S a a r b r ü c k e r B i b l i o t h e k
Martine Briat/ Judith A. Freeberg (eds.):
Legal Aspects of International Trade
in Art, International Sales of Works of Art, Vol. V,
Kluwer Law International,
The Hague, 1996, pp. 175-183
SAFEGUARDING OF CULTURAL PROPERTY DURING OCCUPATION
 - the Hague Regulations of 1907 have retained their practical legal importance and even come to be of increasingly topical interest.
How could this legal situation, peculiar at first glance, come about? It can above all be explained by the delayed examination of the incidents, which, in the midst of the 20th century, led from the historic point of view an extremely grave transfer of cultural property, the dimension of which can hardly be grasped:
During World War II it was mainly the Nazi raids in the Soviet Union and other States that brought hundreds of thousands of works of art into Germany. Particularly the activities of the Einsatzstab Rosenberg and the SS-organization Ahnenerbe came to be notorious as raids of works of Art. After World War II the hunting for works of art, libraries and archives was continued on German soil in a totally reversed political situation. The background and extent of these looting raids have become fully known only after the changes brought about in year 1989. While the Allies made sure that, immediately after the war, cultural property plundered by Germans be collected at the so-called "Central Collecting Points" and returned to the USSR and other countries in many railroad carloads, items of cultural property carried off from Germany remained hidden in the East-European States. They remained stored there for about forty years and many of them were presumed lost. For after the end of the hostilities, during 1945 and 1949, mainly the Soviet Union carried off about more than two and a half million works of art from Germany to the the metropolis of the Soviet Union where a great number of them are still today kept in storage, partly in secret depots.
The legal starting point is furthermore complicated by the fact that the so called "trophy-commissions" of the Soviets also confiscated French and Dutch objects of art in Germany, which today also rest in Russia thus causing additional legal controversies.
It is not necessary here to deal in further detail with the raids carried out during and after World War II with quite diverse motivations. The main issue is to perceive the particular dimension of time that is relevant to the legal regime governing the objects of art here concerned. To begin with, it is certain that the UNESCO conventions which have come into force since 1954 can not apply directly to the period of time in question. Therefore the question arises as to which rules of public international law are relevant to the prior period of time.
With regard to the aspects of international protection of cultural property two levels are concerned. To the removal of movable cultural property is added the destruction of irreplaceable cultural monuments that ocurred anyway during the war on the territory of all States involved in World War II. In this respect the coincidence of physical destruction and deliberate removal shows the destructive force of war to be present also in the minds of the involved persons. It will only be mentioned in passing that private persons took advantage of the occasion to enrich themselves.
Still, the presumption that the reality of total war had created a kind of area exempt of the rule of law lacks all legal foundation. Therefore it was not accidental that the Nuremberg International Military Tribunal and other allied military tribunals also took the provisions of the Hague Regulations to be applicable and accused the main war criminals to have violated the rules of just that Convention.
Invoking the Hague Convention is a consequence of assuming that these provisions of 1907 are part of the applicable international law. The events of World War II could raise the question whether the Convention of 1907 could possibly be applicable with regard to the changed means and techniques of warfare. In spite of some controversies and seeing that above all the main accused in the Nuremberg trials invoked the inapplicability of the Hague Regulations, State practice made the validation of the Hague Convention during World War II its starting point. Disputes arose relating to the question whether the specific form of the occupation after 1945 called for modifications. It was a different matter whether the Hague Regulations were in effect only regarding the Allies but not regarding Germany, due to the latters unconditional surrender. Assuming the only limited or fragmentary applicability of the Convention the further question was discussed as to what limits would apply to measures of the Occupying Powers.
"The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.
All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings."
Given the nexus with Art. 46 works of art and science are set on an equal footing with private property even when State property is concerned.
