740.00119 EAC/1–945: Telegram

The Secretary of State to the Ambassador in the United Kingdom ( Winant )

418. Department has had under consideration the British proposal for a Restitution Commission, reference your despatch 19457, November 24, 1944,5 and your 312, January 9, 1945 (Comea 147). Comments of Department are as follows:

Although Department’s 10731, December 27, 1944,6 indicated discussion here with respect to reparation was not yet sufficiently advanced to permit statement of a position, no doubt was intended by the Department’s 10731 to be cast upon the principle of restitution of identifiable looted property. It is agreed here that this principle should be supported, and you are authorized to indicate our adherence to that principle.
On the other hand, the question of replacement, in so far as that term is more broadly construed than merely the replacement of looted and unrecoverable or destroyed works of art and similar unique objects,7 is closely related to the general problem of reparation on which discussion is still going forward here. You should, therefore, with-hold [Page 1173] comment on any replacement proposals other than those limited to the class of unique cultural objects above outlined.
The Department finds the British proposal for a Restitution Commission generally consistent with the restitution policy already forwarded to you in the document on reparation and restitution.8 Department’s comments on portions as to which it has doubt are as follows:
It should be definitely provided that the Restitution Commission will be a sub-commission of whatever Reparation Commission is eventually set up. This should not require postponement of establishment of a Restitution Commission, since the two can be integrated at any time after the Reparation Commission is set up. See Paragraph 4 of the British proposal.9
The British proposal (Paragraph 5) indicates that property should be restored to each interested government representing its nationals from whom property was looted. Department feels it preferable to establish a rule of return of looted property to the government having jurisdiction over the situs from which property was taken, in order that any controversies with respect to ownership, liens, etc. may be adjudicated in the place, and as nearly as possible under the circumstances, which would have been normal had the looting not taken place. For example, a share of stock belonging to an American national living in Paris would be returned to Paris rather than to Washington. The status quo ante looting would thus be restored as nearly as could be.
Although the principle of restitution of all identifiable looted objects is endorsed, it is felt that in practice there may be considerable difficulty in extending restitution beyond such classes of property as works of art, securities, capital goods such as machinery, etc. Although the general principle of restitution should be applicable to such items as rolling stock also, it is agreed that special considerations may make it desirable to put these items under the jurisdiction of a separate organization. It may be desirable to point out that the Restitution Commission should concentrate on such objects as these, rather than attempt completely to restore all looted property of whatever description which may theoretically be identifiable and returnable. Other difficulties in the phrase “identifiable looted property” also are not discussed in the British document, as, for example, whether restitution will extend only to objects in existence prior to German occupation, what standard of identification should apply to mingled or improved looted objects, gold, and so forth. These problems might be handled either in the Restitution Commission’s terms of reference, [Page 1174] or by the Commission itself, but it should be pointed out that they exist and may prove a fertile ground for debate. With respect to definition of “looting”, see sub-paragraph 3 (e) hereinafter.
Although the rule of return of looted property to the situs from which the looting took place will probably dispose of many problems with respect to the jurisdiction of the Restitution Commission, it should be emphasized that the Department does not agree with Paragraph 6 of the British document, in so far as that paragraph indicates that the Commission should make final and binding determinations of ultimate rights as between the Allied Governments. It is entirely possible that there may be disputes between the Allied Governments with respect to tangible property and, even more likely, with respect to intangible ownership rights arising out of such property as securities. The attempt finally to adjudicate ultimate rights in a situation of this sort would make the Restitution Commission a center of controversy and it would seem that the Commission would better be able to fulfil its functions if it can merely return such property to the place from which it determines it has been looted, without going into the equitable rights between the Allied Governments concerned with respect to each other. Moreover, it is not clear that the British proposal excludes adjudication on such questions as the ultimate rights when securities (for example) of a Czech corporation, owned by a Frenchman, have been purchased by the Germans from the Frenchman with franc funds derived from the levy of occupation costs. It is not thought desirable that the Restitution Commission in such a case do anything more than return the securities to the place from which they were taken, without going into the question of the significance, in terms of legal consequences, of such a return.
It will be noted that we are using the term “looting” broadly to include any transfers of the sort proscribed by the United Nations’ Declaration of January 5, 1943 with respect to Axis acts of dispossession.
Comment with respect to the French proposal on restitution, reference your 313, January 9, 1945 (Comea 148), will be contained in a later message. Preliminarily, it may be indicated that French proposal seems substantially more broad than would be our proposal with respect to restitution. The French proposal seems to call for replacement in a sense of reparation in kind from any assets found in Germany upon surrender. This is substantially broader than our principle of restitution of identifiable looted objects, together with replacement for strictly limited classes of unique objects, such as works of art. The Department believes that the French proposal can be favorably commented upon only to the extent of our restitution proposals as above outlined and that to the extent that it goes into broad questions of replacement or reparation in kind, comment should be deferred pending determination of the general reparation problem. Department is agreed on desirability of early agreement on the principle of restitution but prefers at this time that the principle be limited in the manner above stated.
  1. Not printed; for emendations to the British proposal, see telegram 648, January 18, supra.
  2. Foreign Relations, 1944, vol. i, p. 426.
  3. For documentation relating to measures for the protection and salvage of artistic and historic monuments in the war areas, see vol. ii, pp. 983 ff.
  4. Presumably reference is to a memorandum approved by the Executive Committee on Economic Foreign Policy on August 4, 1944, entitled “Summary: Report on Reparation, Restitution, and Property Rights—Germany” (ECEFP D–37/44); for text, see Foreign Relations, 1944 vol. i, p. 287. For further elaboration of U.S. planning on establishment of a Restitution Commission, see Conferences at Malta and Yalta, p. 196.
  5. This paragraph of the British proposal indicated that the Restitution Commission could be readily “worked into” any potential Reparations Commission for Germany, but that “the differing character of its work would result in its remaining more or less an autonomous body.” (740.00119 EAC/11–2444).