The following article originally was published in print in Simpson,
Elizabeth (ed.): The Spoils of War. World War II and Its Aftermath: The
Loss, Reappearance, and Recovery of Cultural Property, Harry
N. Abrams, New York, 1997, pp. 175-180.
Wilfried Fiedler
Legal Issues Bearing on the Restitution of German Cultural Property in
Russia
I. The Legal Basis for the German Request
for Restitution
In spite of the grave war and postwar events, the legal basis for the German
request for restitution cannot be found in measures or standards pertaining
to war or its aftermath. It rather is based on treaty regulations made
after the opening up of Eastern Europe in 1989. This fundamental political
change was sealed with a number of treaties.
1. The Good-Neighborliness-Treaty
In particular, the new departure was manifested in the Treaty between the
Federal Republic of Germany and the Union of Soviet Socialist Republics
on Good-Neighborliness, Partnership and Cooperation" and in the Treaty
on the Development of Comprehensive Cooperation in the Field of Trade,
Industry, Science and Technology, both of which were signed on November
9, 1990.[1]
The conclusion of these bilateral instruments was tied up with a number
of historic multilateral decisions terminating the East-West confrontation,
as, for example, by the adoption of the Charter of Paris for a New Europe
in November 1990.[2]
Article 16 of the 1990 German-Soviet Good-Neighborliness Treaty
reads:
The Federal Republic of Germany and the Union of Soviet Socialist
Republics will seek to ensure the preservation of cultural treasures of
the other side in their territory. They agree that missing or unlawfully
removed art treasures which are located in their territory will be returned
to the owners or their legal successors.
This provision of the treaty was confirmed by Article 15 of the
German-Russian Cultural Agreement of 1992.[3]
2. Negotiations since 1993
Since February 1993, there have been negotiations between Germany and Russia
to organize the restitution of cultural property. In this context a dispute
arose about the interpretation of the second clause of Article 16 of the
Good-Neighborliness Treaty, which is the central clause in favor of restitution.
During the negotiations, both sides defined the purpose of the negotiations.
In March 1994 both sides agreed "that the subject of the work of the Joint
Commission will be those items of cultural property which were taken from
their respective countries during or as a consequence of the Second World
War."[4]
Another important advance was also achieved in March 1994, when
both sides granted free access for experts to works of art that were hidden
for more than forty years:
Both sides ... will grant these experts free access to such cultural
property at the places where it is located in order that they may together
identify it and prepare expertises and will ensure that they have favorable
working conditions.[5]
II. Historical Facts and Starting Points
The lawyer who is concerned with the question of the German cultural heritage
in Russia must deal with a great number of historical facts, which can
neither be denied nor concealed. Among those are all measures taken by
the powers involved in the war during and after military operations. These
facts are the historical starting points for the legal conflict which exists
today, fifty years after the end of World War II, not only between Germany
and Russia but also between many other states.
1. The Nazi Raids and Destruction of Property
In the first place, the facts are dominated by the Nazi raids. The Nazi
officials seized numerous works of art in each of the occupied territories
and brought them to Germany. Particularly the activities of the Einsatzstab
Reichsleiter Rosenberg (ERR: task force Rosenberg) and the SS organization
Ahnenerbe (Ancestral Heritage) were notorious for their looting of works
of art.[6]
Additionally, in many states cultural property of great value
was destroyed during hostilities. Especially in the Soviet Union this destruction
was considerable. The lack of respect and the disregard for the cultural
identity of foreign peoples becomes obvious when we look at the conduct
of the special units involved. The present negotiations between Russia
and Germany are characterized by the fact that there has never been any
uncertainty about German actions in Eastern Europe during World War II.
The German side always deeply regretted the unfortunate events and has
indicated this repeatedly to the Soviet Union. It is my understanding that
it is a basic characteristic of the talks that no one has ever tried to
play down this issue - for only one who is fully aware of all the historical
facts can come to the right conclusion which is necessary to ensure that
peoples may live together peacefully in the future.
