For many years Germano-Russian relations were clouded by the burden of history, but after the turmoil in Eastern Europe the oppressive darkness began to lighten. The Two Plus Four Treaty signed in 1990 not only clarified the legal position of Germany, there were also a series of Germano-Russian agreements which were intended to lead the relationship between the two countries, deeply damaged by World War II, towards a new political future. These endeavours were crowned by the "Treaty of Good Neighbourliness, Partnership and Cooperation" signed on 9 November 1990 in which it was emphasised that both States wished "to finish with the past once and for all and make a substantial contribution to overcoming the division of Europe through agreement and reconciliation".
The commitment expressly made by both States in the treaty that "missing or illegally acquired art treasures that are in their territory should be returned to the owner or his legal successor" (Art. 16, para. 1) was in the same spirit. This agreement seemed to open the way to settling a troublesome conflict: the return of cultural property removed from the country of either signatory during and following World War II.
Since 1993 a legal controversy has centred on the provision of the agreement quoted above, though not only on it, and at times it has barely been possible to recognise the spirit in which the agreements were reached. This is all the more surprising as the relevant passage in the treaty was reinforced in the Germano-Russian Accord on Cultural Cooperation in November 1992, and speaking in March 1994 President Yeltsin also expressly emphasised that the relevant provisions "created an enduring legal basis for the settlement of reciprocal claims for restitution". In any case no such reinforcement was necessary as a binding inter-governmental legal basis had already been created by the 1990 treaty giving rise to a commitment to return looted property.
International honour is at stake
However, a first serious source of irritation is apparent in this perfectly self-evident point. Even the German public is not sufficiently aware that the disputed restitution has already been bindingly settled between the two governments and that there is no longer any room for fundamental political deliberations. We are not dealing with an unresolved political matter which could be renegotiated according to the prevailing atmosphere, but with fulfilling an international treaty which both sides have been bound to implement since 1990: "Pacta sunt servanda".
The consequences of this are considerable in both legal and political terms. The political reputation of the treaty partner in question depends on fulfilling an international treaty that has been concluded and has come into force. The Soviet Union was in fact renowned for its strict observance of treaties to which it had put its name. There is nothing to indicate that Russia - as the State succeeding the Soviet Union - does not intend to adopt this same tradition. It is far more likely that discussions about the restitution of "war loot" are being carried on in ignorance of the impending loss of governmental esteem in the international community.
The confusion is made worse by another line of thought, which relates to preserving the long since outmoded primacy of internal national law over international law. Since 1987 the Soviet Union's return into the family of nations has been accompanied by political criteria being made secondary to international law which is binding throughout the world. The Germano-Soviet treaty of November 1990 is also based on the primacy of international law. The parties to the treaty expressly guarantee the primacy of the general rules of international law in internal and international policy and confirm their determination to fulfil their treaty obligations conscientiously (Art. 1, para. 6).
The reason for opposition to the obligations incurred in the treaty can be sought first and foremost in the political value assigned to the so-called "war loot". However such concepts may appear, it is indisputable that the treaty settlement made in 1990 represents the crucial decision regarding restitution. Ideas going beyond this regarding assessing the value of the "war loot" are generally at odds with the legal position obtaining even at the time of World War II.
First, it is an established fact that the German cultural property was not transported to the Soviet Union until after the cessation of hostilities. Its removal was not a spontaneous or random affair: museums, scientific institutions, collections and safe depots were almost completely stripped bare. The activities of the Soviet Trophy Commissions have been public knowledge for a long time now and have been described in detail even by Russian scholars. The "Brigade of the Committee for Art Affairs in Berlin" whose activities included removing the Schliemann gold to Moscow was also part of a unified system for transferring trophies, working under the control of a "Special Committee for Germany attached to the State Committee for Defence". The decision to set it up was taken at a meeting of the Politburo, and its activities were controlled by Stalin personally. These brigades were initially formed at the various fronts but later came under the Soviet Military Administration in Germany. As Koslov and Akinsha [two Russian journalists] tell us, all members of these brigades wore army uniforms with officer's epaulettes, though most of their members did not belong to the army.
