Cultural Property (Protection in Armed Conflict) Bill

Hon CHRISTOPHER FINLAYSON (Minister for Arts, Culture and Heritage) Link to this

I move, That the Cultural Property (Protection in Armed Conflict) Bill be now read a second time. New Zealand ratified the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict on 24 July last year. The convention was established in response to the widespread destruction of cultural property during the Second World War. It provides for the protection of things like movable property, such as works of art, manuscripts, books, scientific collections, and archives; monuments and archaeological sites; museums and libraries; and centres containing a large amount of cultural property.

The bill will enable New Zealand to accede to the first and second protocols of the convention. The first protocol is concerned with the export trade in cultural objects from warring States, and the second protocol aims to provide additional protection to the most important cultural objects in the world. The two protocols require the creation of a number of criminal offences relating to the removal of cultural property from occupied territory, dealing in such property, and various acts against cultural property in situations of armed conflict. Currently 123 States are party to the Hague convention, 100 to the first protocol, and 52 to the second protocol. The United States ratified the convention in March this year, and the United Kingdom is currently working towards accession to the convention and to both protocols.

Let me briefly go through the key elements of the bill. There are three main parts. Part 2 criminalises serious violations of the second protocol. The second protocol requires that States make a number of acts criminal offences when committed intentionally during an armed conflict. These acts include making property subject to enhanced protection under the second protocol the object of attack, the extensive destruction or appropriation of cultural property, and stealing, appropriating, or vandalising cultural property. Provision is also made for appropriate penalties for these offences, for the prosecution of New Zealanders if the offences take place overseas, and for various related elements such as extradition, aiding and abetting offences, and prosecuting perpetrators who happen to be present in New Zealand.

Part 3 provides that it will be an offence to import property taken from occupied territory into New Zealand and then to onsell, receive, or re-export such property. The Customs Service and the Police will have the powers to seize such objects, and good-faith purchasers of cultural property that has to be returned can seek compensation, most likely to be paid by the State seeking the return, not by New Zealand.

Although the convention has been ratified, the opportunity is taken in Part 4 to make unauthorised uses of the convention emblem an offence.

The bill was referred to the Government Administration Committee, and it received two written submissions on the draft bill. I acknowledge the comments of those who made submissions and the recommendations of the select committee. The amendments are mainly concerned with the important issue of the jurisdiction that New Zealand will take over alleged offenders.

New clause 9A will ensure that universal jurisdiction would not be created over the grave violation offences set out in the bill. Universal jurisdiction is a special, very rare type of jurisdiction, and it appropriately applies only to the most serious international crimes, such as piracy, slavery, and genocide. This clause will allow New Zealand to prosecute persons from non-party States for offences. If a person commits an offence in the territory of a second protocol party’s State and then comes to New Zealand, this amendment will allow New Zealand to prosecute the offender.

The change to the jurisdiction provisions also reinforces that the person must be “found in New Zealand”. The provisions in the extradition clause, clause 13, reinforce this, making it clear that such people would not be brought to New Zealand to face charges, but would have to come here of their own volition, or be found in New Zealand, before they could be charged.

Other, technical amendments are required to align the bill with other legislation that has been passed since the bill was introduced.

With this bill and with the subsequent accession to the protocols, New Zealand reinforces its commitment to other international agreements to prevent the illegal export or import of important cultural artefacts. An example of such an international agreement is the Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Accession to the first and second protocols will reinforce the excellent reputation of New Zealand’s armed forces serving overseas. The Ministry for Culture and Heritage will be working with the New Zealand Defence Force to ensure its training and operational manuals meet the requirements of the convention. Accession will also reinforce New Zealand’s participation in international efforts to lessen the consequences of armed conflict for cultural heritage.

I appreciate the support of other parties in the House to expedite the passage of this bill, as New Zealand will then be able to meet its obligations as a State party both to the convention and to its protocols.

