Special Reports
 


THE VIEW OF UNESCO

The View of UNESCO on Cultural Objects Displaced During World War II In the founding issue of "Spoils of War" it was suggested (p. 18) that the new UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects would have some influence on Second World War losses. If it does, the effect will be only indirect, because it is clear that the Convention is not retroactive. Article 10 (1) and (2) provide that the Convention will apply only to objects stolen or illegally exported from the territory of a Contracting State after the Convention enters into force for that State. However, it should be noted that Article 10 (3) provides that

"This Convention does not in any way legitimise any illegal transaction of whatever nature which has taken place before the entry into force of this Convention or which is excluded under paragraphs (1) and (2) of this article, nor limit any right of a State or other person to make a claim under remedies available outside the framework of this convention for the restitution or return of a cultural object stolen or illegally exported before the entry into force of this Convention." This paragraph makes it clear that no inference can be drawn about claims arising from colonial history or earlier conflicts. In that respect, the situation remains unchanged. Issues of cultural property taken during wartime have traditionally been resolved in general peace treaties as part of the peace process. It is perhaps an anomaly that this has not happened in the case of the Second World War and that the discussion of the issue is now being somewhat divorced from the general clearing up of the political questions left over from that conflict and the Cold War which prevented their earlier resolution.

Apart from bilateral negotiation, there is a procedure for the resolution of disputes concerning cultural property which are not within the terms of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (the Hague Convention) 1954, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 nor of the UNIDROIT Convention. This is the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation established in 1978. This is not an adjudicative but a mediatory body. When discussions first began after the beginning of transition in the countries of the former Eastern Bloc, UNESCO quietly let it be known that this procedure would be available for the resolution of disputes concerning cultural property displaced during the Second World War. However, at that stage, all the States concerned preferred to deal with the matter bilaterally. This was in any event necessary, since the Intergovernmental Committee has no competence until bilateral avenues and local remedies have been exhausted. It was also wise in view of the size of the problem: the Committee so far has dealt with very few cases, and the thousands of those now pending would surely swamp it. However, there are principles which are well grounded in legal principle, although not ignoring the political and emotional aspects of the problem, which would probably resolve over 90% of the cases concerned. For those remaining, the Committee may perform a very useful role.

Lyndel Prott, UNESCO, Paris
Yours sincerely

FODOR, István, Budapest
LEISTRA, Josefine, Den Haag
LEMMERMEIER, Doris, Bremen
LUST, Jacques, Brussels


PRINCIPLES FOR THE RESOLUTION OF DISPUTES CONCERNING

The following is a summary of the lecture held at the International Conference "Spoils of War" in New York (January 19th-21st 1995), organized by the Bard Graduate Center for the Decorative Arts. The proceedings of this conference, including the full version of the following text, will be published by Abrams, New York 1996 ("Spoils of War").

The following proposals are grounded in existing legal principles although the instruments concerned may not be strictly applicable, because developed after the date of the events concerned, or their applicability may be contested. Their use would take account of the social, cultural and economic developments of the intervening years and the general political delicacy of the subject.

The source of these proposed principles are:

  • the Allied Declaration of 1943,
  • the Protocol to the Convention concerning the Protection of Cultural Property in time of Armed Conflict (the Hague Convention) 1954 (which in effect legislated the principles of the Allied Declaration for future conflicts, 73 States party),
  • the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (82 States party),
  • the current UNIDROIT Convention on Stolen or Illegaly Exported Cultural Objects. This limits the rights of a purchaser of a stolen cultural object where he or she would normally be protected by the "bona fide" rule - a recent confirmation of the principle in the London Declaration that misappropriated objects must be returned,
  • principles recommended by ICOM for the resolution of disputes about movables which were proposed in 1978 in connection with the debate on the return of materials taken during colonial times, some of which have relevance for the present debate,
  • "Plea for the Return of an Irreplaceable Cultural Heritage to those who Created It" of the Director-General of UNESCO 1978.

