law, from the joint programme between the University of Amsterdam and Columbia Law School (2015).Opinions expressed are personal and do not necessarily reflect any views held by the Council of Europe.