UN's sudden and draconian punishments to ensure objects illegally removed during Iraq war are returned

If a person in the UK who has a cultural item of Iraqi origin in his possession does not immediately hand that item over to a “constable”, he may now be guilty of a criminal offence and liable to imprisonment, even if he has legal title to the object

Article 7 of the United Nations Resolution 1483, adopted by the Security Council on 22 May 2003, declares that member States must take steps to facilitate the safe return of cultural property to Iraq (and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from any location in Iraq) if reasonable suspicion exists that it may have been illegally removed from that country.

By virtue of Chapter VII of the UN Charter, Resolution 1483, once adopted, became binding on all UN member States, which were required to ensure that it was implemented into national legislation as soon as possible after it had been made.

In the UK, such resolutions tend to be implemented by means of Orders in Council made under section 1 of the United Nations Act 1946, which provides wide power to The Queen, acting through her Privy Council, to make such provision as is “necessary or expedient for enabling those measures to be effectively applied”. There is little parliamentary control over such orders, which in reality tend to be made very swiftly at the direction of the Cabinet Office or government department; they do not follow the usual route through parliament although, once made, they must be laid before it and they remain subject to scrutiny by the Joint Committee on Statutory Instruments in relation to technical matters.

The Iraq (UN Sanctions) Order 2003 (S.I. 2003/1519), made in Council under the 1946 Act, came into force on 14 June 2003 in order to give effect to Article 7.

Paragraphs 8(2) to 8(6) of the Order create two criminal offences: dealing in objects unlawfully removed from Iraq after 6 August 1990 and failing to hand such objects to a “constable”.

The offence of dealing, though modelled on the much more general offence created in the Dealing in Cultural Objects (Offences) Act 2003, departs from that model in several important respects. First, it reverses the burden of proof in relation to the mental element of the offence, so that a person dealing in relevant objects who cannot prove that he did not know, or had no reason to suppose, that an object was unlawfully removed, commits a criminal offence, whatever the truth of the matter. Second, there is no requirement of dishonesty involved, so that a knowing or well intentioned dealing, such as one designed to secure the return of an object, may be as vulnerable to prosecution as one performed from venal self-interest.

The second offence, under paragraph 8(2), of the failure of a person who “holds or controls” an object to transfer it to a constable (exactly who this might be remains undefined) contains a similar reversal of the normal burden of proof of the mental element; a defendant would carry the burden of proving that he neither knew nor had reason to suppose that the object was illegally removed Iraqi cultural property. Moreover, the paragraph 8(2) offence, like its “dealing” counterpart, applies to objects unlawfully removed from Iraq after 6 August 1990, with the result that a pre-existing and lawful possession has effectively now become unlawful.

It appears, therefore, that anyone in possession of an Iraqi cultural object who has any slight doubt, or even any gap in his knowledge at all in relation to its provenance, even if he acquired it perfectly legitimately and in all good faith, must immediately hand it over to the undefined constable. The draconian nature of this offence is likely to have a significant effect on all those involved in the antiquities market, as proving the negative may not be easy to do.

Minimal consultation took place over the Order, which also has potentially adverse implications for human rights. Certainly, without extensive consultation it is extremely unusual to create a new offence in which the burden of proof to prove his own absence of mens rea is put on a defendant in a criminal case. Consequently the Order may interfere with the presumption of innocence enshrined in English criminal law and contained within Article 6(2) of the European Convention on Human Rights and section 3(1) of the Human Rights Act 1998. Justification, proportionality and necessity in the public interest will have to be shown if the legal burden on the transactor is to withstand a challenge under the Human Rights Act: although the whole question of the legitimacy of the presumption of innocence has very recently been considered by the Court of Appeal, it will take time to fully absorb the particular implications of this decision in relation to the Order in Council.

Notwithstanding that the Order came into force a year ago, there are still no guidelines as to what type of enquiries transactors will need to make in future in order to avoid criminal liability, nor what would be considered reasonable in this context.

Furthermore, no administrative arrangements have been set up, either in the Order itself, or since it came into force. There is still no guidance as to who the constable is or what he should do with the objects once they have been handed over to him; how they should be returned; to whom they should be returned; what the effect of proving valid title after removal from Iraq is; whether attempts should be made to locate the rightful owner or whether handover to the Iraq National Museum or a representative of the Iraqi government (when there is one) would be sufficient; or whether the constable has any responsibility for assessing whether the items are likely to be kept safely once they have been returned to Iraq.

This Order has teeth

What is clear, though, is that the Order has teeth quite apart from the two criminal offences discussed: it prohibits the import and export of illegally removed Iraqi cultural property, which would then be subject to the powers that HM Customs and Excise have to search for and seize such items at ports of entry/exit under the Customs and Excise Management Act 1979.

To date, there have been no prosecutions, although it has been reported that a few confiscations of property have been made. Offences are punishable on conviction on indictment by up to seven years’ imprisonment and/or a fine, and on summary conviction by up to six months’ imprisonment and/ or a fine up to £5,000. Moreover, there is no provision for the payment of compensation in exchange for any seized goods.

