Crimes against cultural heritage

10th February 2020 Scott Edwards Environmental Crimes No Comments

Introduction

Crimes against cultural heritage comprise the unauthorised disturbance of manmade cultural sites and objects, often for profit. The United Nations Educational Scientific and Cultural Organization (UNESCO) 2001 Convention on the Protection of the Underwater Cultural Heritage defines cultural heritage as ‘all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years’.¹ This includes structures, artefacts, human remains, vessels and aircraft. It excludes infrastructure such as pipelines and cables.

The Convention centres around the obligation to preserve underwater cultural heritage ‘for the benefit of humanity’, ‘in situ preservation as the first option’ and ‘prohibition of commercial exploitation’.¹

Many crimes centre on the commercial exploitation of these sites, which ‘is fundamentally incompatible with the protection and proper management of underwater cultural heritage’.¹

BANTEN BAY (Oct. 19, 2015) Navy Divers assigned to Explosive Ordnance Disposal Mobile Unit 11, Mobile Diving Salvage (MDS) 11-7, survey HMAS Perth (D29) during dive operations held in support of search and survey operations of the sunken World War II navy vessels USS Houston (CA 30) and Perth. The data collected by the dive exercise will help the U.S. embassy in Indonesia and Naval Historical Heritage Command catalog the current state of the wrecks. (U.S. Navy photo by Mass Communication Specialist 2nd Class Arthurgwain L. Marquez/Released) – Attribution-NonCommercial 2.0 Generic (CC BY-NC 2.0)

Characteristics

Activities are variously criminalized according to the types of objects being disturbed; the method of disturbance; and the motivation behind the disturbance.

Forms of cultural heritage

Due to legal differences over ownership and jurisdiction, disturbances of a vessel owned by one country may be considered illegal in their own jurisdiction but not in the jurisdiction where it is now actually located. The UNESCO 2001 convention protects heritage over 100 years old, and therefore disturbance for commercial means is illegal. Disturbance of heritage over 100 years old is therefore most clearly a criminal act in countries that have ratified the convention.

In practice, many countries have not signed the 2001 convention, meaning there is an uneven legislative framework that sometimes enables exploitation of underwater cultural heritage older than 100 years. Such activities may not be explicitly illegal in the jurisdiction where they takes place, but international law and the original owners of the heritage artefact may consider them criminal acts. An example is the exploitation of ships that engaged in trade on the ‘Maritime Ceramic Route’ through Southeast Asian waters, which are commercially exploited by Southeast Asian companies.² Domestic legislation can be uneven, meaning that levels of protection can be highly variable. Ownership and jurisdiction may also be disputed, especially in disputed areas such as the South China Sea or where there are valuable cargoes.³

The criminal status of these activities is most problematic for more recent wrecks. Not all are considered to be cultural heritage as some ships are abandoned at sea and have little cultural value, but there are also vessels that were not abandoned and could not be recovered. These are sometimes considered cultural heritage. Examples include ships sunk during the Second World War. States may not have been able to recover the ships due to the practical, financial, and moral considerations associated with excavation.⁴ There are often human remains on the wrecks, meaning the sites are considered war graves by survivors and their descendants.⁵

Motivation for and method of disturbance

Some disturbances to cultural heritage sites at sea are accidental and tend to be less heavily criminalized because the motivation is not profit. The destruction of wrecks caused by deep sea trawlers, the laying of submarine cables, as well as resource exploitation, may all lead to the accidental destruction of cultural heritage.⁶ The Turiang, Ko Si Chang III, and Longquan wrecks for example held Chinese and Thai ceramics which were intact until trawl nets destroyed them in the Gulf of Thailand.⁷

Intentional exploitation may be more heavily criminalized, though again to varying degrees depending on the jurisdiction in which it takes place. McKinnon refers to ‘cultural impacts’ as small-scale acts which have negative impacts on cultural heritage.⁸ These may include the collection of souvenirs, the movement of artefacts for better photographic opportunities, and acts of memorialisation or, conversely, vandalisation.