The Principles

Principle 1:
Cultural objects which have been taken from territory occupied during World War II by any belligerent will be returned to the country from which they have been taken. (Declaration of London, Hague Protocol, analogy to UNESCO Convention 1970)

Principle 2:
Where there have been successive displacements, the objects will be returned to the territory where they were located at the outbreak of hostilities in 1939. (Analogy to UNIDROIT draft)

Principle 3:
Principle 1 will apply even where transfers of the cultural objects concerned have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to have been voluntarily effected. (Declaration of London)

Principle 4:
Cultural property taken from an occupied territory during armed conflict shall never be detained as war reparations. (Hague Protocol Art. 3)

Principle 5:
Where the cultural objects have passed into the hands of third parties, the State which has the responsibility for their removal from the country where they were located in 1939 shall reacquire them for return to the State from which they were taken by repurchase, indemnity or other appropriate means. (Hague Protocol Art. 4)

Principle 6:
No time limits can be set. (Precedents: such as the Congress of Vienna 1815 and post-World War I settlements)

Principle 7:
Cultural objects being repatriated are to be accompanied by the relevant scientific documentation where available. (The importance of the sharing of scientific information has been asserted in a number of UNESCO and ICOM documents).

Principle 8:
Restitution by replacement is an available remedy where unique cultural objects have been destroyed. (Precedent: Treaty of Versailles)

Requirements for a Successful Return Programme

I. Inventories
Lists of what was taken and the circumstances of its loss have to be prepared. While in some countries that work has been largely done, in others it has not. Because of the political delicacy of the issue in some countries, the authorities have to show that there will be an even-handed settling of claims. That cannot be done if one country has a good inventory of lost material and has identified their current locations and other countries with major losses have, for whatever reason, not been able to document these elements.

II. Identifying Categories of Special Importance
Priority in the exchange programme should be given to certain cultural objects that are of particular importance to the people of the country which has lost them, including

  • objects which are indispensable to people in understanding their origin and culture such as
    • objects of spiritual value,
    • objects of special importance in national history (such as Crown jewels, objects of particular national significance),
  • objects which have been dismembered from sites or were part of a complex object.

III. Publicity
This will reinforce the public conscience that cultural objects should not be displaced during conflict and, if so displaced, should be returned, that the principles of the Allied Declaration and Hague Protocol are now generally accepted as international law and that reconstituting cultural heritages dispersed during conflict is to be a normal part of peace settlements.

IV. A Suggested Method of Procedure
While drawing on the substantial body of legal principles which do exist, claimant States should not be unduly legalistic in their application, since this is a cultural and an emotional issue as well as a legal and political one.

a) States agree on certain basic principles.
b) These are then embodied in a bilateral agreement which is made public, so that the people in both countries can see the very reasonable and ethical and legal basis on which returns will be made.
c) If bilateral agreement is not reached, they apply to an arbitrator to settle appropriate principles for such returns, or ask an organization such as UNESCO to convene a meeting of experts to agree on such principles.
d) The process then requires a prioritization of claims.
e) For specific claims that the bilateral authorities find themselves unable to resolve, there could be recourse to the mediatory functions of the UNESCO Intergovern-mental Committee for Promoting the Return of Cultural Property to its Country of Origin or its Restitution in case of Illicit Appropriation.


Lyndel Prott, UNESCO, Paris


THE "SONDERSTAB MUSIK" OF THE "EINSATZSTAB REICHSLEITER ROSENBERG" 1940-1945

While writing his thesis on the music of the French composer Darius Milhaud (1892-1974) in 1991, the Dutch musicologist Willem de Vries learned from Milhauds widow Madeleine Milhaud that during World War II their appartment in Paris was completely emptied by the Germans. Their possessions, including manuscripts of Milhauds compositions, correspondence and grammophone records, were never returned. Having undertaken some initial research in French archives, Willem de Vries was able to locate in Nuremberg in 1992 a number of the missing Milhaud manuscripts which were consequently handed over to Madeleine Milhaud 50 years after their disappearance. In the following years, intensive research led to the discovery of a sophisticated organization: the "Sonderstab Musik", a command force of Alfred Rosenberg's "Einsatzstab", and responsible for the systematic confiscation of music (compositions, manuscripts, instruments, libraries, records, etc.) from Jewish musicians and composers, followed in 1942 by the robbery of all music paraphernalia from the households of deported Jews.

