Cultural Property, Looting and the Rules of War

[michael mills]

In the initial post of this thread, Rob-WSSOB got a bit hot under the collar about those naughty Nazis wandering across Europe looting, destroying and desecrating cultural property. He gave one example of such German "lloting", namely the removal of the Amber Room.

Rob-WSSOB also gave the example of the Leiber Convention as an early attempt to protect cultural property, My reading of Article 36 of that convention is that it permits a conquering state or nation to seize "works of art, libraries, collections, or instruments belonging to a hostile nation or government" and use them for its own benefit, provided it can remove them without injury.

If my reading of that article is correct, then the removal by the Germans of the Amber Room was not "looting", but an act permitted by the Leiber Convention, since the Germans did not damage the article they removed. Is there any argument against that interpretation?

Likewise, the seizure of cultural property in Germany by agents of the Soviet Government in 1945 and after was permitted under the Leiber Convention.

I presume that the reference in Article 36 to art etc "belonging to a hostile nation" would cover property belonging to all citizens of that hostile nation. That would mean that a conquering state had the right to seize any cultural property belonging to citizens of a conquered hostile nation, provided it did not damage it, and hold it until the future disposal of it was determined by the peace treaty at the termination of hostilities.

[Rob - wssob2]

Michael, you've been so feisty lately!

Rob-WSSOB has waxed indignant about German units such as the Sonderkommando Künsberg and the Einsatzstab Rosenberg wandering around Europe and the Soviet Union and confiscating various collections of objects of cultural value. But if those confiscations were for the purpose of creating a collection in Germany that could be used for scientific purposes, and in which the objects would on display for appreciation by the public, then one has to wonder at how much harm was done by the process, given that the purpose of such collections is to preserve cultural heritage.

By such logic, I could

a) Steal antique coins from the Museum of Fine Arts in Boston so that I can study them for my "scientific purposes" or perhaps

b) Hold up a bank, because I plan to donate the money to a homeless shelter

If I were caught, I suppose I could "tell it to the judge," but somehow I doubt he'd be sympathetic!

As for the Sonderkommando Künsberg/Batallion der Waffen-SS z.b.V., we need to remember

1) The sheer scale of the booty this organization - over 300,000 pieces, including an estimated 97,000+ books.

And that was only a small part of III Reich cultural plunder, a phenomenon Charles A. Goldstein, a lawyer with the Commission for Art Recovery, called "the largest theft of cultural items in history," (see Monumental Mission
Assigned to find art looted by the Nazis, Western Allied forces faced an incredible challenge
http://www.smithsonianmag.com/history-a ... ssion.html)

2) Unlike several other competing Nazi art-looting formations, the Sonderkommando actually looted for other German institutions, including the Chancellery, Propaganda Ministry and the OKW. The Foreign Ministry and the SD specifically requested that the unit confiscate all maps and geographical information of interest pertaining to the USSR.

There's a very good introduction to the Sonderkommando written by Ulrike Hartung, of the University of Bremen titled THE "SONDERKOMMANDO KÜNSBERG" LOOTING OF CULTURAL TREASURES IN THE USSR available at
http://spoils.libfl.ru/spoils/eng/spoil2_3.html

Does it matter all that much whether a collection of gold artefacts from Troy is preserved and displayed in Berlin or in Moscow?

Yes. It matters very much to some people. Ask a Greek about the Elgin Marbles

Is Greece Losing its Elgin Marbles?
http://www.foreignpolicy.com/articles/2 ... in_marbles

Ask a Native American whether it's acceptable to display under glass a religious artifact or a corpse of an ancestor for "scientific purposes" or for preserving "cultural heritage."

Inventory of Native American Artifacts Completed
http://www.news.harvard.edu/gazette/200 ... facts.html

Native American Graves Protection and Repatriation Act
http://www.nps.gov/history/nagpra/
http://www.usbr.gov/nagpra/
http://en.wikipedia.org/wiki/Native_Ame ... iation_Act

[Rob - wssob2]

If my reading of that article is correct, then the removal by the Germans of the Amber Room was not "looting", but an act permitted by the Leiber Convention, since the Germans did not damage the article they removed. Is there any argument against that interpretation?

