Heart of confusion? EU Regulation 2019/880 on the import of cultural goods and the fight against terrorism

On 12 March 2019, the European Parliament adopted EU Regulation 2019/880 on the import of cultural goods, which is intended to control the import of cultural objects into the European Union (EP 2019). The European Commission first announced the proposed Regulation on 13 July 2017, as part of the EU’s 2016 action plan to ‘strengthen the fight against the financing of terrorism’ (EC 2017a). The focus on terrorist financing was made clear in the press release:

Commission First Vice President Frans Timmermans said: ‘Money is oxygen to terrorist organisations such as Daesh. We are taking action to cut off each of their sources of financing. This includes the trade of cultural goods, as terrorists derive funding from the looting of archaeological sites and the illegal sale of cultural objects. By preventing them from entering the EU, we can help dry up this source of income’.

The press release went on to state that:

At the moment, the EU applies prohibitions on goods from Iraq and Syria but there is no general EU framework for the import of cultural goods. Current rules can be exploited by unscrupulous exporters and importers who can use the profits to fund illegal activities such as terrorism.

Background information presented with the press release also highlighted the problem of terrorist financing and emphasised it would be the intention of the new Regulation to reduce such financing by stopping the import of looted and trafficked cultural objects into the EU (EC 2017b):

Recent reports have also shown that valuable artworks, sculptures and archaeological artefacts are being sold and imported into the EU from certain non-EU countries, with those profits potentially used to finance terrorist activities. For example, two Syrian friezes that may have been intended for criminal gain were seized at Roissy airport, France last year.

The European Commission is now responding to numerous calls for action from the other EU institutions and national governments by proposing measures to counter the illicit trafficking of cultural goods from non-EU countries more effectively. The proposal adopted today is also foreseen in the Commission Action Plan for strengthening the fight against terrorist financing that was presented in December 2016 and aims to disrupt the sources of revenue used by terrorist organisations by targeting their capacity to raise funds.

Paragraph 1 of the Regulation’s preamble explains its purpose in responding to terrorism:

In light of the Council Conclusions of 12 February 2016 on the fight against the financing of terrorism, the Communication from the Commission to the European Parliament and the Council of 2 February 2016 on an Action Plan for strengthening the fight against terrorist financing and Directive (EU) 2017/541 of the European Parliament and of the Council, common rules on trade with third countries should be adopted so as to ensure the effective protection against illicit trade in cultural goods and against their loss or destruction, the preservation of humanity’s cultural heritage and the prevention of terrorist financing and money laundering through the sale of pillaged cultural goods to buyers in the Union.

Article 1(1) of the Regulation confirms:

This Regulation sets out the conditions for the introduction of cultural goods and the conditions and procedures for the import of cultural goods for the purpose of safeguarding humanity’s cultural heritage and preventing the illicit trade in cultural goods, in particular where such illicit trade could contribute to terrorist financing.

Thus in its intention and substance the 2019 Regulation is explicitly conceived as an instrument to combat the trade of cultural objects for financing terrorism. Unfortunately, it looks to have fallen short of that goal, largely because of the anachronistic and now flawed categorisation of cultural property which it inherited from the 1970 UNESCO Convention. Paragraph 7 of the Regulation’s preamble states that:

Many third countries and most Member States are familiar with the definitions used in the Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property signed in Paris on 14 November 1970 (‘the 1970 Unesco Convention’) to which a significant number of Member States are a party, and in the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects signed in Rome on 24 June 1995. For that reason the definitions used in this Regulation are based on those definitions.

Thus the Regulation adopted the 49-year-old 1970 UNESCO categorisation of cultural property for reasons of ‘familiarity’, rather than design a new, more technically precise system of categories – one more suited perhaps to the Regulation’s intended purpose of tackling terrorist financing. The categories of cultural objects subject to control by the Regulation are set out in its Annex, which follows the 1970 UNESCO Convention in making the distinction between (c) ‘products of archaeological excavations’, and (e) ‘antiquities, such as coins and engraved seals’. This distinction is important because legislatively these two categories are treated differently from one another.

Article 4 of the Regulation applies to ‘products of archaeological excavations (including regular and clandestine) or of archaeological discoveries on land or underwater’ and ‘elements of artistic or historical monuments or archaeological sites which have been dismembered’ (including liturgical items and statues), all more than 250 years old. An importer must apply for an import license, subject to certain reservations providing proof of licit export of material from the country of origin. The importer should supply relevant supporting documentation, such as export licenses etc.

Article 5 applies to all other cultural objects, including ‘antiquities, such as inscriptions, coins and engraved seals’, more than 200 years old. It requires only that the importer submit to customs a signed statement (affidavit) certifying that subject to certain reservations the material was legally exported from the country of origin, accompanied by a standardised document describing the object in detail to enable ‘risk control’.

In other words, while Article 4 controls the import of archaeological products by means of a licensing system, Article 5 only documents the import of antiquities. Furthermore, while Article 4 applies to archaeological products of any value, Article 5 only applies to antiquities valued at more than 18,000 Euros per item. In effect, because of this monetary threshold, virtually all ‘antiquities’ are excluded from any requirement to document through importer statement.