2. The Restitution of Soviet Cultural Property
It is fortunate that at the end of the war the Allied Armed Forces arranged
for the collection and restitution of the works of art that had been brought
to Germany. In that way, the works of art that had been held in about thousand
German depots and collected in four central Collecting Points were returned
to their countries of origin.[7]
This is the reason for the well-known restitution of many hundreds of thousands
of works of art to the Soviet Union. Due to these returns, there is no
longer a considerable number of Russian works of art in Germany. Therefore,
the proposed restitution of the works of art that were brought from Germany
to Russia cannot be compensated by the restitution of equivalent works
of art of Russian origin. This was always called a regrettable "asymmetry"
by the Russian participants. The "asymmetry", however, is due to the restitution
accomplished by the Allies after World War II.
The fact of the restitution of the Soviet works of art itself
is satisfactory in almost every way. The works of art plundered in the
Soviet Union were returned after the war to the Soviet Union in many trainloads
and carloads. Uncertainties remain, however, because we do not know, if
and how many of these works of art were returned to their place of origin.
Let me clarify that statement: we do not know, for example, whether Ukrainian
cultural property returned after the war has been stored in other parts
of the Soviet Union. Much the same can be said of the returned cultural
property of Belarus. It is, in these examples, the negotiators for Ukraine
and Belarus, on the one hand, and Russia, on the other, who must address
those uncertainties.
III. The Removal of German Cultural Property
to the Soviet Union since 1945
If we return to the political situation in postwar Germany, we realize
that at the very moment when the works of art plundered by German special
units were being returned to the Soviet Union, in the Soviet-occupied zone
of Germany, the search for works of art, libraries and archives was continued
on an entirely different basis. This resulted in the transfer by the Soviet
Union of more than 2,5 million works of art from Germany to the cities
of the USSR. Today, a great number of these works are still kept in storage,
partly in secret depots, partly in the cellars of some famous Russian museums.
Many of these works of art were restituted to the former German Democratic
Republic in the 1950s and 1960s.[8]
But even today there are hundreds of thousands of pieces of German cultural
property hidden in Russia. During the last conference between Russia and
Germany in June 1994 Germany named about two hundred thousand works of
art, two million books and three kilometers of archives to be restituted
to museums, libraries, archives and collections in Germany.[9]
The number of works of art removed from Germany by the Soviet
Union is not a fabrication of the Germans: it can be gathered from Soviet
documents that were inaccessible for a long time - and especially from
the official statements of the Central Committee of the Communist Party
of the Soviet Union (CPSU).[10]
These records indicate the incredible extent of the removal of cultural
property from Germany. At the same time, the outstanding importance of
this cultural property for the cultural identity of the German people becomes
obvious. From the very beginning the Soviet communists realized that the
plundered works of art were irreplaceable parts of the cultural achievement
of the German people. It was the Central Committee of the Communist Party
of the Soviet Union itself that mentioned the great importance of the valuables
for the history of the national culture in Germany.[11]
So it is no surprise to discover that the German cultural treasures stored
in the former Soviet Union are tantamount to a walk through the entire
history of Germany. The valuable inventories of the museums of Berlin,
including the gold treasure of Eberswalde, two Gutenberg-Bibles, the valuable
books of the Gotha-collection, the collection of the Bremen Kunsthalle
and the estate of Wilhelm von Humboldt - to mention just a few examples
- were taken to the Soviet Union. The famous "Treasure of Priam"[12]
is only one part of the German art treasures that are stored in Russia.
It is not necessary to describe the circumstances of the removal once
again.[13]
I want to mention, however, that German cultural property was not only
removed by regular divisions of the Red Army but also by the so-called
trophy commissions, which acted at the express order of Joseph Stalin and
organized the removal according to carefully elaborated plans.[14]
Stalin expressly ordered the art raids. With regard to the removal of German
and other cultural property, his spirit stands behind all actions of the
trophy commissions at the end of the war and the postwar era. In addition,
the numerous private plunderings by Soviet soldiers must be mentioned.