This can be especially prevalent in areas with significant tourism. In the UK, during an amnesty for those who had removed objects, over 30,000 illegally removed items were reported in a 3 month period.]efn_note]Martine & Gane 2020[/efn_note] An example was the removal of a trumpet from the USS Houston by a diver who attempted to gift it to the USS Houston’s Survivors’ Association as an act of memorialisation.⁹ Small-scale exploitation for profit is considered more problematic. The bell of the HMAS Perth, for example, was salvaged by divers who then attempted to sell it.¹⁰

The legal large-scale exploitation of wrecks can also take place. At its best, this may be to create exhibits and include some preservation work, with salvage companies licensed to undertake this work.¹¹. While legal, such activities may still be problematic because their practices may be damaging (for more, see impact).¹² An example of this is the Belitung shipwreck, where the cargo was sold as a full collection to a museum, but the process of removal was considered ‘unscientific’.¹³

More serious is the exploitation of such sites for profit with no preservation work. This is often legally permitted due to problems of uneven regulation.¹⁴ An example is the Geldermalsen, a Dutch East Indies wreck in Indonesia which was exploited with permission from the Dutch government (though not the Indonesian government).¹⁵

At its worst, exploitation can be completely unregulated, as well as large scale and profit oriented. Many ships carried precious cargo, and the unregulated removal of these cargo from shipwrecks is increasingly common.¹⁶ These illegally obtained objects are sold illicitly. Such activities can cause significant damage as many objects found in high-volume are destroyed so that the market does not become diluted..⁴

Professional and well-equipped salvage teams also completely remove shipwrecks from the seabed to sell on as scrap metal.¹⁷ As Pearson argues, ‘the sheer quantity of metal on a sunken naval ship means that a salvaged wreck can be worth up to USD $1million’.¹⁸ Some steel is more valuable because it was produced and sunk before the detonation of atomic bombs, making it ‘low-level radiation’ material and useful for highly-sensitive scientific equipment.¹⁹ An example is the HMS Exeter, sunk in 1942, which has disappeared from its resting place in Indonesia.²⁰. Other items of value include bronze propellors.²¹

These illicit large-scale salvaging activities are undertaken without permission, sometimes by ‘armed, international crews’ who show no regard ‘for the presence of human remains, symbolic objects, unexploded ordnance or oil tanks’.¹⁸ They are often networked and organised activities, sometimes in ways which imply state complicity, either directly or through corruption.¹⁹ It has been suggested for example that corrupt elements in the Indonesian Navy had some degree of involvement in the illicit savage of wrecks in the Java Sea because these took place near a naval base and from which it would have been difficult to keep such work secret.⁴

Scope

Because this is a clandestine activity, the location of some wrecks is still unclear, and it is difficult to actively monitor underwater cultural heritage, there is little evidence surrounding the scope of the problem. However, Pearson refers to one survey in 2016 where it was discovered that five allied wrecks had disappeared from the Java Sea.¹⁸ Petrig & Stemmler suggest the potential for such exploitation is increasing in scope because ‘depths that were once considered beyond human reach are now accessible due to advanced diving techniques’ as well as new technologies such as remotely operated underwater vehicles.²²

Impact

The exploitation of cultural heritage means that the items are not left in situ and therefore lose the context that is considered important by archaeologists for the understanding of the heritage itself.²³ Even artefacts collected in a legal manner are often removed in a way where there is no consideration of where they came from or how they were stored.²⁴ Some artefacts are lost completely to private collectors, while others are destroyed en masse to prevent the market from being flooded.²⁵ The hulls of the ships can be damaged due to a focus only on the cargo. In cases of commercial treasure hunting, the heritage loss generally outweighs the short-term financial gains a state can achieve by either issuing salvage permits or selling cargo.²⁶ In the Bahamas, for example, only one payment was received by the Government after 71 permits were issued over 27 years of salvage recovery.²⁷

The loss of cargo can be significant. In 2004 the Cirebon wreck was commercially exploited by a private Belgian company⁵. 500,000 pieces of the cargo were raised. However, half of these were thrown back into the ocean to destroy them because they would not fetch a good market price or required too much conservation effort⁵. Many of the precious historic artefacts raised from Portuguese wrecks off the coast of Mozambique were sold to be melted down for the production of micro-chips.⁵

There are environmental costs to the exploitation of underwater cultural heritage. These sites often become areas of marine biodiversity because they facilitate the creation of habitats on the wrecks themselves.²⁸ In some cases, fishermen were able to pinpoint wrecks due to the greater number of fish in the area and because they are known as rich fishing grounds locally.²⁹ The destruction of vessels therefore leads to the destruction of habitats. Another environmental impact is the potential for oil spills if care is not taken over the salvaging of more modern ships with intact oil tanks.