There is strong evidence in Syria of criminals and terrorists targeting what in the Regulation are termed ‘antiquities’ in the form ancient coins and jewellery. On 16 May, 2015, when US Special Forces raided the Syrian compound of Abu Sayyaf, head of the ISIL Diwan al Rikaz (Ministry of Natural Resources and Minerals, including its Antiquities Division), many of the antiquities recovered from his possession were coins from Syria and Iraq, together with electronic images of gold coins and jewellery on his computer (US 2016). Ethnographic reporting from Idlib Governorate in Syria has highlighted how metal-detectors are used searching for coins and other small objects (Brodie and Sabrine 2018), while the importance of coins is also reflected in reports of seizures in Turkey (Myers and Kulish 2016). The ATHAR investigation into the use of Facebook for trafficking cultural objects emphasises that ‘coins represented the most frequently offered artifact in posts’ (Al-Azm and Paul 2019: 37, 38 figures 43-46). Thus what evidence there is for the use of cultural objects in terrorist financing points towards the particular importance of ancient coins, which are not subject to the Article 4 licensing requirement of the regulation and mostly too low-value to be subject to the statement requirement of Article 5. The door is left wide open for the undocumented import and sale of ancient coins and other antiquities that might finance terrorism –expressly counter to the intention of the Regulation.

Other than the familiarity of the 1970 UNESCO categorisation, why ‘antiquities more than one hundred years old’ should be treated differently to ‘products of archaeological excavations’ is not explained in the Regulation (or in the 1970 UNESCO Convention), even though antiquities are commonly understood to be ancient archaeological objects. The distinction between archaeological products and antiquities is there already in Article 1 of the 1970 UNESCO Convention, perhaps because at the time the 1970 Convention was being drafted, the term ‘antiquity’ was being used in some national laws to denote an old rather than an ancient object (O’Keefe 2017: 125). A better term today might be ‘antique’. But the specific inclusion of coins in the category antiquities encourages or at least enables an interpretation that ancient coins should be considered separately from products of archaeological excavations.

The monetary threshold imposed by the Regulation on ‘antiquities, such as inscriptions, coins and engraved seals’ seems to carry over the distinction between important and, by extension, unimportant objects that was established in Article 1 of the 1970 UNESCO Convention. The idea that some cultural property is more important than other cultural property encourages a view that objects of aesthetic or other cultural (and thus monetary) value are more deserving of protection than objects that in themselves are of less aesthetic or cultural value. It is only a short step then to deciding that important objects are more deserving of trade control than unimportant objects. But privileging the ‘primacy of the object’ in this way overlooks or ignores the damage caused to cultural heritage by the large-scale clandestine excavation of small objects such as coins and jewellery, which can be massively destructive, as satellite images of Syrian archaeological sites suggest. When traded in large enough numbers, and they are, they can generate substantial income for criminals and terrorists.

Thus, it is questionable to what extent a legal instrument intending to protect cultural heritage in situ should distinguish between important and unimportant objects, as seems to be the case in the Regulation with its system of control for archaeological products but only documentation (at best) for antiquities. This is a serious problem if, as seems probable, coins and other small objects included in the category antiquities are a primary source of terrorist financing. By failing to exert control over their import into the EU the Regulation has failed in its expressed purpose of combatting terrorist financing.

The reasons for this failure are not hard to discern. First, the Regulation was drafted in light of a very poor evidence base. It was conceived in reaction to public concern about the activities of Da’esh in Syria and Iraq and particularly by widespread reports of Daesh’s control and profiting from the trade in cultural objects. Yet it remains the case that there has been no good quality or reliable research conducted into the problem of the trade in cultural objects funding terrorism, and in the absence of such research the legislators probably had to rely upon unreliable and sensationalist media reporting, with its misleading reports of ‘treasures’ and ‘artworks’ – little more than guesswork in fact. Second, it is questionable to what extent in 2019 the 1970 UNESCO categorisation is fit for purpose. Familiarity is all very well, but the categorisation is now fifty years old and as the Regulation shows it can cripple more forward-looking international legislation. In fact, it might not be too much to claim that unless it is changed or even abandoned it will come to constitute a debilitating ‘heart of confusion’ for any future laws aiming to control the trade in archaeological products/antiquities.

References

Al-Azm, Amr and Katie Paul, 2019. Facebook’s Black Market in Antiquities. Trafficking, Terrorism and War Crimes. Antiquities Trafficking and Heritage Anthropology Research (ATHAR) Project.

Brodie, Neil and Isber Sabrine, 2018. The illegal excavation and trade of Syrian cultural objects: a view from the ground. Journal of Field Archaeology 43, 74–84.

EC 2017a. Security Union: Cracking down on the illegal import of cultural goods used to finance terrorism. Press release 13 July.

EC 2017b. Questions and Answers on the illegal import of cultural goods used to finance terrorism. Press release 13 July.

EP 2019. Regulation on the Import of Cultural Goods.

Myers, Steven Lee and Nicholas Kulish, 2016. “‘Broken system’ allows ISIS to profit from looted antiquities”, New York Times, January 9.

O’Keefe, Patrick, 2017. Protecting Cultural Objects: Before and After 1970. Leicester: Institute of Art and Law.

US 2016. United States of America v. One gold ring with carved gemstone, an asset of ISIL, discovered on electronic media of Abu Sayyaf, President of ISIL Antiquities Department; one gold coin featuring Antoninus Pius, an asset of ISIL, discovered on electronic media of Abu Sayyaf, President of ISIL Antiquities Department; one gold coin featuring Emperor Hadrian Augustus Caesar, an asset of ISIL, discovered on electronic media of Abu Sayyaf, President Of ISIL Antiquities Department; one carved Neo-Assyrian stone stela, an asset of ISIL, discovered on electronic media of Abu Sayyaf, President of ISIL Antiquities Department, United States District Court for the District of Columbia, 2016 (1:16-cv-02442), December 15.