In the subsequent period of time Art. 56 was seen as expressing the prohibition of any unilateral seizure of cultural property and put an explicit limit to the prior practice of unlimited looting. Thus a legal fight which had lasted almost the entire nineteenth century was finally concluded. This dispute had had its origin in the Napoleonic Wars and led to conferring the special status on the cultural property of States and peoples it has undoubtedly enjoyed from then on. It is significant that Art. 56 was formulated during the Conference of 1899 and accepted in the final provisions of 1907 without intense discussion.
The special status results on the one hand from the content of the Hague Convention itself and on the other, more generally, from the particular binding force of customary international law.
Considering the Regulations themselves it shows that the right to seize enemy property is abolished as far as it concerns works of art and science as well as the objects particularly protected by Art. 56 but not military equipment and supplies that are suitable to serve military purposes. Yet, as Art. 53 (2) expressly provides, these objects, as specified in Art. 53, must also be restored and a compensation be fixed when peace is made. This clearly lays down the rule that cultural property within the meaning of Art. 56 must not under any circumstances be seized. The Convention even goes further. It makes the seizure of works of art an absolute offence by providing that all seizure, destruction or wilful damage "should be made the subject of legal proceedings".
The above mentioned special status follows from an examination of the binding force of public international law. The success of the Hague Convention of 1907 was particularly evidenced as the Codification of the Law of War on Land by the Hague Regulations became universal customary international law as a result of general acceptance by the international community. Everybody familiar with the ranking of the sources in public international law will know that this generates an exceptional binding force for all subjects of international law irrespective of a State's having acceeded to the Convention or not.
The preamble of the Convention refers not only to the incompleteness of the stipulated regulations but also mentions the quality of future solutions in international law which have not as yet become the subject of explicit regulations. In these cases the inhabitants and the belligerents "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." At the same time, the limits and the level of any attempt to fill the existing gaps were determined explicitly. This detail may be interesting in case we come to infer a modification of the Convention.
An evaluation of the provisions of Art. 56 themselves does not, however, depend on this. The prohibition of seizure of cultural property is provided for explicitly and thus forms part of customary international law. The limits of Art. 56 appear when the delivery of cultural property agreed upon by contract is at stake. State practice considers the transfer of cultural property to be lawful as it is, for instance, stipulated in a peace treaty. Yet, unilateral seizure before the contractual agreement is prohibited. Already in the eighteenth century it resulted in a special and careful treatment of cultural property during wartime. But it was only Napoleon's defeat and the restitution made possible by this defeat of the spoils of war taken to France that brought about the turning point towards a more effective defense against the theory of looting. Besides the impact of religious grounds on the development of protection, works of art and science came to play an increasingly important role as symbols of the identity and the representation of an achievement by a state or a nation. Cultural property reflected the growth of the historic existence of a State or people. In as much as the Hague Convention deals with the strengthening of humanitarian protection, Art. 56 is also evidence of features of personal protection. Early concepts of a cultural heritage of mankind, as were already set out in the beginning of the nineteenth century, reinforced the humanitarian element in other ways. Carrying off cultural property of another people affects the latter's cultural existence in itself but also has international implications of the national cultural heritage.
In accordance with these historic bases, Art. 56 of the Convention had as a consequence that, after an armed conflict, cultural property was not at disposition as part of the common property of a State. Since the beginning of the century it could not, as a general rule, be subject of reparations. The Treaty of Versailles and several other post-war treaties concluded after World War I and II have indeed referred to the idea of "restitution in kind" but this has not led to the development of a rule of public international law or accepted State practice. Attempts to render possible the seizure of captured works of art as a means of compensation were abandoned . The efforts made between the wars for the sake of an extended protection of cultural property - as the Roerich Pact of 1935 and the works of Charles de Visscher before World War II - contributed to strengthening politically the protection of cultural property but did not modify the rules of international law themselves as set up by the Hague Convention of 1907. Referring these cases to 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, they also set out the criteria for an application of the principles of the Hague Convention in changed external circumstances. There is no need to mention further that the violations of the Hague Regulations by national socialist Germany could not render the provisions of the Hague Convention ineffective.
