I. THE STARTING POINT
One of the most peculiar features of the development of the twentieth century
is that, at its end, certain rules of public international law which were
formulated almost 100 years ago are under discussion now. Despite the manifold
activities and achievements of UNESCO - particularly by the means of the
Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict of 1954[1]
- 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.[2]
After World War II the hunting for works of art, libraries and archives
was continued on German soil in a totally reversed political situation.[3]
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"[4]
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[5]
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.
II. APPLICABILITY OF THE HAGUE CONVENTION
DURING AND AFTER WORLD WAR II?
The ernormous amount of cultural property carried off as spoils of war
during and after World War II shows that the war was used by different
parties, in a way unheard of and with quite diverse intentions, to knowingly
carry off the cultural heritage of peoples and States and take it to their
own territory.
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.[6]
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.[7]
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,[8]
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.[9]
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.[10]
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.[11]
III. CONTINUED VALIDITY OF ART. 56
Taking into consideration the aspects of the protection of cultural property
during and after World War II these questions have turned out to be of
particular importance nowadays. This is because Art. 56 prohibits any seizure,
destruction or wilful damage of works of art and science:
"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[12]
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.[13]
It is significant that Art. 56[14]
was formulated during the Conference of 1899 and accepted in the final
provisions of 1907 without intense discussion.[15]
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.[16]
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.[17]
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.[18]
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."[19]
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.
IV. REASONS FOR THE PARTICULAR PROTECTION
OF CULTURAL PROPERTY
The special status conferred to cultural property by the Hague Convention
and the confining of the right to take enemy property mark a legal development
which has its origins in the writings of, for example, Hugo Grotius.[20]
Already in the eighteenth century it resulted in a special and careful
treatment of cultural property during wartime.[21]
But it was only Napoleon's defeat and the restitution made possible by
this defeat of the spoils of war taken to France[22]
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.[23]
Early concepts of a cultural heritage of mankind, as were already set out
in the beginning of the nineteenth century,[24]
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[25]
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[26]
and the works of Charles de Visscher before World War II[27]
- 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.
V. MODIFICATIONS OF THE HAGUE REGULATIONS
BY STATE PRACTICE DURING WORLD WAR II?
The doubts that have arisen concerning the applicability of the Hague Convention
to the war period are due to overestimating the changed technology of warfare
and an incorrect qualification of its legal foundations. It cannot be denied
that the creators of the Convention had a certain conception of war in
mind which, already in World War I, no longer corresponded to reality and
even less so in World War II. However, the Convention's relation to practice
has from the start had a predisposition for future practice. Even in the
preamble the authors of the Convention admitted that it had not been found
possible at that time to arrange regulations covering all the circumstances
which arise in practice.[28]
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.
VI. THE HAGUE CONVENTION AND THE PARTICULAR
FEATURES OF THE OCCUPATION OF GERMANY
Problems arise, however, concerning the applicability of the Hague Convention
to the Occupation Statute decreed in Germany once the hostilities had ended.
Art. 42-55 are based on the standard case of a belligerent occcupation
(occupatio bellica) which did not apply completely to Germany after
1945.
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.[29]
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.[30]
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[31]
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"[32]
and the Nuremberg judgements were based specifically on the violation of
Art. 56 of the Convention.[33]
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.[34]
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.[35]
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.[36]
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.[37]
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.
VII. RECENT TREATIES DEALING WITH
RESTITUTION
This state of affairs results in plain conclusions when war and post war
period are considered separately: The Hague Convention of 1907 remained
in force also during and after World War II and has since 1954 been completed
by the UNESCO Conventions.[38]
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.[39]
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.[40]
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[41]
- 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.[42]
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.
[1]
UNESCO, ed. Conventions and Recommendations of Unesco concerning the protection
of the cultural heritage (1985) p. 13 et seq.
[2]
Procès des grands criminels de guerre devant le Tribunal Militaire
International, vol. 1 (1947) p. 61 et seq., p. 254 et seq.
[3]
See, e.g., S. TURNER in W. FIEDLER, ed., Internationaler Kulturgüterschutz
und deutsche Frage (1991) p. 111 et seq.
[4]
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.
[5]
See L. PROTT, "The Protocol to the Convention for the Protection
of Cultural Property in the Event of Armed Conflict", this volume supra.
[6]
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.
[7]
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.
[8]
S.A. WILLIAMS, The International and National Protection of Movable
Cultural Property (1977) p. 27 et seq.
[9]
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.
[10]
E.g. K. VON LAUN, "The Legal Status of Germany", 45 Am. J.Int'l L. (1951)
p. 274 et seq.
[11]
E.g., STÖDTER, op.cit., supra n. 9, p. 228 et seq.
[12]
"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.
[13]
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.
[14]
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.
[15]
Deuxième Conférence Internationale de la Paix, La Haye 15
Juin-18 Octobre 1907, Actes et Documents, vol. 1, p. 96 et seq.
[16]
E. KAUFMANN, Deutschlands Rechtslage unter der Besatzung (1948)
p. 56 et seq.
[17]
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.
[18]
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.
[19]
Preamble of the Hague Regulations, see FRIEDMAN, op.cit., supra
n. 12, p. 309.
[20]
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.
[21]
FIEDLER, op.cit., supra n. 20, p. 215; TURNER, op.cit., supra
n. 3, p. 50.
[22]
See supra n. 13.
[23]
S.V. SCHORLEMER, Internationaler Kulturgüterschutz (1992) p.
263 et seq.
[24]
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.
[25]
Art. 247, text in FIEDLER, op.cit.supra n. 3, p. 252.
[26]
SCHORLEMER, op.cit.supra n. 23, p. 269 et seq.
[27]
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.
[28]
"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.
[29]
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.
[30]
GREWE, op.cit., supra n. 9, p. 126 et seq.
[31]
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.
[32]
Op. cit., supra n. 2, p. 251 et seq.
[33]
Ibid., p. 251.
[34]
See supra n. 19; K. IPSEN, Völkerrecht (3rd ed., 1990)
p. 1023.
[35]
TURNER, op. cit., supra n. 3, pp. 127, 130.
[36]
Ibid., p. 116 et seq.; KURTZ, op. cit., supra n. 4,
p. 131, p. 142 et seq.
[37]
See supra n. 25.
[38]
See supra n. 1.
[39]
W. FIEDLER, "Neue völkerrechtliche Ansätze des Kulturgüterschutzes"
in: G. REICHELT, Internationaler Kulturgüterschutz (1992) p.
69 at p. 76 et seq.
[40]
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.
[41]
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.
[42]
The Federal Republic of Germany in June 1994 identified about 200,000 works
of art (Museumsgüter), two million books and three kilometres
of archives.
