The crime of damage is generally acknowledged as an important offence from the criminal point of view, and often is seriously punished. Consequently, this crime can be instrumental in gaining access to many legal systems to ask for “effective” international assistance.
When an act of damage is committed against a cultural item, such an act has a degree of gravity that is limited not only to the economic value of the item concerned. This damage also acquires a spiritual dimension whenever an irretrievable destruction of scientific, cultural, and historical knowledge occurs. In this respect, one should bear in mind that in order to find one important object in clandestine circumstances, it is often necessary for the looter to excavate ten or more tombs or as many archaeological sites. In the process, these sites are altered or destroyed. The sites and artefacts they contain are taken out of their archaeological context and definitively lost to scientific research. This results in irreparable cultural damage, because, as we know, every ancient site is unique. No two sites are the same. The knowledge of human history that can be gained from these sites is beyond calculation. And the number of intact archaeological sites in the world that can be scientifically researched is declining rapidly. For this reason, archaeological sites and artefacts constitute the ultimate non-renewable resource.
Often the symbolic significance of a cultural property transcends its economic value. This makes the damage that results from looting particularly serious and odious. It is nothing less than an attack on the identity and spiritual values that people entrust in their cultural property.
Often the symbolic significance of a cultural property transcends its economic value. This makes the damage that results from looting particularly serious and odious. It is nothing less than an attack on the identity and spiritual values that people entrust in their cultural property. For this reason, the Recommendation for the Protection of Movable Cultural Property, adopted by the General Conference of UNESCO at its twentieth session held in Paris, 28 November 1978, should be recalled. In particular, this Recommendation states that “protection and the prevention of risks are much more important than compensation in the event of damage or loss, since the essential purpose is to preserve the cultural heritage, not to replace by sums of money objects which are irreplaceable”.
The removal of cultural goods from their original places leads to the loss of identity of roots, resulting in the loss of friendship amongst peoples, who today have the same dignity. Removal also causes loss of value for the objects themselves. We should stress that the value of cultural goods increases not merely because of their aesthetic qualities; their intrinsic value (in beauty and truth) increases even when they remain in their own natural (the so-called “soil archives”) and social environment((In other words, the return of a cultural good in its place of origin enhances the tangible and intangible heritage as well. In this respect, the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted on 17 October, 2003, is relevant to the prevention of illicit traffic in cultural goods insofar this Convention aims to protecting the context and consequent damage that may result to it.)). Indeed when cultural goods are out of context, they lose their “soul”, both objectively and in the eyes of viewers. Even more so, they lose significance in the eyes of experts, who can very well satisfy their legitimate cultural and research interests by being able to have them on loan.
It should be noted that international jurisprudence has become more and more sensitive to these problems. Indeed some legal systems often give importance to damage of this nature: In particular, that resulting from the removal of the artifacts from their original place, thus destroying their intangible value. In this regard, the decision of the Tenth Circuit Court of Appeal of Utah, in the trial against Earl Shumway seems to attach importance to any sort of damage caused by de-contextualization. In fact, the Court — stressing how U.S. “Congress enacted the Archaeological Resources Protection Act to ensure for the present and future benefit of the American people, irreplaceable aspects of Native American history and culture” — states: “We agree with the district court that the paltry sum of $9,122, the asserted cost of the artifact’s fair market value and cost of restoration and repair fail to reflect adequately the extent of damage Mr. Shumway inflicted. The fair market value and cost of repair calculation were grossly insufficient to quantify the devastating and irremediable cultural, scientific and spiritual damage Mr. Shumway caused to the American people in general and to the Native American community in particular”.
The intangible value of an archaeological item also has significant economic ramifications, because an object without context is, obviously, less valuable than other items having a precise provenance and origin; verified provenance confirms the authenticity of a cultural item. which which increases the artifact’s monetary value.
The intangible value of an archaeological item also has significant economic ramifications, because an object without context is, obviously, less valuable than other items having a precise provenance and origin; verified provenance confirms the authenticity of a cultural item (especially when published in an exhibition catalogue or magazine), which increases the artifact’s monetary value. Therefore, a cultural item without context because of looting activities is damaged for good, and the conduct that causes such damage should be everywhere considered and seriously punished. These aspects are fully considered by the Guidelines for crime prevention and criminal justice responses with respect to trafficking in cultural property and related offences, approved by the open-ended intergovernmental expert group meeting held in Vienna on 15-17th of January 2014, under the auspices of U.N. (UNODC). These Guidelines have been developed in recognition of the criminal character of the damage as offence and of its devastating consequences for the cultural heritage of humankind. In particular, according to Guideline 17, “States should consider introducing in their criminal legislation other offences….such as: damaging or vandalizing of cultural property”.