The unconditional surrender does not, in this respect, play a central role. On the one hand, its effects were concentrated on military issues. Given the lack of competence of the involved German representatives it did not therefore affect the State as such. On the other hand, other events also did not result by any means in Germany's ceasing to exist as a State. Its statehood came to be governed by a special status, dominated by the Four Powers. The discussions about the legal status of Germany immediately after 1945 filled entire libraries. Numerous variations of the legal assessment were submitted, ranging from occupatio bellica occupatio mixta, occupatio post bellum, ante pacem, to interventionist occupation. In this respect the particular objectives of the Allies in the war are of outstanding importance. It has been rightly underlined that allied war policy was directed primarily at demilitarization, denazification and democratization which hereby gave the legal nature of the occupation its particular characteristics.
Neither this nor other peculiar features result in the invalidation of the Hague Convention. This validity is consistent with the accusations at the Nuremberg Trials against the Nazi war criminals. They expressly were charged with "destruction et pillage d'oeuvres d'art" and the Nuremberg judgements were based specifically on the violation of Art. 56 of the Convention. Nevertheless it allowed for additional measures of the Allies in as far as they corresponded to the principles which the Hague Convention itself had set out, particularly the so called "Martens-Formula" to be found at the end of the preamble.
In this respect, the orientation the protection has taken in the Convention gains particular weight. It aims primarily at protecting the "inhabitants and belligerants" taking no consideration of a specific condition of State organization. So, right from the start, there were limits to filling the gaps by the means of allied law. These limits had to have their effects also on the protection of cultural property.
Starting from the principle that additions to the Hague Convention were possible where particularities of the occupatio bellica made them necessary, there is no internal reason for taking away cultural property from a State and rendering the provisions of Art. 56 ineffective. Cultural property of a State or a people does not concern the problem of how to organize the occupation under the changed external conditions. Carrying off cultural property could only be permitted for the purpose of guarding against wartime dangers as has been temporarily stated by the Soviet Union. Yet, there was no such danger in the Soviet area of occupation and East Berlin after termination of the hostilities. Quite a different question concerns the measures taken by the Allied Control Council regarding cultural property in Germany. The main attention was directed to restitution of treasures of art and the Allies handled this issue with considerable energy. Concerning German cultural property the Allied Control Council was more reserved after some irritations in the beginning. Thus, there is no general authorization of the Allied Control Council to carry off German cultural property, as a means of reparation or compensation. Merely the disposition of property belonging to so called Nazi war criminals has been rendered possible. Neither did the Allied Control Council authorize other forms of compensation for wartime destructions by Germans by means of taking away cultural property. Cases of restitution in kind, agreed upon in peace treaties with individual States like Italy or Bulgaria, have not created new State practice. As no peace treaty has been concluded with Germany - as is well known - but a distinct final agreement, there is no possibility of a transfer by means of a peace treaty. These clearly underline the obligation to return cultural property to the country of origin and rely, to this end, on a contemporary understanding of the national cultural heritage as being part of the cultural heritage of mankind. It is above all the newly independent States which stress the great importance of the national heritage as a symbol of their historic existence.
After the revolutionary changes of the year 1989/90 Germany has concluded several treaties relating to friendly and good-neighbourly relations with its eastern neighbours. The treaty concluded with the Soviet Union dating from November 1990 stipulates the return of cultural property that had been moved due to the war. However, Russia has by now come to consider the German cultural property stored in its museums and secret depots to have been transferred legally into the Soviet Union. The Russian Federation basically invokes authorities of the Allied Control Council which do not, however, exist in this form.
Rather, it was Joseph Stalin who, after World War II and the Nazi raids, initiated - contrary to the Russian tradition symbolized by the Hague Regulations and the activities of F. de Martens - the measures of a historically unique transport of cultural property of a foreign people. He also emptied nearly all museums, collections, archives, and sheltering depots in his zone of occupation and during more than four decades his successors concealed these stocks from the world public. The treasures that have not been returned to the GDR in the fifties and sixties can hardly be described here. They resemble to a walk across the entire German history and are to be described as national cultural heritage in the best sense of the word.
