Foreign Relations of the United States: Diplomatic Papers, The Conference of Berlin (The Potsdam Conference), 1945, Volume II

Pauley Files

No. 959
Mr. Josiah E. DuBois, Jr., of the Delegation to the Allied Commission on Reparations, to the Representative on the Allied Commission on Reparations (Pauley)

[Undated.]

Memorandum for Ambassador Pauley

Subject: Treatment of gold as War Booty.

The question has been raised as to whether the gold in our possession at Frankfurt may be treated as war booty, irrespective of whether or not its source can be identified.

In a public statement issued by the United States government on January 5, 1943 [February 22, 1944]¹ (similar statements were issued by the British and Russian governments) it was stated:

“In view of the foregoing facts and considerations, the United States government formally declares that it does not and will not recognize the transference of title to the looted gold which the axis at any time holds or has disposed of in world markets.”

By this statement the three governments served notice that they would not recognize the title of the German state to looted gold.

Article LIII of the Hague Regulations² (by which we’re not necessarily bound in dealing with Germany) provides:

“An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.”

Although the right to appropriate booty has been said to be limited to the property of the state, if material is actually in use by the enemy forces or is helping its operations, it is considered to be a part of the military equipment of the enemy and, as such, liable to confiscation. (Latifi, Effects of War on Property (1909), 30.) Similarly, Hyde suggests that the public character of property is to be ascertained by reference to two considerations:

(1) its ownership by the enemy state, or

(2) its actual use in behalf of the state.
(3 Hyde, International Law (2nd ed. 1945), 1896.)

The gold in question, whether or not we recognize that title was in the German state, was clearly being used in behalf of the German state.

Accordingly, from a strictly legal point of view, apart from the policy considerations involved, the gold may be treated as war booty.

Josiah E. DuBois, Jr.

1. Text in 9 Federal Register 2096.
2. Text in Foreign Relations, 1907, pt. 2, p. 1216.