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

840.403/11–1744

Memorandum on the Protection, Restitution, and Reparation of Objets d’Art and Other Cultural Objects²⁴

No. 478

London, November 17, 1944.

I. The Problems Involved

The major problems regarding objets d’art, monuments and other cultural objects which will affect our relations with other states can be grouped under the following categories:

(a) Problems connected with the protection of objets d’art, monuments and other cultural objects.

(b) Problems connected with the disposition of objets d’art and cultural objects which may come into the possession of U.S. forces.

(c) Problems involved in recovering objets d’art and cultural objects owned by American citizens or institutions which have been destroyed, damaged or seized by representatives of the Axis powers.

(d) Problems connected with assessing and collecting reparations for destroyed or irrecoverable objets d’art and cultural objects owned by citizens and institutions of the United States and of other Governments to the extent that their interests may be affected by our position as one of the powers occupying Germany and other Axis states.

II. Agencies Interested in These Problems

A large number of national and international agencies are currently interested in some or all of the problems involved. The international agencies concerned are:

(a) European Advisory Commission.²⁵ This body will presumably lay down broad lines of tripartite policy regarding restitution and reparation to be applied in Germany and Austria subsequent to the defeat or collapse of Germany. According to reliable reports, it has not yet considered these matters.

(b) SHAEF²⁶ SHAEF is primarily interested in the problem of protection in the Western European theater, but it has also issued a general order calling for the freezing of objects of art and culture,²⁷ Until it is dissolved upon the defeat of Germany, it will have to execute any policy decided upon for the disposition of such objects. Upon dissolution of SHAEF, its American component in this field will presumably be regrouped under the U. S. Commander-in-Chief in Germany and will continue to operate in the area of American responsibility.

(c) Combined Civil Affairs Committee.²⁸ This U.S.–U.K. committee makes policy decisions on civil affairs which are communicated to SHAEF. It is interested in all the problems under discussion to the extent that they require action during the period of combined U.S.–U.K. operations in Europe.

(d) Commission for the Study of the Armistice.²⁹ This body, which was established by the exiled governments to formulate proposals respecting armistice terms to be placed before the great powers, has shown particular interest in the problems of restitution and reparation.

(e) Conference of Allied Ministers of Education.³⁰ The Conference, which contains representatives of Great Britain and her Continental Allies and to which the U.S., the U.S.S.R., India and the Dominions have sent observers, has interested itself in the problems of restitution and reparation and to a lesser extent in the problem of protection. The Conference first elaborated a restitution scheme in a sub-committee of its Books and Periodicals Commission. Since April 1944 its Commission on the Protection and Restitution of Cultural Material (the Vaucher Committee) has considered problems relating to protection, restitution and reparation.

(f) The War Crimes Commission³¹ is giving consideration to the problems of punishing persons who have been guilty of looting or other crimes against property, including cultural objects.

The national agencies concerned are:

(a) American

(i) The Roberts Commission³² has done more work than any other body in the field of protection and has sent three representatives to London to discuss this problem and the problems of revindication and reparation with representatives of SHAEF, the European Advisory Commission, the Conference of Allied Ministers of Education and the British and Allied Governments.

(ii) The State Department.³³ The Department has been represented by observers at the Conference of Allied Ministers of Education since May 1943 and has been kept currently informed of activities of the Conference relating to the problems under review. Moreover, Mr. Archibald MacLeish, in behalf of the American Education Delegation and the Roberts Commission, made certain suggestions to the Conference of Allied Ministers of Education in April 1944 regarding the protection and revindication of objects of art and culture.³⁴ The Department’s continuing Delegate³⁵ has sat on the Vaucher Committee since its formation and is the official American “collaborator” in a legal sense, although he has at all times had the invaluable assistance of the Roberts Commission’s London representative,³⁶ who has represented that body on the Vaucher Committee.

The Department is also responsible for laying down policy for the guidance of the American Delegation to the European Advisory Commission and the American Delegate to the War Crimes Commission. It is likewise represented on the CCAC.³⁷

(iii) War Departments³⁸ The Civil Affairs Division contains Fine Arts and Monuments Officers whose functions are primarily protective. When SHAEF is dissolved, this section will presumably continue to administer the freezing order and execute any policy decided upon for the disposition of objects which have been frozen by U.S. forces. The War Department, like the State Department, is represented on the CCAC.

(iv) OSS³⁹ and FEA.⁴⁰ These agencies have no direct interest in any of the problems outlined in Section I but have uncovered information about the looting of cultural and art objects in connection with certain of their investigations which will be useful to the military and to any civilian agencies which may be charged with restitution or reparation activities.

(b) British

(i) The Macmillan Committee, which was formed very recently, is primarily interested in problems of restitution and reparation.