The crime of damage can be an indictable offence along with the offence of unauthorized excavation, very often being the cause of damage; and the context’s damage may trigger those legal measures otherwise not available to the requested country for the offence of illegal excavation, which is currently not punished in all legal systems.
Another crime in this sector is the illegal removal of archaeological items (known as looting) being this conduct very similar to theft. Both illegal excavation and looting activities are banned by the above mentioned Guidelines for crime prevention and criminal justice responses, and according to Guideline 16: “States should consider criminalizing, as serious offences, acts, such as, inter alia: …. looting of archaeological and cultural sites, and/or a criminal offence of illicit excavation”.
As stated, The removal of archaeological items not only has negative effects on the archaeological context and integrity of the site, which is often damaged for good, archaeological looting damages the object as well. For example, when a funerary object is stolen from a tomb in pristine condition, the object is damaged scientifically by being uprooted and separated from its setting; thus, it loses its identity and often its real significance. Also the other objects found in the same setting, left behind the looters, lose their value and importance. It is no longer possible to rebuild the whole that has been forever altered by the illegal excavation. So the damaging of a tomb involves not only the archaeological site, but also the object itself, as well as the remained objects that have not been uprooted from their environment.
No relevance should be given to the fact that in many legal systems a person cannot be prosecuted for damaging one’s own property. In fact, whether the country of origin vests true ownership of the site and of the items included in it, the juridical appraisal and entitlement must be effected and attributed according to the lex loci of the origin country where the acquisition relationship started. There is more. Even if the looting of archaeological sites is not a crime that is common to all legal systems, many legal systems do have an expansive meaning of the term “stolen”, and in such cases, it does not seem fair to refuse “effective” international assistance, the requirement of reciprocity being fulfilled.
Indeed if the requested legal system evaluates the patrimony law of other countries, vesting true ownership of archaeological goods with the country of origin, the legal status of archaeological artefacts established as private property in the requested system, must be deemed without any relevance if the legislation of the goods’ country of origin asserts public ownership. This is especially true as the juridical appraisal and entitlement must be effected and attributed according to the lex loci of origin, that is the country of origin where the acquisition relationship started. Thus, any taking of the goods is made against the owner’s will (the State of origin) and constitutes theft or an act equivalent to this.
All the transactions related to illegally excavated archaeological objects are void as they have directly or indirectly infringed the international rules on this matter, as set by various international Conventions, recommendations and codes of behavior, which comprise the international public order or policy that has indisputably been drawn up in this field.
In addition, in a civil context, the transactions related to the objects appear vitiated as the goods in question come from an illicit act, at least from conducts causing damage to archaeological sites of the origin country, sites often belonging ex lege to the State. Therefore, all the transactions related to illegally excavated archaeological objects are void as they have directly or indirectly infringed the international rules on this matter, as set by various international Conventions, recommendations and codes of behavior, which comprise the international public order or policy that has indisputably been drawn up in this field.
In line with this opinion, the U.S. jurisprudence of the Schultz case and the U.K. jurisprudence of the case Republic of Iran v. Barakat Galleries Ltd should be recalled, as for many aspects these decisions constitute a breakthrough in common law legal systems and might have relevance in a civil and in a penal context as well.
Returning to the issue of international assistance, it should be stressed that, according to 16 U.S.C. Section 470ee (“prohibited acts and criminal penalties”) of the Archaeological Resources Protection Act of 1979, the U.S. legal system shall punish (with a fine up to $100,000 or with imprisonment not more than five years, or both) any: “(a) Unauthorized excavation, removal, damage, alteration, or defacement of archaeological resources; (b) Trafficking in archeological resources the excavation or removal of which was wrongful under Federal law; (c) Trafficking in interstate or foreign commerce in archaeological resources the excavation, removal, sale, purchase, exchange, transportation or receipt of which was wrongful under State or local law”. In this respect, it seems fruitful to fully report the paragraph (c) of this Section 470ee, and “no person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law”. And according to 16 U.S.C. Section 470bb “the term archaeological resource means any material remains of past human life or activities which are of archaeological interest, as determined under uniform regulations promulgated pursuant to this chapter. Such regulations containing such determination shall include, but not be limited to: Pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items. Non-fossilized and fossilized paleontological specimens, or any portion or piece thereof, shall not be considered archaeological resources, under the regulations under this paragraph, unless found in archaeological context. No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age”.