"The confiscation of music by the Sonderstab Musik of the Einsatzstab Reichsleiter Rosenberg (ERR) in the occupied countries of Western Europe during Wold War II" will be published early in 1996 by the Amsterdam University Press. Below, the author gives a short overview of the two main topics of his book: the overall organization of the ERR, responsible for the unlimited and systematic theft of art and culture in Europe, and the activities of the Sonderstab Musik in France, Belgium and Holland.

In January 1934, Hitler ordered Alfred Rosenberg to direct the Plenipotentiary of the Führer for the Supervision of the Entire Intellectual and Ideological Enlightenment of the Nazi Party ("Dienststelle des Beauftragten des Führers für die Überwachung der gesamten geistigen und weltanschaulichen Schulung und Erziehung der NSDAP", DBFU).

After 1934, Rosenberg carried out this mission by establishing an extensive and sophisticated political organization that covered all fields of art, culture, and science. In 1939, this apparatus consisted of the following offices:
"Amt Lehrplanung" (Educational Planning)
"Amt Weltanschauliche Information" (Ideological Information)
"Amt Schrifttumpflege" (Literary Endeavours)
"Amt Wissenschaft" (Science)
"Amt Vorgeschichte" (Prehistory)
"Amt Kunstpflege" (Artistic Endeavours)

Each Amt was subdivided into one or more main branches ("Hauptstellen"). In the "Amt Kunstpflege", for example, the Main Branch for Visual Art was directed by Robert Scholtz, while Dr. Herbert Gerigk managed the Main Branch for Music. Both Scholtz and Gerigk were to play an important role in the art robbery in the occupied countries of Western Europe during WW II. In 1939, the managerial staff of the DBFU numbered about one hundred.

After completing the "Westfeldzug" (the invasion of the Netherlands, Belgium and France) of May and June 1940, Alfred Rosenberg founded the "Einsatzstab Reichsleiter Rosenberg" (ERR) on July 17, 1940. The ERR was an operational unit that emerged from the DBFU during the war and which consisted of several individual command forces called "Sonderstäbe", each with a specific field of expertise. Gradually, each main branch of the DBFU described above was assigned a corresponding "Sonderstab", which followed the German occupation forces as the 'entourage' of the "Wehrmacht". During the war, "Sonderstäbe" were established for visual arts, music, theatre, folklore, prehistory, churches, archives, science, genealogy, etc. In the course of the war, the activities of the ERR would reach "... von Dänemark über die Niederlande, Frankreich, Italien und Südosteuropa bis Griechenland und vom Kaukasus bis Reval ..." (Findbuch NS 30, Federal Archive Koblenz, page IV).

In the occupied territories, the ERR rapidly organized the greatest systematic theft of art and culture in history. The operation received support from several decrees by the Führer and physical assistance from the "Militärverwaltung" (military authority), the "Sicherheitspolizei" (Security Police, SiPo), the "Sicherheitsdienst" (Security Service, SD), and the "Geheime Feldpolizei" (Secret Field Police, GFP). There is no doubt that the sophistication of the DBFU organization gave Rosenberg an important advantage over other interested parties. The specialists who were sent out from Berlin knew what to look for and where. By 1943, the ERR employed some 350 people.

The specialist for music matters in Rosenberg's Einsatzstab was Dr. Herbert Gerigk, a musicologist, who joined the "Reichsüberwachungsamt" (Reich Supervisory Office) at Rosenberg DBFU in January 1935 where he became "Reichshauptstellenleiter" for music in the "Amt Kunstpflege". Gerigk was editor of the monthly periodicals "Die Musik" and "Musik im Kriege" (music in war) and published in 1940 the notorious "Lexikon der Juden in der Musik" (encyclopedia of jews in music). At the outbreak of WW II, Gerigk's organization consisted of internal and external specialists in all fields of music, including musicologists of high reputation such as Dr. Wolfgang Boetticher and Professor Gustav Fellerer. After WW II, their careers were not hampered by their active participation in confiscating musicalia from Jewish owners during the war.

