Foreign Relations of the United States: Diplomatic Papers, 1944, General: Economic and Social Matters, Volume II

840.403/7–2744

The Secretary of State to the Chairman of the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas (Roberts)

Washington, September 2, 1944.

My Dear Justice Roberts: I wish to thank you for your letter of July 27, 1944⁶ in which you stated that the American Commission for the Protection and Salvage of Artistic and Historic Monuments in the War Areas is prepared to carry out the duties prescribed to be performed by it at the time of the Armistice, as set out in paragraphs 8 (i) and (ii) of the Department’s letter of June 21, 1943 to the President.⁷

The Department of State has not considered any specific directives on the restoration of works of art and historic monuments to be included in the Armistice terms, but it has formulated certain statements of policy with respect to reparation, restitution, and property rights vis-à-vis Germany which are applicable in part to works of art and historic monuments.

A summary of these statements of policy, prepared by a committee within the Department, has been approved by the Executive Committee on Economic Foreign Policy, an inter-departmental committee,⁸ and is designed to serve as the basis for instructions to representatives of this Government negotiating with other Allied governments on the named subjects. Attached is a memorandum in which are set out relevant excerpts from section 5 of the summary which deals in general terms with restitution and replacement and makes a special reference to restoration in kind of artistic and cultural articles. Following this section, there are quoted in the memorandum more detailed recommendations on these subjects which are contained in the full report of the Department’s Committee referred to. The gist of the Committee’s recommendations has been communicated to members of the staff of the American Commission from time to time.

The Department would appreciate receiving an expression of the views of the American Commission with regard to the application of the principles set out in the accompanying memorandum to the restoration of looted artistic and cultural objects.

Sincerely yours,

Cordell Hull

[Enclosure]

Memorandum⁹

“5. Restitution and Replacement.

“The principal recommendations with respect to this subject may be summarized briefly as follows:

a) In principle there should be an unlimited obligation on Germany to restore identifiable looted property, even though in practice official efforts to locate such property will have to be confined to a limited number of categories.

b) Restitution should be restricted to identifiable property in existence prior to German occupation. Looted property should be restored to the existing governments of the territories where the property had its situs and not to the former owners individually.

c) Looted property should be returned in the condition in which it is found. The return of such property should not count as a credit against Germany’s reparation obligation nor should it be deducted from the reparation claim of the recipient.

d) All property transferred to Germany during the period of German occupation (except for current output) should be presumed to have been transferred under duress and accordingly treated as looted property.

e) The right to restitution is not absolute. The Allied authorities should have the discretionary right to prevent or postpone restitution of vital equipment (such as, e.g., rolling stock) whenever such equipment is deemed essential to assist the revival of a seriously disorganized country.

f) It has been suggested that, in addition to restitution and reparation, countries having suffered property losses be entitled to “replacement”, meaning the receipt of an equivalent piece of property for property lost or destroyed. It is believed that the “replacement” category would be a source of confusion and that it would serve no purpose that could not be served equally well by reparation in kind. It is, therefore, recommended that no claims for replacement be allowed except in the cases of (1) gold and (2) works of art and other cultural treasures, these exceptions being justified by the peculiar importance attached to those categories of goods.

“An obligation to locate and restore looted property removed to Germany or retained under German control should be imposed on the German Government—presumably in the armistice terms or peace treaty. It is anticipated, however, that the Allied control authorities will probably have to play an important role in the task of locating and returning the property.

“No attempt should be made to make restitution to the original owners individually. The object is to restore to the occupied countries as much of their looted property as can reasonably be found and restored. The German Government and/or the Allied control authorities should restore whatever looted property they find to the legitimate governments of the liberated countries. The question of restoration to individual owners is a matter for these governments to handle in whatever way they see fit. The original owners may have received part payment for property taken from them under duress and the governments in question may wish to make adjustments for this circumstance in returning the property. In some cases it may be impossible to locate the original owners or their heirs and the governments involved will have to decide what should be done with the property or proceeds therefrom.

“All property transferred to Germany during the period of occupation (except for current output) should be presumed to have been transferred under duress and accordingly treated as looted property. This should be done regardless of whether complete or partial payment may have been made in recompense. Property purchased by German nationals during the occupation may have been legally purchased with local funds, but there is reason to believe that in many, if not most, cases the local funds were supplied originally by the local governments or central bank as occupation costs or through forced credits. The Germans in effect forced the local government to pay for their purchases. The individual owner received recompense in local currency but the country as a whole received no compensation for the transfer of property to foreign owners. These cases constitute looting just as much as the cases of outright seizure.”

“For political reasons the right to restitution should be recognized in all cases and for all classes of property. This is desirable both as a gesture to meet the expectations of the various Allied governments and as a logical corollary to the Inter-Allied Declaration of January 5, 1943.¹⁰ As a practical matter, however, restitution should be restricted to relatively few kinds of property. A thorough search for all the miscellaneous kinds of property which have been looted is utterly impracticable, but vigorous efforts should be made to locate the following: archives and records of the occupied countries; gold; works of art; historical and educational treasures, including libraries. Since efforts by German authorities after the armistice to locate and restore these classes of property may be desultory, the occupation authorities should be prepared to assist in locating and restoring the above-mentioned categories of looted property. German archives may be helpful for this purpose. In addition, the Germans should be required to provide reports and information which may be helpful to the Allied control authorities in this connection.”

“Consideration was given to the suggestion that the right to restitution should be restricted to a definite interval of time following the armistice. This would have the effect of giving the existing holder clear title to the property after this date. It was felt, however, that if this date was reasonably soon after the armistice, efforts to conceal looted property and prevent its return until the time when it would no longer be subject to seizure and return would be stimulated. On balance, therefore, it was felt that such a provision would be undesirable, although it is recognized that efforts for the restitution of looted property will, as a practical matter, be made only during a relatively short period following the armistice.”

6. Not printed; it stated that Haisons had been established with the War Department, the Maemillan Committee constituted by the British Government, and the Inter-Allied Committee for the Protection and Salvage of Cultural and Historical Monuments in Europe (Vaucher Committee) organized by the Allied Ministers of Education in London during April 1944. Justice Roberts added that both governmental and private gathering agencies were compiling lists of property appropriated by Axis agents from public and private collections. In notifying the Secretary that the Commission was now prepared to carry out the duties to be assumed by it at the time of the Armistice, Justice Roberts inquired whether the Department of State had prepared directives relative to art restitution to be included in the armistice terms. (840.403/7–2744)
7. For text of letter, see Foreign Relations, 1943, vol. i, p. 475.
8. This Committee, composed of representatives from the Departments of Labor, Agriculture, Treasury, Commerce, and State, the United States Tariff Commission, and the Foreign Economic Administration, was constituted on April 18, 1944, pursuant to a letter from President Roosevelt to the Secretary of State. The various subcommittees of this group examined problems and developments affecting the foreign economic policy of the United States and formulated recommendations for the consideration of the President and the Secretary of State. The secretariat and subcommittees functioned under the Office of Economic Affairs, Department of State, until January 1945, when they were placed under the direction of an Assistant Secretary of State.
9. Extracted from “Report on Reparations, Restitution, and Property Rights—Germany”, dated July 31, 1944, prepared by the Executive Committee on Economic Foreign Policy as ECEFP D–31/44.
10. Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control; for text, see Foreign Relations, 1943., vol. i, p. 443, or British Cmd. 6418, Misc. No. 1 (1943).