Moreover, according to 16 U.S.C. Section 470gg, rewards are to be allotted to any person who furnishes information that leads to the finding of a civil or criminal violation. In addition, “all archaeological resources with respect to which a violation of subsection (a), (b), or (c) of section 470ee of this title (16 U.S.C.A.) and which are in the possession of any person, and all vehicles and equipment of any person which were used in connection with such violation, may be subject to forfeiture” (anyway, honoring the 1970 UNESCO Convention, U.S. Authorities have always repatriated cultural items they have forfeited).
The United Kingdom system has recently introduced similar crimes thanks to the Dealing in Cultural Objects (Offences) Act 2003, and according to Section 1, “a person is guilty of an offence if he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted. It is immaterial whether he knows or believes that the object is a cultural object. A person guilty of the offence is liable on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine (or both), on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both)”.
This offence is designed to combat traffic in unlawfully removed cultural objects and, according to Section 2, a “Cultural object means an object of historical, architectural or archaeological interest. A cultural object is tainted if, after the commencement of this Act a person removes the object or he excavates the object, and the removal or excavation constitutes an offence. It is immaterial whether: (a) the removal or excavation was done in the United Kingdom or elsewhere; (b) the offence is committed under the law of a part of the United Kingdom or under the law of any other country or territory. Monument means: (a) any work, cave or excavation; (b) any site comprising the remains of any building or structure or of any work, cave or excavation; or (c) any site comprising, or comprising the remains of, any vehicle, vessel, aircraft or other movable structure, or part of any such thing. Remains include any trace or sign of the previous existence of the thing in question. It is immaterial whether: (a) a building, structure or work is above or below the surface of the land; or (b) a site is above or below water”. Therefore, this crime will be prosecuted and punished even if the cultural item has been plundered outside the U.K., and it will not be an obstacle that the law of other country or territory is contravened, provided an offence has been committed, even abroad. These provisions are also relevant to wrecks in international waters and criminal conducts made over the internet may also be caught by them. Moreover, there is no age threshold for cultural objects: But, in order to establish English jurisdiction, it is necessary that the act be agreed to or committed in the U.K., taking into consideration that inciting the commission of, or attempting or conspiring to commit will be sufficient to trigger prosecution for the offence in question.
According to Sections 3 and 4 to the Dealing in Cultural Objects (Offences) Act 2003, a “person deals in an object if (and only if) he or she: (a) acquires, disposes of, imports or exports it; (b) agrees with another to do an act mentioned in paragraph (a); or (c) makes arrangements under which another person does such an act or under which another person agrees with a third person to do such an act. Acquires means buys, hires, borrows or accepts. Disposes of means sells, lets on hire, lends or gives. In relation to agreeing or arranging to do an act, it is immaterial whether the act is agreed or arranged to take place in the United Kingdom or elsewhere”. Proceedings for an offence relating to the dealing in a tainted cultural object “may be instituted by order of the Commissioners of Customs and Excise, if it appears to them that the offence has involved the importation or exportation of such an object”.
The provisions of the Dealing in Cultural Objects (Offences) Act 2003 may also be applied to the offences committed by bodies corporate, and according to Section 5, “if an offence under section 1 committed by a body corporate is proved: (a) to have been committed with the consent or connivance of an officer; or (b) to be attributable to any neglect on his part, he (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly. Officer, in relation to a body corporate, means: (a) a director, manager, secretary or other similar officer of the body: (b) a person purporting to act in any such capacity”. Obviously, this Section is very important to fight auction houses’ insalubrious practices, encouraging transparency in the art trade.
In conclusion, it follows that all the aforementioned provisions allow a requesting authority to assert the reciprocity (that is the dual criminality requirement) that U.S. and U.K legal systems require in order to give “effective” international assistance, thus profitably investigating recurrent looting of archaeological objects and consequent damage that may result. Therefore, two of the major art market nations (U.S. and UK legal systems) should currently allow “effective” assistance, and their authorities, when requested, are obliged to answer positively to the investigations elicited by the requesting State, even if prosecution and/or assistance were not allowed before. In fact, the reciprocity requirement is to be valued at the time when the requesting authority asks for assistance, and not in relation to the time when the offences were committed.
Edited by Paul Kunkel, SAFE/Saving Antiquities for Everyone.