Today, their booty is increasingly a part of the illegal art trade.[15]
IV. The Soviet Attitude toward the Transfer
of German Cultural Property
It is an extremely interesting fact that the Soviet trophy commissions
did not carry off German Cultural property during the war. The removal
only took place after the end of military operations, when German cultural
property was no longer in danger as a result of hostilities. When Soviet
documents say that the German cultural property was brought to Moscow for
reasons of saving, safeguarding and storing, this does not accord with
the facts. However, these statements have bearing on an important legal
issue: not even Stalin and the CPSU insisted that the works of art removed
from Germany became Soviet property. The removal did not take place expressly
to acquire ownership. Recently, it has been maintained that the looted
objects are now Russian property; however, this is not based on legal or
historical facts.
V. The Interpretation of the Treaties
The interpretation of the treaties signed since 1990 causes significant
difficulties for the participating nations. According to the exact terms
of the above- mentioned Article 16 of the German-Soviet Good-Neighborliness
Treaty, "lost" cultural property will be returned.
1. Lost Cultural Property
But what is the meaning of the word "lost"? The removal of German cultural
property is characterized by the fact that the removed objects were hidden
for more than forty years. Only after the opening up of Eastern Europe
in 1989 did the dimensions of the removal - except for that part that had
already been returned to East Germany (the GDR) - become obvious. Up to
that moment the existence of German cultural property in Soviet repositories
had been denied. In the context of the contractual provisions regulating
the return of items, the status of an object can only be determined based
on the extent of knowledge of the country that is seeking its missing property.
Consequently, those items of cultural property whose whereabouts were unknown
to the rightful owner at the time the treaty was concluded have to be classified
as lost. If any government agencies of one of the contracting parties had
knowledge of the whereabouts of cultural property that was inaccessible
to the other side, this does not alter the fact that the property must
be considered lost within the meaning of the treaties.
2. The Vienna Convention on the Law of Treaties
It is obvious that an international treaty must be interpreted according
to the international law in effect at the time when it was signed. Both
the Soviet and the Russian parties to the treaty, on the one hand, and
the German party to the treaty, on the other, understood that the effective
international law was applicable and that this included, among other things,
the Vienna Convention on the Law of Treaties, which is dominated by the
rule pacta sunt servanda. [16]
The treaties signed with the Soviet Union and Russia since 1990 clearly
stressed that the unfortunate and tragic past of the states and peoples
involved had to come to an end and that partnership and cooperation would
be the basis for future relations between the contracting parties.[17]
This was the purpose of the treaties, on which was based the extensive
economic, financial, and political collaboration that ensued, and there
is no indication that the restitution of cultural property should be treated
differently from other important subjects.
3. "Unlawfully Transferred" Cultural Property
The interpretation of this phrase has important implications for the negotiations
now in progress. Article 16 of the Good-Neighborliness Treaty applies not
only to the lost cultural property but also to that which was "unlawfully
transferred". Neither by the directions of the Allied Control Council nor
on any other legal basis was the Soviet Union allowed to remove cultural
property from Germany, no matter how it has tried to justify it,[18]
for the Hague Convention of 1907 as part of the customary international
law was also binding for every state during and after World War II. According
to those provisions, "works of art and science" and "institutions dedicated
to ... the arts and sciences" on occupied territory are protected against
confiscation irrespective of whether they are private or public property.[19]
There does not exist any "right of the victor" detached from international
law and permitting any kind of confiscation and taking of booty, nor did
any such right exist in 1945. Germany never and in no way accepted as legal
the removal of cultural property to the Soviet Union. Article 56 of the
Hague Convention prohibits any unilateral seizure of cultural property.
This provision concluded a legal battle that had lasted almost the entire
nineteenth century after the looting by Napoleon's army.[20]
VI. International Law in Effect During and
after World War II
Looking at the incredible destruction and the many victims of World War
II, we might conclude that the Hague Convention was not considered applicable
in this case. But all one needs to do is to look at the statements of the
Nuremberg trials regarding the scope of the Hague Convention.
