S a a r b r ü c k e r B i b l i o t h e k
Legal Issues Bearing on the Restitution of German Cultural Property in Russia
GliederungI. The Legal Basis for the German Request for Restitution
1. The Good-Neighborliness-Treaty
2. Negotiations since 1993
II. Historical Facts and Starting Points
1. The Nazi Raids and Destruction of Property
2. The Restitution of Soviet Cultural Property
III. The Removal of German Cultural Property to the Soviet Union since 1945
IV. The Soviet Attitude toward the Transfer of German Cultural Property
V. The Interpretation of the Treaties
1. Lost Cultural Property
2. The Vienna Convention on the Law of Treaties
3. "Unlawfully Transferred" Cultural Property
VI. International Law in Effect during and after World War II
1. The Nuremberg Trials
2. The Humanitarian Functions of the Hague Convention
3. The Removal of Cultural Property - Additional Humiliation of Peoples and Minorities
4. The Abuse of the Idea of Compensation
5. The Russian Tradition of Protecting Cultural Property
and the Influence of the Communist Regime under Joseph Stalin
 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.
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.
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
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. 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
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). 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. 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" 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
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.
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.
 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. 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.  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. 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.
 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.
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.  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 StalinThe 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. 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.
 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).
 Bull. des Presse- und Informationsamtes der Bundesregierung 1990, S. 1409 ff.
 German-Russian Cultural Agreement, BGBl. II, 1256 (1993).
 Par. 5 of the Moscow Protocol of March 24, 1994.
 Par. 3 of the Moscow Protocol of March 24, 1994.
 Procès des grandes criminels de guerre devant le Tribunal Militaire Internationale, Vol I, 61 ff., 254 ff, 1947.
 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).
 S. Turner, supra (N. 7), 127.
 Par. 4 of the Bonn Protocol of 30 June 1994.
 1958 the Central Committee named "2.614.874 objects of art and culture located in the USSR".
 "The great importance of these treasures for the history of the national culture (National-Kultur) of Germany", ibid.
 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.
 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.
 See K.-E. Murawski, supra note 12 at 2.
 Ibid. at 4.
 Preamble of the Vienna Convention on the Law of Treaties, BGBl. II 1985, 926, translated in 25 I.L.M. 543 (1986).
 Preamble of the Treaty on Good-Neighborliness, Partnership and Cooperation, see supra note 1.
 S. Turner, op.cit. (N. 7), 132 f.
 Art. 56 of the Hague Convention, see L. Friedman, The Law of War, Vol. I, 308 ff. (1972).
 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.
 op.cit., supra note 6, 251.
 ibid., 251.
 Preamble of the Hague Convention, see L. Friedman, The Law of War, Vol. I, 309 (1972).
 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.
 S. Turner, op.cit., supra note 7, 311.
 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.
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