(ii) The War Office,⁴¹ which established a section under Sir Leonard Woolley, is primarily concerned with protection. Like the American Civil Affairs Division, it may have to undertake larger responsibilities when SHAEF is dissolved.

(iii) The Foreign Office is understood to be very much interested in problems relating to restitution and reparation and its representative in the Conference of Allied Ministers of Education has informed the Embassy that it will soon submit a paper covering the broad problem of restitution to the EAC.⁴³

(c) French

France has just established a national commission analagous to the Roberts and Macmillan Commissions which presumably will interest itself primarily in problems of restitution and reparation.⁴⁴

(d) Soviet

A Committee on Reparations (which includes Restitution) has reportedly been at work since about September 1943. There is also a well staffed Commission for the investigation and assessment of war losses, and a Commission for the Preservation and Restitution of Architectural Monuments.

(e) Belgian

The Belgians have taken steps to form a commission similar to the French body.⁴⁵

III. Progress to Date

(a) Protection

More or less adequate arrangements have been in existence for some time for the protection of monuments and objects of art and culture in operational areas; and, as indicated above, SHAEF has issued an order “freezing” all objects which may fall into the hands of the liberating forces. As the Department is aware, fine arts and monuments officers are attached to units of the United States Army operating on the Continent, and these officers have in many cases helped our forces to avoid damaging or destroying important monuments and artistic and cultural objects, and have protected objects and monuments which have come into our possession.

(b) Disposition of Objects Held by U. S. Forces⁴⁶

The United States Army has already decided that it will not attempt to determine the ownership of objects of art or culture which may come into its possession under the freezing order. In other words, it will care for such objects and hand them over to any agency or agencies designated by superior authority.

It is generally agreed that the interests of the United States as temporary custodian of these objects would be best served if they could be turned over in good condition to a body empowered by all the claimant United Nations to assume custody over them and to restore claimed objects to their owners. Axis property transferred to this agency, upon being so classified, could, if an agreed basis were adopted, be used for making reparation in kind or could be held at the disposition of any agency which might be established by the United Nations to deal with reparation questions. It is regarded as most desirable that any agency empowered to receive cultural objects frozen by American forces should also act in a similar capacity as regards any objects frozen by British, Russian or other Allied forces. But the legal obligations of the United States in this matter could probably be met if all claimants to objects in the possession of our forces accepted membership in a custodial body with clearly defined functions or agreed to accept the decisions of such a body.

Thus far international planning for restitution of objects of art and culture has been attempted only by the Commission for the Study of the Armistice and the Conference of Allied Ministers of Education. Early in 1943 the Commission for the Study of the Armistice drafted a scheme for the recovery and replacement from enemy sources of objects of cultural value missing from any of the United Nations through enemy action. The Conference of Allied Ministers of Education through subordinate agencies studied this plan and drafted a number of alternative proposals. Ultimately the Conference and the Commission agreed upon a final text which was circulated to the Delegations on the European Advisory Commission for their consideration. This scheme, which reflects the views of the small powers, recommends the appointment of a cultural objects commission by an Office Interallié des Restitutions et Prestations, which would be the European United Nations authority for restitution and reparation. The proposed commission would contain art experts and legal authorities who would verify and arbitrate claims of United Nations Governments for cultural objects located within the territory of Czechoslovakia on or after September 28, 1938, or within European territory of any other of the United Nations on or after September 1, 1939, which have been destroyed, damaged or removed from that territory by enemy action. The Commission would not concern itself with objects moved from one part to another of the territory of any of the United Nations, but with the assent of the Government of any of the United Nations, it would also take possession of cultural objects within the territory of that Government believed to have been brought into that territory by enemy action from the territory of any other of the United Nations or from enemy territory. Moreover, it would be empowered to take possession of any cultural objects found in enemy territory. Objects coming into its possession would either be restored to claimant United Nations or would be used for making reparation in kind. The Commission would have subordinate powers sufficient to enable it to perform these tasks successfully.^*

Thus far the European Advisory Commission has not considered this scheme, nor have any of the major powers approved or rejected it. It is understood that the Macmillan Committee regards it as too detailed and as lacking definitions of broad principles. Lord Macmillan is said to have described parts of the scheme as legally unsound, but it must be pointed out that Mr. Harvey, Secretary of the Vaucher Committee, who played an important role in drafting the proposals, is himself a barrister of high reputation. The British Foreign Office is believed to regard the scheme as being unduly complex and probably unworkable and is known to have its own restitution proposals covering all categories of property in draft form.