In August 1940, Gerigk opened the Paris office of the Sonderstab Musik on Boulevard Haussmann, the ERR-headquarters. Although he claimed that his main objective was "Sicherstellung deutscher Musikhandschriften in Frankreich" (repossessing German music manuscripts in France) from the early Middle Ages until the present day, which had made their way into French libraries and private collections, Gerigk soon gave directives to confiscate material of the political adversaries of the Reich. Record companies were inspected, their stock of Jewish music (composed or performed by Jews) confiscated. Residences of German and German-Jewish emigrants were searched for music libraries or other music paraphernalia that they had taken with them. Jewish music publishers also merited inspection.

In September 1940, the first of a series of important individual confiscations of the possessions of Jewish musicians and composers took place: the valuable collection of historic music instruments of the famous harpsichord player Wanda Landowska was packed in crates and transported to Berlin, together with her library of some 10.000 music books. Among others, the appartments of Gregor Piatigorsky, Darius Milhaud and Arthur Rubinstein were completely emptied. The next step was to visit the major music libraries, such as the music departments of the Bibliothèque du Conservatoire. Obviously, the searches targeted important manuscripts of German origin.

In September 1940, ERR offices were opened in Brussels and Amsterdam. Subsequently, the "Sonderstab Musik" also became active in Belgium and Holland.

Even before the deportation started in June 1942, Alfred Rosenberg had requested and received permission from Hitler to confiscate all personal possessions of Jews for transfer to the occupied territories of the East or to be given in compensation to German citizens who were bombed by the Allies. Between May 1942 and August 1944, enormous quantities of music instruments, literature, partitions and sheet music, grammophone records and players were transported by Gerigk's "Sonderstab Musik" to the Reich. In June 1942, Gerigk mentioned in a note that some 200 piano's would become available every week in France alone, necessitating two transports per week. In April 1943, for instance, some 1,006 piano's and grand-piano's were stored in Paris ready for transport. In total, some 68,000 complete Jewish households from France and Belgium were brought over to Germany during the war.

All these music paraphernalia had various destinations. Valuable (historic) instruments, manuscripts and music libraries were to be reserved for 'study' at the "Hohe Schule", a prestigious project of study centers in all fields of culture and science to be realized after the war. The German troops all over Europe needed instruments and music in their "Soldatenheime" (soldiers homes), while the home market in Germany received instruments in compensation.

Under the influence of the increasing Allied bombings of 1943, the enormous quantities of confiscated goods (including Gerigk's loot) in the Berlin warehouses of the ERR were transfered to other parts of the Reich, mainly to Upper Silesia (nom. Poland), where they were stored in depots, castles, churches, cellars, and the like. The Russian offensive early in 1945, however, forced the ERR staff to transfer much valuable material to e.g. Bavaria. The transport of the hundreds of thousands of books, such as the famous "Ostbücherei", became more and more difficult:

"Upon the Russian invasion of Ratibor, ... several million volumes remained, including some on various Oder barges that had yet to be unloaded" (testimony of a former ERR agent).

Postscript:
The ERR files ("Rosenberg files") in Western Europe are far from complete:
"Der Existenz und Wirksamkeit der Sonderstäbe nachzugehen ist besonders mühselig" (Foreword Findbuch NS 30 in the "Koblenz Bundesarchiv")
Now that Eastern European archives are opening their files to researchers, the size of the confiscation of art and culture by the ERR in e.g. Ukraine, Poland, Lithuania, Estland and Latvia may come to light. By July 1943, the following "Außenstellen" (foreign branches) of the ERR in the East were operational: Belgrade, Riga, Dorpat, Reval, Vilna, Minsk, Gorki, Smolensk, Kiev, Charkov, Dnjepropetrovsk and Simferopol.

Dr. Herbert Gerigk and his "Sonderstab Musik" collaborators were also active in most of the above "Außenstellen", following the German "Ostfeldzug" of 1941. There are also reports of Gerigks visits to the music libraries of Poland in the fall of 1939. The activities of the "Sonderstab Musik" in Eastern Europe and the size of the confiscations, however, have yet to be investigated.

Willem de Vries, Musicologist,
Independent researcher and music critic, Amsterdam


WHOSE ART IS IT ANYWAY?