Growing concerns about the illicit trafficking of goods led the DCMS to establish the Illicit Trade Advisory Panel on 8 May 2000 and, with the assistance of the Panel, it has established a strategy to deal with the issue. In acceding to the 1970 Unesco Convention and supporting the enactment of new Dealing in Cultural Objects (Offences) Act, the government has closely followed the recommendations of the Panel and kept close to its own stated policy of consultation, careful consideration and staged implementation of a workable regulatory framework in which to tackle the problems involved in illicit trading.

The Order in Council does not sit easily with this strategy and is something of an anomaly. The haste in which it was rushed through, the apparent lack of consultation in its drafting, the almost total lack of consideration as to how it would work in practical terms, the manner in which it turns the criminal law on its head and its not inconsiderable human rights ramifications, could suggest that the draftsmen might have cause to repent at leisure.

Laudable though it is in its attempt to halt illicit traffic, the Order goes considerably further than would have been necessary in order to comply with Article 7, and for no apparent benefit: in fact, quite the reverse. Clarification is required as to whether UK is the only European country to have implemented Article 7 in this way and, furthermore, whether the ostensible lack of consultation involved in the making of this Order is likely to become a model for future development. To date, there have been no assurances from the government that the Order will be reconsidered.

In its February 2004 response to the House of Commons Select Committee’s December 2003 Report, the DCMS stated that it was “engaging” with the Police and HM Customs on the enforcement of the Order and that it intended to establish a steering group to review policy issues generally, operational strategies and intelligence sharing and to progress specific cases. The Order in Council is one issue that will fall within the remit of the group, which consists of members of the DCMS, Home Office, HM Customs & Excise, the Art and Antiques Squad of the Metropolitan Police and representatives of the Association of Chief Police Officers. The first meeting of the group is due to take place “shortly”.

Still no national database for stolen and unlawfully removed cultural objects

Another of the problems associated with the Order is that it seems to presume that transactors will immediately recognise an artefact as, firstly, being Iraqi in origin and, secondly, potentially looted. Yet one of the reasons that there is still no certainty about the actual scale of the looting that has taken place in Iraq is that Iraq’s rigid control of its own antiquities before the wars meant that non-Iraqi experts had not been permitted to access the collections or review any lists, catalogues or photographs of their contents. Consequently, we cannot be certain what was originally there.

The impact of this is highly significant to dealers. While some artefacts are of such importance that they are easily recognisable, the majority that are not are likely to appear in the international art market at some point in time. Combined with the lack of any comprehensive database of looted items, or even those with questionable provenance, to which dealers or collectors can refer, all that can be done in the circumstances is to exercise due diligence in acquiring pieces and it appears that this will be insufficient in the light of the new offence. How is the antiquities trade expected to proceed in this situation?

Part of the answer to this question must lie in the establishment of a national, if not international, database to which dealers can direct their provenance enquiries. There is currently no such worldwide resource and precious little global pooling of resources. Although Interpol permits national police forces to co-operate with each other, the existing Interpol database is not widely available and certainly not accessible to the trade. Consequently it is extremely difficult in some cases to be able to accurately ascertain whether items have been looted or not.

However, the proposal to establish a national database of stolen and unlawfully removed cultural objects has been on the cards in the UK for a considerable period of time and is indeed the third leg of the government’s strategy in relation to illicit trade. The government’s reply to the Select Committee in March 2001 alluded to a Home Office working party giving the proposal “urgent” consideration. In 2002 the Illicit Trade Advisory panel commented that “information retrieval is perhaps the field in which progress has been least satisfactory and in which the reasons for delay are the least persuasive”. In its latest report, dated December 2003, the Select Committee described the “lack of progress” on this issue as “lamentable”.

The response of the DCMS, dated February 2004, stated that consultants had been appointed to assess the options available and make recommendations. The consultants’ report, containing a specification, costing and detailed strategy for the development of a pilot project is under active consideration by the DCMS and Home Office although no time-frame has been established in which ministers will make their decisions. Any pilot scheme is likely to take six to nine months to complete, although if the government opts for a public/private partnership a formal tender process will be required so that a pilot scheme will not be able to start before October 2004.

However, the DCMS response reveals that the Home Office considers that “driving down the theft of cultural items is just one means to the end of reducing organised crime and drug trafficking, rather than a target in itself”. Consequently no especial weight, priority or value appears to be given to the precious cultural heritage, which is irreplaceable and non-reconstructable; the sum of human experience over many centuries. Such an approach does not augur well for any swift or comprehensive establishment of a database; nor is it an approach that appears to reflect the urgency of the issues raised by the looting in Iraq, as indicated by the speedy implementation of the Order in Council.

Although the government has started to put the elements of an illicit trade strategy in place, the meandering pace of its development and the absence or weakness of any practical arrangements, fractures any assertion of a co-ordinated, robust and effective approach and compromises the moral imperative that underpins the Order in Council.

Originally appeared in The Art Newspaper as 'Sudden and draconian'

Appeared in The Art Newspaper Archive, 149 July 2004