1. The Nuremberg Trials
The Nazi war criminals were accused of "pillage and destruction" of works
of art, including both private and public property. The charge was expressly
based on Article 56 of the Hague Convention.[21]
This regulation was also one of the reasons for the sentences meted out.
The judgement of the Nuremberg trials stated:
....that it was supported by evidence that the territories occupied
by Germany had been exploited in the most merciless way and that actually
a systematic plundering of public and private property had taken place.[22]
2. The Humanitarian Functions of the Hague Convention
The Hague Convention stresses in its preamble that it had not been possible
to provide for all circumstances that might arise in practice. However,
any ambiguities or omissions addressed by the Allies had to be considered
within the framework provided by the convention itself for future events.
In these cases the inhabitants and the belligerents of the countries involved
remain under the protection and the rule of the principles of the law of
nations, as they result from the usages established among civilized peoples,
from the laws of humanity, and the dictates of the public conscience.[23]
We must ask why cultural property is protected by the effective
international law and especially by the UNESCO conventions since 1954 in
such a particular way. It was already obvious in the Hague Convention:
the regulations for the protection of international cultural property had
a humanitarian character from the very beginning. The main function is
not to protect the institutions of the state but the particular intellectual
achievements of the "inhabitants" and this means the intellectual identity
of individuals and peoples.
3. The Removal of Cultural Property - Additional
Humiliation of Peoples and Minorities
So it can be explained why the removal of cultural property for reasons
of compensation and reparations is illegal under effective international
law. To humiliate a neighboring people further and to destroy its cultural
identity by systematically and totally removing its cultural property comes
close to the behavior of a dictator such as, for example, Adolf Hitler.
This is not the behavior of a progressive government based on peace and
committed to the increasing importance of human rights despite all setbacks.[24]
4. The Abuse of the Idea of Compensation
Fortunately, the United States of America realized after 1945 that Hitler's
crimes could not be compensated by a questionable confiscation of German
works of art.[25]
So there are good reasons why the idea of compensation is not part of Articles
16 and 15 of the treaties of 1990 and 1992, respectively, even if supporting
measures for the future are not excluded. The effective international law
does not allow a unilateral compensation for war losses by a "free choice"
out of the captured war "trophies". Otherwise, just that part of the German
people that had to bear the greatest hardship during the Nazi period would
have had to suffer again. The collections of Jewish owners were not spared
by the Soviet trophy commissions, nor did they spare the collections taken
from Holland and France. Religious objects were not spared either, as is
demonstrated, for example by the looting of the medieval windows of the
Marienkirche in Frankfurt an der Oder, a church of the fourteenth century.
5. The Russian Tradition of Protecting Cultural
Property and the Influence of the Communist Regime under Joseph Stalin
The particular importance assigned to the international protection of cultural
property in Article 56 of the Hague Convention is a result of the great
effort of Russia and especially of the legal adviser of the Russian Foreign
Ministry Frédéric de Martens. The Hague Convention of 1907
was his achievement.[26]
The German request for restitution comes much closer to what he had in
mind than any effort to justify the orders of Joseph Stalin. By
ordering the removal of the German cultural property, Stalin ignored the
older Russian tradition in an almost brutal way.
[1]
Treaty between the Federal Republic of Germany and the Union of Socialist
Republics on Good-Neighborliness Partnership and Cooperation, 9.11.1990,
in: 30 I.L.M. 505 (1991); Treaty on the Development of Comprehensive Cooperation
in the Field of Trade, Industry, Science and Technology, 9.11.1990, in:
BGBl. II, 700 (1991).
[2]
Bull. des Presse- und Informationsamtes der Bundesregierung 1990, S. 1409
ff.
[3]
German-Russian Cultural Agreement, BGBl. II, 1256 (1993).
