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    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


Gliederung

I.   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





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.


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