Under this question the Smithsonian Associates held a one-day seminar on September 16th, 1995 which focused the discussion between Germany and Russia about the return of cultural property removed from their countries in time or as consequence of war.

According to Art. 16 of the "Treaty Between the Federal Republic of Germany and the Union of Soviet Socialist Republics on Good-Neighbourliness, Partnership and Cooperation" from November 9th, 1990, all art treasures transferred during World War II have to be removed to their owner. All those paintings of seven private collectors and one museum of Germany presently in an exhibition at The Hermitage of St. Petersburg are included.

Paul Gottlieb gave an interesting overview of the history of several paintings and shared slides. Lynn Nicholas reviewed the history of how Germany bought and confiscated art goods during World War II. She also pointed out that some of these paintings came via art dealers also to the United States and other countries.

Sylvia Hochfield made interesting remarks on the "Super Museum" by Stalin in Moscow similar to what Hitler planned for Linz. According to her, thousands of train wagons and airplanes transported an enormous quantity of art treasures from Germany to the Soviet Union. She reported, that the Pushkin Museum was not able to store all the goods and therefore paintings now shown in The Hermitage were brought to St. Petersburg.

In a panel discussion, Thomas R. Kline, Willi Korte and Constance Lowenthal reported about four interesting cases of art treasures from Germany found in Russia as well as in USA, including the Hambach documents, a Metsu painting, the drawings from the Bremer Kunsthalle and the treasure of Quedlingburg. It was also mentioned that not only art goods from Germany but also from France, the Netherlands and Austria are still in Russia and in the United States.

A panel discussion between representatives of the German and Russian Embassy showed that both parties insisted on their standpoints. Germany referred to the National and International Law, the mentioned Treaty and the Hague Convention which was also signed by Russia, but the Russian side pointed out that bringing art treasures to Russia after the War was not illegal.

Susanne Roschwalb, who was responsible for organizing the seminar, has to be thanked for an interesting day of information on the subject of World War II losses.

Günther Haase,
Lawyer and Expert, Hamburg


THE ROLE OF IFAR AND THE ART LOSS REGISTER IN THE REPATRIATION OF CULTURAL PROPERTY DISPLACED IN WORLD WAR II

The International Foundation for Art Research (IFAR) and its London-based colleague, the Art Loss Register, maintain an image database of stolen art reports which began in 1977. Displaced art of World War II is not the Art Loss Register's main focus, but because the information service was established to reunite legal owners with missing art, it has a role to play in this area.

The International Foundation for Art Research (IFAR) in New York is a not-for-profit organization founded twenty-five years ago as an information agency which would serve the art buying and collecting public. At that time, several scandals involving forgeries were in the news, and some art professors and dealers in New York believed there should be legislation to protect a growing number of new (and naive) art buyers in the most important art market in the United States. No legislation developed, but a small group of collectors, professors of art history, and attorneys got together to establish IFAR. IFAR's first program was its Authentication Service, which still operates today. This work has been overshadowed by the stolen art information service set up in 1977.

In that year, IFAR established the first archive of stolen art reports that could be consulted by the marketplace. The records kept by police agencies are generally reserved for law enforcement and to aid in criminal investigations and prosecutions; IFAR's primary goal is recovery and keeping the market free of stolen goods.

Before IFAR established its archive, it made a survey of museum officials. It was agreed that a single central archive would be an effective way to make the information available to the trade in a timely fashion. This was agreed even though U.S. museum officials at that time were reluctant to publicize thefts, thinking that it reflected badly on them and would deter gifts.

My predecessor, Bonnie Burnham, was aware that it was important to record information in a format that could be computerized. Starting in 1977, IFAR published a monthly newsletter, Stolen Art Alert, cataloguing and indexing recently reported thefts. These items were all reported to the police. We answered inquiries for buyers and for law enforcement. Searching wasn't so slow or laborious, since we had an index for each issue and a cumulative annual index. Before computers, compiling that index took two weeks of work. In 1987, a workable computer program was installed.

