The trafficking of cultural goods

 Paris  |  27 December 2016  |  AMA  |  Tweet  |  LinkedIn

From Afghanistan to Syria, the world’s emblematic cultural sites have turned into hostages at the hands of religious extremists. This is the context in which one particular exhibition is opening in Paris, under the patronage of UNESCO. An opportunity to look at the matter from a legal angle…

 

The past year has been marked by an intensification of conflicts in the Middle East, echoed in the West by a series of bloody attacks, namely in France. Beyond the loss in human lives, these conflicts have a universal impact on the cultural field, given that they are staged in countries, namely Iraq and Syria, whose archaeological heritage is particularly rich. In addition, certain combatants have decided to target cultural heritage in their destructive strategies, for ideological or mediatic reasons – and also for financial motivations as trafficking is a lucrative activity. The archaeological nature of this heritage makes it particularly vulnerable. Given the conflicts underway, it is not possible to monitor sites or to fight against underground digs. Meanwhile, unlisted archaeological objects are especially difficult to locate, and hence, to trace, making them easier to transport and deal in – handy qualities for the criminal sphere when objects draw attractive market values to boot. All these elements promote the development of illicit trafficking of cultural goods.

The response to this phenomenon is firstly political and international, with measures taken against the conflicts in general, and against trafficking in particular. It also comes from the rallying of professionals and national and international authorities who play a role in the circulation of cultural goods. Finally, it occurs through the application of legal measures aimed at illegalising all movements and transactions of goods involved in this trafficking. The standards making up these legal measures for fighting against the trafficking of cultural objects can be classified into four distinct and complementary categories.

The first category of standards concerns international law stemming from two UNESCO conventions(1), the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, and the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The first comprises a set of measures that warring parties are supposed to take during armed conflict in order to protect culturally-sensitive sites. It does not target transactions themselves, unlike the 1970 Convention which aims to fight against the trafficking of cultural goods. Ratified universally – or almost universally, the latter leads States to commit to cooperating to combat such trafficking, namely by banning and sanctioning the sale of cultural goods deriving from theft, illicit digs or circulation. This Convention is the reference text on an international level: it lays down the principles on banning the sale of illicit cultural goods, which States are to insert into their national legislation. Where it is nonetheless limited is that it carries no binding force. It therefore cannot be invoked to take legal action, and its application depends on the decision of States on whether to comply or not.

Apart from these conventions, international action can arise when the United Nations Security Council adopts resolutions comprising binding measures aimed, if not at preventing, then at least striking out imminent danger to a State’s cultural heritage. This was the case of Reso­lution 2199 adopted on 12 February 2015, requesting that States ban the trade of Iraqi cultural goods illegally taken from the country following 6 August 1990, and Syrian goods removed following 15 March 2011. This Resolution thus extends, on the international sphere, measures already imposed in Europe by Council Regulation (EC) 1210/2003 of 7 July 2003 concerning Iraqi goods and Council Regulation (EC) 36/2012 of 18 January 2012 concerning Syrian goods.

The second category of standards concerns rules for controlling the circulation of cultural goods. These measures, grouped together in France by the Code du Patrimoine (Heritage Code), largely stem from European law which sets rules on controlling exports within the European Union as well as to non-EU countries, the latter being directly governed by Council Regulation (EC) 116/2009 of 18 December 2008. The measure provides for the State to control the export of cultural goods outside of national territory, and it may ban the export of goods considered to be national treasures. The administrative procedure for the delivery of export licences is thus aimed to allow the State to assess whether the good in question constitutes a national treasure or not. But in the face of trafficking, this measure for controlling the circulation of cultural goods, which ultimately protects national heritage, is inadequate in that it only targets exports and not imports. The entrance of archaeological cultural objects is therefore not concerned, so obviously this is no tool for fighting against illicit trafficking. The French bill on the freedom of creation, architecture and heritage [editorial note: French bill n° 2016-925 of 7 July 2016] is an attempt to fill in this gap. It namely foresees the banning of the imports and sales of archaeological goods illicitly exported from their countries of origin (when the latter is in a conflict situation) and subjects import of a cultural good to the production of an export licence issued by the country of origin (when the country’s regulations comprise such licences). However, the boundaries of this control on imports need to be defined, notably so that this instrument for fighting against trafficking doesn’t become an obstacle to the circulation of cultural goods. In any event, this type of regulation is an indispensable prerequisite for intervention on goods with proven illicit origins.

The third category of standards more specifically targets the fight against the laundering of terrorism-related capital and financing. These norms are inspired by recommendations made by the FATF (Financial Action Task Force), an intergovernmental body set up in 1989 to establish standards to combat money laundering and the financing of terrorism. Its recommendations are integrated into European law via directives which in turn are transposed into the national legislation of member States – the Code Monétaire et Financier (Monetary and Financial Code) as far as France is concerned. These measures don’t primarily aim to defend cultural heritage. It nonetheless seems that the trafficking of cultural goods financially supports parties involved in the Middle East conflicts and is a tool used by terrorist groups involved in these conflicts. While it is impossible to estimate the sums in question, it is clear that the trafficking of cultural goods, the laundering of capital and the financing of terrorism are interrelated. The rules implemented in the fight against laundering – mainly consisting in surveillance measures, identification of the origins of goods sold, the parties involved and funds used, and if applicable, the obligation to report on suspicious movements – should therefore also contribute to the fight against trafficking. These rules on surveillance and reporting apply to all art-market professionals, voluntary-sales operators and antique dealers, thus backing up the body of ethic rules pertaining to their activities.

