New UNESCO protocol states attacks on cultural property during wartime will be criminalised

A new protocol allows for prosecution of organisations and individuals, putting pressure on art market professionals


The diplomatic conference organised by UNESCO and held in The Hague from 15 to 26 March adopted a protocol modifying the convention of 1954 on the protection of cultural property in armed conflict. (For full text, see The Art Newspaper No.6 March 1991, p.10-12). The document now proposes that attacks on cultural property in wartime should be qualified as criminal acts. This is a definite philosophical shift and a reflection on recent developments.

One of the most spectacular results of the conference was the possibility of prosecuting organisations and individuals. The president of the Conference, Adriaan Boos, legal adviser to the Dutch ministry of foreign affairs, states that the text “is the result of advances that have taken place since 1954 and takes account of recent developments in international humanitarian law, in particular the statues recently adopted by the International Court of Law.”

At the beginning of this century, the Geneva Convention recognised the rights of individuals in wartime. In the opinion of most people, events have provided dramatic demonstration of the need either to defend these rights or to admit to the scant efficacy of diplomatic missions.

The text of the protocol debated at the Hague will probably generate the usual debate on its timeliness and/or efficacy. It should be noted, however, that the general upshot of the protocol is to increase the responsibility of the people involved, particularly art market professionals. Scrutiny of recent developments also reveals numerous publications and debates pointing in this direction.

In 1993, the adoption of the European directive on the restitution of cultural property illicitly transferred within the European Union made restitution claims directly from member States an easier possibility. It substantially increased time limits in which to make claims—to thirty years in the majority of cases; to seventy for works from public collections or from ecclesiastical stocks.

In 1995 the Unidroit convention fixed similar international limits, with increased demands made on purchasers to provide evidence of good faith, including proof of attempts made at the time of acquisition to check on the provenance of the piece.

Various international legal decisions lie behind the most recent UNESCO development.

For example, the federal tribunal in Switzerland, which ordered the return of a stolen work of art, based its judgment on the evolution of the international public conception of public order.

The appeal court in France criticised the withdrawal of the case against a gallery owner who purchased a painting from the Schloss Collection which had been looted during the war. The court’s position was based on a recognition that, fifty years after the events and after the picture had changed hands several times, prosecution for receiving stolen goods was still feasible.

The continuing debate about the Musées Nationaux Récupération (works of art, looted during the war, but still retained in French museums for various reasons) and decisions by museums in France, Austria and Holland to return works that were apparently looted during the war is evidently part of the same development.

With its proposal to criminalise attacks on cultural property, the conference in The Hague has reaped the fruit of these developments. For art dealers and professionals, however, the new regulations will make vigilance even more essential.

Originally appeared in The Art Newspaper as 'Attacks on cultural property criminalised'