Hon CHRIS CARTER (Labour—Te Atatū) Link to this

I am not sure whether to laugh or what after those final comments from the previous speaker, the Hon Chris Finlayson. What I am pleased to say is that the Cultural Property (Protection in Armed Conflict) Bill, which, of course, was a Labour Government bill, is being continued and supported by the National-led Government through the legislative process.

Our former colleague the Hon Judith Tizard introduced the bill in her role as Associate Minister for Arts, Culture and Heritage. She was, as was the previous Labour Government and particularly the previous Prime Minister, Helen Clark, passionate about the preservation of culture and the protection of culture.

Members of the House will remember that Helen Clark took the unusual step, when she became Prime Minister in 1999, of taking the portfolio of arts, culture and heritage. As she said at the time—and it is very pertinent to the debate around this bill—there is nothing more important to a country and a society than its culture. It is one of the ways in which we define our unique identity as New Zealanders, and the protection of culture is something this bill seeks to ensure in an armed conflict situation.

Is there a need for the bill? Well, history has shown very much that there is. I can think of numerous examples from history where in conflict, invasion, and revolution there has been enormous loss of treasures. Often the bulk of the treasures that have defined and been the product of unique cultures are lost. One can think of the invasion of Mexico by Hernando Cortés or of Francisco Pizarro’s invasion of Peru, the destruction of the Aztec and Inca empires, and the loss of the incredible cultural heritage of those regions through armed conflict between cultures. I think of the Allied invasion of the Summer Palace in Beijing in 1899. Much of China’s unique cultural heritage was either destroyed or stolen and transported to the museums of Europe and Japan by the invading armies.

So it has happened in history. Can it happen today? Indeed, it can. We need only think of a short time ago in history when the American-led invasion of Iraq saw all Iraq’s museums—all of them—looted. It is estimated that some 15,000 objects were taken from Iraq—the land of the two rivers, the home of ancient Mesopotamia where agriculture began. Many of the unique treasures—Interruption] Did I hear someone from the Government say “Good job!”? I have to say that stealing a country’s cultural heritage, which this bill seeks to protect, is not something that is funny or should be made a joke about.

Some of the objects stolen from the Iraqi museums are over 9,000 years old. They date back to the end of the Ice Age and the beginning of agriculture, which set human beings on the progress to civilisation. Those treasures have been looted in a war situation. That is what we seek to prevent.

Another contemporary example is the looting of art treasures that occurred during World War II, first by the Nazis in occupied Europe and then by the liberating Red Army as it conquered most of Eastern Europe. The art treasures, particularly artworks, were taken from Berlin and other German cities, and then later, of course, transported east into the cities of the Soviet Union.

Those examples are very practical and contemporary and show why we need legislation like this to protect a nation’s cultural heritage. Another example occurred in Bamian, where our provincial reconstruction team is doing such an excellent job—which is soon to be ended by a decision of the National Government. Two great statues of Buddha that had stood in Bamian for thousands for years were blown up by the Taliban in their mad desire to create a fundamentalist Islamic state in Afghanistan.

The Cultural Property (Protection in Armed Conflict) Bill is a Labour bill that is supported by the new National Government. We are very pleased about that. It is an important bill, as the previous Government speaker said. It ties us into the work Unesco is doing, and that is very important. This bill has the wholehearted support of the Labour Party. How could it not? It was our bill.

JACQUI DEAN (National—Waitaki) Link to this

I take great pleasure in rising to speak to the second reading of the Cultural Property (Protection in Armed Conflict) Bill, which languished for many years under the previous Labour Government, but has been brought to the House again by the Hon Chris Finlayson, the most excellent Minister for Arts, Culture and Heritage. He really does put his mark on culture in New Zealand with his commitment to legislation such as this. This National-led Government truly understands the importance of the protection of cultural objects. We do not just talk about it and then let the bill lie around for a while. We have brought this legislation to the Chamber, and I am very pleased to be speaking at its second reading.

