ISIS and ISLAM

Monday, February 22, 2016 6:00-9:00 PM 
New York City Bar Association

The International Legal Framework and U.S. Law to Combat the Plunder and Illicit Trade in Conflict

Presentation by: Barbara T. Hoffman

International law is the universal body of law that applies to all states regardless of their specific cultures, belief systems and political organizations. The sources of international law are treaty and custom. Where there is no treaty and no contending executive or legislative act or judicial decision, resort must be had to customs and usages of "civilized nations." A prevailing custom of international law is one that arises from "a general and consistent practice of states followed by them from a sense of legal obligation (opinion juris) . The context in which cultural heritage is generated and preserved is important to its meaning which not only varies depending on the cultural community from which the term and definition emanate but also depends on the purpose and strategic use for which the term and definition are employed.

Definitions of "cultural property" in international conventions determines not only what is protected under the conventions, but set forth legal and ethical principles for states parties, regional and international bodies and by extrapolation for stakeholders, be they museums, collectors, auction houses , archaeologists and others involved, particularly in times of conflict and where culture is at risk

International law protects cultural heritage from destruction and plunder during armed conflict (both international and internal) through a variety of instruments. Many of these instruments impose obligations on countries, not individuals, setting out the rules of war. 42.] These instruments include the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (which imposes not only obligations to safeguard cultural heritage during international/cross-border conflicts, but also, importantly, during internal conflicts), the two 1977 Protocols to the Geneva Conventions on Humanitarian Law of 1949, the Second Protocol to the 1954 Hague Convention. The 1954 Hague Convention was adopted in the wake of World War II and is the only international legal instrument aimed at insuring that both movable and immovable cultural heritage is protected in the event of armed conflicts and occupation The Convention and the First Protocol require that countries undertake to prohibit, prevent and stop theft, pillage or misappropriation of cultural property and imposes obligations on the occupying power to prevent exportation of cultural property, to take into custody cultural property exported and to return it (in some instances paying compensation to an innocent purchaser).

In the early 1990s, the wars in the Persian Gulf and in the former Yugoslavia highlighted some of the shortfalls of the 1954 Hague Convention, resulting in the adoption of the Second Protocol in 1999.

The Second Protocol supplements the 1954 Convention by strengthening and clarifying several provisions that Member States must take during peacetime and armed conflict. These include: preparation of inventories and designating competent authorities responsible for safeguarding cultural property; incorporating guidelines and instructions for protection of cultural property in military regulations; creating a new category of "Enhanced Protection" for most important sites, monuments and institutions; improving enforcement mechanisms by defining serious violations leading to criminal sanctions and imposing a duty on the Member States to establish jurisdiction over those violations; and extending the scope of its application to non-international armed conflict.

Article VII, in proclaiming the principle of individual criminal responsibility for acts of destruction of cultural heritage, affirms:
"States should take all appropriate measures, in accordance with international law, 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, whether or not it is inscribed on a list maintained by UNESCO or another international organization"

Although the United States signed but did not ratify the Hague Convention, until 2009 and has yet to ratify the Second Protocol, in Operation Desert Storm, the coalition forces adhered to its principles as tenets of customary international law. In accordance with the set Rules of Engagement-set by the commanders in charge of the war-they did not strike these areas when cultural objects were likely to suffer collateral damage. This remained so despite Iraq's failure to comport with international law by segregating its military targets from centers of cultural property. The Rules of Engagement, created by the commanders, made a Sumerian temple housing fighter aircraft a legitimate target only if it were absolutely necessary.

It was the widespread plundering of African and Latin American cultural heritage in the 1960s and 1970s and the impact on archaeological sites that led UNESCO to adopt the Convention on the Means of Prohibiting the Illicit Export and Import of Cultural Property. The UNESCO Convention is the lynchpin of an international legal framework of controlling traffic in illegal and cultural stolen property and is based on a public international and administrative law model. Commentators have argued that it represents a nationalist rather than the internationalist view embodied in the Hague Convention. The Convention works primarily at the government to government level.

