Cultural Property (Armed Conflicts) Act 2017

Legal background

9. Primary legislation is required in order for the United Kingdom to ratify the Convention and accede to its Protocols. Although the United Kingdom already complies with the Convention during all military operations, and recognises and respects the cultural emblem used to mark protected cultural property, existing United Kingdom laws are not sufficient to meet the obligations set out in the Convention and its Protocols in full. The Convention and Protocols oblige the United Kingdom to create new offences and search and seizure powers, which can only be achieved through primary legislation.
10. Article 15(1) of the Second Protocol lists five acts, which constitute offences when committed intentionally and in violation of the Convention. Article 15(2) of the Second Protocol requires parties to establish those acts as criminal offences under their domestic law. The relevant acts are:
    1. making cultural property under enhanced protection the object of attack;
    2. using cultural property under enhanced protection or its immediate surroundings in support of military action;
    3. extensive destruction or appropriation of cultural property protected under the Convention and the Second Protocol;
    4. making cultural property protected under the Convention and the Second Protocol the object of attack; and
    5. theft, pillage or misappropriation of, or acts of vandalism directed against, cultural property protected under the Convention.
11. The behaviour which Article 15(1)(a) and (d) seeks to criminalise (making cultural property the object of attack) is partially covered by existing offences under section 1(1) of the Geneva Conventions Act 1957, section 51 of the International Criminal Court Act 2001, and section 1 of the International Criminal Court (Scotland) Act 2001. However, neither offence is sufficient for the following reasons:

· in neither case is the definition of the property protected sufficient to encompass attacks directed at all forms of cultural property, as defined in Article 1 of the Hague Convention;

· the offences are more restricted than the offences under Article 15(1) of the Second Protocol.

12. There is no equivalent offence to Article 15(1)(b) of the Second Protocol (using cultural property under enhanced protection in support of military action).
13. A breach of Article 8(2)(b)(xiii) (destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war) of the Statute of the International Criminal Court is a criminal offence under section 51 of the International Criminal Court Act 2001, and section 1 of the International Criminal Court (Scotland) Act 2001. These offences, though not specifically directed at cultural property, would cover the behaviour criminalised under Article 15(1)(c). However, the jurisdiction we have taken to prosecute this offence is not sufficiently wide to meet our obligations under Article 16 of the Second Protocol.
14. There are also a number of existing offences in domestic law which could be used to prosecute the behaviour covered by Article 15(1)(e). However, the UK’s jurisdiction to prosecute United Kingdom nationals for the existing domestic offences committed outside the United Kingdom only applies where they are subject to military discipline, or in the service of the Crown and acting (or purporting to act) in the course of their employment. This is not sufficient even to satisfy the more limited jurisdictional requirements for this offence. For example, it would not enable the United Kingdom to prosecute a United Kingdom national, in the context of an armed conflict, which is taking place in a state that is a Party to the Convention, for the intentional vandalism of cultural property done in a personal capacity.
15. Article 16 of the Convention describes the distinctive emblem of the Convention. Article 17 sets out conditions for its use, and provides that any other uses shall be forbidden. Under Article 85(3)(f) of Additional Protocol 1 to the Geneva Conventions 1977, perfidious use of the cultural emblem is a grave breach of the Protocol. This is also an offence under the law of England and Wales - see section 1(1) of the Geneva Conventions Act 1957.  However forbidden uses of the cultural emblem under Article 17 of the Convention would not in most cases be considered to be "perfidious". Furthermore the Hague Convention has a broader application than Additional Protocol 1 to the Geneva Conventions – i.e. the Hague Convention applies in the event of an armed conflict not of an international character within the territory of one of the High Contracting Parties. Hence legislation is needed to implement the obligation under Article 17 of the Convention to ensure that the emblem is not abused.
16. The Convention and Protocols also impose obligations on occupying states and other Parties to take measures to suppress any illicit export of cultural property from occupied territories and return any cultural property protected by the Convention at the end of hostilities. In particular, paragraph 1 of the First Protocol requires a Party to prevent the exportation of cultural property from territory occupied by it, and to take into its custody any cultural property imported into its territory from any occupied territory. It also obliges Parties to undertake to return any such property at the close of hostilities. Article 21(b) of the Second Protocol requires Parties to adopt the legislative, administrative or disciplinary measures necessary to suppress any illicit export, other removal or transfer of ownership from occupied territory in violation of the Convention or the Second Protocol.
17. There is existing United Kingdom legislation in this field such as the Return of Cultural Objects Regulations 1994 (as amended), the Dealing in Cultural Objects (Offences) Act 2003 and the Iraq (United Nations Sanctions) Order 2003 and Export Control (Syria Sanctions) (Amendment) Order 2014. However, these are not sufficient to enable the United Kingdom to comply fully with its obligations under the Convention and Protocols, due to differences in application and scope.
18. Article 14 of the Convention requires Parties to give immunity from "seizure, placing in prize, or capture" to any cultural property which is protected under Articles 12 (Transport under special protection) or 13 (Transport in urgent cases), and to the means of transport exclusively engaged in transferring protected cultural property. Although some property and transport would already be covered by existing legislation, such as the State Immunity Act 1978 and the Diplomatic Privileges Act 1964, these only apply to state owned property, so legislation is needed to ensure that cultural property and transport is afforded the necessary protection whilst it is in the United Kingdom.