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Protecting Cultural Heritage As a Common Good of Humanity: a Challenge for Criminal Justice

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Protecting Cultural Heritage As a Common Good of Humanity: a Challenge for Criminal Justice International Scientific and Professional Advisory Council of the United Nations Crime Prevention and Criminal Justice Programme PROTECTING CULTURAL HERITAGE AS A COMMON GOOD OF HUMANITY: A CHALLENGE FOR CRIMINAL JUSTICE Edited by Stefano Manacorda Arianna Visconti Selected papers and contributions from the international Conference on «Protecting Cultural Heritage as a Common Good of Humanity: A Challenge for Criminal Justice» Courmayeur Mont Blanc, Italy 13-15 December 2013 STEFANO MANACORDA Professor of Criminal Law, University of Naples II, Italy; Visiting Professor, Queen Mary University of London, UK; ISPAC Deputy Chair and Director ARIANNA VISCONTI Researcher in Criminal Law, Università Cattolica del Sacro Cuore, Milan, Italy ISBN 978-88-96410-03-5 © ISPAC, 2014 Via Palestro 12, 20121 Milano, Italy; phone: +39-02-86460714; E-mail: [email protected] ; Web Site: http://ispac.cnpds.org/ The views and opinions expressed in this volume are solely those of the authors and do not necessarily represent the official position of the United Nations or the organizations with which the authors are affiliated. No part of this book may be reproduced in any form by print, photocopy, microfilm or any other means without prior written permission from CNPDS/ISPAC. Acknowledgements ISPAC wishes to thank the “Fondazione Centro Internazionale su Diritto, Società e Economia” and its President, Dr. Lodovico Passerin d’Entrèves, for their generous contribution towards the publication of this book. CONTENTS Preface STEFANO MANACORDA p. 9 Keynote Address JOHN SANDAGE p. 17 Part I – Illegal Traffic in Cultural Property: The Need for Reform Patrimonio culturale e beni comuni: un nuovo compito per la comunità internazionale UGO MATTEI p. 25 Gli strumenti di contrasto del traffico illecito di beni culturali: le recenti iniziative a livello internazionale STEFANO MANACORDA p. 33 Part II – International Institutions and the Fight against Illicit Trafficking in Cultural Property Recent Activities of UNESCO Regarding the Fight against Traffic in Cultural Property ALBERTO DEREGIBUS p. 45 UNODC and the Fight against Illicit Trafficking in Cultural Property SARA GREENBLATT p. 57 Intergovernmental and Non-governmental Organizations Grasping the Nettle of Illicit Trafficking in Cultural Property FOLARIN SHYLLON p. 63 Part III – International Cooperation: Opportunities and Challenges La cooperazione internazionale in materia penale: un indispensabile strumento per la protezione dei beni culturali HUANG FENG p. 79 Two Ways of Policing Cultural Heritage DEREK FINCHAM p. 85 Cultural Heritage Crime in the Islamic Penal Code of Iran HOSSEIN MIR MOHAMMAD SADEGHI p. 93 Il Comando dei Carabinieri per la Tutela del Patrimonio Culturale ANTONIO COPPOLA p. 101 La protezione dei beni culturali nell’ambito del patrimonio artistico religioso del Vaticano FABIO VAGNONI p. 109 International Judicial Cooperation: A Tool for Fighting the Illicit Traffic in Cultural Property (Return, Restitution and Confiscation) MARC -ANDRÉ RENOLD AND MARIE PFAMMATTER p. 115 Efforts by Prosecutors and Private Counsels to Recover Cultural Property in the United States STEVEN D. FELDMAN p. 125 Stolen Antiquities, War Crimes and Asset Recovery: Protecting Cultural Heritage as a Common Good of Humanity and the Challenges for Global Criminal Justice MARK V. VLASIC p. 135 6 Part IV – Protecting Cultural Property: Case Studies and Best Practices Cambodian Statue Trafficking Networks: An Empirical Report from Regional Case Study Fieldwork SIMON MACKENZIE AND TESS DAVIS p. 149 La cooperazione giudiziaria internazionale GIOVANNI MELILLO p. 165 Cenni sulle origini storiche e sullo sviluppo della legislazione italiana in materia di beni culturali FABRIZIO LEMME p. 171 Case Studies Involving Antiquities Trafficking Networks JASON FELCH p. 177 Part V – The Role of Private Actors in Preventing Illegal Traffic The Art Loss Register and Due Diligence in the Trade in Cultural Property JAMES RATCLIFFE p. 191 The International Convention of Exhibition and Fine Art Transporters MARK STARLING p. 203 7 PREFACE STEFANO MANACORDA Professor of Criminal Law, University of Naples II, Italy; Visiting Professor, Queen Mary University of London, UK; ISPAC Deputy Chair and Director Law scholars and practitioners face today an increasingly great number of difficult tasks whenever they want to foster systematic and in-depth research into cultural heritage protection: to measure the role that heritage and its protection play in national constitutions and international charters of human rights (aware that culture, both tangible and intangible, is closely intertwined with the core essential values