Claimants for the return of cultural patrimony today are in a more favorable position than in the 1970s. The prevalent 1970's don't ask and disregard of provenance popular with American museum directors has given way to codes requiring provenance and due diligence. Notwithstanding that the UNESCO 1970 has been successful in tamping down on the illicit trade of antiquities among legitimate state actors, as well as museums and other collecting institutions, the act does little to reach the kind of underground trading, including web based trading that ISIS is performing with private collectors., matter to the prosecutor

The UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention) (Convention Concerning the Protection of the World Cultural and Natural Heritage, November 23, 1972, 27 U.S.T. 37, 1037 U.N.T.S. 151 ) was adopted by UNESCO on November 16th, 1972, partially in response to the changing social and economic conditions which aggravate the destruction of the cultural and natural heritage. Whilst the 1970 UNESCO the UNIDROIT Convention dealt with illegal excavations, plunder and the illicit traffic in movables, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was developed by the International Institute for the Unification of Private Law ("UNIDROIT") to resolve this difference. Its primary requirement under Article 1 is that the possessor of a stolen cultural object shall return it. This is accomplished by focusing principally on the concept of 'due diligence'. In Articles 4.1 and 4.4, the conflict between the thief not passing good title and protecting the good faith purchaser has been resolved by placing a duty on the prospective buyer to have exercised due diligence before making the purchase. Inability to demonstrate such care revokes entitlement to compensation upon return of the item. The trade in cultural objects is characterized by secrecy. The due diligence requirement is designed to tackle this. Article 4.4 cites some of the criteria upon which a judgement as to whether due diligence had been exercised will be determined. (See also DCMS Combating the Illicit Trade: Due diligence guidelines for museums, libraries and archives on collecting and borrowing cultural material 2005).

It should be noted that, unlike the UNESCO Convention, under the UNIDROIT Convention individuals do have a statutory right of action to seek recovery and return of stolen cultural property.

The Convention for the Safeguarding of the Intangible Cultural Heritage (Convention for the Safeguarding of the Intangible Cultural Heritage, October 17, 2003) ("2003 Convention") completes the current primary international legal framework for considering the principles affecting the protection of cultural heritage and the The 2003 Convention defines the intangible cultural heritage, or "living cultural heritage," as the practices, representations, expressions, as well as the knowledge and skills, which communities, groups and, in some cases, individuals recognize as part of their cultural heritage.

Article 2 of the Convention states:

For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.

The various legal principles embodied in the latter conventions contribute to the evolution of international law in the fields of protection of cultural heritage with respect to both the movable heritage and non-movable heritage. Several principles applicable to the international community can be distilled from UNESCO 1970 and subsequent treaties (i) the principle of cooperation to prevent illegal movements of cultural properties; (ii) the principle of cooperation to preserve the integrity of cultural context and preservation of the integrity of archeological and historic sites, as a nation's cultural identity; (iii) the principle of co-operation in developing mechanisms to resolve disputes on the return of cultural property and the preservation of cultural heritage; and (iv) the principle of non-exploitation of the weakness of another to get a cultural gain, or stated another way, - respect for the rule of law rather than the law of wealth or the principle "to the victor belongs the spoils."

Since 1970, principle of respect for cultural identity has under guided support and international cooperation in the restitution and return of cultural property and support for cultural heritage preservation, including the prevention of looting of sites, and recent acts of the destruction of cultural heritage in Mali, Syria and Iraq are now linked directly to terrorism, political instability and global security. The destruction of a nation's heritage while hereto for referenced has now been explicitly defined as a war crime. Thus, these acts of destruction, aimed at the eradication of a people's identity have emphasis on the principles advocated by and underlying the Hague Convention of 1954. The links to terrorism now attract conceited efforts of law enforcement in the struggle against organized crime.

