At a recent meeting of the American Commission, the principles which this
Commission should urge with respect to the restitution, replacement and
restoration of works of art, books, and archives were agreed upon. I am
enclosing a memorandum11
which sets forth these principles and refers to a possible method for their
enforcement. As you will note, the principles follow closely the statements
of policy contained in the memorandum of the Department of State. Certain
additional principles, however, have been suggested.
With regard to measures for the enforcement of the restitution principles,
the Commission suggests that consideration be given to (1)
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the military directives issued by Supreme
Headquarters, Allied Expeditionary Force12 and (2) the draft directive prepared by the American
Delegation to the European Advisory Commission, to be issued to the
Commander in Chief of the Forces of Occupation,13 both of which are appended to the attached statement
of principles as Annexes I and II respectively. The Commission calls
attention, however, to the desirability of clarifying those enforcement
measures in two respects: (1) all directives and military ordinances
relating to fine arts and monuments should refer specifically to “books” and
“archives”, as well as to “works of art”, “objects of scientific or
historical importance”, or “objects of other cultural importance”; and (2)
if the military occupation authorities decide that an object is a “work of
art” or “other cultural material”, there should be no discretion with regard
to assuming control of it, as seems to be permitted in paragraph 8 of the
draft directive of the European Advisory Commission.
I also submit for your consideration a memorandum which was forwarded to this
Commission by the British Committee on the Preservation and Restitution of
Works of Art, Archives, and Other Material in Enemy Hands. That memorandum,
addressed to the Secretary of State for Foreign Affairs and dated September
20, 1944, recommends the formation of an international body to advise on the
problems of conservation and control of works of art, books, archives, and
other cultural materials in Germany. A photostatic copy of the memorandum is
enclosed.14
I am authorized to say that the American Commission concurs in the
recommendation of the Macmillan Committee, with two qualifications: (1) if
the commission that is recommended should be formed, such commission should
not only advise the military commander of the occupation forces but should
be the international agency to exercise the trusteeship of the cultural
materials in Germany referred to in the 12th principle suggested by this
Commission; and (2) any such international agency should be a United Nations
organization.
The Commission will be happy to render to the Department all possible
assistance in regard to this matter.
[Enclosure 1]
Memorandum on Principles for the Restitution of Works
of Art, Books, Archives, and Other Cultural Property15
[Washington,] October 11, 1944.
The following recommended principles are based on the memorandum of the
Department of State formulating certain statements of policy with
respect to reparation, restitution, and property rights vis-à-vis
Germany generally, submitted to the American Commission by the Secretary
of State on Sept. 2, 1944. Where those statements of policy have been
rephrased, it has been to express the views of this Commission.
1. There should be an unlimited obligation on Germany
to restore identifiable looted works of art, books, archives, and
other cultural treasures.
Comment. This principle is stated in its broadest
terms, although it is recognized that there will be practical
limitations with regard to its application. Subsequent statements of
policy of principles express some of those practical limitations, and
are not to be understood as contradictory of this basic principle.
It is assumed that this principle will be applicable to all Axis
countries and satellites. If it is not, an obvious loophole is left in
the scheme of restitution. Nazi loot may be deposited for example in
Italy, Hungary, or Austria. The obligation of the principal offender
should also be the obligation of the accessories. It should be noted,
however, that the obligation to restore applies between Axis Nations and
satellites. Thus, it is intended that paintings taken by the Germans
from Italy shall be returned to Italy.
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2. Restitution should be restricted to identifiable
property in existence prior to German occupation.
Comment. The Commission believes that this
statement is a practical limitation on the general principle expressed
in paragraph 1 which is desirable from the standpoint of
administration.
3. 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.
Comment. This principle expresses a basic rule of
international law which the Commission believes to be sound, although it
is understood that minority groups in various European countries have
suggested that [it?] be abandoned.
4. Looted property should be returned in the condition
in which it is found.
