Law and the Arts 2

Definitions of cultural

Taylor

Cultural comes from culture, that is defined in different ways. Taylor: “Culture or Civilisation, taken in its wide ethnographic sense, is that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and value; habits acquired by man as a member of society.”

Encyclopaedia Britannica

“Culture, as a concept, calls attention to the nonbiological, nonracial, non-instinctual basis of the greater part of what one calls civilisation: its values, techniques, ideas in all spheres. Culture [...] is the part of man’s behaviour that is learned.”

UNESCO General Conference of Paris 2001

“Culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and [...] it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs.”

Intangible vs tangible cultural heritage

It is important to distinguish the intangible cultural heritage from the tangible. Intangible cultural heritage includes "the practices, representations, expressions, knowledge, skills that communities, groups and, in some cases, individuals recognise as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity.”

The categories include:

• Oral traditions or expressions (including language);
• Performing arts;
• Social practices;
• Knowledge and practices concerning the nature of the universe;
• Traditional craftsmanship;

Cultural heritage

First, what is the cultural heritage? Two definitions:

• Property that is or may be inherited; an inheritance;
• Valued objects and qualities that have been passed down from previous generations;

So, it is worth preservation for the future, a value, a selection from the past. About this, there is the:

• Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, Paris 1970;
• Convention concerning the Protection of the World Cultural and Natural Heritage, Paris 1972;
• Framework Convention of the Council of Europe on the value of cultural heritage for society, Faro 2005;

There is a question: does a European cultural heritage exist? Some articles from different treaties and conferences tell something, but at the end, we can say that the EU legislation is basically aimed at regulating national cultural properties circulation, not a European one. Anyway, about the articles:

• Faro 2005, art 3 “the common heritage of Europe”;
• Treaty of Lisbon (TUE), 2007, art 1.4, talks about a Europe’s cultural heritage, not a European one;
• TFEU, art 167: “1. The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore. 2. Action by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas:
  • Improvement of the knowledge and dissemination of the culture and history of the European peoples;
  • Conservation and safeguarding of cultural heritage of European significance;
  • Non-commercial cultural exchanges;
  • Artistic and literary creation, including in the audiovisual sector;

Cultural property

Property is defined as a thing or things that are owned by someone; a possession or possessions. About the definition of cultural property, there are some articles:

• Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague 1954, art 1 defines as cultural property:
  • Movable or immovable property of great importance to the cultural heritage of every people;
  • Buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);
  • Centres containing a large amount of cultural property to be known as “centres containing monuments”;
• Paris 1970:
  • The preamble says that “[…] cultural property constitutes one of the basic elements of civilisation and national culture […];
  • Art 1 lists some categories of things considered as cultural properties;

Cultural goods

Goods are possessions that can be moved or also things that are produced to be sold, and they are listed in the Annex I of the Council Regulation of December 2008. About this there are:

• The art 36 TFEU announces the protection of cultural goods;
• Paris 2001 art 8 says that cultural goods, as vectors of identity, values and meaning, must not be treated as mere commodities or consumer goods;
• Paris 2001 art 9 imposes to cultural policies to create conditions conducive to the production and dissemination of diversified cultural goods and services through cultural industries;

Cultural objects

Objects are things that can be seen and touched but are not alive. Definitions by:

• Convention on stolen or illegally exported cultural objects, The art 2 from the Rome 1995, gives the definition “cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art, or science […]” and are catalogued by this convention in an annex;
• DIRECTIVE 2014/60/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 May 2014 cultural object means an object which is classified or defined by a Member State, before or after its unlawful removal from the territory of that Member State, as being among the ‘national treasures possessing artistic, historic or archaeological value’ under national legislation or administrative procedures within the meaning of Article 36 TFEU”. Also, the preamble of that directive adds that objects classified as national treasures “should no longer have to belong to categories or comply with thresholds related to their age and/or financial value”;

Cultural rights

Some important articles:

• Universal Declaration of Human Rights, UN General Assembly, From the Paris 1948:
  • Art 22: says that everyone has the right to social security and is entitled to realisation of the cultural right indispensable for his dignity and the free development of his personality;
  • Art 26: says that everyone has the right to education, directed to the full development of the human personality and to the strengthening of the respect for human rights and fundamental freedoms;
  • Art 27: says that everyone has the right to freely participate in the cultural life of the community and to the protection of the moral and material interests resulting from any his production;
• Covenant on Economic, Social and Cultural Rights, UN General Assembly, New York 1966:
  • Art 1: “all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”;
  • Art 2: says that there are equal rights of men and women to the enjoyment of all cultural rights;
  • Art 13, again about education;
  • Art 15 = Art 26 and 27 Paris 1948;
• From Paris 2001:
  • Art 2: is about the need of harmonious interaction even if there is a lot of diversity, and cultural pluralism gives the policy expression to the reality of cultural diversity;
  • Art 4: human rights are needed to guarantee the cultural diversity;
  • Art 5: again, the right of the self-expression and participation to the cultural life;
  • Art 6: cultural to make the diversity and themselves known;
• From Faro 2005:
  • Preamble: “every person has a right to engage with the cultural heritage of their choice, while respecting the rights and freedoms of others, as an aspect of the right freely to participate in cultural life”;
  • Art 4: “The Parties recognise that:
    • a. Everyone, alone or collectively, has the right to benefit from the cultural heritage and to contribute towards its enrichment;
    • b. Everyone, alone or collectively, has the responsibility to respect the cultural heritage of others as much as their own heritage;

So, at the end we recognise as cultural rights:

• Right to education;
• Right to freely participate in cultural life;
• Right to cultural diversity and pluralism;
• Right to protection of the moral and material interests resulting from any scientific, literary or artistic production;
• Right to enjoy the arts and sciences and their fruits;

Synthesising, three are the important words:

• Protection;
• Preservation;
• Accessibility;

The criminology of offences against cultural heritage

When we talk about crimes against art, there are the reported ones and the ones included in the “dark figure”, so, vandalism and fakes.

Vandalism

Vandalism can be intentional or unintentional (ex selfie taking) and at the same time it could be as an end in itself (ex the destruction of the Bamiyan Buddhas in March 2001) or for utilitarian purposes (ex the Carica dei Bersaglieri by Cammarano was sold in piecemeal, after being dismembered by the Nazi looters). Vandalism is more popular during wartime (ex Nazi looters) and especially if the piece has a lot of visibility.

Fakes & forgeries

Fakes & Forgeries: very popular and almost everywhere, just think that from the 50% up to 80% of antiquities and works of art currently traded on the Chinese art market are estimated to be counterfeit. In this case we can talk about the “grey market”. That includes the antiquities looted in the past but now considered licit, we are talking about white collar crimes.

Grey market

Its origins can be found in:

• Illegal acquired, or;
• Genuine & legally acquired, or;
• Fakes/ Forgeries;

These pieces start to circulate, or to better say, there is laundering to finance drugs, war weapons, slaves, etc. In this market, there is a tendency to “risk shifting” but only if the illegality risk in the purchase is not deemed too great, otherwise if it is too great there is a pass up and if there is an illegality risk in the purchase there should be a report.

International guidelines and measures

Resolution on the adoption of International Guidelines for Crime Prevention and Criminal Justice Responses with Respect to Trafficking in Cultural Property and Other Related Offences, UN General Assembly 26 January 2015, set some guidelines, and about this there is the n. 18: “States should consider introducing obligations, as appropriate, to report suspected cases of trafficking of and related offences against cultural property and to report the discovery of archaeological sites, archaeological finds or other objects of relevant cultural interest, and, for those States that have done so, to criminalise the failure to meet those obligations.”

And generally, the most common tools to try and measure the real incidence of crime are:

• Self-report studies;
• Victimisations surveys;

Both are less effective when applied to the study of white collar crimes. So, in this case, how could we get an idea of the real incidence of crimes against cultural property?