On October 17, 2003, UNESCO General Conference adopted the Declaration Concerning the Intentional Destruction of the Cultural Heritage. The text emerged mainly in response to the destruction of the Bamiyan Buddhas, but its language is broad enough to cover the destruction by rampant looting of Iraqi cultural heritage . The Preamble begins by, "[r]ecalling the tragic destruction of the Buddhas of Bamiyan that affected the international community as a whole," The Declaration recognizes the commitment of UNESCO Member States to fight against the intentional destruction of this common heritage in any form so that it may be transmitted to succeeding generations.

United Nations Secretary General Ban Ki-moon condemned the destruction in Syria and Iraq by Isis ,designating the actions as "war crimes," and issuing a statement calling on the international community "to swiftly put a stop to such heinous terrorist activity and to counter the illicit traffic in cultural artefacts.UNESCO Director-General Irina Bokova likewise issued a statement after the destruction of Nimrud stating that she had "alerted the president of the Security Council as well as the Prosecutor of the International Criminal Court" concerning the unlawfulness of the destruction under international law.

The UN General Assembly, Rome Statute of the International Criminal Court (law amended 2010), 17 July 1998, ISBN No. 92-9227-227-6. (Article 8(2)(b)(IX) provides that the term 'war crimes' includes "Internationally Directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives." Article 8(2)€(IV) imposes a corresponding liability during internal conflicts, stating that war cromes includes, in conflicts not of an international character, "Internationally directing attacks against buildings dedicated to religion, education, art, science, or charitable purposes, historic monuments..."

In the case of individual criminal responsibility for ISIS militants for the destruction in Mosul, Nimrud, and elsewhere, an initial obstacle lies in neither Iraq nor Syria being party to the Rome Statute. However, while the ICC's jurisdiction is limited, states may accept the court's jurisdiction for a particular case. Even in the absence such state acceptance, the ICC has jurisdiction in cases in which the Security Council refers the matter pursuant to article 7. . Either option, however, faces steep political obstacle

The Cultural Property Implementation Act, 19 U.S.C. §§260-2613 ("CPIA"), focuses primarily on implementation of Articles 7(b) and 9 of the UNESCO Convention.

United Nations Security Council Resolutions 2199 (12 February 2015) and 2253 (17 December 2015) Unanimously adopting resolution 2199 under the binding Chapter VII of the United Nations Charter. The Council condemned any trade with the Islamic State in Iraq and the Levant (ISIL, also known as Daesh), the Al-Nusrah Front and other entities designated to be associated with Al-Qaida . The resolution was co-sponsored by more than 35 countries, and it targets the three key areas of revenue for ISIS and other terrorist organizations - oil, antiquities and ransom from kidnappings. On 17 December 2015, concerned with the implementation by Member States, the Security Council issued Resolution 2253. It calls upon Member States to fulfill their existing commitments under Resolution 2199, while reinforcing and expanding these obligations. Resolution 2253 additionally requires that they report any "interdictions of antiquities, as well as the outcome of proceedings brought against individuals and entities as a result of any such activity

General Assembly 69/281

The European Parliament: Joint Resolutions on the Destruction of Cultural Sites Perpetrated by ISIS

The Cairo Declaration, May 2015

II. U.S. LEGISLATION

A. The Cultural Property Implementation Act, 19 U.S.C. §§260-2613

("CPIA"), focuses primarily on implementation of Articles 7(b) and 9 of the UNESCO Convention.

The States Parties to this Convention undertake:
(a) To restrict by education, information and vigilance, movement of cultural property illegally removed from any State Party to this Convention and, as appropriate for each country, oblige antique dealers, subject to penal or administrative sanctions, to maintain a register recording the origin of each item of cultural property, names and addresses of the supplier, description and price of each item sold and to inform the purchaser of the cultural property of the export prohibition to which such property may be subject;

(b) to endeavor by educational means to create and develop in the public mind a realization of the value of cultural property and the threat to the cultural heritage created by theft, clandestine excavations and illicit exports.