I am really grateful for the good work in the Government Administration Committee, chaired by David Parker. There were a number of excellent members from the National side of the House, and Labour, of course. I acknowledge my colleagues and the collegial way in which we worked through quite a technical bill. To highlight that, I make note of the diagram on page 3 of the commentary. It was a hard-fought inclusion in the commentary on the bill —though it was not an internal fight—in order to aid clarity and understanding. There are a number of complex and technical issues contained in this bill, pertaining to who shall be liable and with whom the responsibility lies, whether they are New Zealanders, and whether they are in the armed forces. Due to the number of provisions in the bill, we felt in the select committee that a diagram would aid understanding of the bill—so there it lies in the commentary. I think it is the best diagram I have seen in a piece of legislation, and I hope it aids understanding.

The purpose of the bill, most important and as acknowledged by the Minister for Arts, Culture and Heritage, Chris Finlayson, is that it will enable New Zealand to accede to the first and second protocols of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. We are all well aware of, and very concerned about, the destruction of cultural property. We noted that a lot of destruction was undertaken through the course of World War II; in fact, there was widespread destruction of culturally significant artefacts and property.

The first protocol is concerned with the export trade in cultural objects from warring States. The second protocol aims to provide additional protection to the most important cultural objects in the world, and it would be fair to say that some of those are pretty readily identifiable. This bill creates a number of criminal offences, including the removal of cultural property from an occupied territory. An example would be where somebody in the armed forces souvenirs a piece of cultural property, a marvellous piece of culture from that country. A further offence relates to dealing in such property. Obviously, cultural property can have a significant value, which is often one of the reasons why it is removed. The bill also covers various acts against cultural property in situations of armed conflict. It will also make it a criminal offence to use the symbol of the Hague convention without authorisation.

In a lighter moment in the committee, there was much interest around what the Hague convention symbol would look like. I imagined something quite grand, but, no, it is just an “H”, or something quite plain. However, in this bill it is a criminal offence to use the symbol without authorisation. That is probably a good thing, because we are dealing with significant items of cultural heritage of other peoples’ countries, and we should respect that.

There is also a category called enhanced protection property, which relates to property under a special protection regime set out in this bill. This category is for property of particular significance. It will be an offence under this legislation to do the following to a protected piece of cultural property or enhanced protection property, or to encourage another person to do one of these acts. This means someone cannot just sit in the back telling another person to nick it because it will not matter—it covers that as well. It will be an offence to make cultural property the subject of attack. That means one cannot fire rockets knowingly at cultural property. One could, but then it would be an offence under this legislation. I hope it would not happen that cultural property would be the subject of attack. It will be an offence to use cultural property in military action. We discussed whether that meant using a significant building as a shield. The extensive destruction of cultural property will be an offence, or stealing or vandalising cultural property. That is probably the pertinent part of it, because it is the stealing and vandalising that is most offensive. That is captured in this bill.

Under this bill, penalties are spelt out, including fines and prison sentences. It also makes it an offence to remove cultural property from a country or to assist somebody else in doing so. That is an offence not only for the person who would be removing, pinching, or nicking that item of cultural property but also for somebody who assists someone else in doing that. Again, that is an important feature of this legislation. In this call, I have outlined perhaps the most pertinent part of this legislation, which is the high value that we in New Zealand place on cultural property and the respect we give to such property, not only in our country but also in other countries. It is a proud moment for this House in acceding to the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. I recommend this bill.

GRANT ROBERTSON (Labour—Wellington Central) Link to this

I join with Jacqui Dean in saying what a pleasure it was to work through the Cultural Property (Protection in Armed Conflict) Bill in the Government Administration Committee under the able leadership of David Parker. I concur that we worked in a collegial manner. We even inserted a diagram into the commentary—one of the highlights of the time the select committee spent on the bill! I will not traverse the detail of the bill because I think Jacqui Dean has done that very well, but I take a brief call on what the bill is about: criminalising actions such as stealing or destroying important cultural property in times of war, prohibiting trade in cultural property removed from an occupied territory, and preventing unauthorised use of the convention emblem, as Miss Dean just talked about.