There is an emerging potential for geopolitical tensions. Wrecks and heritage in disputed waters, including the South China Sea, can be claimed and used to justify territorial claims.³⁰ The disruption of these wrecks and conflict over their ownership could therefore cause diplomatic tension in an already tense region.³¹

Finally, for wrecks where people lost their lives there can be a psychological impact socially, especially amongst survivors and descendants when graves are disturbed.³² This is especially the case when there seems to be little regard for the human remains following salvage, or where indigenous communities are involved.³³

Linkages & Synergies

There is no explicit linkage between the exploitation of cultural heritage at sea and other forms of maritime crime, though it is suggested that organised criminal groups (who may be involved in other forms of maritime criminality) are often involved.¹⁹

Responses

International

UNESCO lead the response globally, especially through the aforementioned Convention on the protection of the Underwater Cultural Heritage. They establish best practices, codes and ethical guidelines, and the Secretariat contributes to national capacity building and promoting international standards.³⁴ The Convention also responds to the need for emergency assistance through their Scientific and Technical Advisory Board. Under the convention, States are obligated to take measures to:

prevent the entry into their territory, the dealing in or the possession of underwater cultural heritage illicitly exported and/or recovered, where recovery was contrary to the Convention;
prohibit the use of their territory by pillagers;
and, control nationals and vessels and impose sanctions.³⁵

National

The UNESCO Convention has been instrumental in the protection of underwater cultural heritage, and has led to many national governments revisiting their own domestic legislation on the issue.³⁶

However, many States are not signatories to the convention.³⁷ Moreover, domestic regulations are uneven, and vary significantly between state jurisdictions, with some states favouring exploitation over protection⁵. Petrig & Stemmler note that the implementation of the 2001 UNESCO regulations are fragmented across countries.³⁸ This suggests the need for legislative reform in most states.

As Pearson argues, as many of these states are former colonies of European powers and there may be a disinclination to protect the heritage of previous colonizers, especially if they have policy priorities elsehwere.⁴ States may not see it as their responsibility to protect these sites because they do not claim ownership over them. At the same time, former colonizers and colonized may disagree over who has ownership of cargo.¹¹ This has led to suggestions that leaving heritage in situ is not always the best option and that controlled recovery would instead reduce vulnerability of these sites to looters.³⁹ Examples of regions that favour exploitation rather than protection are Southeast Asia and the Caribbean.⁴⁰

There have been bilateral efforts to preserve cultural heritage in response to these challenges. An example of this is a Memorandum of Understanding between the Australian National Maritime Museum and the National Archaeological Centre of Indonesia to attempt to list the HMAS Perth as protected under Indonesia’s domestic legislation.⁴ A second example is China’s cooperation with Kenya to excavate the Ngomeni Ras shipwreck site.⁴¹

In some countries, such as the UK, regulations exist but are considered to be weak, out of date, or fragmented.⁴² Even when states do have coherent regulations in place, they may not have the capacity to protect heritage successfully.¹¹ Because sites are underwater, they are difficult to monitor.

Limited resources and low levels of public awareness can exacerbate these problem. This has led to initiatives that promote awareness about underwater cultural heritage, such as the Brazilian Navy’s ‘deep dive to respect the country’s heritage’ campaign⁴³ Finally, sites tend are complex and require specialists that ensure conservation.⁴⁴

This has led to the suggestion that sub-national communities play a greater role in stewardship of underwater cultural heritage.³⁷ Martin notes some successes when local communities are involved in monitoring and collaboration, when there is sufficient education about the importance of such sites.³⁷

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