Comment. This principle means that the Allied
Nations will not permit or require Germany to rehabilitate physically
damaged works of art. It is assumed that the Allies will be better able
to assess the amount of damage done to works of art if they are returned
in the condition in which they are at the time of the armistice. It is
contemplated, of course, that costs of rehabilitation by the Allied
Nations shall be charged against Germany.
5. The return of such property should not count as a
credit against Germany’s other reparation obligations unless those
obligations are expressly based on the removal of the
property.
Comment. In view of the great administrative
difficulty which would be involved, the Commission ventures no opinion
with respect to the allowance of damage for the loss of use of works of
art and other cultural treasures.
6. In any case where damage to property is caused by a
bona fide effort by the Germans to save the property, reparation may
not be charged.
Comment. The obligation to pay damages should not
attach where there has been no wrongful act. However, this principle may
be entirely eliminated if it is decided that the initial German
aggression made that country responsible for all damage flowing from the
war regardless of subsequent bona fide efforts to prevent such
damage.
7. All property removed to Germany during the period of
German occupation (except for current output
as contemplated under paragraph 2 above) shall be presumed to have been transferred under duress and
accordingly treated as looted property.
Comment. This principle means, among other
things, that purchases of works of art by Germans in occupied countries
will not be recognized as legal acquisitions. The principle is merely an
expression
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of the generally
accepted view that the legal devices employed by the Germans as part of
their occupation technique will be disregarded.
8. If identifiable looted works of art, books,
archives, and other cultural treasures cannot be found, there should
be an obligation on Germany to replace such articles by a comparable
work of art or cultural treasure from their own public or private
collections.
Comment. For example, assume that the Ghent
Altarpiece which is known to have been taken to Germany has disappeared.
Restitution is not possible because the object has disappeared. It may
be that monetary compensation will not fully satisfy the Belgian
Government. In that case, the only way in which the Belgian Government
can be compensated is to apply the above-stated principle of
replacement, namely, to require the German Government to turn over an
equivalent from its collections of Flemish pictures. If the article is
so unique that no other similar article (or articles) is deemed to be
equivalent, then an approximate replacement should be required from any
other cultural material belonging to public or private collections in
Germany. It is obvious that the application of the principle of
replacement will call for international judicial tribunals to decide
what is an adequate discharge of Germany’s obligations.
It is intended that the cultural resources to be used by Germany to
replace looted works of art shall be those of Germany and not Italy or
other Axis satellites. In other words, the art of Italy is not to be
used to satisfy claims against Germany for reparation in kind.
The following principles recommended by the American Commission are
not contained in the State Department memorandum:
9. There should be established by all European
countries, neutrals as well as belligerents, a freezing control
on the exportation and importation of works of art, books,
archives, and other cultural property.
Comment. United States and Great Britain have
already set up such controls, at least so far as the importation of
works of art is concerned. See (1944) 9 Fed[eral] Reg[ister] 6239. By definition, the
vast quantity of current commercial art objects which forms the
stock in trade of certain types of “art” dealers should be excluded
from this control.
10. The destruction of identifiable looted property
by Allied bombing or other military action should not relieve
Germany of the obligation to make reparation or to replace that
property with other equivalent art.
11. In the application of the principle of
replacement, such replacement should be so limited as not
altogether to deprive Germany of access to cultural
materials.
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Comment. This qualification means that German
cultural materials should not be disposed of in such a way as to
make a cultural desert of Germany itself. To do so would be to
create an area of ignorance and superstition which might well serve
as a breeding place for future war. It is not only possible but
probable that demands for restitution in kind will exceed in
quantity the materials available in Germany for their satisfaction.
Without some limitation of the kind suggested, Germany might well be
denuded of works of art, books, and museum exhibits.
12. To carry out effectively the policies above set
forth, consideration should be given to the creation of a United
Nations committee, empowered to hold in trust and to administer
the cultural resources of Germany, in order to repair, so far as
possible, the injury done to communities and peoples deprived of
access to art galleries, libraries, scientific museums, and
cultural materials generally.