In contrast to the era of Napoleon's looting forays, since the 1907 Hague Convention on International Disputes all nation states have been prohibited from unilaterally removing cultural property while a war is being fought or during subsequent occupation. This means that both the measures taken by the National Socialists and those of the Soviet Union and other States during and after the Second World War had no basis in law.
In the 1950s the Central Committee of the Communist Party of the Soviet Union worked on the assumption that there were more than 2.5 million "objects of art and culture" from Germany in the Soviet Union, a substantial proportion of which were returned to the GDR inthe 1950s and 1960s. Compared with the figures established by the Central Committee the "approximately 200,000 museum exhibits, two million books and three kilometres of archival material" mentioned by the German side in the course of the last round of negotiations in June 1994 seem quite modest. When returning some of the German cultural property taken to the Soviet Union the Communist Party Central Committee had talked of the "treasures relating to the history of the national culture of Germany", and the same description is still tersely used today for cultural property held in Russia.
Among the facts inadequately appreciated even by the German public is a detailed knowledge of the German material held in Russia. This includes not only the famous Schliemann gold from Troy, or the eighty treasure trove items comprising the Eberswalde gold or the precious books from the Gotha Collection, but countless art objects, libraries and archival material that are just as important. We need only consider the German cultural property stored in the Pushkin Museum in Moscow and the Hermitage in St Petersburg, including valuable collections of drawings from the Bremen Kunsthalle and the Krebs Collection as well as the two Gutenberg Bibles, the library taken from the Sächsisches Landesbibliothek in Dresden and the sixteenth-century collection of rarities as well as important archival material such as the estate of Walter Rathenau and material from the Justice Ministry and Supreme Court of the German Reich. Besides extensive collections from the Berlin museums there are thousands of extremely valuable paintings taken from public and private collections, including the Wilhelm von Humboldt bequest from Schloss Tegel. The list of museum exhibits, library items and archival material affords a cross section through German history and German museum culture which had developed over centuries. The sheer quantity of German cultural property held in Russia gives some indication of the extent to which future Germano-Russian relations might again be impaired, a deterioration that could be triggered at any time if there is no success in making action conform to the terms of the treaties concluded.
Was the taking of loot authorised by Allied special law?
Yet another legal aspect relates to the question of whether the embargo on removing cultural property during or after hostilities had been superseded by Allied special law. But the law put in place by the Allied Control Council does not provide any authorisation for plundering forays of the type initiated by Stalin either.
And even if the Allied Control Council had given approval for the removal of German art works in some domains, it is still debatable whether this would in fact have been legal against the background of international law as it was then and is today. This brings us to a crucial question in the negotiations so far, a question relating to the core reason for the claims that property should be returned from Russia. The fact that an agreement regarding the return of the cultural property was reached in 1990 takes account of the core reason why such property is given international protection. For a long time now, since the beginning of this century in particular, international law has afforded special protection to the cultural property of another nation State because it represents the historical achievements of a people and a nation and serves as a historical symbol of the identity of a people. The contents of museums specifically count as cultural property, achieving a special significance in their particular function of safe-keeping and public display. Protecting the cultural property of a neighbouring State from being removed in war at the same time expresses respect for another people with regard to a specific historic achievement. Therefore cultural property should not be regarded primarily as stock-in-trade or objects representing wealth that might be used to alleviate financial emergencies in individual countries. Its special status in international law also means that it is inappropriate to bring it into discussions regarding reparations. If we take account of this inner link to the people of the treaty signatory, it becomes clear that questions relating to financial compensation or reparation provide no useful criteria here.
Another aspect relates to the historical connection between the removal of property by the Soviets and Nazi plundering in the Soviet Union, and the different treatment of the two cases. Prevailing international law does not allow the two cases to be treated differently as regards the restitution of cultural property. The protection of the cultural property of foreign states and peoples applies independently of the provocation given. The German side has never disputed that it was illegal to have removed cultural property from the Soviet Union during World War II and has always expressed deep regret that this took place. It seems all the more important that the essential conclusions should be drawn from this and any form of unilateral confiscation comprehensively repudiated. Respect for the people of the other treaty signatory alone requires both parties to distance themselves from the barbaric raids by the Nazis and constantly reemphasise esteem for the culture of their neighbours.