The fourth and last category concerns professional rules applicable to art-market professionals. Indeed, it’s impossible to conceive the fight against the trafficking of cultural objects without the involvement of professionals. The procedures which they implement when carrying out research into the origins of the goods that they sell constitute obstacles to the sale of trafficked pieces. As far as voluntary-sales operators in France are concerned, these procedures stem from the Code de Commerce (Trade Code) and the Recueil des Obligations Déontologiques (2), whose Article 1.5.4. provides that: “The operator of voluntary sales shall conduct appropriate research to identify the good entrusted to it for the purpose of its sale, and determine, on the basis of current knowledge, the quality of the latter, namely in relation to its nature, its geographical origin and its era”. Outside of the ethical obligations imposed by these texts, it is up to professionals to practise personal ethics when dealing with the objects offered to them, to assess the  appropriateness of their sale by considering their origins and the risk of lending a hand to trafficking. Incidentally, those archaeological goods identified as deriving from trafficking to date, have not emerged on the public-auction market or, more globally, the legal market. There is therefore reason to fear that these objects are passed on by the underground market or remain dormant before reappearing on the market, purged by forgetfulness. There is a continual need for vigilance, whether governed by norms or personal ethics.

 

  1. The Unidroit Convention on Stolen or Illegally Exported Cultural Objects (1995) bears no actual effective force unless it has been ratified by States which are the destinations of trafficking.
  1. This “Set of Ethic Obligations” is approved by a bill issued by the French garde des Sceaux (Keeper of the Seals), the minister of justice, and as a consequence, holds regulatory force.

 

 

Bear in mind

In its yearly report, the Conseil des Ventes, the authority which regulates public auctions in France, turned its attention to the legal framework of a hot news topic: the trafficking of cultural items following the events in the Middle East. “Rapport d’activité. Les ventes aux enchères publiques en France”. Conseil des Ventes Volontaires, 2015, La Documentation française, 296 pages. www.conseildesventes.fr

 

A web site for more information : patrimoineprocheorient.fr

 

 

Focus

Stone hostages

Bamiyan, Palmyra, Khorsabad, Umayyad Mosque in Damascus, or Kerak Castle… World heritage sites threatened by conflict are today innumerable. From Afghanistan to Syria, emblematic sites in global culture have become the hostages of religious extremists. According to the UN, in Syria alone, 24 historic sites have been completely wiped out, 300 others damaged or looted. In the context of a cultural state of emergency, the RMN-Grand Palais, in association with the Musée du Louvre, have joined together to present, under the patronage of UNESCO, an exhibition (free of charge) offering discovery of the lost splendours of these greate archaeological sites that are inaccessible today. The aim? To raise the general public’s awareness of the notion of peril, through an “immersive” exhibition plunging the visitor into the heart of heritage treasures, thanks to the projection of 360° images. How? Using digital recreations and new shooting techniques by means of drones. For good measure, and in pedagogical interests, the filmed images are dynamically combined with archive documents, drawings, old photographs, showing the evolution – often dramatic – of various sites.

The exhibition, whose general curatorship was entrusted to Jean-Luc Martinez, president-director of the Musée du Louvre, is organised into two sections. One, named “The Universal Site”, shows four films, each dedicated to a major archaeological site, projected in a vast 360° panorama. This is the “immersive” aspect of the experience, aimed at raising visitor awareness on the looting of antiquities and illegal trafficking of objects from Khorsabad in Iraqi Kurdistan, reconstruction issues for Palmyra, the archaeological (re)discovery of Umayyad Mosque, Islamic architectural masterpieces, and finally, conservation of the Kerak Castle ruins which offer rare proof of the presence of Christians in the East. Each site is represented by a work from the Louvre collections. The other section, “The Image Laboratory”, is organised like a cabinet of curiosities, namely dedicated to more or less scientific data-collection techniques used by archaeologists, ranging from engravings to digital images captured by drones. But as far as recreation goes, everything counts: even images brought back by tourists before the sites became inaccessible offer precious documentation today. It is thus that dynamic 3D imaging allows us to witness the destruction, room by room, of the Palmyra Arch of Triumph, at the hands of the Islamic State… and also to see – in augmented reality – its simulated reconstruction. To fill out this programme, bear in mind that the Musée du Louvre-Lens is presenting, from 2 November to 23 January 2017, an exhibition on Mesopotamia, situated in modern-day Iraq, the cradle of the modern economy and of writing (“L’Histoire commence en Mésopotamie”).

 

“Sites éternels. De Bâmiyân à Palmyre. Voyage au cœur des sites du patrimoine universel”. From 14 December 2016 to 9 January 2017. Grand Palais, Southeast Gallery, Avenue Winston-Churchill, Paris 75008. www.grandpalais.fr

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