The legal assessment of the 1990 Treaties indeed raises the unavoidable question whether their interpretation would not rather have to rely primarily on present and future criteria as well as the UNESCO standards instead of invoking the spirit of war for legal consideration. The provisions of the Hague Convention of 1907, together with the UNESCO conventions form a legal basis which allows to interpret and implement existing Treaties in a manner that is adequate to modern requirements.
 UNESCO, ed. Conventions and Recommendations of Unesco concerning the protection of the cultural heritage (1985) p. 13 et seq.
 Procès des grands criminels de guerre devant le Tribunal Militaire International, vol. 1 (1947) p. 61 et seq., p. 254 et seq.
 See, e.g., S. TURNER in W. FIEDLER, ed., Internationaler Kulturgüterschutz und deutsche Frage (1991) p. 111 et seq.
 Th.C.HOWE, JR., Salt Mines in 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 (1985) p. 163 et seq.; TURNER, op. cit, supra n. 3, p. 154 et seq.
 See L. PROTT, "The Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict", this volume supra.
 See, e.g., the cases of the Dürer paintings (Kunstsammlungen zu Weimar v. Elicofon), the case of Quedlinburg or the case of the one hundred and one paintings returned to the foreign mission of the Federal Republic of Germany in Moscow in 1993 by a Russian soldier.
 Op. cit., supra n. 2, pp. 59, 228 and 251; L. OPPENHEIM and H. LAUTERPACHT, International Law, vol. 2 (7th ed., 1952) SS 69a; R. JENNINGS and A. WATTS, eds., Oppenheim's International Law, vol. 1 (9th ed., 1992) p. 33.
 S.A. WILLIAMS, The International and National Protection of Movable Cultural Property (1977) p. 27 et seq.
 E.g. J.W. BISHOP, JR. "The 'Contractual Agreements' with the Federal Republic of Germany", 49 Am. J.Int'l L. (1955) p. 125 at p. 126 et seq.; R. STÖDTER, Deutschlands Rechtslage (1948) p. 129 et seq.; W. GREWE, Ein Besatzungsstatut für Deutschland (1948) p. 123.
 E.g. K. VON LAUN, "The Legal Status of Germany", 45 Am. J.Int'l L. (1951) p. 274 et seq.
 E.g., STÖDTER, op.cit., supra n. 9, p. 228 et seq.
 "Family honour and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected. Private Property cannot be confiscated." Text in: L. FRIEDMAN, The Law of War, vol. I (1972) p. 308 at p. 322.
 WILLIAMS, op.cit., supra n. 8, p. 5 at p. 8 et seq.; D.M. QUYNN, "The Art Confiscations of the Napoleonic Wars", 50 Am. Hist. Rev. (1945) p. 437 et seq.; P. WESCHER, Kunstraub unter Napoleon (2nd ed., 1978); L. ENGSTLER, Die territoriale Bindung von Kulturgütern im Rahmen des Völkerrechts (1964) p. 91 et seq.; for the changed legal situation in the nineteenth century see F. de MARTENS, Traité de droit international, vol. III (1987) SSSS 119, 120.
 Art. 56 of the Hague Regulations is based on Arts. VIII and XXXII of the Declaration of Brussels, 1874. F. de Martens is named as "father" o the Brussels Declaration, legal advisor of the Russian Department of Foreign Affairs 1869-1909. He also presided the Commissions formulating the Hague Regulations of 1899/1907. The 1874 Brussels Conference was convoked by Czar Alexander II of Russia. Significantly Russia also convoked the Hague Conference of 1899.
 Deuxième Conférence Internationale de la Paix, La Haye 15 Juin-18 Octobre 1907, Actes et Documents, vol. 1, p. 96 et seq.