It is important to give examples of what cultural property means in terms of this bill. Within the protocols and the convention we can see terms, as listed under clause 4, like “monuments of architecture”, “archaeological sites”, “groups of buildings”, “works of art”, “manuscripts, books, and other objects of artistic, historical, or archaeological interest”, “scientific collections”, and “collections of books or archives”, and then in turn the places where those things are stored: “museums”, “large libraries”, and “depositories of archives”. It is important for people to understand that that is what we are talking about. There is limited scope within this bill. It is not about every single thing—it is not about a fork, a plate, or a spoon that is taken out of a house; it is about items that are of historical and cultural importance.

Why should we do something like this? It is important for New Zealand to be able to follow through on its obligations, and on the conventions and the protocols we sign up to. To be honest, something the select committee grappled with was how we make real the conventions and protocols that we sign up to. We need to be upfront. When we negotiate these things internationally, New Zealand is part of a wider group. We want to be able to show that we are committed to preserving, in this case, cultural and historical items of significance. But when we have to turn that into real law, it does sometimes present some difficulties to make it meaningful. In the commentary on the bill we see the ways in which we amended the bill to try to make it more real and meaningful, and Jacqui Dean has already talked about that. In particular, we ensured that we inserted the words “(whether in or outside New Zealand)” in clause 7(1)(a) to make it clear that a person could be charged regardless of where the alleged offence was committed. That slightly broadened things out. We did not want it to become so broad and so over the top as to be regarded as somehow ridiculous, so we ensured that universal jurisdiction would not be created over the grave violation offences that are set out in the bill, and new clause 9A does that.

As the commentary on the bill says, we were also concerned that the bill did not take into account the issue “if a person committed an offence in a Second Protocol Party state and then came to New Zealand, New Zealand would not be able to prosecute the offender, where he or she was a national of a state that is not a Second Protocol Party.” We have clarified that and there is a diagram explaining how that will happen.

I think that the select committee has done its job here. It has improved the bill so that it can be implemented in New Zealand law and so that it is meaningful in New Zealand law. I thoroughly recommend it to the House.

KEITH LOCKE (Green) Link to this

The Green Party is strongly supportive of the Cultural Property (Protection in Armed Conflict) Bill. It is my experience that the destruction of significant cultural property of a people has a huge effect, often on the whole national psyche.

I think the problem goes even beyond what is in this bill. We can see the concern the Greek people have about the Elgin Marbles, and the fact that some of them have been taken to the British Museum. We can talk to Sri Lankan Tamil people, who feel they lost a huge cultural icon when the Jaffna Library was burnt down in the 1980s. We can look at the conflict in China involving the Uighur people, Muslim people in the west of China who have recently been in some contention with both the Chinese Government and Chinese migrants in the area. One of the deep hurts that the Uighur people feel—and it motivates them today—is what happened during the Cultural Revolution in the 1960s. Young fanatical Maoists came in and destroyed much of the cultural property and Islamic icons in that area. The Tibetan people experienced the same thing with the destruction of some of the monasteries during the Cultural Revolution. It was deeply hurtful and is still felt today.

Chris Carter mentioned the example of Iraq, and I have wondered how Iraq might fit under this bill in the sense of culpability. In the mayhem following the US-led invasion of Iraq and the overthrow of Saddam Hussein, US military camps were located in places like Babylon. Some camps were located on very important archaeological sites and destroyed them a bit. One could say that that destruction was part of armed conflict, but a lot of the damage was done by Iraqis who wanted to make a bit of money by coming in and grabbing stuff that had previously been protected. I suppose that under the clause about being an accessory after the fact any armed force there would be responsible. US commanders who allowed that to happen could possibly be deemed to be accessories after the fact under this bill.