By 1990, IFAR had more than 30,000 listings of stolen art, antiques, and other objects of cultural property. The revolution in computers and communications was making it possible to be very efficient but also provided a challenge to be truly global. IFAR alone was not operating on the necessary scale. It is a not-for-profit organization and at that time had only three staff members. IFAR joined a consortium in London from the insurance industry and auction houses that wanted to set up a business like ours. IFAR helped to form a new corporation, the International Art & Antiques Loss Register. IFAR is a shareholder and board member, a contributor of its collected art theft records, and the operator of the Art Loss Register's New York office. The Art Loss Register database now has over 60,000 stolen items, many of them added within the last few years. The date of the losses may be old or recent; it is incorrect to say they are mostly from the last three years. The Art Loss Register includes information from the FBI and the Carabinieri. Insurance companies and Interpol are a major source of art loss reports. IFAR continues to publish the "Stolen Art Alert", now a section of its monthly newsletter, IFARreports.

To list a theft of cultural property with the Art Loss Register, a unique description is required and proof of theft or, failing that, documentation of ownership that will permit us to register something as missing. The minimum value is only $500. For a small fee ($40 in the U.S.), some private persons have registered art missing during World War II. The London office receives publications on war losses and enters them into the computer system as time permits, without charge. Although the ALR asks both insurance companies and private persons for a contingency fee in cases where the Art Loss Register is crucial in effecting a recovery, other arrangements are possible with nations and uninsured museums.

The identical image database operates in New York and in London.

Reports are received from police agencies (local, state, occasionally from the FBI, regularly from Interpol) and numerous insurance companies that subscribe to the registration service. There are daily registrations from theft victims - dealers, collectors, church committee people, museum registrars and library professionals. The database is not dissimilar to the FBI's National Stolen Art File or Interpol's system. However, the Art Loss Register has images and is available to the marketplace. The Art Loss Register has contracts with leading auction houses in the U.S. and U.K. to compare the stolen art to future sales.

If an item in the database is being offered for sale, ALR informs (1) the office which registered the stolen or missing item, (2) the auction house, and (3) the relevant police authority. Therefore, it is false to say that the ALR does not help theft victims recover.

Increasingly, art buyers check with ALR before purchase. The J. Paul Getty Museum, as a matter of policy, checks its potential acquisitions in the area of antiquities through the Art Loss Register. The Metropolitan Museum of Art recently adopted a similar policy for all potential acquisitions over $35,000. Several other U.S. museums and active collectors use the service regularly as well. There is a $50 fee to check each item for museums, dealers, and private collectors, and the service is free to law enforcement.

IFAR also works with the art trade and the police to recover items that are not listed on the ALR database. One example is the tiny group of old master drawings from Bremen that were offered for sale in New York by Yuli Saet. IFAR received two telephone calls from dealers in old master drawings who were worried because of the Bremen stamps on the drawings, and we worked with the FBI who seized the drawings when Mr. Saet attempted to sell them.

Checking with the Art Loss Register is one way to make inquiries about ownership status and can help a buyer exercise care. The term "due diligence" is inexact because U.S. courts have not yet defined the care required to make a person a good faith buyer. Still, checking with the Art Loss Register and other databases is prudent and may be helpful if you find later on that you've bought someone else's stolen art.

The legal risks of buying stolen art are real and especially costly in common law countries: in the U.S., Canada, and the U.K. A recent court case in New York (Guggenheim v. Lubell) clarified the rule as it applies to art that finds its way to New York State. [Since many U.S. transactions take place in New York or can be tried there, it is a very important decision, even though the other 49 states are not bound by it. Also, since New York art recovery law has more cases and is therefore more 'evolved', other courts tend to look to New York examples.

The Guggenheim decision allows an art theft victim to bring a lawsuit to recover the property many years after the theft and only limits the time permitted to three years after the victim locates the art and the current possessor refuses to return it. This leaves the innocent buyer of stolen art in a position of uncertainty for an indefinite period - until the original owner discovers that the buyer has it. All the defendants were involved some twenty-five years after the sale of the Guggenheim's stolen Chagall.

It is helpful to a theft victim's legal position to record the loss with any available database and to make any possible efforts to locate the property. If it surfaces in a common law country, chances of recovery are better than in Europe.

Constance Lowenthal, Executive Director,
International Foundation for Art Research