Not so much with your interpretation, but with your rhetorical logic.

The Leiber Convention [sic - it's also referred to as Code] was a product of the American Civil War. It pertains to 1863 Georgia, Confederate States of America, not 1942 Georgia, USSR. I suppose you could argue General Sherman or perhaps Confederate General Hood violated the convention by allowing as yet unspecified cultural works be destroyed during the September Burning of Atlanta, but it's not germane to the topic of the Amber Room.

If we want to pinpoint what international laws the dismantling of the Amber Room may have violated, we should probably look at the Hague IV laws of 1907 (http://avalon.law.yale.edu/20th_century/hague04.asp) of which Germany and Russia were both signatories, specifically

Article 46: Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.
Private property cannot be confiscated.

Article 47: Pillage is formally forbidden.

Article 53:
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.

Article 56: The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.
All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.

Of course, I suppose one could claim that the legal justification of seizing state-owned works sprang out of the Germany's May 1938 "Degenerate Art" law ("products of degenerate art that have been secured in museums or in collections open to the public before this law went into effect…maybe appropriated by the Reich without compensation." see http://astro.temple.edu/~bigred76/150/hdk.html) but I think that would be a stretch!

[David Thompson]

Let's drop the personal comments, gentlemen.

Michael -- You wrote:

Rob-WSSOB also gave the example of the Leiber Convention as an early attempt to protect cultural property, My reading of Article 36 of that convention is that it permits a conquering state or nation to seize "works of art, libraries, collections, or instruments belonging to a hostile nation or government" and use them for its own benefit, provided it can remove them without injury.

If my reading of that article is correct, then the removal by the Germans of the Amber Room was not "looting", but an act permitted by the Leiber Convention, since the Germans did not damage the article they removed. Is there any argument against that interpretation?

Likewise, the seizure of cultural property in Germany by agents of the Soviet Government in 1945 and after was permitted under the Leiber Convention.

I presume that the reference in Article 36 to art etc "belonging to a hostile nation" would cover property belonging to all citizens of that hostile nation. That would mean that a conquering state had the right to seize any cultural property belonging to citizens of a conquered hostile nation, provided it did not damage it, and hold it until the future disposal of it was determined by the peace treaty at the termination of hostilities.

(a) As Rob - wssob2 pointed out above, there was no "Lieber convention." The references to it are to US Army General Orders No. 100 of 24 April 1863, for the instruction of US troops in the field during the US civil war. See http://avalon.law.yale.edu/19th_century/lieber.asp This was and is considered a model code for its time, which accurately summed up the customs of war in the mid-19th century.

(b) The signing of the 1899 Hague II and 1907 Hague IV conventions, together with their annexes, added laws of war which did not exist in 1863. These treaties explicitly created new law for state-owned art treasures. Here is the applicable provision from the 1899 Hague II convention annex:

Article 56
The property of the communes, that of religious, charitable, and educational institutions, and those of arts and science, even when State property, shall be treated as private property.

All seizure of, and destruction, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should be made the subject of proceedings.

http://avalon.law.yale.edu/19th_century/hague02.asp

Here are the provisions of the 1907 Hague IV convention annex:

Art. 53. 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.

* * * * *

Art. 56. The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.

All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.

http://www.icrc.org/IHL.NSF/FULL/195?OpenDocument

[Rob - wssob2]

Here are a few additional online resources pertaining to the topic at hand:

The Spoils of War International Newsletter #0 of 1995
http://spoils.libfl.ru/spoils/eng/spoils0.html

Legal Resources on the Spoils of War/International Protection of Cultural Property
http://www2.lib.uchicago.edu/~llou/spoilsofwar.html

This link is of special interest to anyone who want to find out more about the Soviet looting of German art:
Spoils of War v. Cultural Heritage:The Russian Cultural Property Law in Historical Context
http://isites.harvard.edu/icb/icb.do?keyword=k29323

British law allows return of stolen art
http://www.upi.com/Entertainment_News/2 ... 258304582/

Washington Conference Principles on Nazi-Confiscated Art
http://www.lootedartcommission.com/Wash ... principles

[David Thompson]

I see now that while composing my post, Rob - wssob2 beat me to the draw on citing to the 1907 Hague IV convention annex.