 E. KAUFMANN, Deutschlands Rechtslage unter der Besatzung (1948) p. 56 et seq.
 E.g. OPPENHEIM and LAUTERPACHT, op.cit., supra n. 7, SS 69a; I. SEIDL-HOHENVELDERN, Völkerrecht (7th ed.) SS 37; J.M. MÖSSNER, "Hague Peace Conferences of 1899 and 1907" in BERNHARDT, ed., Encyclopedia of Public International Law, part 3 (1982) p. 204 at p. 211; A. VERDROSS and B. SIMMA, Universelles Völkerrecht (3rd ed., 1984) p. 367.
 JENNINGS and WATTS, op.cit., supra, n. 7, p. 25 et seq., A. CASSESE, International Law in a Divided World (1986) p. 180 et seq.
 Preamble of the Hague Regulations, see FRIEDMAN, op.cit., supra n. 12, p. 309.
 W. FIEDLER, "Zur Entwicklung des Völkergewohnheitsrechts im Bereich des internationalen Kulturgüterschutzes" in Festschrift für Doehring (1989) pp. 199 et seq., p. 212; M.Ph. WYSS, Kultur als eine Dimension der Völkerrechtsordnung (1992) p. 86.
 FIEDLER, op.cit., supra n. 20, p. 215; TURNER, op.cit., supra n. 3, p. 50.
 See supra n. 13.
 S.V. SCHORLEMER, Internationaler Kulturgüterschutz (1992) p. 263 et seq.
 As consequence of the opinions of Quatremère de QUINCY, Lettres au général Miranda ..., 1796; see TURNER, op.cit., supra n. 3, p. 53 et seq.
 Art. 247, text in FIEDLER, op.cit.supra n. 3, p. 252.
 SCHORLEMER, op.cit.supra n. 23, p. 269 et seq.
 Ch. de VISSCHER, "La protection internationale des objets d'art et des monuments historiques", XVI RDI (1935) p. 32 at pp. 246 et seq.; DEPARTMANT OF STATE, Documents and State Papers, vol. I (June 1949, no. 15) p. 821 et seq.
 "It has not, however, been found possible at present to concert Regulations covering all the circumstances which arise in practice", FRIEDMAN, op. cit., supra n. 12, p. 309.
 E.g., F.A. MANN, "Germany's Present Legal Status", Intl. Comp. L.Q. (1967) p. 760 et seq., Studies in International Law (1973) p. 660 et seq.
 GREWE, op.cit., supra n. 9, p. 126 et seq.
 W. GREWE, "Die deutsche Frage beim Übergang vom Besatzungsregime zur Souveränität" (1984) in W. GREWE, Die deutsche Frage in der Ost-West-Spannung (1986) p. 90 et seq., p. 92.
 Op. cit., supra n. 2, p. 251 et seq.
 Ibid., p. 251.
 See supra n. 19; K. IPSEN, Völkerrecht (3rd ed., 1990) p. 1023.
 TURNER, op. cit., supra n. 3, pp. 127, 130.
 Ibid., p. 116 et seq.; KURTZ, op. cit., supra n. 4, p. 131, p. 142 et seq.
 See supra n. 25.
 See supra n. 1.
 W. FIEDLER, "Neue völkerrechtliche Ansätze des Kulturgüterschutzes" in: G. REICHELT, Internationaler Kulturgüterschutz (1992) p. 69 at p. 76 et seq.
 Treaty between the Federal Republic of Germany and the Union of Socialist Republics on Good-Neighborliness, Partnership and Cooperation, 9 November 1990, Art. 16(2) in 30 ILM (1991) p. 505 et seq.; Treaty between the Federal Republic of Germany and the Republic of Poland on Good-Neighborliness and Friendly Cooperation, 17 June 1991, Art. 28(2), BGBI. II (1991) p. 1315 et seq.
 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 1899 und 1907. Handbuch des Völkerrechts, vol. 5(1915) p. 22 et seq., p. 30 et seq. and Ph. ZORN, Weltunionen, Haager Friedenskonferenzen und Völkerbund (1925) p. 11.
 The Federal Republic of Germany in June 1994 identified about 200,000 works of art (Museumsgüter), two million books and three kilometres of archives.
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