Also in December, the UK Parliamentary Select Committee on Culture, Media and Sport
published the report of its second enquiry into the illicit trade and restitution of
cultural property (Cultural Objects: Developments Since 2000
http://www.publications.
parliament.uk/pa/cm/cmcumeds.htm#reports) which had been held in order to review
progress made by the UK Government in acting upon recommendations made in the
Committee’s first (2000) report (http://www.publications.parliament.
uk/pa/cm 199900/cmselect/cmcumeds/cmcumeds.htm) and also by the Government’s own
Illicit Trade Advisory Panel (ITAP) (http://www.culture.gov.uk/global/publications/archive_2000/Report_Illicit_Trade.htm)
While the Select Committee welcomes the ratification of the 1970 UNESCO Convention and the
Dealing in Cultural Objects (Offences) Act, it expresses concern over the lack of movement
towards instituting a national data base of unlawfully-removed cultural objects.
One obstacle to achieving this goal has been the obvious one of who should pay —
the Government or the private sector. Commercial data bases of stolen cultural objects
such as the Art Loss Register (ALR) and Trace already exist, but when interviewed by the
Select Committee, representatives of the British Art Market Federation (BAMF) stated that
a fully-comprehensive commercial data base just isn’t a viable proposition. The
problem is that small businesses cannot afford to use them. James Ede, speaking on behalf
of the BAMF, provided the argument and the figures when he said that
the vast majority of the members of my trade association [International Association of
Dealers in Ancient Art http://www.iadaa.org/index.
html] deal in objects that are worth between £1 and £500. It costs £30 to do a
check with the ALR. We cannot require our members to check things on that basis. We
require them to check anything over £2000.
So, in view of this financial disincentive, the BAMF would like the Government to fund
a data base aimed at screening all objects, no matter what their value. But what are these
objects, and what form will the data base take? Clearly, some or many of the objects might
be illicit antiquities, but a data base of stolen objects is a singularly inappropriate
means to intercept such material. Most illegally-excavated objects that appear on the
market will not, and indeed cannot, be entered on a data base of stolen objects, almost by
definition, as they will not have been previously known or documented, and thus cannot be
reported as stolen (unless looters report their activities to the local police, which
seems an unlikely turn of events). Indeed, such a data base might exacerbate the problem.
James Ede went on to say that a data base ‘is not foolproof, but it is cheap and it
is effective and it also gives a very clear definition of due diligence — very clear
to everybody’. But given the fact that most illegally-excavated objects will not
appear on a data base of stolen objects, it is not at all clear how a check on a data base
of stolen objects constitutes due diligence when the history of an unprovenanced artefact
is being investigated. Indeed, if it is treated as such, it will facilitate the illicit
trade.
The problem is that the precise purpose and nature of a database of unlawfully-removed
or stolen cultural objects have yet to be established. The ITAP report recommended the
institution of a specialist national data base of unlawfully-removed cultural objects,
from anywhere in the world. Its primary purpose would be to record objects that have been
stolen, illegally excavated or illegally removed from monuments or wrecks. What is
important, though, is that ITAP went on the emphasize that these three categories of
objects would need to be treated differently. In the case of stolen objects a description
and, ideally, a photograph could be recorded. For objects removed illegally from
archaeological sites, monuments or wrecks, it was recognized that this would not usually
be possible, but no clear guidelines were offered as to what alternative recording
procedures might be appropriate. This distinction between stolen objects and
illegally-removed objects, however, does not seem to have been picked up by the Select
Committee, which regards the terms almost as synonymous.
What is needed for illegally-removed archaeological material is a data base which
records descriptions of categories. In other words, it should supply descriptions and
images of types of object which are known to be under threat of illegal excavation, or
have been in the recent past, and are thought to be circulating on the market. This is the
rationale followed by the International Council of Museums in the construction of its Red
Lists (http://icom.museum/redlist/) and is the
basis of the US State Department’s International Cultural Property Protection data
base (http://exchanges.state.gov/culprop/data
base.html) However, a data base that records descriptions of objects under
threat will make very little impact on the illicit trade unless: (i) the United Kingdom
acts to ban the import of specified categories of threatened material, which is not likely
happen; or (ii) professional trade associations adopt ethical codes that forbid the sale
of threatened material, which is equally unlikely.
So, if the UK Government is to make a large sum of money available to combat the
illicit trade in antiquities, the construction of a large data base of stolen objects will
be a good way to squander it. The data base will be inappropriate, in that it will not
record illegally-excavated or removed objects, and ineffective, in that it will not be
supported by any legal or ethical sanction. The money would be better spent reinforcing
Scotland Yard’s Art and Antiques squad. If, on the other hand, the Government wishes
to combat the trade in stolen antiques and paintings, all well and good, but let’s
not kid ourselves that a data base of stolen objects offers a cheap and effective solution
to the trade in looted antiquities — it doesn’t.
Under presently established criminal law, before a person can be found guilty of
handling stolen material it must be established that he or she had good reason to believe
that the material was stolen. In other words, to have bought and sold a cultural object of
uncertain provenance is not an offence; in effect, an object is ‘innocent until
proven guilty’. However, this is not the case under SI 1519. Article 8(3) states
that:
Any person who deals in any item of illegally removed Iraqi cultural property shall be
guilty of an offence under this Order, unless he proves that he did not know and had no
reason to suppose that the item in question was illegally removed Iraqi cultural property.
The requirement for a person to prove that there was no reason to suppose that an
object was illegally removed effectively means that a person is obliged to ensure the good
provenance of an object before buying or selling it. In other words, an object must be
presumed ‘guilty’ unless proven otherwise.
Some lawyers have opined that SI 1519 may contravene the European Convention on Human
Rights, but they can draw solace from the fact that it will be repealed in due course when
the political situation in Iraq normalizes, if not before, and the ‘guilty unless
proven innocent’ principle which it enshrines will go along with it. However, if
nothing else, the Order will have provided an interesting experiment that will allow the
efficacy of strong legislation to be assessed, both as a facilitator of police action and
a deterrent to illicit trade. Already, as we note on page 15 of In the News, Scotland Yard
have arrested several people suspected of handling stolen Iraqi material.
For breaking news on Iraq see:
http://cctr.umkc.edu/user/fdeblauwe/iraq.html