Comment. This principle provides for an
administrative body, which will obviously be essential to the proper
administration of any program of effective restitution. The
administrative body should be, of course, a United Nations
organization and might well be set up under the principal United
Nations organization once that organization is created. The
destruction of libraries, galleries, museums, etc., throughout parts
of Europe creates a critical cultural problem of the first
magnitude. The only feasible method of restoring to the peoples of
occupied areas some degree of access to cultural materials is to
make materials belonging to Germany as widely available to the
victims of cultural depredation as possible. The principle here
proposed, providing for trusteeship of German cultural property,
will constitute an effective and equitable beginning of a program of
substantial cultural restitution. The Commission will marshal
cultural resources for disposition in accordance with the principles
of restitution ultimately adopted, and will also make those
resources available to the extent it deems advisable, having regard
to maintaining in Germany the basic materials for cultural life, for
the satisfaction of claims determined by international
tribunals.
Matters not covered by the above principles.
The following situations are not touched upon in the memorandum of
the Department of State, and the Commission does not feel that it
can make a recommendation regarding the principles or statements of
policy which should govern in these cases:
- (A)
- Property appropriated by Germany from her own
nationals;
- (B)
- Cultural property which was formerly in an Allied country
found in another Allied country, as, for example, paintings
from a French museum found in Holland;
- (C)
- Allied art property found in neutral countries.
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Comment. In regard to cases (B) and (C),
attention is directed to Recommendation VI of the Final Act of
United Nations Monetary and Financial Conference, adopted at Bretton
Woods, N. H., on July 22, 1944,16 as follows:
“That all Governments of countries represented at this
Conference take action consistent with their relations with
the countries at war to call upon the Governments of neutral
countries
- “(a) to take immediate measures
to prevent any disposition or transfer within
territories subject to their jurisdiction of any
- “(1) assets belonging to the Government or any
individuals or institutions within those United
Nations occupied by the enemy; and
- “(2) looted gold, currency, art objects,
securities, other evidences of ownership in
financial or business enterprises, and of other
assets looted by the enemy;
- “as well as to uncover, segregate and hold at the
disposition of the post-liberation authorities in the
appropriate country any such assets within territory
subject to their jurisdiction;
- “(b) to take immediate measures
to prevent the concealment by fraudulent means or
otherwise within the countries subject to their
jurisdiction of any
- “(1) assets belonging to, or alleged to belong
to, the Government of and individuals or
institutions within enemy countries;
- “(2) assets belonging to, or alleged to belong
to, enemy leaders, their associates and
collaborators; and
- “to facilitate their ultimate delivery to the
post-armistice authorities.”
The Commission believes that the adoption by the
interested nations of Recommendation VI of the Final Act of the
United Nations Monetary and Financial Conference, Bretton Woods, N.
H., will provide an adequate guide for situations (B) and (C)
above.
Enforcement Measures
In implementing the principles set forth in this memorandum, the
Commission recommends that consideration be given to the
administrative measures already taken by the Supreme Headquarters,
Allied Expeditionary Force, contained in the ordinance on property
control17 issued by the
Supreme Commander, Allied Expeditionary Force, and the functional
policy directive for monuments and fine arts in Germany.18 Those orders are attached hereto as Annex
I.
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The Commission further recommends that consideration be given the
issuance of the draft directive to the Commander-in-Chief of the
Forces of Occupation (US) (UK) (USSR), prepared by the staff of the
American Delegation to the European Advisory Commission in London,
dated Sept. 14, 1944.19 The draft
directive has already been submitted to the Department of State by
Mr. Lightner,20 Secretary of the European Advisory Commission, and is
attached hereto as Annex II.
The Commission has, however, two recommendations in connection with
the enforcement measures:
- (1)
- All directives and military ordinances on this subject
should refer specifically to “books” and “archives”, as well
as to “works of art”, “objects of scientific or historical
importance”, or “objects of other cultural
importance”.
- (2)
- In the draft directive of EAC to the Supreme Occupation
Authority (Annex II), clarification of paragraph 8 would
seem desirable with respect to the discretion conferred.
Once the Occupation Authority determines that an object is a
“work of art” or “other cultural material”, no discretion
with regard to assuming control of it should be
permitted.