[michael mills]

As I see it, the decisive factor is who wins and who loses.

Germany lost, so the victors took the "spoils of war", including material that Germany itself had previously taken as "spoils of war" from countries it had overrun, plus material that belonged to Germany by right.

Given that the Soviet Union won, is there any clear obligation under international law for it to restore material it seized in Germany as "spoils of war"? Or is there dispute over the interpretation of international law? Does the Soviet domestic law on Spoils of War negate whatever the position is under international law?

[David Thompson]

Michael -- You wrote: (1)

As I see it, the decisive factor is who wins and who loses.

Your agenda-driven interests in this thread are, I think, clear to the readers at this point.

(2)

Germany lost, so the victors took the "spoils of war", including material that Germany itself had previously taken as "spoils of war" from countries it had overrun, plus material that belonged to Germany by right.

Please cite to sourced examples of each, naming the blameworthy county.

(3) You also asked:

Does the Soviet domestic law on Spoils of War negate whatever the position is under international law?

What is the Soviet domestic law on Spoils of War? Do you have a source or citation to it, or is this just another ignorant agitprop claim?

If you're getting the impression that I'm becoming annoyed with your posts, you're correct. This is an interesting subject, worthy of serious discussion, and your arguments in the thread have fallen far short of your usual standards.

[Jonathan Harrison]

The Germans allegedly looted China's astronomical instruments after the Boxer rebellion, according to the NYT:

http://query.nytimes.com/gst/abstract.h ... 946996D6CF

[michael mills]

The post of Wednesday 2 December by Rob-WSSOB contained this link, among others:

This link is of special interest to anyone who want to find out more about the Soviet looting of German art:
Spoils of War v. Cultural Heritage:The Russian Cultural Property Law in Historical Context
http://isites.harvard.edu/icb/icb.do?keyword=k29323

That linked site, which is a Harvard Law School conference held in February 2008 with the title "Spoils of War v. Cultural Heritage: The Russian Cultural Property Law in Historical Context", contains the following statement:

After WWII, Soviet authorities, seeking reparations for the extensive costs of Nazi aggression, used special "Trophy Brigades" to empty museums, castles, and salt mines in Germany and Eastern Europe, transporting millions of cultural treasures to the USSR. These included German state-owned cultural objects, cultural objects taken from churches and synagogues, as well as a great deal of private property that had been looted by the Germans from individuals. The art works taken back to the Soviet Union were held in relative secrecy for years, until the final years of glastnost (Гла́сность). As European countries started to demand their cultural treasures and archives, Russian legislators passed a law that potentially nationalizes all cultural treasures brought to Russia at the end of World War II. In 1999 the Constitutional Court issued an opinion basically upholding the law. How do these actions comport with international law? What are the chances for restitution of these displaced cultural valuables?

In my post of Thursday 3 December, I posed these questions, based on the above issue addressed by the Harvard Law School:

Given that the Soviet Union won, is there any clear obligation under international law for it to restore material it seized in Germany as "spoils of war"? Or is there dispute over the interpretation of international law? Does the Soviet domestic law on Spoils of War negate whatever the position is under international law?

The only reaction to those questions was an intemperate emotional outburst from the moderator. But my questions were essentially the same as those asked by the Harvard Law School conference, and deserve dispassionate discussion rather than ideological blustering.

It appears that the Russian Government has legalised its possession of cultural treasures seized in Germany in 1945 simply by passing domestic legislation relating to "spoils of war" or "trophy art". That suggests that any state that has seized cultural treasures from another state with which it was in a state of armed conflict could legally retain possession of those cultural treasures by means of its own legislation.