Chris Carter also raised the example of Bamian. I am not sure how it would be covered under this bill, because, at the time, the war was over. The Taliban were ruling with an iron hand over the Hazara people and were very hostile to Buddhism. As part of the Taliban’s hostility towards anything that was not Islamic—or not their particular variety of Sunni Islam—they destroyed the Buddhas, which was a historic crime. I think that we all felt it, too, because those big Buddhas were such a cultural icon. But it was not done in the middle of armed conflict; it was done post - armed conflict, so I am not quite sure how it fits under the bill.

Although this bill is very good, it does not necessarily cover the complete range of offences against the cultural heritage of peoples around the world.

I think it is good that clause 9A has been put in, so that people who destroy major features of cultural heritage can be prosecuted for the horrendous thing they have done. If, for instance, the Bamian incident did fit under the bill, and if someone responsible for that offence against the Afghan people happened to be in New Zealand, that person could be prosecuted.

The Green Party is very supportive of this bill. It is a very progressive bill and we hope the whole Parliament will support it. Thank you.

JOHN HAYES (National—Wairarapa) Link to this

As a member of the Government Administration Committee I have great pleasure in seeing the Cultural Property (Protection in Armed Conflict) Bill finally progress through the House. After all, it is 55 years since the Hague convention was originally progressed in 1954.

I can remember that when I first came to Parliament I was on the Foreign Affairs, Defence and Trade Committee under the wonderful chairmanship of one Dianne Yates. The reason that the bill went nowhere was due simply to her chairmanship, which was incompetent, at best. I commend the Minister for Arts, Culture and Heritage, Chris Finlayson, for his initiative in bringing the issue forward and progressing it, and I am very glad that the people of New Zealand changed the Government so that we can allow the bill to move forward.

As various people have talked in laborious fashion about the various parts of the bill, I do not particularly want to revisit the issue. But I would like to say to my colleague from the Green Party Keith Locke—and I am pleased he supports the great work we have done—that none of the instances he offered are relevant in the context of the bill, because we will not be applying it retrospectively.

The other thing that is most important to understand is that the bill can begin to operate only if a territory has been occupied. So the wonderful collection put together by the de Beers that is in Dunedin’s museum—bits and pieces from all over the world that are available for all and sundry to see—is not at risk, and I am very pleased about that.

I think the example of the Bamian Buddhas being blown up and shot out of existence is more relevant. Whether Afghanistan was occupied by the Taliban is a moot question, because the damage may well have been done by Afghani factions. Mr Locke also talked about the Sri Lankan example. Before he spoke I had been reflecting on how wonderful it was that the Buddhas in Sri Lanka, or Buddha’s tooth in Kandy, or the relics in Anuradhapura were left absolutely untouched by the war. I think it is a reflection of the respect of all the parties involved in that conflict that those religious icons, and also the frescos in Sigiriya, which are hugely important to Sri Lankan culture, were left untouched. For that I am very grateful. I do not think we should involve ourselves in a partisan debate about whether a library was burnt down on purpose by the Sinhalese, because it may well not have been.

I think this bill will be really important in the context of future postings of the New Zealand military, because under it they will now be held accountable. It has taken the better part of 55 years to progress, and that is probably because a number of us would have had relatives at Monte Cassino and other theatres of war who removed artefacts under the guise of souveniring. That would now be prohibited under this arrangement. I also think our troops are far better educated now than they were at that time.

At this stage on a Thursday afternoon I do not want to unnecessarily continue, except to say that I am very, very strongly supportive of the bill, and I commend it totally to the House. I am sure it will be passed unanimously. Thank you.

NIKKI KAYE (National—Auckland Central) Link to this

I am delighted to be here speaking on the Cultural Property (Protection in Armed Conflict) Bill. I start by acknowledging what Grant Robertson said, and also Jacqui Dean, regarding the collegial nature of the Government Administration Committee.