The Macmillan Committee wishes to convene a meeting to establish a provisional commission competent to receive all information bearing on the problem of restitution and to assist the military authorities in their task of freezing and protecting cultural objects. This body would also elaborate plans for restitution and would ultimately receive full powers to act in this field. The Macmillan Committee, however, feels that even the proposed commission should be relatively small. It presented its proposals to the Prime Minister on November 15 under cover of a letter⁴⁹ urging that the British Government take the initiative in approaching other powers respecting this matter. (Embassy’s telegram No. 10070 of November 17.)⁵⁰

Mr. Crosby, the London representative of the Roberts Commission, is advising the Commission to approach the President with a recommendation that the U.S. join with the British in approaching other powers. He feels that a provisional commission of the type contemplated would be extremely useful to SHAEF. Mr. Crosby also regards the establishment of a commission which could take the preliminary steps leading to restitution as extremely urgent since he feels that independent action may be taken which might prejudice future international collaboration.⁵¹

The Political Adviser to the United States Delegation to the European Advisory Commission⁵² has expressed concern lest any over-hasty action taken in this field prejudice Soviet participation in it and in related spheres. He feels that the Soviet Government should, from the beginning, be invited and even urged to participate in the formation and operation of such an inter-Allied agency.

He feels that, provided the Soviets are cordially invited from the beginning and are subsequently kept informed of developments, it would probably be a matter of secondary importance whether they participated fully or through an observer during the period of military operations. In any case, after the defeat of Germany, full participation of the Soviet Government, which will be a very important factor both as an occupying power and as a claimant, would be essential. Accordingly, it is important that any inter-Allied agency set up for the operational period be so constructed that the Soviet Government would be willing and able to join it in the post-hostilities period, especially since such an agency might then become subordinate to an over-all agency dealing with restitution and reparation in general.

The reactions of Continental states toward the Macmillan Committee’s proposals cannot be predicted, but it is clear from the interest they have shown in the problems concerned, both in the Commission for the Study of the Armistice and in the Conference of Allied Ministers of Education, that they would wish to be consulted before any final arrangements are made for the disposition of their property.

Should the British Government accept the proposals of the Macmillan Committee (which is by no means certain since the Foreign Office view toward them has not yet been ascertained) several alternatives will have to be considered by the Department as soon as the British Government issues its invitation:

(1) Would the Department desire to move in this matter bilaterally or multilaterally?

(2) Should the Department desire to move multilaterally in the field of restitution, would it be willing to participate in an agency restricted in its operations only to Western Europe prior to the defeat of Germany, or would it wish to withhold participation from any agency not empowered to operate throughout Europe?

(3) Should the Department elect to participate in an agency limited initially to Western Europe in its operations, would the Department desire to assure that the agency’s jurisdiction could be extended to Eastern Europe after the defeat of Germany through agreement with the Soviet Government, or would it prefer to deal with that area bilaterally or through another international agency?

(4) Should the Department elect to participate in an agency of either European or regional scope, would it desire that the agency should be subordinate to any overall agency on restitution which may be established or would it prefer that the agency concerned with cultural objects should operate independently of any other international body?

(5) Should the Department decide to participate in any international agency concerned with the restitution of cultural objects, would it wish to restrict the agency’s jurisdiction to objects frozen by the Allied forces in Germany or would it favor allowing United Nations Governments to surrender to the agency objects frozen by their forces or civilian agencies elsewhere in Europe?

(6) Should the Department decide that any agency concerned with cultural objects in which it may participate should be subordinate to a general international committee on restitution, would it wish to reserve for any United Nations reparation agency which may be established the title to any cultural objects of German ownership which might be surrendered to a restitution committee or sub-committee or would it prefer that such objects should be used to make reparation in kind by the international body receiving them from the military in the first instance?

(7) Should the Department elect to participate in an agency organized by some or all of the Great Powers, would it wish to make provision for the eventual full participation or representation of the interested smaller powers in its work or would it accept the view that the work of such a body could be done most efficiently by an agency representing a small number of great powers?

(8) Should the Department decide to participate in an international restitution agency, would it wish to make provision for the eventual participation or representation of co-belligerent states in any capacity or would it prefer to restrict participation in the work of such a body to the United Nations?

(9) Should the Department decide to participate in an international restitution agency, would it wish to make provision for the eventual participation or representation of neutral states in any capacity or would it prefer to restrict participation in the work of such a body to the United Nations?

(c) Restitution of American Objets d’Art and Cultural Objects

As far as can be ascertained no consideration has been given to this problem by any of the agencies operating in London, although information gathered by some American and Allied agencies may well be useful in this connection. Should a United Nations Restitution Commission be established, it could, of course, be utilized by the United States in behalf of its citizens. The courts and any special machinery of each of the United Nations will also be available to American citizens who may wish to recover looted objects frozen by authorities of nations which may not elect to participate in an international restitution agency.