that it is the duty of the law to preserve); to analyse the phenomenon of legal and illegal transactions in cultural heritage, defining the precise objects and scope of legal protection, as well as their limitations, in this area; to select the most appropriate, and least prejudicial to fundamental rights, amongst the many possible approaches to protection, picking, within the wide arsenal of sanctions and preventive measures the law can offer, those that appear the most adequate; to coordinate the application of criminal law (which should in any event be considered as a last resort, or extrema ratio ) with the complex questions arising from private law in relation to cultural property ownership, as well as with those stemming from public ownership and/or control over cultural heritage and its governance by public authorities; to come up with uniform responses on a global scale, without losing sight of the fact that the extreme variety of approaches and sensibilities to this issue – a result, in part, of each individual State’s history – makes it hard to bring consistency to a framework that, in terms of comparative studies, still suffers from a degree of fragmentation, when not from a clear opposition between different philosophies regarding protection and intervention strategies. It is with these primary goals in mind that, pursuant to its vocation as a United Nations forum for academic and professional counsel in the field of preventing and combating crime, ISPAC, in recent years, has put a special focus on conducts detrimental to cultural heritage and on the most appropriate criminal policy responses to them. 11 Research into these issues has been an important feature throughout ISPAC’s history. ISPAC was actively involved in the international workshop, promoted in collaboration with the United Nations and UNESCO, and held in Italy from 25 to 27 June 1992, which led to the Charte de Courmayeur sur le patrimoine artistique et culturel . Over the last five years, as international institutions have shown renewed interest in this topic, ISPAC has promoted, or participated in, several other research meetings and publications. Pursuant a proposal from the United Nations, a first meeting was held in Courmayeur in December 2008, which led to the publication of a book entitled Organised Crime in Art and Antiquities . Revised and enriched, these contributions supplied the core for a further volume, Crime in the Art and Antiquities World. Illegal Activities in Cultural Property and Criminal Policy Responses (Springer, 2011). After that, ISPAC, in partnership with top-tier Italian university research centres, has kept working on like initiatives and research projects, aware that Italy lies at the heart of the debate, owing both to its extremely rich cultural heritage and, at the same time, to the awareness of the flourishing illicit activities affecting it. Some of these ventures have already resulted in publications ( Beni culturali e sistema penale, Vita e Pensiero, 2013), while others are soon to be available in print ( Patrimonio culturale e tutela penale: prospettive di riforma , Giuffrè, 2015). Notwithstanding all these previous initiatives, involving globally- acknowledged institutions and experts, a further effort to analyse and debate the problems related to offences against cultural heritage appeared to be needed, and, in December 2013, scholars and cultural heritage protection experts gathered for the annual ISPAC Conference, entitled Protecting Cultural Heritage as a Common Good of Humanity: A Challenge for Criminal Justice , whose proceedings are now collated in this book. ISPAC has decided to press on in its work to investigate and understand these issues for a number of reasons. It is worthwhile to go back over them by way of introduction. A first, significant element is the incessant repetition of events – widely covered in the media – showing that cultural heritage is damaged or seriously endangered by human neglect and, even more often, by criminal activities undertaken for personal gain: Pompeii regularly features on newspapers’ front pages around the globe; worldwide public opinion worries about Venice’s future, especially as, in recent past, news emerged of criminal offences committed by those same city officials in charge of 12 running one of the most emblematic cities of art and culture, patrimony of humankind; the plundering of artworks continues through every conflict around the globe, including, in recent times, Syria and Libya; the discovery, and the theft and looting, of artworks and archaeological artifacts goes on and on, and so do reports in the media – for instance – in Germany, France, Italy, and the United States. The experts and scholars who met in Courmayeur in 2013, however, didn’t just set themselves to the task of raising the umpteenth – and so often falling on deaf ears – cry of alarm. Their main
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