The Illicit Trade in Cultural Objects. From Marginalization to the Current Surge in Attention by Transnational Criminal Policymakers

The exploitation of the cultural heritage of countries rich in monuments and antiquities, but substantially vulnerable (for various reasons) when it comes to their preservation, is a phenomenon that has long preceded any attempt by international law at regulating and containing it. Following the massive destruction and looting of cultural objects occurred during WWI and WWII, however, international humanitarian law (with the 1954 Hague Convention and related Protocols, and then with the 1977 Additional Protocols to Geneva Conventions) was the first to take an active interest in setting shared international standards for the safeguarding and respect of cultural properties in the event of armed conflicts. Within this legal framework, however, criminal law still played a very marginal role in the fight against the widespread (and ever growing) phenomenon of cultural property transnational trafficking; a trend that basically continued throughout all the second half of the 20th century (with a few exceptions, chief amongst them the Council of Europe’s willingness to promote a European Convention on Offences relating to Cultural Property which, opened to signature in 1985, never entered into force for lack of the minimum number of ratifications). The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, in fact, while aimed at combating an illegal trade whose international dimension was getting more and more apparent and alarming, basically focused on administrative and civil law issues of domestic protection, international cooperation, and return and restitution. At the turn of the millennium, however, something started to change. Within the framework of the United Nations, the UNODC started taking an active role in promoting international initiatives aimed at expanding transnational criminal law to encompass the fight against illicit trafficking in cultural goods. The newly instituted International Criminal Court got direct jurisdiction over at least some crimes against cultural heritage and, in 2016, an actual conviction for such an offence was issued (in the Al Mahdi case). The Council of Europe promoted a new Convention on Offences relating to Cultural Property (adopted in Nicosia on 3 May 2017). Finally, the European Union introduced in 2019 a Regulation on the import of cultural goods (a quite novel approach), which aims at combating cultural property trafficking (also) as a way to counter the financing of terrorism and of regional conflicts. This chapter proposes to investigate, from an interdisciplinary perspective, the many reasons behind the long delay (and current remaining strong resistances) in tackling traffic in cultural property as a transnational criminal law problem, as well as the diverse factors at the basis of the recent surge in the interest of States and international organizations for the criminalization of, and an international police and judicial cooperation in investigating and prosecuting, offences against cultural heritage, particularly in the form of illicit trade in cultural goods. One of the main issues behind this new emerging trend appears to be a rising awareness of the many links existing between cultural property trafficking, on the one hand, and other forms of (more feared) transnational crime, such as corruption, money laundering, organized crime, etc., on the other; on these (alleged or proven) links the current analysis will also focus.