This applies particularly with regard to the treaty concluded in 1990. Since 1954 the removal of cultural property in the context of war had again been proscribed, more clearly still, within the framework of UNESCO and in 1990 and 1992 the partners to the treaty were fully aware of this changed situation. Consequently there can be no question of reviving what happened in 1945 and the post-war period in settling the matter of the return of property after the conclusion of the Two Plus Four Treaty.
If the question of war loot is considered against the background of the arguments outlined above, there is no point of view that would justify being proud of "war loot" or "victory trophies". And if we observe how the Soviet authorities behaved with regard to German cultural property, it is clear that the Soviet Union felt no need to emphasise the extent of the German treasures that had been confiscated. Apart from the items returned to the GDR, they were shrouded in a deep cloak of mystery, and the fact that they were indeed held in the Soviet Union was denied for over forty years, so that these treasures were finally categorised as missing presumed lost. It was only in the late 1980s that the Soviet government was impelled to admit that the missing cultural property was in the Soviet Union, or Russia. Only after that could the extent of the cultural property located there be assessed. It was this stubborn denial that they were in possession of German cultural property that angered Russian scholars in particular, their main criticism being the way the public were kept in the dark. Many scholars found it particularly reprehensible that cultural property of outstanding value was hidden away in the vaults of Soviet museums instead of being made accessible to those interested in it - research purposes, for example. The concealment of the cultural treasures over many decades does not imply the kind of feelings usually associated with "trophies" of victory.
German plunder was returned by the wagonload
There is yet another argument that should be considered because it sheds considerable light on the overall relationship of the parties to the treaty. Anyone with the impression that only Russia was committed to returning cultural property while demonstrably there were no corresponding cultural items in Germany that should be returned to Russia as a quid pro quo would be misunderstanding the agreements reached in 1990 and 1992. The relationship between Russia and Germany is in fact one-sided as regards the quantity of the cultural property to be returned if we consider the position from the perspective of today. Hardly any objects of Russian origin which would be covered by the treaty are to be found anywhere in the Federal Republic. There has therefore been talk of a regrettable "asymmetry" that might work to Russia's disadvantage. However this impression is only valid if we consider the present situation on its own. This assessment disregards the Soviet cultural property brought to Germany by the Nazis which was assembled by the Allies at so-called "collecting points" and already returned to the Soviet Union after the war by the coach-load. If these restitutions are brought into the equation then the seemingly one-sided picture alters. The treaties of 1990 and 1992 stand at the beginning of a new development and it would be disastrous if the intention were to interpret the provisions of the treaty which came into force some time ago with an eye to the past rather than to the future. Concepts such as the "world cultural heritage" or "European cultural heritage" are very much to the fore at the moment, and the treaty signatories should be guided by these criteria. If the European cultural heritage is under discussion, it would be a travesty of the meaning of these developments to misuse reference to the European cultural heritage in order to legitimise being allowed to hold on to war loot. Respecting the European cultural heritage implies returning cultural property appropriated in the context of war to the nation in question, while at the same time allowing special dispensations for exhibitions or filming for example, such as were already practised when property was returned to the GDR by the Soviet Union. The idea of the world or European cultural heritage can never be used to dress up the confiscation of historical cultural heritage in a semblance of legality. Pragmatic solutions orientated towards the future must not disregard the fundamentals of prevailing international law. Instead they should make use of it to help create stable, enduringly friendly relations.
The author is participating in the Germano-Russian negotiations regarding restitution as the chairman of the German specialist group dealing with questions of law. This article represents the writer's personal opinion only.
©. Frankfurter Algemeine Zeitung
Originally appeared in The Art Newspaper as ‘Why has the war loot question still not been resolved?'