[4]
Par. 5 of the Moscow Protocol of March 24, 1994.
[5]
Par. 3 of the Moscow Protocol of March 24, 1994.
[6]
Procès des grandes criminels de guerre devant le Tribunal Militaire
Internationale, Vol I, 61 ff., 254 ff, 1947.
[7]
The C. Howe, Jr., Salt Mines and Castles: The Discovery and Restitution
of Looted European Art (1946); M.J. Kurtz, Nazi Contraband: American Policy
on the Return of European Treasures, 1945-1955, 163 ff. (1985); S. Turner,
in: W. Fiedler (ed.), Internationaler Kulturgüterschutz und deutsche
Frage, 154 f. (1991).
[8]
S. Turner, supra (N. 7), 127.
[9]
Par. 4 of the Bonn Protocol of 30 June 1994.
[10]
1958 the Central Committee named "2.614.874 objects of art and culture
located in the USSR".
[11]
"The great importance of these treasures for the history of the national
culture (National-Kultur) of Germany", ibid.
[12]
Goldmann, Klaus, "Heinrich Schliemanns 'Sammlung trojanischer Altertümer'",
in: Schliemanns Gold und die Schätze Alteuropas aus den Museen für
Vor- und Frühgeschichte, 13-17 (1993); K.-E. Murawski, Die Verlagerung
von Kulturgütern in Deutschland im Zweiten Weltkrieg und die damit
zusammenhängenden aktuellen Fragen, in: Königssteiner Kreis 1981,
Nr. 1 2 ff.
[13]
See f.e. for Berlin Kühnel-Kunze, Bergung - Evakuierung - Rückführung.
Die Berliner Museen in den Jahren 1939-1959 (Jahrbuch Preußischer
Kulturbesitz, Sonderband 2), 2. edition. Berlin 1984, p. 102-105.
[14]
See K.-E. Murawski, supra note 12 at 2.
[15]
Ibid. at 4.
[16]
Preamble of the Vienna Convention on the Law of Treaties, BGBl. II 1985,
926, translated in 25 I.L.M. 543 (1986).
[17]
Preamble of the Treaty on Good-Neighborliness, Partnership and Cooperation,
see supra note 1.
[18]
S. Turner, op.cit. (N. 7), 132 f.
[19]
Art. 56 of the Hague Convention, see L. Friedman, The Law of War, Vol.
I, 308 ff. (1972).
[20]
S.A. Williams, The International and National Protection of Movable Culture
Property, 5 ff., 8 f. (1972) ; D.M. Quynn, The Art Confiscations of the
Napoleonic Wars, Am. Hist. Rev. 50 (1945), 437 ff.; P. Wescher, Kunstraub
unter Napoleon, 2. ed. 1978; S. von Schorlemer, Internationaler Kulturgüterschutz,
1992, 261 ff; M. Ph. Wyss, Kultur als eine Dimension der Völkerrechtsordnung,
1992, 86 ff.; for the changed legal situation in the 19th century
see F. de Martens, Traité de droit international, Vol. III, 1987,
SSSS 119, 120.
[21]
op.cit., supra note 6, 251.
[22]
ibid., 251.
[23]
Preamble of the Hague Convention, see L. Friedman, The Law of War, Vol.
I, 309 (1972).
[24]
See Satzung der UNESCO BGBl. II, 473 (Preamble) (1971); 4 U.N.T.S. 275;
see M. Ph. Wyss, op. cit. (see supra note 20), 187 ff.
[25]
S. Turner, op.cit., supra note 7, 311.
[26]
In a characteristic manner one of the German participants described the
importance of the Russian activities during the Hague peace conferences:
Ph. Zorn, Die beiden Haager Friedenskonferenzen von 1899 und 1907. Handbuch
des Völkerrechts, Vol. 5, 1915, 22 ff., 30 ff. and Ph. Zorn, Weltunionen,
Haager Friedenskonferenzen und Völkerbund, 1925, 11.