The CPIA embodies a policy of prohibiting the importation of cultural property and returning it a source nation only if (1) it was previously identified and then stolen from an institution or public monument (19 U.S.C. §2607), or (2) pursuant to a request from a foreign country to the extent necessary to prevent pillage (19 U.S.C. §2602-06).

A country whose cultural patrimony "is in jeopardy from the pillage of archaeological or ethnological" materials must demonstrate, in its request for assistance. Once a request has been submitted, it is reviewed by the Cultural Property Advisory Committee (CPAC), which is composed of members representing the interests of the public, museums, the trade, and archaeology/anthropology. As part of its deliberative process, CPAC invites comments from members of the public and typically holds an open session at which any member of the public may provide relevant comment and interact with CPAC members. The invitation for public comment is a proactive step taken by the Department of State which administers CPAC. Because the Committee itself represents the viewpoints of interested parties, there is no statutory requirement to hold a public session or consider any outside public comment. Four determinations must be made: (1) that the cultural patrimony of the requesting nation is in jeopardy from the pillage of archaeological materials; (2) that the requesting nation has taken measures to protect its cultural patrimony; (3) that U.S. import restrictions, either alone or in concert with actions taken by other market nations, would be of substantial benefit in deterring the serious situation of pillage, and (4) import restrictions would promote the interchange of cultural property among nations for scientific, cultural, and educational purposes

The President only has authority to enter into bilateral or multilateral agreements imposing U.S. import restrictions on archaeological material. If the above four "determinations" are met, and "after request is made."

To date, the U.S. has signed bilateral agreements with 15 nations, and imposed one emergency action with similar terms for Iraq. These import restrictions for Iraq, along with others for Mali, are the only ones in effect for the Middle East and North Africa. http://eca.state.gov/cultural-heritage-center/cultural-property-protection/bilateral-agreements

B. The National Stolen Property Act Title 18, U.S.C. §§2314-2315 prohibits the knowing receipt or possession of property that has "crossed a State or United States boundary after being stolen, unlawfully converted, or taken." There are two parts of this law that may be applied when a stolen artifact or cultural property crosses the border into the United States. Under these sections of the NSPA, a federal prosecutor does not need to prove that a criminal defendant actually stole the object at issue. The federal prosecutor only needs to prove that the defendant knew the object was stolen when he received it, possessed it, transported it, or sold/disposed of it, and that the object had a value that exceeded $5,000.

C. Protect and Preserve International Cultural Property Act, H.R. 1493

House Passed the Protect and Preserve International Cultural Property Act, which would prevent objects stolen or looted since the beginning of the conflict in Syria from entering the United States borders. However, this bill has only just left the senate Committee on Foreign Relations as of January 28, 2016. Senate Bill S.1887 and the Protect and Preserve International Cultural Property Act, H.R. 1493. The senate should set an example and pass this Act to honor the leadership role the U.S. took in the various UN resolutions which are embodied in the Act now before the Senate.

While the Hague Convention of 1954 as adopted by the Senate, did not require further implementing legislature and became effective with the deposit of the ratification with UNESCO, the US Government should address the principle embodied in the Hague by implementing appropriate programs and funding of the military; inter alia, training of the military to further fulfill its obligations.


UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage, October 17, 2003. The full text of the Declaration is available on at http://unesdoc.unesco.org/images/0013/001331/133171e.pdf#page=68

The U.S. Department of State through its Bureau of Educational and Cultural Affairs maintains a constantly updated website on Iraqi cultural heritage at http://exchanges.state.gov/culprop/iraq.html

ibid. fn. 13

[4] In Section II, the Declaration defines the meaning of "intentional destruction" as "an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of law cpublic conscience, in the latter case in so far as such acts are not already governed by fundamental principles of international law."