For example, if Germany had not been defeated in 1945, it presumably could have legalised its possession of cultural treasures seized in the countries it had occupied through the adoption of a law, perhaps by Führer Decree, similar to the Russian "Law On Cultural Valuables Transported to the USSR as a Result of the Second World War and Located in the Territory of the Russian Federation". It could have called the seized cultural treasures "Trophy Art", as the Russian Government has done.

My question was whether the domestic legislation of a sovereign state, such as the Russian law mentioned above, overrides international law prohibiting the seizure of the cultural property of an enemy state, such as the relevant provisions of the Geneva Convention mentioned in this thread. If it does, then perhaps all the expressed indignation over the seizure of enemy cultural property, particularly the seizures carried out by agencies of the German Government during the Second World War, is beside the point.

I stated, the essential reason why Russia still retains cultural treasures seized in Germany and has legalised its continued possession of them, whereas Germany has largely returned cultural treasures seized by it during the Second World War, is because the Soviet Union was victorious whereas germany was defeated. It appears that there is no international authoritiy that can compel a victorious nation to return cultural treasures it has seized from a defeated nation.

[Karl]

The Germans allegedly looted China's astronomical instruments after the Boxer rebellion, according to the NYT:

http://query.nytimes.com/gst/abstract.h ... 946996D6CF

1860 - Summer Palace was looted and razed by French and English forces (Chinese helped themselves too as opportunities presented themselves).

[michael mills]

An unofficial English translation of the Russian law, and comments on it by authorities in other states, can be found here:

http://spoils.libfl.ru/spoils/eng/spoil4_3.html#2

[Peter H]

From 2008: http://www.bloomberg.com/apps/news?pid= ... refer=muse

Germany Thanks Russia for Returned Art, Asks for the Rest Back

Fifty years ago, the Soviet Union returned 1.5 million art treasures looted at the end of World War II to East Germany. Twenty-eight German museums are staging a series of exhibitions to say thank you.

Gratitude is one half of the message. The other is: Can we have the remaining 1 million works back now too, please?

Ever since reunification in 1990, Germany has been gently pressuring Russia for the return of the art, with few results. Many Russians, including museum directors, view the booty as legitimate compensation for Soviet treasures looted or destroyed by Hitler's troops. Under Russian law, German art taken by Stalin's Soviet Trophy Commission is Russian state property....

Russians Reveal Hoard of 46,000 Art Treasures Stolen by Nazis
http://www.bloomberg.com/apps/news?pid= ... refer=muse

Russia's government has revealed details of 46,000 artworks missing after Nazi looting.

A new Internet database will help scholars, law enforcement agencies and the art market locate cultural treasures, said the government's Federal Agency for Culture and Cinematography.

A Web site, http://www.lostart.ru, is in Russian with printed editions in English. Thirteen volumes have the 46,000 artworks from 13 museums, and another volume lists 3,541 rare books, manuscripts and letters. There are nearly 1.1 million archive files also missing...

`Trophy Art'

At the end of World War II victorious Soviet troops looted German, Austrian, Polish, and Hungarian museums, churches, libraries, and other cultural institutions. The Soviet government returned much of this so-called trophy art from 1955 to 1960, including the Pergamon Altar, now in the Pergamon Museum in Berlin. Russia still has an undisclosed amount of works and refuses to return the items, citing a 1998 law.

Rosokhran-Kultura said that 250,000 artworks looted from Germany are now in the Hermitage Museum, the State Historical Museum, the Pushkin Museum of Fine Arts, and the Nizhny Novogorod Art Museum.

The Russian government continues to keep uncounted trophy art at many other locations, including the Museum of Religion in St. Petersburg, and the Museum of Decorative Arts at the St. Petersburg Art and Industry Academy.

Vilkov said this is ``compensation'' for Russian losses.

[Peter H]

"Intemperate emotional outburst"?

Probably more an annoyance on how this thread seems to have gone off tangent and is spending more time on Soviet transgressions than Nazi transgressions.While understanding that both regimes got into the looting business it should also be emphasised that Germany set the agenda first with this practice,and did not even bother using the debatable fallback that it was compensating itself for its own losses.

[Karl]

what are you talking about.

Cultural Property, Looting and the Rules of War is the topic.