Quantitative studies

First, on the source side, are needed some quantitative studies:

• Pedestrian or remote survey of archaeological sites;
• Evaluation of economic losses through local market prices;
• Structured questionnaires for the operators/archaeologists;

This work on the source side is very important to avoid situations already happened, examples:

• Wester Turkey: the 89% of Iron Age burial sites have been destroyed;
• North Jordan: the robbing of Roman-Byzantine tombs earned the looters between $13,000 to $24,000 per cemetery;

Quantitative studies are necessary on the market side too:

• Check on provenance information in auction/museum/exhibitions catalogues;
• Measurement of differences between reordered imports and exports;

Some examples of what already happened:

• 90% of the body of Bronze Age Cycladic figures catalogued by the beginning of the ‘90s had none or limited provenance information and could be assumed to have been looted;
• A measure of illicit trafficking in cultural property based on the difference between imports recorded in the US custom data for the year 2001 and the same trade as recorded by custom exporting countries shows an average gap of 3.83;

Qualitative studies

However, quantitative studies are not enough, qualitative studies are very important too. Qualitative studies on the source sides consist of interviews with looters, local dealers, and communities and, with case studies, they are connected with the ones on the market side, which are interviews with dealers, museum curators, lawyers, etc.

An example of the grey art market: Cambodian statue trafficking networks: 4 steps:

• The regional broker who:
  • Organises and controls the work of local diggers;
  • Is an ex Khamer Rouge with a capacity for violence when needed;
  • Acts as one of the suppliers for border brokers;
• The border brokers:
  • Local organised criminals (ex drugs, prostitution etc.);
  • Suppliers for Thai receiver;
• The Thai receiver:
  • Bribes frontier patrols and organises smuggling;
  • Makes forged copies of the stolen pieces;
  • Provides delivery to the international dealer;
• Janus:
  • Sells them to a legal market;
  • Buys looted and fake statues;

Moreover, the border brokers and Janus cooperate with common and white-collar criminals when needed.

The double standard question

The problem of discovering criminals is that:

• Police, prosecutors, and judiciary have few resources compared with the huge amount of offences;
• Difficulties in gathering evidence on provenance;
• Difficulties in gathering evidence on men’s crimes;
• Short limitation periods;

For all these reasons, there is an obvious need for international cooperation, and for another reason: the increasingly transnational nature of most crimes against cultural heritage. That creates a lot of problems for the police, for example:

• Different legal frameworks (relevance under criminal law, ownership etc.);
• Different attitudes toward this kind of crimes;
• Different resources;
• Complex transnational investigations;
• Different states of limitations;

Resolution on the adoption of International Guidelines for Crime Prevention and Criminal Justice Responses with Respect to Trafficking in Cultural Property and Other Related Offences, UN General Assembly 26 January 2015, set some guidelines to solve this problem:

• N 29: States should consider creating specialised law enforcement bodies or units, as well as providing specialised training for customs officials, law enforcement personnel and public prosecutors, with regard to trafficking in cultural property and related offences;
• N 30: States should consider enhancing coordination, at both the national and international levels, among law enforcement bodies in order to increase the probability of discovering and successfully investigating trafficking in cultural property and related offences;
• N 31: States may consider, in the investigation of the above-mentioned offences, especially if related to organised crime, allowing for the appropriate use by their competent authorities of controlled delivery and other special investigative techniques, such as electronic or other forms of surveillance and undercover operations, within their territory, and allowing for the admissibility in court of evidence derived therefrom;
• N 32: States should consider establishing their jurisdiction over the above-mentioned criminal offences when such offences are committed within their territory or when committed outside their territory by one of their nationals, in a manner consistent with the principles of sovereign equality, the territorial integrity of States and non-intervention in the domestic affairs of other States, as enshrined in the Charter of the United Nations and the Organised Crime Convention;
• N 33: States that have not yet done so should consider becoming parties to existing international law instruments, in particular the Organised Crime Convention, and use them as a basis for international cooperation in criminal matters in respect of trafficking in cultural property and related offences;
• N 34: States should consider providing each other with the widest possible mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the above-mentioned offences, also in order to enhance the effectiveness and speed of the procedures;
• N 41: States should consider enhancing the exchange of information on trafficking in cultural property and related offences by sharing or interconnecting inventories of cultural property and databases on trafficked, illicitly exported or imported, stolen, looted, illicitly excavated, illicitly traded or missing cultural property, and/or contributing to international ones;
• N 42: States should consider, where appropriate, in the framework of international judicial cooperation, enhancing the exchange of information on previous convictions and ongoing investigations relating to trafficking in cultural property and related offences;