Protection of Cultural Property in the event of Armed Conflict (Hague Convention) Act 2017

JurisdictionIreland
CitationIR No. 36/2017


Number 36 of 2017


PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT (HAGUE CONVENTION) ACT 2017


CONTENTS

1. Definitions

2. Offences

3. Offences outside State

4. Penalties

5. Responsibility of military commanders and other superiors

6. Defence of superior orders

7. Double jeopardy

8. Blue Shield emblem

9. Amendment of Criminal Justice (Mutual Assistance) Act 2008

10. Amendment of Schedule to Criminal Procedure Act 2010

11. Short title and commencement

SCHEDULE 1

Convention for the Protection of Cultural Property in the Event of Armed Conflict

SCHEDULE 2

Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict


Acts Referred to

Criminal Justice (Mutual Assistance) Act 2008 (No. 7)

Criminal Procedure Act 2010 (No. 27)

European Arrest Warrant Act 2003 (No. 45)

Extradition Act 1965 (No. 17)


Number 36 of 2017


PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT (HAGUE CONVENTION) ACT 2017


An Act to give effect to the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on 14 May 1954, and to the Protocol thereto, done at The Hague on 26 March 1999, and for those purposes to provide for offences relating to acts prohibited by that Protocol; and to provide for matters related thereto.

[21st December, 2017]

Be it enacted by the Oireachtas as follows:

Definitions

1. In this Act—

“Convention” means the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on 14 May 1954, the text of which is set out in Schedule 1 ;

“cultural property”, irrespective of origin or ownership, means—

(a) movable or immovable property of great importance to the cultural heritage of every people, including:

(i) monuments of architecture, art or history, whether religious or secular;

(ii) archaeological sites;

(iii) groups of buildings which, as a whole, are of historical or artistic interest;

(iv) works of art;

(v) manuscripts, books and other objects of artistic, historical or archaeological interest;

(vi) scientific collections and important collections of books or archives or of reproductions of the property defined above,

(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property referred to in paragraph (a), including:

(i) museums;

(ii) large libraries and depositories of archives; and

(iii) refuges intended to shelter, in the event of armed conflict, the movable cultural property referred to in paragraph (a),

and

(c) centres containing a large amount of cultural property as defined in paragraphs (a) and (b);

“cultural property under enhanced protection” means cultural property to which the status of enhanced protection has been granted in accordance with the system established by the Protocol;

“Minister”, other than in section 8 , means the Minister for Foreign Affairs and Trade;

“Protocol” means the Protocol to the Convention done at The Hague on 26 March 1999, the text of which is set out in Schedule 2 .

Offences

2. (1) A person who, during an armed conflict—

(a) attacks cultural property under enhanced protection,

(b) uses cultural property under enhanced protection or the area immediately surrounding such property in support of military action,

(c) extensively destroys or appropriates cultural property,

(d) attacks cultural property, or

(e) steals, pillages, misappropriates or vandalises cultural property,

commits an offence.

(2) A person charged with an offence under paragraph (a), (b) or (c) of subsection (1) shall be tried by the Central Criminal Court.

(3) Where a person is charged with an offence under this section, no further proceedings in the matter (other than any remand in custody or on bail) may be taken except by, or with the consent of, the Director of Public Prosecutions.

Offences outside State

3. (1) A person who, in a place outside the State, engages in conduct that would, if the conduct occurred in the State, constitute an offence under paragraph (a), (b) or (c) of section 2 (1), commits an offence.

(2) An Irish citizen, a member of the Defence Forces or a person ordinarily resident in the State, who, in a place outside the State, engages in conduct that would, if the conduct occurred in the State, constitute an offence under paragraphs (d) or (e) of section 2 (1) commits an offence.

(3) A person who is—

(a) an Irish citizen,

(b) a member of the Defence Forces, or

(c) ordinarily resident in the State,

who exports or otherwise removes cultural property from an occupied territory of a State Party to the Protocol commits an offence.

(4) It shall be a defence in proceedings for an offence under subsection (3) for the person charged with the offence to prove that—

(a) the export or removal of the property concerned was in accordance with the law of that State Party, or

(b) he or she reasonably believed that such export or removal of the property concerned was necessary for the protection or preservation of that property.

(5) The Director of Public Prosecutions may take proceedings for an offence under subsection (1) if satisfied that—

(a) a request for a person’s surrender for the purpose of trying him or her for an offence under subsection (1) has been made by a State in relation to which Part II of the Extradition Act 1965 applies, and that request has been finally refused (whether as a result of a decision of a court or otherwise),

(b) a European arrest warrant has been received from an issuing State for the purpose of bringing proceedings against the person for an offence in respect of that conduct, and a final determination has been made that the European arrest warrant should not be endorsed for execution in the State under the European Arrest Warrant Act 2003 or that the person should not be surrendered to the issuing State concerned, or

(c) because of special circumstances, including the likelihood of a refusal referred to in paragraph (a) or a determination referred to in paragraph (b), it is expedient that proceedings be taken against the person for an offence under subsection (1).

(6) A person charged with an offence under subsection (1) shall be tried by the Central Criminal Court.

(7) Proceedings for an offence under subsection (2) may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.

(8) Where a person is charged with an offence under this section no further proceedings in the matter (other than a remand in custody or on bail) may be taken except by, or with the consent of, the Director of Public Prosecutions.

Penalties

4. (1) A person guilty of an offence (other than an offence under paragraph (a), (b) or (c) of section 2 (1) or under section 3 (1)) under this Act shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 30 years or both.

(2) A person guilty of an offence under paragraph (a), (b) or (c) of section 2 (1) or under section 3 (1) shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 30 years or both.

Responsibility of military commanders and other superiors

5. (1) Where a member of a force who is under the effective command and control of a military commander commits an offence under section 2 , the military commander also commits that offence where he or she—

(a) fails to exercise proper control over the members of those forces,

(b) knows, or ought to know, that members of those forces are committing, or are about to commit, that offence, and

(c) fails to take all necessary and reasonable measures within his or her power to prevent or repress the commission of the offence concerned or to submit the matter to the competent authorities for investigation and prosecution.

(2) Where a person, who is under the authority and control of a person who is his or her superior, commits an offence under section 2 , the superior also commits that offence where he or she—

(a) fails to exercise proper control over the person,

(b) knows, or ought to know, that the person is committing, or is about to commit, that offence,

(c) had effective responsibility for and control over the person, and

(d) fails to take all necessary or reasonable measures within his or her power to prevent or repress the commission of that offence or to submit the matter to the competent authorities for investigation and prosecution.

Defence of superior orders

6. (1) In proceedings for an offence under this Act it shall be a defence for the defendant to prove—

(a) that he or she—

(i) was required by law to obey the orders of a government or of a superior, whether military or otherwise, and

(ii) was acting under an order of that government or superior,

and

(b) that he or she—

(i) did not know that the order concerned was unlawful, or

(ii) believed it to be lawful.

(2) Subsection (1) does not apply to a defendant where the order concerned was manifestly unlawful.

Double jeopardy

7. A person who is acquitted or convicted of an offence in a place outside the State shall not be proceeded against for an offence under this Act consisting of the act that constituted the offence of which the person was so acquitted or convicted except where the offence is one to which Part 3 of the Criminal Procedure Act 2010 applies.

Blue Shield emblem

8. (1) The Minister, having had regard to the purposes of the Blue Shield emblem set out in the Convention and having...

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