(d) Reparations

The moral responsibility which the United States as a power occupying part of Germany will incur respecting the claims of other United Nations for reparation for cultural objects seized or destroyed by German nationals is not easy to define. But it is generally agreed that our full cooperation with any body authorized by all claimant United Nations to receive cultural objects frozen by United States forces operating in Germany would clearly discharge our obligations in this respect.

Richard A. Johnson

Third Secretary of Embassy

24. Prepared by Richard A. Johnson, Third Secretary of Embassy in the United Kingdom, in consultation with the Political Adviser to the United States Delegation to the European Advisory Commission (Mosely) and the London Representative of the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas (Crosby). Copy transmitted to the Department in despatch 19284, November 17, 1944, from London; received November 29.
25. For documentation on the organization and scope of activity of this Commission, see vol. i, pp. 1 ff.
26. Supreme Headquarters, Allied Expeditionary Force. For information concerning the field operations of SHAEF, see Historical Reports on War Administration, Report of the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas (Washington, Government Printing Office, 1946), pp. 47–156. Hereinafter cited as the Roberts Commission Report.
27. See ante, p. 1046. The “Military Directive on Monuments and Fine Arts (Germany)” is based on the SHAEF Civil Affairs Directive for France of May 25, 1944; for summary of the latter directive, see the Roberts Commission Report, p. 102.
28. For information regarding the organization of the Civil Affairs Committee of the War Department and the composition of the Civil Affairs Staff of SHAEF, see the Roberts Commission Report, pp. 17–21 and 94–95, respectively.
29. The Comite des Ministres des Affaires Etrangères, established by the Foreign Ministers of Belgium, France, Greece, Luxembourg, the Netherlands, Norway, Poland, Czechoslovakia, and Yugoslavia, constituted the Comité Interallié pour l’Etude de 1’Armistice to consider mutual problems in the preparation of armistice terms. One of the first reports calling for the restitution of art objects was submitted by this Committee on September 14, 1943; not printed.
30. For documentation regarding U.S. participation in this Conference, see Foreign Relations, 1943, vol. i, pp. 1152 ff., and ibid., 1944, vol. i, pp. 965 ff.
31. For information concerning this Commission, see vol. i, pp. 1265 ff.
32. In a press release of November 8, 1944, the Department of State announced the appointment of the following additional members; of the Commission: The Most Reverend Francis Joseph Spellman, Archbishop of New York, and Mr. Huntington Cairns, Secretary-Treasurer and General Counsel of the National Gallery of Art. Mr. Cairns had previously served as Secretary-Treasurer of the Commission. Archbishop Spellman was appointed to the position formerly held by Alfred E. Smith, who died on October 4, 1944. For text of press release, see Department of State Bulletin, November 12, 1944, p. 577.
33. For information concerning the relationship of the Department of State to agencies interested in art restitution, see the Roberts Commission Report, pp. 12–17.
34. Mr. MacLeish proposed the creation of an ad hoc committee composed of representatives of various Allied Governments to channel information in their possession to Supreme Headquarters.
35. Archibald MacLeish, William Bell Dinsmoor, Grayson N. Kefauver and Richard Johnson served in this capacity during 1944.
36. Archibald MacLeish, William Bell Dinsmoor, Francis H. Taylor and Sumner McK. Crosby represented the Roberts Commission in London. Miss Jane Mull served as Research Assistant after September 1944.
37. Combined Civil Affairs Committee.
38. For information regarding the War Department’s interest in the recovery of art objects, see the Roberts Commission Report, pp. 17–21.
39. Office of Strategic Services.
40. Foreign Economic Administration.
41. For information relating to the activities of the British War Office, see the report of the Monuments, Fine Arts and Archives Branch of Civil Affairs by Lt. Col. Sir Leonard Woolley: A Record of the Work done by the Military Authorities for the Protection of the Treasures of Art and History in War Areas (London, His Majesty’s Stationery Office, 1947).
43. See memorandum by the United Kingdom Delegation to the European Advisory Commission, printed on p. 1048.
44. The Henraux Commission included Messrs. Henraux, Aubert, Huyghe, Salles, Florisson and Commandant d’Orange.
45. The Belgian National Restitution Commission, under the chairmanship of Col. van Puyvelde; for information concerning the work of its National Committees, see the Roberts Commission Report, p. 28.
46. See the Roberts Commission Report, pp. 123–125.
47. Copies of this scheme, which is extremely complex, were submitted with the Embassy’s despatch No. 17747 of August 30, 1944. [Footnote in the original; despatch not printed.]
49. See footnote 14, p. 1040.
50. Not printed.
51. These views were expressed by Mr. Crosby in telegram 10070 of November 17, from London (840.403/11–1744).
52. Philip E. Mosely.